Summati
The
Escambia/Santa Rosa Bar Association
n
December 2014
Volume 3 / Issue 4
Veterans Stand Down
page 14
Where Do You Draw the Line? Brenner V. Scott: A Closer Look • Wall of Honor Board of Governors • Alan Sheppard Dedication
December 2014 www.esrba.com The Summation 1
Inside
The
Summation
11 . Where Do You Draw the Line? 14. Veterans Stand Down 17. Brenner V. Scott: A Closer Look 22. Wall of Honor Escambia-Santa Rosa Bar Association 216 South Tarragona Street, Suite B Pensacola, FL 32501 Phone: 850.434.8135 Fax: 850.436.8822 email: esrba@esrba.com Lawyer Referral Service: 850.434.6009 Executive Director Michael Doubek mike@esrba.com Editor Patricia Buchanan Wright patriciabwright@aol.com Published quarterly by the Escambia-Santa Rosa Bar Association as a service to its membership. Any article herein may be reproduced provided credit is given both to The Summation and the author of the article. Articles appearing in The Summation are not to be construed as official expressions of the views of the Escambia-Santa Rosa Bar Association. Official positions are expressed only by formal resolutions adopted by a majority of the membership and will be so designated when published. Editorials are expressions of the opinion of the Editor. Due date for all advertisements, articles, and announcements is the first of the month for the issue you wish to advertise in. Address all editorial correspondence to the Escambia-Santa Rosa Bar Association office. For all inquiries concerning advertising rates, contact Ballinger Publishing. “The Summation Committee is dedicated to providing a publication to the legal community which contains articles that are accurate, informative, entertaining, educational, relevant and timely.” Summation Committee If you have any comments or suggestions about The Summation, please feel free to express them to any of the committee members. If you would like to join the committee, please call the Bar office at 434.8135.
Judge Terry Terrell Benjamin Stevenson Clara Smith Paula Walker Tami Stokes Debra Bass Carrie Cromey
Jason Boatwright Brooke Jones Gerald McGill Caroline Peterson Lisa York Susan Woolf
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24. Alan Sheppard Dedication 27. Lawyer’s Seasonal Greeting to You 28. Photos
In every issue 3. From the President 4. Chief’s Corner 5. New Members / Announcements 6. Board of Governors 8. The Bottom Line 20. Judge’s Preferences 25. News From the Court 30. News From the Clerk 31. Classifieds / Calendar
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Reproduction or use of the contents herein is prohibited without written permission from the publisher. Comments and opinions expressed in this magazine represent the personal views of the individuals to whom they are attributed and/or the person identified as the author of the article, and they are not necessarily those of the publisher. This magazine accepts no responsibility for these opinions. The publisher reserves the right to edit all manuscripts. All advertising information is the responsibility of the individual advertiser. Appearance in this magazine does not necessarily reflect endorsement of any products or services by Ballinger Publishing. © 2013 Ballinger Publishing. All Rights Reserved.
From the President
NEW WEBSITE NEW OPPORTUNITIES By JAMES WEBER
Dear Members: The ESRBA is continuously striving to provide
What does this mean for you, the ESRBA member? The entire ESRBA website and Membership Directory
more services and better benefits to you and to
will be available to you not only on your desktop
all of our other loyal members. The Association is
computer, but on every mobile device now in the
presently working hard on several projects that we
marketplace. Fellow attorneys and the general
believe will be of great benefit for years to come.
public will be able search and find you by way of
One of the projects is the development of a new
our accessible membership listing and enhanced
updated website. It has become evident that the
premium profiles. These profiles will provide custom
Association’s present website must be updated to
and valuable information about you and your firm
keep up with the latest technology and with the
with direct links to your phone, e-mail or website.
technological sophistication of our membership and
You will be able to download CLE’s from the library
of the general public. To accomplish this goal the
to listen to at your leisure, and pay for them online.
ESRBA formed a social media/website committee to
You will also be able to pay dues or sign up and pay
evaluate our website and social media needs, discuss
for events if you choose.
goals and options for upgrades, and recommend a course of action to implement improvements. Jodi Cooke chaired the committee comprised
Behind the scenes, the new website will be hosted on a secure server and allow ESRBA staff to administer seamless e-mail and event management
of Geoff Brodersen, Garrett LaBorde, Aaron
systems. The website will be updated monthly for
McCurdy, Carolyn Ward, Mike Doubek and Jason
new mobile devices and operating systems that come
Boatwright. The committee developed a functional
on the market. Staff will be able to maintain the day-
requirements specification and evaluated vendors
to-day function of the website and visitor analytics
based on those specifications. They recommended
will allow us to know which areas of the website are
to the Executive Council at its November, 2014
being used more than others.
meeting the website development firm of Association
This website development is a sizable investment
Benefits International (ABI) to provide the ESRBA a
for the ESRBA but when it is completed, we know
desktop website, mobile website, member database
that you will find it a valuable resource for your law
management system, hosting, analytics, merchant
practice.
services and staff training. The new website development will begin in mid-December, 2014 and be completed in early February, 2015. December 2014 www.esrba.com The Summation 3
Chief’s Corner
INCORPORATING TECHNOLOGIES WITH THE COURT SYSTEM By TERRY D. TERRELL Consistent with advances in the digital age, the court system is moving toward a time when paper will be, with limited exceptions, a thing of the past. We are all aware of movement toward e-filing in recent years. That evolution is migrating into judicial offices through the purchase of “judicial viewers.” Judicial viewers are software programs that act as the electronic case file. It allows judges and judicial assistants (JA’s) to view the case file and their docket electronically, thus eliminating the need for the clerk to create a paper file. In addition, they can take case notes, exchange documents and messages with the clerk, and electronically sign orders. Judicial viewer programs also allow judges to group pleadings and orders for ease of access, and even provide a global word search function which is useful in reviewing cases and drafting orders. The program also runs judicial reports frequently requested by the Supreme Court and the Legislature. After its initial development by the clerks and judiciary in the Twelfth Judicial Circuit, the software vendor, Mentis Technologies, began marketing a judicial viewer program in 2011. Mary Johnson, former Santa Rosa County Clerk of Court, recognized the potential value of the programming and purchased the product called “aiSmartBench” from Mentis for the judges, JA’s, and clerks in Santa Rosa County. It was her
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expectation that the program would result in substantial cost savings from reduced employee workload, to savings in paper file creation, movement, and storage. Court and clerk personnel in Santa Rosa County quickly adapted to the use of the program in early 2012. It substantially reduced the voluminous paper flowing through their offices, across their desks, and in their courtrooms. Other vendors began to develop similar products when they recognized the market potential of such programs. Judicial viewers are now being installed around the country, including in Arizona, Illinois, and Texas. To manage the sale and installation of judicial viewers in the state of Florida, the Florida Court Technology Commission (FCTC) developed state-wide standards and a certification process to ensure the viewers were uniform in meeting the needs of the court. Settlement monies from litigation filed by various Attorneys General against lenders for improper foreclosure practices were distributed to the court system by the Florida Legislature to assist with the foreclosure caseload backlog. A significant portion of the allocation was authorized to purchase technology. Because the First Judicial Circuit was successfully using “aiSmartBench” in Santa Rosa County, and because it was the only FCTC certified judicial viewer program in the state at the time, “aiSmartBench” was purchased for all the judges in Escambia, Okaloosa and Walton counties. Due to the structure of the court system, each County Clerk of Court in Florida purchases a case maintenance system of their choosing. The judicial viewer program either overlays and integrates with the clerk’s case maintenance system, as “aiSmartBench” does, or more recently, some of the case maintenance systems, themselves, have added an FCTC certified judicial viewer. “AiSmartBench” has been up and running in Santa Rosa County for well over two years, and was successfully deployed in Walton County early this year. Both of those Clerks use the “Clericus” case maintenance system. The Clerk in Okaloosa County uses the “Benchmark” case maintenance system, and the “aiSmartBench” program is currently being “beta tested” as an overlay to “Benchmark” there. At this writing no major problems have been identified. As all of this was developing, the previous Clerk and the current Clerk in Escambia County have migrated from the “Courtview” case maintenance system to the “Benchmark” case maintenance system. As Escambia is the largest county in the circuit, the integration between the “aiSmartbench” judicial viewer and “Benchmark” case maintenance system has involved more coordination and challenges. We anticipate having all “aiSmartBench” programs in the circuit operational by June 30, 2015.
