| Date issued: 04/05/2011 | |
| Editor: Betsy Stupski |  |
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.
Appellate Alert 2011-7
April 5, 2011
United States Supreme Court
Connick v. Thompson 09-571
3/29/11
District Attorney’s Office could not be found liable for failure to train based on one incident of failure to disclose a lab report.
Prosecutors in the Orleans Parish District Attorney’s Office failed to disclose a lab report that would have helped exonerate Thompson. As a result he was convicted and put on death row. A month before his execution, the lab report was revealed. Thompson was found not guilty at a retrial. He sued the district attorney’s office pursuant to §1983. He claimed that the district attorney office demonstrated a deliberate indifference in its failure to train its attorneys. The jury found the district attorney’s office liable for a failure to train and the Fifth Circuit affirmed.
The Supreme Court reversed saying that the district attorney’s office would not be liable for a failure to train based on a single incident where there was a failure to turn over a crime lab report.
09-571
 USSCTcv Connick v Thompson.pdf
United States District Court, Middle District of Florida
Sons of Confederate Veterans v. Atwater 6:09-cv-134
3/30/11
The Court found that the specialty license plates were private speech protected by the First Amendment.
The District Court found the Florida statues governing the specialty license plates were unconstitutional because they gave the Florida Legislature unfettered discretion over which license plates would be produced.
Sons of Confederate Veterans (SCV) followed the administrative procedures in order to submit a design for a Florida specialty license plate. Ultimately however, the Florida Legislature did not take action to approve the plate. SCV sued, claiming a violation of the First Amendment. The question before the district court was whether the license plate was governmental speech or private speech. The Court determined that the tags presented private speech. The Court said, “’The most obvious speakers in the specialty-plate context are the individual vehicle owners who choose to display the specialty plates and the sponsoring organizations whose logos or messages are depicted on the plates.’.. [S]pecialty ‘plates serve as 'mobile billboards' for the [sponsoring] organizations and like-minded vehicle owners to promote their causes,’…. With more than 110 specialty plates available to Florida vehicle owners, it is unlikely that the State of Florida would be identified as the speaker communicating each of the messages contained in the specialty plates…’[T]he wide variety of available specialty plates further suggests that the messages on specialty plates communicate private speech.’). Additionally, because specialty license plates are voluntary rather than compulsory, private individuals-rather than the government-- choose which message, if any, they want to communicate. Under these circumstances, observers will not appreciate the identity of the speaker to be the State of Florida.” The Court went on to hold the entire statute governing the specialty license program to be unconstitutional. They concluded by saying, “By placing unfettered discretion in the hands of government officials to grant or deny access to a public forum, section 320.08053, Florida Statutes, ‘creates a threat of censorship that by its very existence chills free speech.’ …This threat of censorship is heightened when the speech at issue is controversial, as it is in this case. Indeed, the fact that the speech is controversial strikes at the very heart of First Amendment protections, for "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
6:09-cv-134 SonsCV v Atwater.pdf
Fourth District Court of Appeal
Pino v. Bank of New York Mellon 4D10-378
3/30/11
Although the bank had submitted suspicious mortgage documents, the court did not strike their notice of voluntary dismissal because they had not received affirmative relief and because the Defendant had suffered an adverse impact.
Bank of New York Mellon (BNY Mellon) filed a foreclosure action against Pino. Pino moved to dismiss because BNY Mellon had no documentation to prove the mortgage had been assigned to them. In response BNY Mellon amended their complaint by filing an unrecorded assignment whose origins were suspicious at best. The date and the person executing the document brought it into question. Pino then moved for sanctions, claiming that the newly produced document was fraudulent. BNY Mellon then moved for a voluntary dismissal. Five months later BNY Mellon brought the same foreclosure action again. Pino moved for the court to withdraw the voluntary dismissal from the earlier action and enter a dismissal with prejudice based on fraud on the court. The trial court refused to strike the voluntary dismissal because the general rule prohibits setting aside the plaintiff’s notice of voluntary dismissal where the plaintiff has not obtained any affirmative relief before dismissal.
The Fourth District affirmed the trial court. In its analysis, the Fourth District acknowledged that a court can refuse to a notice of voluntary dismissal and retain jurisdiction when a fraud is perpetrated on the court. However, the Court went on to say that BNY Mellon had not obtained any affirmative relief. The Court also noted that the Defendant had not been adversely affected by the notice of dismissal but was entitled to costs and attorney’s fees.
4D10-378 4dcacv Pino v Bank of NY .doc
Gerber v. Vincent’s Men’s Hairstyling, Inc 4D09-5059
3/30/11
The Court found that an employee could pursue her tort claims even though she had not complied with the pre-suit requirement for discrimination and sexual harassment suits.
Gerber was a receptionist at a styling salon and received unwanted sexual advances from its owner. She filed an action with tort claims of battery, negligent retention, and vicarious liability. The Defendants moved to dismiss, arguing that her complaint was actually an action for sexual harassment and discrimination subject to the pre-suit notice provisions contained in state and federal law. The trial court granted the motion to dismiss and awarded attorney’s fees to the Defendants.
The Fourth District reversed stating, “Florida law permits multiple causes of action to exist. Florida Rule of Civil Procedure 1.110(g) states that ‘[a] pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined.’ It further provides that ‘[a] party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.’” The Court also rejected the Defendant’s argument that worker’s compensation was the Plaintiff’s exclusive remedy the employer’s sexual advances were deliberate and should not be considered an inherent risk in the work environment.
4D09-5059 4dcacv Gerber v Vincents .doc
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