The Legal Conservative

Well, the First DCA issued its opinion today in the NCAA Public records case, and no real surprises, given the oral argument. The court held the records were public because they were received by a public agency.  The court  did specify that it was not deciding whether the requested records were protected under FERPA if they had not been redacted, and seemed to hold that a record with student information  redacted is not  is not protected under FERPA.  Only interesting note I see from deciding the opinion this way is that the NCAA may never have had public records not subject to FERPA, since the court declined to reach this issue.  I think the redacted copies were only in the possession of FSU and their law firm, NCAA had unredacted copies, but I doubt the court intended this result. 09-4385.pdf (application/pdf Object).

Other interesting result of this case, perhaps not really intended , and one that I suspect will prove unenforceable, is the holding that a private record, that only becomes a public record when provided to a public agency, also becomes a public record in the custody of a private entity.  Taking the legal holding at face value, the result is that a private citizen , exercising his right to petition the government for a redress of grievances, now is liable for attorney fees if he does not provide a timely copy of his grievance to someone who requests that copy of the now public record from him.  If this is a reasonable interpretation of Florida’s public record law, I see this aspect dying a fiery death under the First Amendment if applied this way.

Biggest question though is whether the NCAA will ever provide this information to Florida Universities in the future if providing private information makes it a public record.

Today the First DCA  issued an opinion in Oken v. Williams, 1D08-3398, granting a petition for cert in case that argued that the trial court had failed to follow the law when denying a motion to dismiss for failure to comply with presuit notice in a medical malpractice action.  Basically, the plaintiff was attempting to bring a action against a board certified cardiologist, but had a corroborating affidavit signed by a doctor who was board certified in family and emergency medicine.  The motion to dismiss alleged that he was not a qualified expert.  The trial court however found that the areas he was certified in covered the areas of evaluating heart conditions and he was qualified therefore to do an affidavit.  The court found this in error, and basically said that you would have to be a cardiologist to be an expert.  The opinion then detoured off into the questions of whether citation to internet sources was appropriate, since the majority cited to internet sources to demonstrate what his not cardiology certifications did not qualify him as a cardiology expert- a generalist was not qualified to opine as to a specialist.

Appears the majority is correct on the standard for a presuit expert, but the interesting question is whether the record below, without resort to internet explanation of the meaning of specific board certifications, was sufficient to determine he was not qualified as an expert in cardiology.  Anyone with a med background or similar exposure could easily have reached that conclusion- generalist and specialist board certifications are different, but should a trial judge have understood that?  The majority said their result did not depend on internet citation and with basic background med knowledge, that is certainly true.  The dissent though doubted that the factual record was sufficient to make the determination without understanding the meaning of board certification, and raises the issue of when it is proper to cite to the internet, and what sources on the internet, if not part of the record below.  The opinion has a wealth of cites to other Florida appellate cases in which citations to the internet have been done, and it is an interesting discussion that will be more and more relevant in this electronic age.

222 years later, constitution scholars find little to celebrate in founding document – News.

Amazing headline from Harvard Law Record, but explains much about current elite constitutional thought, and it is worth reading from that perspective.  Thanks to How Appealing for identifying this gem.

Well, the Oral Argument was held this morning at the First DCA, and based on the questions from the Panel, it does not look good for the NCAA .   The panel did ask some questions on the FERPA, Public Records exemption issue, but the discussion seemed to be somewhat sidetracked on the fact the documents were voluntarily redacted, by the parties other then the NCAA. This  should not be a legal factor for the FERPA question before the court, the question of whether the records at issue contained student information.  One can presume based on the redactions that they did, and if so the entire records would appear to be exempt under Fla Law. Wonder if the panel may look at this further, although one judge seemed to think  the FERPA issue was not before the Court.

The Con Law questions were never discussed, and the court did not seem to be interested in the argument that the university had never received the records.  Here is an interesting hypothetical question on the receipt, if the NCAA had allowed the records to be read aloud for the benefit of the university on a closed circuit television station that was not recorded, would a public record have been received? Or how about if this were done over the course of a phone call.  Would a public record have been received? How is it different if the documents are viewed, but no other control over the documents is given to the “recipient.” And interestingly enough FSU would likely commit a crime if it attempted to record a phone call with these same contents without the permission of the NCAA.  Does not appear the digital nature of the transmission is all that relevant legally, both of the above  methods are as digital as viewing on a secure web site, but unlikely to create public records.  Interesting questions on what “received” means, maybe the question of receipt is the question of the ability to legally store and control.