New Members Jessica A. Andrade Beggs & Lane, RLLP 501 Commendencia Street Pensacola, Florida 32502 (850) 432-2451 jca@beggslane.com Robert A. Andrade Moore, Hill & Westmoreland, P.A. 220 W. Garden Street, 4th Floor Pensacola, Florida 32502 (850) 435-3541 aandrade@mhw-law.com Mary G. McDaniel MGM Law, P.A. 4300 Bayou Boulevard, Suite 37 Pensacola, Florida 32503 (850) 450-1755 mgm@mcdaniellawpa.com Jerry D. Sanders Vernis & Bowling of Northwest Florida, P.A. 315 S. Palafox Street Pensacola, Florida 32502 (850) 433-5461 jsanders@florida-law.com Jessica L. Scholl Clark, Partington, Hart, Larry, Bond & Stackhouse 125 W. Romana Street, Suite 800 Pensacola, Florida 32502 (850) 434-9200 jscholl@cphlaw.com Jessica H. Schultheis State Attorney’s Office 190 W. Government Street Pensacola, Florida 32502 (850) 595-4787 jschultheis@sa01.org Gregory M. Whibbs, Jr. Whibbs & Stone, P.A. 801 W. Romana Street, Suite C Pensacola, Florida 32502 (850) 434-5395 gregory@whibbsandstone.com Amy R. Willis Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC 801 W. Romana Street, Suite A Pensacola, Florida 32502 (850) 266-2300 willis@carverdarden.com
Announcements JUDICIAL CHANGES
The Honorable W. Howard LaPorte will be retiring effective December 31, 2014 after nine years as a Circuit Court Judge. The Honorable Thomas R. Santurri, Circuit Judge, will be transferring from Escambia County to Walton County effective January 1, 2015. Judge-elect Jennie Kinsey will take the Circuit Court bench January 6, 2015.
JUDGE HILLIARD ANNOUNCEMENT
Santa Rosa County Judge Robert Hilliard has been appointed to the 27-member ‘Florida Commission on Access to Civil Justice’ by Florida Supreme Court Justice Jorge Labarga. The commission will study the unmet civil justice needs of low and moderate income people and recommend ways to address those needs. Judge Hilliard will serve on the commission with leaders from the private sector, the legal community and both other branches of state government.
POLICY CHANGE – NO PROPOSED ORDERS MAY BE E-FILED EFFECTIVE JANUARY 1, 2015
Effective January 1, 2015, the Escambia County Clerk’s office will no longer accept proposed orders through the Florida Courts E-Filing Portal. All proposed orders should be sent directly to the appropriate presiding judge. You will need to verify the judge’s preferences for submission with their judicial assistant. After January 1, 2015, any proposed order e-filed will not be accepted or docketed. PAM CHILDERS, Clerk of the Circuit Court & Comptroller First Judicial Circuit, Escambia County
BAR ASSOC. WELCOMES JD PEACOCK, II
The Escambia/Santa Rosa Bar Association would like to welcome Okaloosa County Clerk of Court and Comptroller, JD Peacock, II. Mr. Peacock was appointed as interim clerk by the Chief Judge of the First Judicial Circuit effective November 1, 2014, after the retirement of Don W. Howard on October 31, 2014. He was elected to the office of Clerk of Court and Comptroller in the August 2014 primary and will begin his elected term of office in January 2015. JD is a lifelong resident of Okaloosa County and currently resides in Shalimar. A graduate of Northwest Florida State College with a degree in Public Service Management, Mr. Peacock also obtained a Public Manager certificate from Florida State University, an Associate of Applied Science, Criminal Justice degree from Okaloosa/Walton College, and is a graduate of the Senior Leadership Program of Florida Criminal Justice Executive Institute. Mr. Peacock served in the U.S. Army from 1984-1988 and was affiliated with the Okaloosa County Sheriff’s Office from 1989-2014, starting as a volunteer deputy in the Sheriff’s Posse and working his way through the ranks to Major and Chief Administrator.
NEW OFFICES The Hamlin Law Firm is pleased to announce their new office at: 307 W. Chase Street Pensacola, FL 32502 Their email, phone and fax numbers will remain the same. Autumn Beck has opened her own firm at: Autumn O. Beck, PLLC 127 Palafox Place, Suite 100 Pensacola, FL 32502 (850) 466-3115
Mary McDaniel has opened an office at: MGM Law, P.A. 4300 Bayou Boulevard, Suite 37 Pensacola, FL 32503 (850) 450-1755 McDaniel & Ellis has changed their firm name to: Robert R. McDaniel, II, P.A. Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A. changed their firm name to: Conroy, Simberg, P.A.
December 2014 www.esrba.com The Summation 5
Board of Governors Report from
THE FLORIDA BOARD OF GOVERNORS By STEPHEN ECHSNER
The Florida Bar Board of Governors met on October 24, 2014. The major actions of the board and reports received included: A new Special Committee to Study Unethical and Illegal Solicitation of Legal Business was approved to review public and attorney complaints and perform a comprehensive analysis of any trending unethical or illegal activities. A report and recommendations are to be submitted to The Florida Bar Board of Governors by January 2016. The president will appoint 10-15 members to the special committee including representatives from the state attorney’s and public defender’s offices, an attorney who currently serves as counsel to lawyers in grievance matters, and a non-lawyer member of a Florida Bar grievance committee. The special committee will review complaints in the personal injury area as well as other areas of law practice. Additional details will be in the Nov. 15 issue of The Florida Bar News. Preliminary reports were presented from the Bar Admissions and
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Legal Education Committees of the Vision 2016 Commission. Board members discussed some of the findings of the committees and the ramifications of having a growing number of lawyers, increasing unmet legal needs especially for the middle class and the poor, and the difficulty of lawyers finding jobs, as well as falling law school applications and changes coming in legal education. The Vision 2016 Commission is conducting an in-depth review of four areas that will impact the future practice of law in Florida: Legal Education; Technology; Bar Admissions; and Access to Legal Services. This comprehensive study will provide the foundation to “prepare today’s lawyer for tomorrow’s practice.” Discussion was held on changes to proposed amendments to the comment to Rule 4-4.2 by the Government Lawyer and City, County and Local Government Law Sections. The rule governs lawyers contacting parties representing attorneys, including when those parties are government officials. President Greg Coleman said the board likely will devote considerable time at its December 12 meeting to discussing the amendments, which have generated considerable controversy among various Bar committees and sections. For more information: “Rule would address contact with represented government officials,” Florida Bar News, September 1, 2014. After the July Bar exam, the Young Lawyers Division (YLD) membership stands at 25,444, or about a quarter of the Bar’s total membership. The YLD, in conjunction with the board’s Communications Committee, held the first free CLE (1.0 general) on social media and technology webinar on using Facebook, Twitter and LinkedIn. The next webinar in the series will look at social media pitfalls. The annual YLD Affiliate Outreach Conference will be January 16-17 in St. Petersburg. The Special Task Force to Study Enhancement of Diversity in the Judiciary and on the JNCs is coordinating with other Bar committees efforts to improve diversity on the bench and JNC. The task force is addressing the report and recommendations of a president’s special task force appointed in February 2014.
