Bit of a slow day, news-wise, here is what's on my mind today:
1. Just like a Justin Bieber concert, the Palm Beach Bench & Bar Conference is SOLD OUT:
BENCH BAR CONFERENCE IS SOLD OUT AND WE ARE UNABLE TO ACCOMMODATE ANY WALK-INS
Sorry judges, you'll just have to gate-crash.
2.The DBR has handed out their firm awards in various categories, congrats to the winners!
3. Gary Farmer has filed suit against Citizens Property Insurance, let's hope the litigation concludes sometime before the last citrus canker case goes to trial.
Williams said that the canker-related litigation is the longest and most expensive litigation the state has ever been involved in as a defendant.
Documents filed during the Broward trial in 2011 showed the state had paid its attorneys $9.2 million. Gilbert estimates the state has spent at least $1 million more in legal fees since then.
However, the state does not plan to settle the two remaining lawsuits.
“The department’s position has not changed,” said Florida Department of Agriculture and Consumer Services spokeswoman Amanda Bevis.
Wes Parsons, a Miami attorney representing the state, said the homeowners’ attorneys are seeking roughly $500 million for the tree payments and their fees and costs.
“The state of Florida does not have half a billion to pay the plaintiffs,” Parsons said.
Ok, I call bullcrap.
While I have no doubt taxpayers have spent $10 million+ to lose repeatedly in court defending a half-baked program that was poorly designed and even more poorly executed, I have to believe the half billion number is a bogey man.
Are there not any competent mediators available to put this case to bed?
BTW, if you keep losing these cases, the number will rightly go up (or has no one thought of that?).
The concluding arguments were heard Thursday. If the plaintiffs prevail, a jury trial will be held to determine the amount of compensation owed the homeowners for their trees.
Plaintiffs’ attorney Robert Gilbert of Miami said he expects the judge’s decision would take about two weeks.
The canker program was really a charade meant to save trees in the commercial citrus industry from the spread of canker at the expense of private homeowners, he told the judge. In effect, the residents whose trees were cut down had to shoulder the burden of a problem that should have been shared by the public as a whole, Gilbert said.
Wes Parsons, attorney for the Agriculture Department, retorted that there was no conspiracy by the state in implementing an eradication program for citrus canker, and that the state was not out to hurt residents.
Why doesn't the State stop the legal bleeding and put these cases to bed already?
Let's admit it -- the program was flawed, of dubious value, resulted in the permanent alteration of our landscape and neighborhoods, and engendered tremendous bad will.
Hasn't the legal strategy of fighting these things to the death "hurt residents" enough?
Judge Shepherd assumes the best in Judge Cardonne Ely's order granting a nominal amount of maintenance and cure to an injured seaman, but dissents from Judge Salter's affirmance:
I am sure the trial judge meant well. One also could not be faulted for detecting a tinge of sympathy for the seaman in the opinion of the majority. However, our legal system requires more than heartfelt sympathy.
Agreed, but what?
What is that missing ingredient?
(Readers, feel free to offer helpful suggestions!)
Maybe it's a sense of proportionality and reason when it comes to resolving disputes -- can you believe the State of Florida is still paying beau coup bucks to quality outside lawyers and still badly losing defending citrus canker cases?
OY VEH, has the State won anything out of this program, other than bad will and a string of legal defeats?
Just reading the Order, citing losses by the State in cases already tried in the 4th DCA, you come away with a sense that this thing is locked on autopilot, not unlike the old Soviet Union's nuclear Dead Hand.
Finally, a case about "mending the hold" -- one of my favorite obscure legal doctrines!
I can barely remember neighborhood citrus trees, but then I got a voucher at Wal-Mart and wound up purchasing old Adam Sandler movies instead of replanting all my lost tangelo trees.
The Florida Department of Agriculture, facing current and potential jury awards of tens of millions of dollars, says state law allows it to avoid paying judgments over actions taken to protect public health, safety and welfare, unless the Legislature appropriates the money. And the agency has no plans to make that request.
Hmm, government takings of private property without compensation, taxpayer money wasted on outside legal fees, and jury verdicts undone by legal subterfuge -- where's Rick Scott when you need him?
