3d DCA Watch -- Judge Shepherd Has Declined Your Invitation Edition!

Hi kids!

Well summer has finally made its way down to the fortified concrete bunker of justice, that hallowed spot by the highway where the Resplendently Robed Ones swill their free coffee and ply their shiny judicial wares.

Indeed, there are only two civil opinions this week, and one is a child dependency case, so that one doesn't even really count.

Still, let's take a look:

Valenzuela v. GlobeGround:

This is a gender discrimination case arising under the Florida Civil Rights Act of 1992.

The trial court granted summary judgment because the plaintiff did not satisfy the "similarly situated" prima facie requirement set forth in the seminal McDonnell Douglas opinion. The 3d affirmed Judge Glazer.

See, I'm not just obsessed with Iqbal or Venetian Salami. I know some other opinions too!

But McDonnell Douglas lacks a certain pizazz, if you will. It sounds like the name of a B-level actor from the 50s.

Plus it comes from 1973 -- a great year for films and music -- but otherwise a pretty crappy time for our country.

Sorry Miguel -- I'm sticking with what works.

RS v. DCFS:

Don't you just love the way Judge Shepherd frames his opinions, especially when he is trying to make a point about narrow statutory construction or the limited role of the judiciary:

By this appeal, the Department invites us to expand the definition of the “environment” in which a child “lives”—for purposes of attaining adjudications pursuant to this subsection of Florida’s dependency laws—beyond the limits to which we have heretofore expanded them: the child’s residence, see J.O. v. Dep’t of Children & Family Servs., 970 So. 2d 395 (Fla. 3d DCA 2007), and the curtilage surrounding the residence, J.C. v. Fla. Dep’t of Children & Family Servs., 937 So. 2d 184 (Fla. 2006). We decline the invitation.

Well, it wasn't really a formal invitation so much as you know, I'm going to the mall a little later and I thought maybe we could just hang out or something?

I mean, are you kidding, an invitation? You thought I was serious? I didn't want to go out with you either!

Seriously, though, for whatever reason, the statute says "live in an environment," instead of "reside in an environment" or "live in a home."

Is an "environment" the same as a home? Or is it intended to capture something more or different than merely the physical confines of an actual residence?

Let's see what Black's Law Dictionary says:

In performing our analysis, the Department would have us place our primary focus on the word “environment” in section 39.01(43). Focusing on this word, the Department argues the environment in which the child lives must include broadly “the totality of the child’s exposure.” We do not believe the phrase “live in an environment” can be interpreted so broadly. Rather, we are of the opinion that the focus should be on the word “live.” Although the word “live,” is not defined in section 39.01, we believe those who come within the purview of the statute would readily understand the word “live” and the phrase “live in an environment,” based upon ordinary meaning and common experience, to mean the environment or place where a person actually resides. Our conclusion is supported both by reference to the dictionary, see Black’s Law Dictionary 842 (5th ed. 1979) (“Live, v. “To live in a place, is to reside there, to abide there, to occupy as one’s home.”) (emphasis added), and the fact that in its initial filing in this case on July 27, 2007, the Department itself used the term “reside” in substitution for the word “live,” in making allegations relating to where the child lived for purposes of section 39.01(43).

First off, what term the Department used in a brief one time should have zero impact on a proper statutory analysis.

Second, if you are relying on Black's Law Dictionary as your primary authority -- along with "ordinary meaning and common experience" (the non-Wise Latina variety, of course) -- it's probably not as well-settled an issue in Florida as it seemed at the onset.

Finally, I wonder why Judge Shepherd went to Black's for a definition of "live" but not for "environment"?

Let's see if Black's Law Dictionary defines "environment" to be interchangeable with "place where a person actually resides" as Judge Shepherd used the word in the excerpt above.

Environment. The totality of physical, economic, cultural, aesthetic, and social circumstances and factors which surround and affect the desirability and value of property and which affect the quality of peoples' lives.

Yep, seems pretty narrow to me too -- an open and shut case!