December 2014 www.esrba.com The Summation 7
The Bottom Line
A HAND UP, NOT A HAND OUT: THE BENEFITS OF THE STAND DOWN PROGRAM By DANA MARTINEZ-JONES As everyone is aware, our veterans and the care provided them has been headline news for the past few months. Although what we have seen has been negative publicity, there are positive initiatives in our communities that should be given equal attention. Escambia and Santa Rosa counties have quite a few military personnel. It is not just active personnel that are in our communities, but also veterans. Sadly, amongst a majority of the veterans, there are too many who are homeless. Yes, there are several shelters and some programs that are designed for the homeless in our area, but there is a specific program designed to help our homeless who are veterans. Homelessness is wished on no one, but when our veterans, those who have served our country, are homeless, there is something very wrong about that predicament. Those valiant servants of our country should be given their just due. The National Coalition for Homeless Veterans1 has a program they have named “Stand Down.” This Stand Down program is not a new concept. It was used during the Vietnam War so as to provide a safe place for our troops returning from combat. They were given a place where they could take care of their hygiene, get clean clothing, have warm meals, and receive necessary medical and dental care. At these service centers, they were also provided with an avenue by which they could communicate with their family members. Not only that; they could enjoy the company of people who have been through what they had been through. This program afforded veterans the opportunity “to renew their spirit, health, and overall sense of well-being.” Today, the Stand Down program is not just put on by governmental entities. There is a need for those in our community to emulate this community-based intervention program. Volunteers from the community can help hundreds of veterans by providing them with necessities such as food, clothing, medical care, and a growing need for legal and mental health assistance. It should not stop there. Many homeless veterans would like to get some sense of normalcy back in their lives and this program also offers job referrals. To quote an old English proverb, “Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime.” When the founders put this together, they wanted a “hand up and not a handout philosophy.” The Stand Down Program is a unique approach, distinguished from homeless shelters and soup kitchens in our area. Many homeless veterans suffer from a host of mental and
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physical ailments, which can include a distrust of the traditional services due to a lack of structure and effective collaboration amongst governmental agencies. Our veterans are often forced to go from one agency or entity to another in order to have access to the programs they need. Being bounced from one agency to the next is exhausting and many of our homeless veterans no longer have the ability, and sadly, the fortitude or energy to search for the programs that meet their needs. It is easy just to give up. Quoting from the National Coalition on Homeless Veterans, “A Stand Down brings together various agencies and service providers to provide a comprehensive system that encourages and assists homeless veterans to overcome their distrust and feelings of isolation with the knowledge that this event promises to address multiple problems at one time and in one place. It should be a safe environment where they can connect with the people who have the shared experiences and are able to have hope that their experiences, issues, and problems can be addressed in one place.” Stand Down events do not have to be coordinated by just one entity such as the VA or a homeless shelter or a food kitchen. Volunteers and professionals can give their time, their experiences and expertise to help coordinate an event which addresses the specific needs of homeless veterans. The Joint Ambulatory Care Center (JACC) coordinated an event last year and just this past October, students from the University of West Florida joined together with the JACC to coordinate a Stand Down event. This program is a great way for us in the legal field to help our homeless veterans with their legal needs and questions. The help you provide during a Stand Down event can lead to less veterans being homeless, and that’s the Bottom Line! 1
http://www.nchv.org/images/uploads/Stand%20Down%20 Guide.pdf
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WHERE DO YOU DRAW THE LINE? By JUDGE ROSS GOODMAN
Where do you draw the line? I present for you legal ethics in three easy sentences: (1) What is legal may not be ethical. (2) What is ethical may not be moral. (3) What is moral may not be ethical or legal. That’s a big help, isn’t it? Let me try to better explain. It is legal to defame someone in a pleading, but it is not ethical if it is unnecessary (read your Oath). It may be ethical to keep confidential your client’s admission that he committed a murder for which someone else is being tried, but sitting by and letting an innocent person be convicted of murder seems immoral. However, revealing the client’s confidential admission would be at least unethical (a violation of the Rules Regulating the Florida Bar), and might arguably be illegal. Perhaps an example from an actual case would be helpful. A person was on trial for murder. Two lawyers represented a different person who freely admitted, in fact boasted-–in confidence—that he was the killer. The client agreed that he would relieve the attorneys of their ethical obligation upon his death. The client died and the attorneys then revealed their information in support of the exoneration of the innocent man who had served 20-plus years in prison. (Note, parenthetically, the “eyewitness” had recanted.) The attorneys stated that they attended the sentencing hearing, and had the jury recommended the death penalty, they would have then come forward with their information. But, since he was “only” sentenced to life in prison, they felt compelled to maintain their client’s confidence. I cannot dispute the attorneys’ evaluation of the law and the rules. To prevent a wrongful execution, they could have violated their client’s confidence. However, because there was no death penalty imposed, they believed they had no other choice: they had an ethical right to remain silent, and they remained silent. I DO dispute any contention that the attorneys had no other choice in the matter. They, in fact, DID have a choice: they could have violated their client’s confidence and subjected themselves to losing their licenses to practice law. The lawyers were not willing to go that far in order to prevent an innocent man from being imprisoned for life. My point is that this moral dilemma has more than one possible outcome, although the attorneys saw only one. I hasten to submit that I am not criticizing an attorney for doing all she can to defend a criminal defendant, innocent or not. I AM criticizing these two attorneys for not saving the life of an innocent man when the only cost was their licenses to practice law. They could have found other work. The question for the reader is: where do you draw the moral line? How far is too far to go, even if it is ethical and legal and, arguably, moral? When is another person’s freedom worth more than your law license? Certainly, when we are talking life or death, the stakes cannot be
higher. But we as lawyers (and paralegals) are faced with lesser order moral dilemmas on a regular basis. If you are in touch with your moral compass, then when you confront these problems, you will at least know the full range of possible choices. However, if you choose to wait to consider the morality of problems only when and if they arise, then I submit you are doomed to choose unwisely. I do not mean to sound “holier than thou.” I freely admit that I have made mistakes. More importantly, it is because of my mistakes that I have learned that “line-drawing” needs to be thought through when one has time for thought and reflection, NOT when one is, so to speak, “under the gun.” Now, please, do not spread the rumor that I am advocating that lawyers should freely violate client confidences. I am not. I AM, however, advocating that, because one never knows when a moral dilemma will present itself, it is a good idea to pause, on occasion, dig deep, and have an honest conversation with yourself and your conscience (and, yes, Virginia, attorneys DO have a conscience).
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• Federal Civil Service Law • Business & Real Estate Law • Florida Public Employee Pensions www.FederalCivilServiceLaw.com 504 North Baylen Street • Pensacola, Fl 32501 Office: 850.434.9922 • Fax: 850.432.2028 December 2014 www.esrba.com The Summation 11
Ask a Lawyer
TRAFFIC COURT By ERIC D. SCHURGER
What is traffic court? Traffic court is a proceeding to decide civil traffic cases. What types of cases are heard in traffic court? A typical traffic court docket includes allegations of speeding, running red lights or stop signs, careless driving, and similar matters. What is a Civil Traffic Infraction Hearing Officer? A Civil Traffic Infraction Hearing Officer (CTIHO) is an attorney appointed by the Chief Circuit Judge and trained to hear traffic cases in the place of a County Judge. Sections 318.30 to 318.38, Florida Statutes. A CTIHO may take pleas, decide guilt or innocence, and adjudicate or withhold guilt in the same manner as a County Judge. Id. At 318.32(1). A CTIHO may not, however: hold a defendant in contempt (but may make such a motion); hear a crash case with injuries or death; suspend or revoke a driver’s license; hear criminal traffic cases with civil cases; or wear robes. Id.; Florida Rules of Traffic Court 6.130, 6.630(d) & (l). How does a case get to traffic court? A law enforcement officer (LEO) usually begins the process by issuing a uniform traffic citation (ticket) to a motorist. This ticketing usually happens on the road after a stop by the LEO. The LEO gives copies to the defendant and to the Clerk of Courts. On receipt, the Clerk assigns the matter to a civil traffic case number as appropriate, depending on the alleged violation. Certain kinds of cases require an appearance before the Court, usually speeding more than 30 miles per hour (MPH) over the posted limit. Section 318.19(5), Florida Statutes. These mandatory hearings are similar to criminal court arraignments. A defendant may either enter a plea and be sentenced or request a trial date. In other cases, the defendant requests a trial. The Clerk then sets it for an infraction hearing on the next available traffic court docket. How quickly must the case be brought to trial? A traffic case must be decided within 180 days, unless it is delayed by the defendant or defense counsel. Florida Traffic Court Rule 6.325. What is the infraction hearing procedure? An infraction hearing in traffic court is very similar to a judge (bench) trial in criminal court. Witnesses are examined and closing statements may be made. Interestingly, the trial may proceed even in the absence of the defendant. Florida Traffic Court Rule 6.450. The civil rules of evidence are liberally construed. Id. at 6.460(a). What is the burden of proof? The State through the LEO must prove the case beyond a
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reasonable doubt. Section 318.14(6), Florida Statutes. A reasonable doubt is not merely “…possible…speculative, imaginary or forced...” Florida Standard Jury Instructions (Criminal) 3.7. What are the fines? Most maximum fines are up to $500 plus court costs. Some infractions, such as speeding in a school or construction zone, have fines up to $1,000 plus court costs. Section 318.14(5), Florida Statutes. Beware speeding more than 50 MPH. The first offense is $1,000. The second time is $2,500 and a driver’s license revocation for one year. The third citation is a third degree felony with a $5,000 fine and a ten year driver’s license revocation. Id. at (13). What are the other penalties? An adjudication of guilt puts points on a driver’s record. If a licensee accumulates too many points too quickly, the Department of Highway Safety and Motor Vehicles will suspend the license. Many defendants are therefore interested in having adjudication withheld. The penalty may also include driver improvement school. Id. at (5). Ordered driving school does not count against a defendant’s limited lifetime elections when paying a ticket and having adjudication withheld without a hearing. A driver under age 18 may get additional penalties such as a reprimand, public service, community work project, curfew or driver monitoring. Id. at 318.143. May a defendant request the case be assigned to a County Judge? Yes. Section 318.32(3), Florida Statutes; Florida Rule of Traffic Court 6.630(n). What is the appeal process? A convicted defendant may appeal to the Circuit Court. Section 318.16, Florida Statutes; Florida Rule of Traffic Court 6.630(e). But, there is usually no recording of the proceedings. Any party may make a tape recording to preserve the record if the tape is given directly to the Clerk after the hearing. Id. at 6.460(b). Is any part of this article legal advice? No. If you get a ticket, you may consult an attorney for legal advice. Please drive carefully. This information is not intended to be a substitute for obtaining legal advice from an attorney. No person should act or rely upon any information in this article without seeking the advice of a qualified attorney.