2. It's almost worse that Con Law Perfesser Obama legitimized Gitmo, indefinite detention, and military tribunals than it is that "rancher" George W. Bush instituted these Constitutional aberrations in the first place.
4. I totally agree with Andrei Codrescu on NPR the other day about defacing my new e-book with some "crowdsourced" idiocracy contest regarding highlights:
And this thing on my Kindle is supposed to be new. And then I discovered that the horror doesn't stop with the unwelcomed presence of another reader who's defaced my new book. But it deepens with something called view popular highlights, which will tell you how many morons have underlined before so that not only you do not own the new book you paid for, the entire experience of reading is shattered by the presence of a mob that agitates inside your text like strangers in a train station.
5. Dan Le Batard may finally have to blame someone I've never seen him identify before as being responsible for anything negative, ever -- the players.
6. Wes Parsons was only hoping to lose the latest citrus canker trial by $3 million, but instead lost by $12 million (plus fees and substantial interest), but what's $10 or so million between friends:
"I was hoping for the amount of compensation already paid, which was around $3 million."
Question -- wasn't there a defense on liability too?
It's hard to describe exactly why I find the state's continued defense of its disastrous citrus canker eradication program so irksome.
Was it the program in the first place, so badly designed, industry-skewed, poorly managed and enforced, and which only succeeded in eradicating a way of life for many of us who grew up in South Florida enjoying the abundant fruit on every street corner and every backyard?
Is it the pointless waste of judicial resources, forcing jurors, experts, judges, and precious time and money to be spent trying the same issues over and over again in county after county?
You gotta love litigating against the state -- it's like fighting with a headless chicken: there's no one in charge, no one accountable, no one making "hard" decisions that involve long-term thinking, and absolutely -- and I mean absolutely -- no one counting the money.
That's how you can wind up with this absurd decision by the 4th DCA, which the DBR reports on here, where the court actually has to explain to the state that spending tons of money trying and losing the citrus canker case does not mean that the state somehow "won" and that they therefore are entitled to -- of all things -- fees(!):
We find the Department’s arguments to be frivolous. No matter how one looks at the facts, the owners prevailed on the significant issues. The mere fact that the owners sought more in damages than the jury awarded does not mean that they did not prevail on both issues of liability and damages.
This is mind-numbingly stupid.
In fact, I can't even begin to put in words how asinine this argument is and that the state actually went ahead and paid Wes Parsons good taxpayer money to take it all the way up on appeal.
God I gotta do something to calm down and take my mind off this drivel:
Ok, it's working -- I'm starting to feel better now.
The WP's Ezra Klein offers some bracing insights into all those supposedly confidential listserves everyone and her mother belongs to:
A private e-mail list is not public, but it is electronically archived text, and it is protected only by a password field and the good will of the members. It's easy to talk as if it's private without considering the possibility, unlikely as it is, that it will one day become public, and that some ambitious gossip reporters will dig through it for an exposure story. And because that possibility doesn't feel fully real, people still talk like it's private and then get burned if it goes public.
(Boy I hope my Bo Derek Is a Goddess listmates don't turn on me after all these years.)
Given that we just saw the State blow $120k on dubious "expert" anti-gay adoption testimony, I don't want to overstate anything.
But is it too much to suggest that the State's furious scorched earth litigation strategy in defending the citrus canker lawsuits -- paying Adorno & Yoss hundreds of thousands of dollars (millions?) to force Bobby Gilbert to try multiple suits in different forums for the last six years -- ranks up there with one of the more colossally stupid wastes of taxpayer money in recent memory?
I guess I say that given the canker eradication program they have spent so much money vigorously defending at taxpayer expense -- a program that radically changed the landscape of South Florida -- was such a wanker in the first place.
As I've previously written, if you grew up in South Florida you probably remember orange, lemon, grapefruit, sour orange, blood orange, tangelo, those weird hard orange/lemon hybrid fruits, and all manner of citrus in your backyard, in your neighbor's backyard, in the empty yards, in the swales, on your way to school, on your way to your friend's house, and pretty much everywhere you went.