December 2014 www.esrba.com The Summation 13
VETERANS STAND DOWN By KERI IGNEY
In 2010, Chief Judge Terry D. Terrell was contacted by a Services Officer for the Disabled American Veterans’ Department in Pensacola with a request the Chief Judge provide court services to an upcoming event known as the Homeless Veterans Stand Down. A “Stand Down” is a cooperative event organized by the Department of Veterans Affairs, local veteran organizations and community vendors holding to a concerted goal to provide services and information to local homeless veterans in one special event. While the Pensacola event was then new, this concept of a Stand Down event was not new to the First Judicial Circuit. Brigadier General (Retired) T. Patterson Maney serves the First Judicial Circuit as a Judge in Okaloosa County. Judge Maney established the community-based Okaloosa Homeless Veterans Stand Down in 2007. He coordinates, participates in and oversees the provision of court services to the Okaloosa
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event each year. Judge Maney and the Okaloosa event are supported by the State Attorney, Public Defender, members of the Okaloosa Bar Association including both the private bar and attorneys from Legal Services of North Florida, Ft. Walton Beach Police Department and the Okaloosa Clerk of Court. For Chief Judge Terrell and Judge Maney, the goal for the courts’ involvement is to make justice available to homeless veterans in a way they can meet their obligations to the court while being afforded the utmost in matters of dignity and respect as we acknowledge the service and sacrifices they have made for our country. Chief Judge Terrell has enthusiastically heeded the call to provide a member of the judiciary and court personnel to assist the homeless veterans at each of the Circuit’s Stand Down events. In concert with many volunteers from the legal community, veterans are given legal counsel, information, and judicial consideration of legal issues that have the potential to become stumbling blocks in their life’s journey. Each year in Escambia County Chief Judge Terrell reaches out to a member of the judiciary, State Attorney Bill Eddins, Public Defender Bruce Miller, Escambia Clerk of Court Pam Childers, Escambia County Sheriff David Morgan, the EscaRosa Bar Association members, and the staff and lawyers at Legal Services of North Florida. Through contacts made by these agencies, many volunteers participate on various levels. Each and every participant in the court component of the event reveals a willingness and excitement to participate in and be a part of this day each year. Recently, both annual Stand Down events were held within the First Judicial Circuit. The Pensacola Stand Down was held Oct. 24. Here, 21 private members of the Bar joined by numerous attorneys from the Offices of the State Attorney and Public Defender provided legal services to more than 80 veterans and addressed more than 100 cases in total. Under ruling by Judge Nickinson, the day brought final disposition to 67 cases. The Okaloosa Stand Down, held Sept. 26, 2014, involved 126 veterans and 133 homeless non-veterans and saw disposal of 118 cases under ruling by Judge Maney. Both events see an increase in participants and the number of cases disposed of each year. When asked what she believes makes this format of justice effective among homeless veterans, Leslie Powell, Senior Attorney for Legal Services of North Florida says, “A regular court proceeding is intimidating to anyone, even if they come before the Court without blame. Veterans generally have a heightened sense of duty and responsibility that can turn into a self imposed shame when facing criminal charges or unpaid debts. Bringing
them before the court in this stand down environment helps in addressing their desire to meet their responsibilities while receiving help they may not have asked for otherwise.” Powell is credited with much of the effort and skill used to organize and rally the legal community to serve in this event. Kathy Monson, Veterans Justice Outreach Specialist for the VA Gulf Coast, serves as a full-time liaison between the justice system and veterans throughout the Gulf Coast. Monson is also an active participant in the court processes at the Stand Down events held in Okaloosa and Escambia counties. “The ability to address some or all of a veteran’s legal issues at the Stand Down may well make the difference between the veteran being able to reinstate a driver’s license, obtain a job, and ultimately, may result in securing adequate housing,” says Monson. Serving homeless veterans through this process makes the event very rewarding for those of us on site, in that we experience firsthand the joys, liberty, and often sheer relief given to veterans through these collaborative efforts. Each year I have had the privilege to provide administrative support to the presiding judges at the Stand Down in Pensacola. For a girl who grew up in what could easily be deemed a Leave It To Beaver lifestyle, I had no understanding of what spending the day with homeless veterans would portend when the Pensacola programming began in 2010. Not coiffed, pinned, uniformed, key note speaker veterans. These veterans are clothed in tattered jeans, ill-fitting shirts, and torn jackets accessorized only by bags on their backs with their carefully stowed worldly possessions and the sometimes visible scars of their life on the streets. Over the years, however, it has been fascinating to walk in the midst of the meticulously organized yet hectic event to watch as veterans eat a meal - perhaps for the first time in days, consult with vendors, and line up in anticipation of what to them must seem almost like Christmas. The spirit of generosity and service by providers participating in the event is far more noticeable than the music playing loudly over the grounds! There is a line for sleeping bags, a line for blankets, a line for cellular phones, shoes, slacks, shirts, jeans, jackets! There is a manicurist, a pedicurist, hair stylists, medical health screenings, internet researchers, and computers available for unlimited use! There are showers, rain gear, cold weather gear, hats, gloves, educational and reading materials! There are small products available for the taking, specifically geared for “on the move” living! Laughter abounds. There are no judgments being made, nor harsh words spoken. Looking around I sense a shared respect for one another. I see in some what seems like deep gratitude.
There hangs in the air what can only be described as a deep sense of relief...a certain kind of freedom...a certain kind of liberty from their troubled lives...if but for one day. Many basic needs are met this day; simple, basic needs that Ward and June Cleaver (and their children, no doubt) take for granted. As I stand in the midst of this orderly chaos, somewhere over the roar of rock n’ roll I hear the faint refrain of “God Bless America.” It occurs to me that hours earlier I was of the understanding and belief I had sacrificed sleep to get here early enough...sacrificed time in my office to be here the entire day... sacrificed my own mundane understanding of a day-in-my-life to do something for someone else. But now? Now it is clear these homeless veterans have fulfilled yet another service to me! These strangers have shown to me the skills of survival. They make real to me true loyalty, true servitude, true gratitude, true heroism. Upon arrival to the center, I held a confident belief in my own patriotism. I believed I was grateful for the sacrifices and service of America’s veterans and active military men and women. But standing here observing true freedom, watching immeasurable generosity - and seeing the faces of those who served to accommodate my freedom - I am made keenly aware the service I provide should in no way be considered a sacrifice; my service to these veterans is and will continue to be my privilege!
December 2014 www.esrba.com The Summation 15
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16 The Summation www.esrba.com December 2014
TALLAHASSEE
106 E. College Ave. Suite 600 850.597.7483
BRENNER V. SCOTT: A CLOSER LOOK By AURORA OSBORN, CP
On August 21, 2014, Florida became one of more than 30 states to tip in favor of marriage equality since the movement started gaining momentum in the early 1970s. Although the ruling in Brenner, et al. v. Scott, et al., 999 F. Supp. 2d 1278 (N.D. Fla. 2014), has been stayed pending appeal, the opinion, which was written by Judge Robert L. Hinkle, of the Northern District of Florida, discusses two elemental legal concepts: fundamental rights and strict scrutiny. It is helpful to review these two concepts before examining their application to the instant case. Black’s Law Dictionary defines a fundamental right, as such term is used in this context, as “a significant component of liberty.” Black’s Law Dictionary 306 (3rd ed. 2006). Black’s further explains that “[a]s enunciated by the Supreme Court, fundamental rights include voting, interstate travel, and various aspects of privacy (such as marriage and contraception rights).” Id. Fundamental rights demand an elevated grade of protection from government encroachment and any law that is challenged for abridging a fundamental right must withstand strict scrutiny. Strict scrutiny is the most stringent standard of judicial review used by courts to evaluate the constitutionality of particular laws. Black’s states that it is “applied to suspect classifications (such as race) in equal protection analysis and to fundamental rights (such as voting rights) in due-process analysis.” Id. at 681. A law that appears offensive to the equal protection and due-process clauses (“Fourteenth Amendment”) will pass this standard of judicial review if it is determined to be narrowly tailored to achieve a compelling government interest. In Brenner, the U.S. District Court decided whether the provisions prohibiting same-sex marriage of the Florida Constitution and Florida Statutes violate the Plaintiffs’ Fourteenth Amendment rights. The Court approached the issue with a two-step analysis: 1) to determine whether the right in question, i.e. the right to marry, qualifies as a “fundamental right” as the phrase is utilized in Fourteenth Amendment contexts; and 2) to determine whether the Defendants had a “narrowly tailored” and “compelling state interest” sufficient to contravene said right. The Court ruled that “few rights are more fundamental” than the right to marry. In support of this finding, the Court relied on a number of cases holding the right to marry to constitute a fundamental right. Perhaps the most notable and recognizable of the cases cited was Loving v. Virginia, 388 U.S. 1 (1967), which determined that Virginia’s ban on interracial marriage offended the Fourteenth Amendment. Judge Hinkle highlighted the Loving principal that a federal court has “the duty – to strike down a state marriage provision if it conflicts with a party’s rights under the Fourteenth Amendment.” Further, Washington v. Glucksberg, 521 U.S. 702 (1997) placed the right to marry as first on its list of rights that qualify as fundamental. Using the same case, the Defendants asserted that the
issue at bar was not the right to marry – but the right to marry someone of the same sex. The Defendants proffered the Glucksberg principal that due-process analysis demands a “’careful description’ of the asserted fundamental liberty interest.’” The Brenner Court interpreted the notion of “careful description” as simply an “accurate” description, “determined at the appropriate level of generality.” The Brenner Court drew attention to the detail that the Loving Court did not contemplate whether interracial marriage was a fundamental right but that marriage, in general, was a fundamental right. The Court further impressed that case law has established the general right to marry as fundamental and “just as important when the proposed spouse … is a person of a different race, or a person with unpaid child support obligations, or a prisoner, or a person of the same sex.” Having established the right to marry as fundamental in Fourteenth Amendment jurisprudence, the Brenner Court then contemplated whether the Defendants had offered any “narrowly tailored” and “compelling state interest[s]” that would survive strict scrutiny and, in turn, appropriately circumvent the right of same sex couples to marry. The Brenner Court opined that only one of the compelling state interests proffered by the Defendants warranted further examination: the argument that “the critical feature of marriage is the capacity to procreate.” The Court tersely responded that “Florida has never conditioned marriage on the desire or capacity to procreate” and such an argument would render medically unable heterosexual couples and heterosexual couples beyond the age of reproduction in direct opposition to said state interest. The Court found that the procreation justification and the Florida ban on same-sex marriage stem “entirely … from moral disapproval of the practice” and that moral disapproval, on its own and as established by U.S. Supreme Court decisions of the past, cannot and does not withstand strict scrutiny analysis. “Fundamental rights” has expanded to include samesex marriage and the cause has survived the majority of the challenges and strict scrutiny tests it has undergone in the various court systems across the country. It is apparent that the U.S. is showing a willingness to expand the traditional notions of marriage and family to encompass a greater breadth of the citizenry and Florida same-sex couples may be able to apply for marriage licenses as soon as January 6, 2015. The status of samesex marriage in Florida remains in flux, however, as the Attorney General has filed appeals against South Florida Circuit Court rulings that found the ban unconstitutional. In its order denying the Attorney General’s motion to extend the stay imposed by Judge Hinkle, the 11th U.S. Circuit Court of Appeals said on December 3, 2014, that it would consider the Attorney General’s appeals at an accelerated rate.
December 2014 www.esrba.com The Summation 17
IN THE PRO BO “KNOW” By LESLIE POWELL, LEGAL SERVICES OF NORTH FLORIDA
“I will never reject, from consideration personal to myself, the cause of the defenseless or oppressed….” Each attorney takes this oath on admission, and the
Special thanks to Pam Childers and the Clerk of Court staff who came out in support, as well as other staff within the First Judicial
ESRBA members rededicate to it each year at our annual
Circuit who made it such a success. And thanks to those
meeting. Many of our members actively engage in pro bono
who have already let us know that they want to participate
work by accepting case referrals or staffing legal clinics
again next year!
sponsored by our local Legal Services programs. On Oct. 16, 2014, Legal Services of North Florida and Northwest Florida Legal Services, along with the
The first topic of this series is one that someone asked during the Stand Down event, and has been raised before in various ways:
ESRBA, honored those members who have represented
“My malpractice insurance does not cover pro bono work;”
clients through our programs over the past year. Those
or, “I’m not currently with a firm, so do not have malpractice
in attendance heard words of thanks as well as words of
coverage – I’m happy to help, but don’t think I should be giving
inspiration from civil rights attorney Benjamin Crump,
advice or legal help.”
incoming President of the National Bar Association, and from our own circuit judge, the Honorable Gary Bergosh. With a new year ahead of us, this article is a first in a
Not to worry! When engaged in pro bono work through your legal services program, so long as you’re representing a client who is eligible for services under that program,
series in which we hope to answer your questions about pro
you are covered by the legal services program’s malpractice
bono work and how each of you can get involved. If you
coverage. Each legal services program has a process of
have a question that you’ve always wanted to know, please
ensuring eligibility and will not refer a person who is not
send it to Leslie@LSNF.org, and we will try to answer it. If
eligible. On occasion, at a legal clinic, someone who is not
you have a suggestion for a new kind of pro bono event or
eligible will ask for services – usually this is because their
activity, please share that with us too. And most of all, if
income or assets may be higher than we usually allow. When
you’re interested in taking a case, let us know!
that happens, it is up to each individual attorney to decide
On Oct. 24, 2014, 26 attorneys, including public
whether to meet with that person. Since a clinic visit is just
defenders and states attorney, and 22 paralegal and student
a consultation, the service is limited and, perhaps, you will
volunteers showed up in support of the annual VA Stand
have found a new client!
Down. About 100 legal matters were addressed, ranging
If you’re interested in finding out more about pro bono
from Social Security and child support, to the criminal
work, please contact Leslie Powell, at Legal Services of North
matters addressed through the Veterans’ Court. The event
Florida (Leslie@LSNF.org; 850-432-8222) or Sybil Sahuque
was the most successful yet, helping address more legal
at Northwest Florida Legal Services (SahuqueS@NWFLS.org;
issues for homeless veterans in our community than ever
850-432-2336). You can also check out the online at http://
before. At the end of the day, those who served us left with a
www.lsnf.org/cases-awaiting-placement.
little less worry and better positioned to take the next steps to make their own lives more stable, less unpredictable.
18 The Summation www.esrba.com December 2014
December 2014 www.esrba.com The Summation 19
Judge’s Preferences
PAT KINSEY Each month we will publish detailed information on one of our First Judicial Circuit and County Judges. This edition, we are featuring Judge Pat Kinsey. You can also find this information and preferences for all First Circuit Judges at www.firstjudicialcircuit.org.
Type: County Judge County: Escambia County Division: Five Jurisdiction: County Court Judicial Assistant: Michelle Ferguson Address: M.C. Blanchard Judicial Building
190 Governmental Center Pensacola, FL 32502 Phone: 850-595-4424 DIVISION PREFERENCES This is intended as a brief overview of procedures in an effort to assist all parties handling cases in Division 5. This division of the County Court handles all civil cases including Small Claims, County Civil, Landlord/Tenant and all civil/non-criminal infractions. GENERAL INFORMATION We ask that you contact us between 8:30 am and 4:30 pm (Central Time) to schedule hearings. We are generally closed between 12 and 1 pm for lunch. We do have a message service on two rotating lines and do return all calls as promptly as possible. When leaving a voice message, please include the case number. That way the case can be pulled so that we are better prepared to help you when we return your call. All hearings are conducted in a courtroom. Please make sure your hearing Notice directs the parties to report to the courtroom assigned to Judge Kinsey that day. Courtroom assignments are listed by the elevators in the courthouse each day. Division Five does not conduct any hearings in chambers. TELEPHONIC HEARINGS If you are an out-of-town attorney, telephonic hearings may be allowed for most hearings so long as you have a toll-free number. Because of the volume of cases scheduled once a month for Small Claims Pre-Trial Conferences, we are unable to accommodate requests for telephonic appearances at these Small Claims Pre-Trials. Please remember that we are located in the Central Time Zone when calling us and when scheduling your hearings. We ask that any hearing notices include both your local time zone as well as our Central Time Zone. If you have been granted a telephonic appearance, it is important that you notify the person who answers your toll-free number that the court will call at the appointed time. Please understand that because our docket is so heavy, we are setting hearings every five, ten and 15 minutes. As a result, if the call is not immediately connected to the attorney handling the hearing, there will not be
20 The Summation www.esrba.com December 2014
sufficient time remaining to handle the hearing. If the hearing must be rescheduled because you are not available at the appointed time, your future telephonic privileges may be jeopardized. We cannot make long distance calls from the courtroom so you must have a tollfree number or set up a conference call (at your own expense) and include that information on the hearing notice. We work very hard to coordinate convenient times for hearings with all interested parties, but if we cannot reach you after several tries, we will go ahead and set a time and you will be sent a hearing notice. Summary Judgment hearings are typically set for five minutes unless you specify additional time is required. Show Cause hearings for replevin cases are set for 10 minutes. Final hearings are set for 30 minutes on delinquent credit card cases unless you request additional time. Other final hearings are scheduled for a 15 minute case management conference conducted in open court by the judge. The court will set your case for final hearing after the case management conference so be sure to bring your calendar to the hearing or have it available if you are appearing telephonically. Telephonic hearings will not be granted for Show Cause Hearings (in aid of execution). That is, if you call to set a show cause hearing because the Fact Information Sheet or post-judgment Interrogatories/ Request to Produce have not been returned, you (or local counsel) must appear in the courtroom because the defendant will be given an opportunity to complete the form(s) in open court. You must be present to review the completed form(s) and determine if the information is complete and acceptable for you and your client. The court cannot make this determination for you. JURY TRIALS All jury trials are scheduled for a Monday. A pre-trial order will be issued once the case is set for a date certain. Each and every Monday is available for a jury trial. A venire is present and ready for selection at 8:15 am. Generally, once the jury is selected we take a 10 minute break before opening statements. Lunch is scheduled for 30 minutes only with lunch provided in the jury room by the courthouse snack bar. It is rare that a jury trial cannot be completed that same day. Witnesses are subjected to direct, cross, and re-direct only. A pre-trial conference is conducted the week prior to the trial and you should be prepared to supply the court with the proposed jury instructions and verdict form at that conference. Please read and carefully consider the Pre-Trial Order issued once the case is set for a date certain. TRAFFIC AND OTHER NON-CRIMINAL INFRACTIONS Non-criminal infractions are set for arraignment once a month. At that time, a defendant may enter a plea of no-contest and be given a period of time to pay the fine or set the case for an evidentiary hearing. This is not the time to bring witnesses or other evidence. If your infraction case is set for arraignment, you may call in advance to set a hearing or enter a plea of no-contest in writing and be excused from arraignment court.