You could bike around the block and collect all the citrus refreshment/armed weaponry you needed in a matter of moments, and later on it turned out all that backyard fruit made a great marinade!
But those days are gone.
In their place, we've had a perpetual transfer of taxpayer funds into the coffers of Adorno & Yoss, so they could seriously argue that suits that raise similar issues in different counties all have to proceed simultaneously (rather than wait for the benefit of an appellate ruling in one of the cases that could impact the legal issues raised in the other suits).
That should have been a big sign that something was rotten in the overly zealous way these cases were defended.
I have no idea why the State feels the need to so obstinately defend their questionable citrus canker program in the first place (pride/hubris from the decisionmakers involved?) but we are finally beginning to see the light at the end of the Wal-Mart voucher tunnel:
The Fourth District Court of Appeal unanimously held that some 55,000 Broward property owners are due $11 million for healthy trees felled by state chain saws from 1995 to 2006.
``Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them,'' the judges wrote. ``Under any possible meaning, if government cuts down and burns private property having value, then government has taken it. And if government has taken it, government must pay for it.''
Confirming a widely held belief among property owners, the ruling said it was ``apparent from the history of this case that [the Department] destroyed these privately owned healthy trees not because they were `imminently dangerous' to anybody, but instead to benefit the citrus industry.''
Maybe now -- finally -- we have a window for the State to take a breath, reach out and turn off the Adorno litigation spigot and try to find a reasonable resolution to this fiasco?
Of course not:
``We respectfully disagree with the appeal court, and we will appeal it to the Florida Supreme Court,'' Florida Department of Agriculture spokesman Terence McElroy said, citing $44.5 million already paid on claims around the state.
Although the decision applies only to the Broward suit, plaintiffs' attorney Robert Gilbert said it will affect class actions pending in Miami-Dade, Palm Beach, Lee and Orange counties. He called the state's repeated appeals ``abusive.''
Florida ``wasted over $500 million destroying these trees, and millions more battling us in court,'' he said.
Why the reflexive, split-second reaction calling for an appeal? Is it more of the bury-your-head-and-keep-on-going legal strategy we've seen so far?
How about "we intend to carefully study the appellate opinion and confer as to what additional legal steps, if any, will be taken."
Obviously, the state's entitled to a defense and you need to find some numbers everyone can live with, but come on already.
You can read the entire opinion here, but I found the special concurrence by Judge Levine to be powerful:
I fully agree with the majority opinion, but I write to emphasize the clear legal right of the individual homeowner to receive just compensation as a result of the actions of the State. The State's actions in cutting down these trees most assuredly constituted "takings," whether under the regulatory takings or physical takings analysis, that demanded just compensation. Regardless of the type of takings denominated here, the result in this case must be the same — full and just compensation to the homeowners.
By requiring the State to abide by its constitutional obligation to compensate individual homeowners, we safeguard the property rights of all. "The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary." Joseph Story, The Value and Importance of Legal Studies (1829), in Miscellaneous Writings of Joseph Story 503, 519 (William W. Story ed., 1852).
But alas life goes on, and indeed the coffee must be obsessively swilled, the Resplendent Robes must be adorned and/or worn, the written utterances must be released, and the bunker must be -- you guessed it -- heavily-fortified.
Back then in South Florida -- you know, the good ole' days -- there used to be citrus trees everywhere, in every yard and neighborhood, and you could marinate pork in fresh-picked sour oranges, eat fresh grapefruit as you walked down the block on your way home from school, and help Aunt Bee bake her delicious key lime pie, or something like that.
Anyway, even though there was a full-on trial and an appeal is pending before the 4th DCA, Wes Parsons of Adorno has been defending the State (and merrily billing taxpayers all the way) -- by trying to proceed with the Miami-Dade action even though there seems evident benefit in waiting to see what the 4th does first.
Back in 2008 Wes explained his logic to the DBR:
“Even if you were to start counting defense dollars versus tree payments, I don’t think it would work out to be cheaper to give money to plaintiffs counsel and their constituents than it is to pay lawyers to defend you,” Parsons said. “The people who will make money are the class members and the plaintiff counsel. That money is going to presumably come out of general revenue of the state of Florida at a time when it’s suffering budget cuts and doesn’t have enough money for schools or law enforcement.”