LANDLORD/TENANT EVICTION CASES Landlord/Tenant eviction cases are heard every day beginning at 11:30 am. When a tenant files an Answer contesting the eviction, a five minute Determine Rent hearing is immediately scheduled. The clerk’s office will notify you by phone when the hearing is set. Please make sure the Clerk of Court has a phone number where you can be reached during business hours. If you are a landlord, it is very important that you bring your file containing all of your records on the case to court with you. Especially important is your ledger sheet reflecting all of the payments due from the beginning of the tenancy and payments made or past due. You will need to show the court how you determined the amount of past due rent requested in the Three Day Notice. If you are a tenant, you must bring your records to court to show any receipts or other proof you have of payments made while you have been living at this location. Once the court determines the amount of money necessary to bring the rent current, an Order will be entered and the tenant will have until 4:45 pm that same day to deposit that amount with the Clerk of Court. The money must be deposited by cash or credit card. If the money is deposited, a hearing will be conducted the following day at 11:30 am at which time the landlord must prove by evidence that they took the proper steps for the eviction. The tenant then has the opportunity to show that they have a legally sufficient defense to the eviction. The court will attempt to obtain the services of a mediator whenever possible to help resolve the case prior to beginning the 11:30 am final hearing.
until and unless you call to set a hearing. Too often these cases are dismissed for lack of prosecution because there is no activity of record while you are waiting for the court to call and set a hearing. It is your responsibility to call to set any motions for a hearing. All notices must be prepared by the party filing the motion. Your hearing notice should include both your local time zone (if you are not in the Central Time Zone) and Central Time Zone. ALL HEARINGS ARE CONDUCTED IN A COURTROOM. There are no chambers hearings on any Division 5 cases. Make sure the hearing notice directs the parties to the courtroom assigned to Judge Kinsey on the scheduled date and time. Motions can be heard very quickly. We have time set aside during the lunch hour to hear emergency motions and we have cancellations nearly every day from cases that settle. You must call to set your hearing as we have no way of knowing that you have filed a motion with the Clerk. PROPOSED ORDERS Effective January 1, 2015, the Escambia County Clerk of Court will no longer accept proposed Orders through the Florida Court E-Filing Portal. All proposed Orders must be submitted directly to the presiding judge. You may either submit the proposed order via hand delivery or U.S. Mail or you may email it in either Word Perfect or Microsoft Word format directly to Judge Kinsey’s Judicial Assistant at michelle.ferguson@flcourts1.gov.
SMALL CLAIMS PRE-TRIAL CONFERENCES Small Claims cases are generally set for a Pre-Trial Conference (PTC) the second Wednesday of each month beginning at 1 pm. If both parties are represented by counsel, a trial date is set within 60 days of the PTC unless both parties agree to waive their right to a speedy (within 60 days) trial. If both parties are representing themselves or if only one side is represented by counsel, a mediator is present to help resolve the case prior to going before the judge. There is no charge for this service. If the case is resolved, a written stipulated agreement is prepared and signed. If the case is not resolved, the parties go before the judge to set the case for trial. The trial must be set within 60 days of the PTC unless both parties agree to waive their right to a speedy trial. Jury trials are set for a “pick and go” trial on a Monday. Bench trials are generally set on a Tuesday or Thursday afternoon or a Friday. Be sure to bring your calendar with you so that the hearing can be set at a time convenient for you. Once a hearing is scheduled, it will not be continued absent a legally sufficient last minute unanticipated emergency. If your case settles, please notify us as soon as possible so that the time can be given to another litigant. COUNTY CIVIL CASES If you have a “CC” or County Civil case involving between $5,000.00 and $15,000.00, we are not aware of the case and/or any motions you have filed with the Clerk of Court
December 2014 www.esrba.com The Summation 21
Wall of Honor
LEFFERTS L. MABIE, JR. By LEFFERTS L. MABIE, III
Lefferts L. Mabie, Jr. practiced in Pensacola from 1965 to his death in 1996, earning his reputation as a skilled and respected litigator, willing to take on cases often refused or rejected by other attorneys, and never one to shy away from a battle no matter the difficulty or the odds. He loved the opportunity to represent the underdog in a fight, and did so routinely until the day he died. Leff grew up in Lakeland, Fla., graduating at age 15 and going directly to the University of Florida. While there he excelled at billiards, became the Captain of the U.F. Billiards team and won the ACUI National Championship in 1943, and again (after a brief interruption by WWII) in 1947. In 1943 he was drafted into the Army Air Corps, going on to pilot 25 missions over Nazi Europe in a B-17. Upon arriving home, he married his love, Marianne Mabie, with whom he would spend the remaining 50 years of his life. He returned to the U.F. law school, graduating in 1948. After suffering from polio in 1950, which left him permanently disabled, Leff practiced as a sole practitioner until becoming County Judge in Hardee County, Fla. He moved to Pensacola in 1965, and joined what was then the law firm of Levin, Askew, Warfield, Graff and Mabie, where he would remain a partner throughout the remainder of his life. He took great pride in having tried cases in 63 of Florida’s 67 counties during his 48 years of practice. He served as President of the Academy of Florida Trial Lawyers, and was posthumously awarded its highest honor, the Perry Nichols award, recognizing a lifetime of dedication to the pursuit of justice. Leff always maintained the adventurous, risk-taking spirit and keen sense of humor he developed as a teenager. He often spoke of his days at the University of Florida, reminiscing of hitchhiking to Starke, Fla., in order to “hop the freight train” to Miami where he would spend the weekends in the billiard halls to earn money for tuition. And while the effects of polio kept him from enjoying many athletic and outdoor activities, it never dampened his love of flying. His logbooks reflect over 10,000 hours as pilot in command.
22 The Summation www.esrba.com December 2014
On rare occasion, Leff would reminisce about his time spent recovering from polio at the Bay Pines Veterans Hospital in St. Petersburg. As polio is a disease of the nerves, in the 1950s medical protocol was to house patients in the nervous disease wards of hospitals during their recuperation, together with the victims of what we now recognize as PTSD and numerous other psychological conditions. Leff felt his year in that facility gave him a particular empathy and understanding of human nature which he was never to forget. Leff was always happy to share his time and ideas with other lawyers facing difficult issues or struggling to find a winning theme with which to advance their client’s cause. He also believed in giving back to help others advance their education, and funded scholarships and endowments at the University of West Florida and the University of Florida. In keeping with his lifelong enthusiasm for aviation, he purchased and restored the very first Piper Cub, which he donated to the Smithsonian National Air and Space Museum, where it hangs on display today. When asked to write this piece about Leff and his career, it seemed most appropriate to reach out to lawyers who worked most closely with him and ask for their thoughts and remembrances. Louis Rosenbloum offered litigation and trial support, and handled the majority of the significant appeals Leff was involved in during the latter half of his career. Bob Mayes tried many cases with Leff including numerous insurance bad faith trials. Below are some of their thoughts about him. Louis Rosenbloum wrote: When I was introduced to Leff Mabie in 1974, I had never met anyone so dynamic and have not encountered anyone quite like Leff since. Leff became my mentor at the then-named Levin Middlebrooks law firm and in the 20 years that followed left an indelible impression on my legal career. As a lawyer, Leff was charismatic, brilliant and imaginative. As a person, he was warmhearted and generous, always willing to share his insights into the practice of law and life in general.
Leff was a witty raconteur with a wicked sense of humor. When he turned his glasses upside down on his nose and began his story, you knew you were in for a rollicking time. Even in his work, his sense of humor showed through as when he once closed his letter to an insurance company with “I’ll be suing you.” I became an appellate lawyer probably because I lacked the courtroom presence and mental agility lawyers like Leff Mabie exemplify. Although Leff’s courtroom talents are legendary, few people know that Leff was a brilliant legal writer who could turn a phrase with the best of any wordsmith. Leff was known around the office as a perfectionist in both the spoken and written word. The associates who drafted legal memoranda for Leff’s approval, myself included, knew Leff would return their drafts with more red ink corrections than original type. But from his demanding standards, my writing improved and the writing lessons he taught me have served me well as an appellate lawyer. I’m forever indebted to Leff Mabie not only for his guidance, but also for the incredible kindness he and his wonderful wife Marianne showed my family and me. My wife and I were frequent guests in their home, an experience as memorable as some of his best closing arguments. Bob Mayes wrote: It was 41 years ago this month that I first met Lefferts L. Mabie, Jr. I had just two months left of my four years tour of duty with the Air Force, and I traveled from New Jersey to interview for a job in Pensacola. My very first interview was with Leff. I was not prepared for the interview. I expected questions like: what was it like practicing law in the Air Force, what kind of experience did I gain, what do you like to do in your spare time, etc. Instead, as soon as I sat down, Leff began telling me about a case that he was handling. I don’t remember all of the details except that it was very complicated. His client was injured in an automobile accident and then was injured further while being treated in the emergency room. I seem to remember that there were three or four defendants involved and there were agency, independent contractor and causation issues. After about 20 minutes, Leff asked me, “What do you think?” It had been over seven years earlier that I had taken my one and only torts class. I’m sure I muttered something incoherently and thought that I had no chance to be hired. Of course, I did not realize that at that moment I had met the man, who, over the next 22 years, would teach me what the practice of law was all about. More importantly, he taught me that the successful practice was not about money or “things,” but it was about how many lives you touch and how many people you could help. Over the next 22 years, I worked with Leff on hundreds of cases. Leff enjoyed handling the most challenging of cases. Most attorneys, including me, loved getting the personal injury case where there was clear liability, plenty of coverage and easily proved damages. Leff found those types of cases boring. Leff was always intrigued with the case that had unusual liability issues or the case that “just could not be won.” I believe Leff’s desire to do something challenging led to his
interest in the field of insurance bad faith. Leff once told me that the limit of liability coverage was simply a figment of the insurance company’s imagination. If one were to look at the “landmark” bad faith decisions in Florida, many have Leff’s name on them. He handled more bad faith jury trials than anyone in the state. Like all trial lawyers, Leff did have his share of summary judgments against him and reversals on appeal, but there was only one time in his entire career that he ever had a jury return a verdict of no bad faith. That was in Federal Court in Tallahassee in the early 90s. Leff always amazed me in trial. Many times I saw him stand up to give his opening statement or closing argument with only a legal pad in his hands – with nothing written on it. Then he would proceed to tell an intriguing story about his client’s case and why the only possible result could be a verdict in his favor. Leff told me that everyone enjoys listening to a story and that was the best way to attempt to keep the jury’s attention. Leff told me that his worst part of trial was jury selection. It wasn’t that his voir dire needed improvement, he could carry on a conversation with anyone, but his problem was challenging jurors. He could see something good and something he liked in just about everyone. Unlike most of us who need more challenges, it seems like Leff always had enough. Leff said he had trouble identifying someone who might not be a good juror. There was only one thing more important to Leff than his law practice and that was his family. His wife, Marianne, daughter, Margarete and son, Leff were an integral part of his life. When Leff was not at work, he was always with one or all of them. His granddaughter Charlotte held a special place in his heart. It seems that almost every conversation with Leff eventually led to a story about what was happening in the lives of one of his family members. Leff loved to fly. He flew combat missions in World War II. Over the years, Leff had a number of different planes, but he always had one throughout the 22 years that I knew him. His bad faith practice was state-wide, so he flew us nearly everywhere that we had business. One of my most memorable flying moments with Leff was one morning when we were taking off to South Florida. There was a mechanical defect in the landing gear that pitched the nose of the plane down…before we got completely off the ground. That malfunction caused the propeller to strike the runway, but Leff was able to lift the plane off of the runway and put it back down safely. Only Leff’s adept piloting let us walk away from that one. Many times after that Leff would jokingly say, “We cheated death again,” or, “Any landing that you walk away from is a good landing.” After Leff’s death in 1996, I lasted about another nine months and then lost interest in practicing law. It simply wasn’t the same without Leff. I quit practicing for a few years. Now my son and I have a practice that takes us around the state and it is amazing the number of people who knew Leff and have a story to tell about him – always with a smile on their face.
December 2014 www.esrba.com The Summation 23
ALAN SHEPPARD WALL OF HONOR DEDICATION By MICHAEL DOUBEK
On Sept. 12, 2014, family, friends and co-
The Wall of Honor was established by the Escambia/
workers gathered at the M.C. Blanchard Judicial
Santa Rosa Bar Foundation as a memorial dedicated to
Building to honor Alan C. Sheppard. Mr. Sheppard
judges and attorneys who have served the profession
was memorialized on the Wall of Honor which is
and the community. If you would like to memorialize a
prominently displayed in the courthouse lobby. A
judge or attorney, please contact Mike Doubek at 434-
dedication was presented by Alan Bookman and loved
8135.
ones gathered to share stories of Alan’s life and career.
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News from the Court NEW ART DISPLAY CABINETS AT JUVENILE JUSTICE CENTER ESCAMBIA COUNTY By ROBIN WHITE The Theodore F. Bruno Juvenile Justice Center, affectionately called JJC in Escambia County, has beautiful new oak cabinets built onto the walls of the waiting area. The cabinets prominently display artworks by children who participate in the local Boys and Girls Club. The art display project was the brainchild of Circuit Judge Ross M. Goodman. When asked what inspired him to create the display, he replied, “I was at the jail, and I saw the art done by the prisoners. I saw artwork done by federal prisoners. I saw art done by Juveniles at Pensacola Boys’ Base, Milton Girls Facility, and the PACE Center for Girls. Then I saw the drab walls at the JJC. It just seemed to me that the courthouse would be more child-friendly
with some art, and it also seemed to me that the boys and girls whose art was displayed would feel uplifted. Everyone benefits! Hopefully, this will let some child or children express their feelings in such a way as to bring joy to them as well as to those who see their art.” Through the direction of Robin Wright, Court Administrator, and Will Moore, Administrative Services Manager, Fisher Cabinet Company of Pensacola was contracted to build the cabinets. Rob Engel, Director of Resource Development for Boys & Girls Clubs of the Emerald Coast oversees the management of the art displays. An informal reception in honor of the new addition was held on Friday, Nov. 7 at JJC.