Query whether that logic still holds up (assuming it ever did) many many taxpayer-funded billable hours later.
Well today the 3d has ruled on Wes' interlocutory appeal of the stay Judge David Miller entered pending disposition of the 4th DCA appeal.
In this case, the Florida Department of Agriculture and Consumer Services seeks review of a non-final order granting a stay of an individually filed inverse condemnation action, for the destruction of citrus canker exposed trees, pending a decision of the Fourth District Court of Appeal in a related class action on which it appears the briefing recently has been completed. The Department characterizes the order under review as “in the nature of an injunction” and therefore seeks to invoke the jurisdiction of this Court under section 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure. We treat the appeal as a petition for certiorari but deny the relief sought.
Sheesh, first Garvin and now Judge Shepherd -- we really are living in strange times.
We now return you to your regularly scheduled Scott Rothstein yank fest.
Hi kids, so I officially received my seventeen-thousandth email about the "sexting" controversy over at the Miami office of White & Case.
From Carvalho to the former Mayor of Detroit, how many times before canoodlers learn that your hand-held device is going to get you in trouble?
BTW, if you are still using that dinosaur blackberry and have not yet switched to the Palm Pre, you canoodlers need to upgrade your dating game hardware pronto.
Well as always I'm excited because today is that glorious, sanctified day of the week, when the Lord Gods and Goddesses of the Concrete Bunker By The Highway emit their weekly written utterances, that day of all days when the resplendently robed ones swill coffee and exchange pleasantries with nervous lawyers by that ancient coffee machine in the ultra-hip 70s-era professional office/ante room/library waiting space.
Does that place remind anyone else of the reception area from the old Bob Newhart Show?
Anyways, it's onward and forward to our patented 3d DCA Watch:
Get ready to be floored people, read and weep as you savor the full essence of this opinion:
Before WELLS, ROTHENBERG, and LAGOA, JJ.
PER CURIAM.
Affirmed.
WELLS and LAGOA, JJ., concur.
Pretty impressive, huh?
Our work here is done.
But wait -- where's Judge Rothenberg?
Oh oh, dissent time:
Because the trial court’s order is in direct conflict with this Court’s 2006 mandate; section 73.071, Florida Statutes (2008), regarding eminent domain proceedings; Florida Rule of Civil Procedure 1.220(d), regarding class action certification; and relevant case law, I would reverse the order staying the proceedings and remand with directions to proceed with class certification forthwith.
Why have a pointless class cert hearing now, pray tell:
While I believe rule 1.220 does allow for some discretion in the matter, I agree with the Department that the trial court abused its discretion because the certification (or non-certification) of the class in the Miami-Dade County citrus canker litigation distinctly differs from the class certification process in Broward County, the resolution of the Broward County case will not have any bearing on whether class counsel can meet the class certification requirements in the Miami-Dade County case, there has already been a protracted delay, and the stay issued is indefinite and excessive.
"Distinctly differs"? Really?
What exactly does Judge Rothenberg think is so "distinctly different":
The class certification process not only tests the basic requirements of commonality and numerosity, it tests the adequacy of the class representatives and class counsel, which differ from, and are not dependent on, the rulings made by the Broward circuit court, the Fourth District Court of Appeal, or ultimately the Florida Supreme Court.
Ok, got it --
"Look...me and the McDonald's people got this little misunderstanding. See, they're McDonald's...I'm McDowell's. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds. "
Of course the homeowner needs be an adequate representative, I get that. But the threshold is not high and should not be very difficult to establish.
And class counsel is the same, no? Is that really a sufficient reason to hold an evidentiary hearing?
Does it really make sense to take up Adorno's suggestion and have the state pay them more money to oppose class cert in Miami-Dade based on these flimsy grounds, where all the other issues are identical, even though the issues may become moot, may require a different result based on appellate rulings, may be reversed entirely, or may need to be retried from scratch?
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