December 2014 www.esrba.com The Summation 25
LOCAL LAWYER VISITS MARIANA TRENCH Local attorney Mark Williams was flown by the Navy out to the USS Ronald Reagan, stationed near the Mariana Trench, after a meteorite was seen streaking into the ocean near their position. So starts the plot of First Contact, a novel recently published on Amazon and Kindle by Pensacola attorney, David Hiers, of Davidson & Hiers, P.A. This modern day science fiction story explores mankind’s first contact with an alien race. As David explained: “I have always enjoyed reading science fiction. But I doubted whether an alien race that could travel lightyears to get to the Earth would be interested in a species that could barely get to the moon. So I wrote a story about first contact with a species that stumbled upon us and really did not care.” I had to take some horses to Gainesville and return in one day. Sixteen hours in a truck was too much for me to endure, so I spent the time drafting the story in my head. It also kept me awake during the mind-numbing drive down I-10. By the end of the trip I had the story down. It took me a year to get it on my computer and two more years to get it published. In the meantime, I missed the characters, so I wrote the sequel, which I was able to publish a couple of weeks after the first book was published.” The sequel picks up one year later, after the aliens have left and most of mankind remains blissfully unaware of their
Author David Hiers
initial visit. The main characters from the first novel return to investigate a series of meteorites that land in China. This time they, along with some CIA agents, must make a clandestine trip to China to determine whether these meteorites are being sent down by the aliens, and if so, the aliens’ intent. “The fun part of these stories is that everything in the books is true. Except the aliens, of course. With the internet I was able to take a YouTube tours of the USS Ronald Reagan, which is actually stationed in the South Pacific, virtually walk down the streets in China where the story takes place, and even tentatively book the characters’ flights on China Air and view their hotel rooms in China. I even incorporated reported alien sightings in China, and, of course, the old Gulf Breeze UFO sightings. When the internet was not enough, I interviewed military personnel to ensure that my story was credible, such as Navy Rescue Divers to ensure Mark’s transfer by helicopter from the aircraft carrier to a submarine in book one was accurate.” The story has become a trilogy and the third book is halfway through the writing process with an expected publication date sometime in mid-2015. Due to the far reaching nature of the internet, the books are already selling in three countries: the U.S., U.K., and Germany. The books can be purchased in the U.S. from Amazon.com or through Kindle. While supplies last, David also has copies in his office, which he will gladly sign for you. He assured me that you do not have to schedule a mediation in order to purchase a book. For more information, and to review the first chapters of the books, go to David’s writing website: www.dhiers.com. (Not to be confused with his office website: www.davidsonhierslaw.com.)
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LAWYER’S SEASONAL GREETING TO YOU From us (“the wishor”) to you (“hereinafter called the wishee”), please accept without obligation, implied or implicit, our best wishes for an environmentally conscious, socially responsible, politically correct, low stress, non-addictive, gender neutral, celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/ secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all ... and a financially successful, personally fulfilling and medically uncomplicated recognition of the onset of the generally accepted calendar year 2015, but with due respect for the calendars of choice of other cultures or sects, and having regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform or dietary preference of the wishee. By accepting this greeting you are bound by these terms that: • This greeting is subject to further clarification or withdrawal. • This greeting is freely transferable provided that no alteration shall be made to the original greeting and that
• •
•
•
•
the proprietary rights of the wishor are acknowledged. This greeting implies no promise by the wishor to actually implement any of the wishes. This greeting may not be enforceable in certain jurisdictions and/or the restrictions herein may not be binding upon certain wishees in certain jurisdictions and is revocable at the sole discretion of the wishor. This greeting is warranted to perform as reasonably may be expected within the usual application of good tidings, for a period of one year or until the issuance of a subsequent holiday greeting, whichever comes first. The wishor warrants this greeting only for the limited replacement of this wish or issuance of a new wish at the sole discretion of the wishor. Any references in this greeting to “the Lord,” “Father Christmas,” “Our Savior,” or any other festive figures, whether actual or fictitious, dead or alive, shall not imply any endorsement by or from them in respect of this greeting, and all proprietary rights in any referenced third party names and images are hereby acknowledged.
December 2014 www.esrba.com The Summation 27
Photos
PLSSA JA Luncheon
Naturalization Ceremony
28 The Summation www.esrba.com December 2014
Pro-Bono Celebration Legal Services of North Florida, Northwest Florida Legal Services, and the Escambia/Santa Rosa Bar Association would like to thank the following sponsors for their support and participation in the October CELEBRATE PRO BONO 2014 RECEPTION Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. Virginia Buchanan, Esq. Coastal Bank & Trust Synovus Trust Company Lynchard & Greene, P.L. Valerie Prevatte, Esq.
Susan W. Harrell, Esq. Charles J. Kahn, Jr.
December 2014 www.esrba.com The Summation 29
News from the Clerk
THE STATUS OF THE MORTGAGE FORECLOSURE BACKLOG By PAM CHILDERS
Reducing the foreclosure backlog has been a long, hard road for the State of Florida. The effort was started by the Florida Legislature to help the state’s economy by moving properties out of foreclosure and back into the market. The trek has been difficult for those struggling financially to recover, as well as the Clerks and judiciary whose duty it is to process the cases. How has the foreclosure backlog affected the Clerk’s operations? It’s all in the numbers: $200 million: Received by the State of Florida for a foreclosure settlement spending plan. $9.7 million: Allocated to the Clerks statewide to assist with the foreclosure caseload. $72,144: Provided to the Escambia Clerk to expedite foreclosure cases. 2,835: New foreclosure cases filed in Escambia during 2009. 1,684: New foreclosure cases filed in Escambia during 2013. 126: New foreclosure cases filed in October 2014. 1,100: Estimated total of new foreclosures cases for 2014. 42.2%: Percentage of circuit civil cases that are open foreclosure cases. 150: Average number of pages in a foreclosure file.
Due to the overwhelming number of foreclosure cases pending throughout the State’s trial courts, the Legislature appropriated non-recurring funding for fiscal year 2010-11 for the Foreclosure and Economic Recovery Program to assist the trial courts in eliminating the backlog of civil cases. For fiscal years 2012 and 2013, the Legislature re-appropriated funds to continue the program. Escambia County established a special court division, operated by Senior Judges, to handle only foreclosure cases. The Clerk’s office generates weekly and monthly reports for the judiciary in order to provide up to date information on caseloads and to monitor the progress of the cases. In June 2013, Governor Scott signed a foreclosure settlement spending plan that laid out the multistate foreclosure fraud settlement funding (SB1852). To address the foreclosure backlog, $9.7 million dollars was allocated to the Clerks statewide and $16 million was allocated to the judiciary. For Escambia County, the Clerk was able to apply the funding directly to cover staffing needs to support the foreclosures division by timely processing documents and administering the foreclosure sales. Virtually all foreclosure sales are now conducted online. The documentation associated with the online sales is all electronic which has
30 The Summation www.esrba.com December 2014
streamlined the sale process. With foreclosure sales being conducted online, a broader pool of bidders is now able to access properties being sold. Effective July 1, 2013, the Legislature enacted new foreclosure filing requirements in an attempt to expedite the foreclosures process and put an end to bundling without original documents (§702.015, F.S.). To this end, the new statute requires Plaintiffs to verify in their complaints that they have all the documents necessary to prove their case. Prior to this requirement, cases often were delayed and rescheduled in order to gather the proper documentation, which contributed to the backlog. In addition, all foreclosure cases must now be e-filed through the Florida ePortal, with the exception of the original note and mortgage which must be filed with the court before the entry of any judgment of foreclosure. The number of foreclosure cases filed in Escambia is dropping. The total number of new cases filed in 2013 decreased 29 percent from 2012. While new case numbers are important, so are the reopened cases. Currently reopened foreclosures account for 38.8 percent of all reopened civil cases. While the bulk of reopened cases address canceling or resetting sale dates, many involve vacating or amending judgments or issuance of writs of possession. The average timeline for a foreclosure from initial complaint to final judgment is approximately three months. Add to that 35 days for the foreclosure sale and another 14 days for a Certificate of Title and the entire process can stretch to almost 140 days. There are many factors that can delay the foreclosure process and that contribute to the backlog, including bankruptcies filed by homeowners and frequent changes of the lending institutions’ legal representation. Although money has been given to assist the Clerks and the courts to deal with the heavy backlog of cases, the fact still remains that processing foreclosure cases is time consuming and labor intensive. Both the Clerk’s office and the judiciary in Escambia County are committed to working with litigants and lending institutions to ensure a fair and expedited process. Submitted by Brenda Van Brussel on behalf of Pam Childers, Escambia County Clerk of Circuit Court & Comptroller
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Calendar December 24 Christmas Eve Offices Closed: First Judicial Circuit Court Santa Rosa County Clerk of Court and Comptroller Escambia County Clerk of Court and Comptroller (Court Functions Only) Escambia-Santa Rosa Bar Association December 25 Christmas Day Offices Closed: U.S. District Court First Judicial Circuit Court Florida Office of Compensation Claims Santa Rosa County Clerk of Court and Comptroller Escambia County Clerk of Court and Comptroller Escambia-Santa Rosa Bar Association January 1 New Year’s Day Offices Closed: U.S. District Court First Judicial Circuit Court Florida Office of Compensation Claims Santa Rosa County Clerk of Court and Comptroller Escambia County Clerk of Court and Comptroller Escambia-Santa Rosa Bar Association THE 2014-2015 NWFPA BOARD OF DIRECTORS
(Pictured from L-R: Tracey Parker-Treasurer, Debra Bass-President, Heidi Yefremov, 1st Vice-President, Regina Vino-2nd Vice-President, Rebecca Hardy-Parliamentarian, and Aurora Osborn-NALA Liaison. Not pictured: Donna Nall-Secretary) December 2014 www.esrba.com The Summation 31
32 The Summation www.esrba.com December 2014