Wonder if clarification of the law on how an entity cannot avoid public records requirements by delegating document custody or production to others, and the distinction  of where a document is not public because of its creation or delegation may help.

Annals of Law: Bench Press : The New Yorker.  Are Obama’s Judges really liberals,? by Jeffrey Toobin.  Interesting article not so much for the topic it discusses, but for its discussion of what liberal and conservative means, and noting how the language of judicial confirmations now presumes a need for judges to use conservative descriptions in the confirmation process.

David B. Rivkin Jr. and Lee A. Casey: Mandatory Insurance Is Unconstitutional – WSJ.com.

Newest article from WSJ discussing constitutionality of  mandatory insurance.

The briefs filed in this case at the First DCA will be attached as received.  We understand that oral argument has already been set for Friday morning the 25th in this case. We have now been sent copies of all the briefs in this case but the reply brief. Initial NCAA Brief; Answer Brief of Press Appellees;Answer Brief of Appellee FSU;  NCAA Reply Brief.

First, I will have to say that the FSU brief takes the prize for being the shortest brief without substantive authority filed urging  affirmance of a trial court that that did not just join another party’s brief that I have ever seen out of probably 5,000 briefs, and is worth reading only for that point. Its lack of argument highlights FSU’s dilemma; if the courts ultimately side with the press, all that will mean is that all the public universities in Florida will no longer be able to sign confidentiality agreements and review underlying documents in sanction cases. So, even if the Press wins this case, ultimately neither the universities nor the Press will gain anything, and all state universities will lose.  T.K. probably has not wanted to highlight this aspect, considering that he may have to lead a university legislative charge to create a public records exemption if this is the result, if he is still at FSU at that point.

As to the other arguments in the briefs, several constitutional claims are raised under the  commerce clause and first amendment, but under the principle of not reaching a constitutional claim if the case can be decided on a statutory ground, it appears the courts would not have to reach the Con Law questions. This case could probably be decided on plain statutory language.  The statute (1006.52)on the confidentiality of student records was changed just this year to incorporate the FERPA definitions, and appears to exempt documents containing student information from the public records laws. It is interesting that the records at issue in this case have been redacted by agreement to remove student information, because the mere redaction seems to admit that they are covered under this exemption. If these records are not student educational records, there would appear to be no basis to require the redaction of student information, and if the information can’t be released without redaction, then under the Florida exemption, it would appear that the entire record is exempt.  Will be interesting to see how the courts handle this interpretation.

Another interesting point in the case that is not really briefed is the trial court’s voiding of the confidential agreements, where the university had agreed as a condition of receiving access to the documents not to release them. Have not read the precise terms of the agreements, but it appears that the agreements only allowed access if the agreement was entered into, and if the agreement is void, it would appear that the university no longer has any access to viewing these documents. I have not researched, but it would seem to violate a fundamental concept of contract law to void the contract and let the university still receive the benefit of the contract, and if the university no longer has the benefit of the contract, then perhaps the issue of whether these contested documents were “received’ should be moot – could the parties be presumed to be at a pre contract status, and no documents received?  Even the Press would admit that they have no claim of public records if the university never “received” the records.

Andrew Napolitano: Health-Care Reform and the Constitution – WSJ.com.

One of the core tenets of a legal conservative’s philosophy is understanding that Congress is a body of enumerated powers, and in this column Congressman James Clyburn from South Carolina demonstrates classic incomprehension on that point.  Wickard v. Filburn also gets dishonorable mention.  Wickard of course is the Supreme Court case saying that Congress can forbid you from growing wheat in your backyard to feed your milk cow or horses, because that might have an impact on interstate commerce.

In an opinion issued today in  Abbey v. Patrick, the First District denied a cert petition request from a doctor who claimed he had a valid statute of limitations defense against a medical negligence suit.  The Court held that this was not an extraordinary case deserving of cert review, and did not reach the merits of whether there was a valid statute of limitations defense.  The Court may have been correct that this was not an extraordinary case that cannot be corrected on direct appeal,  but one wonders whether the legislature may want to visit this type of case.  The practical result of this ruling, assuming there is a valid statute of limitations defense, will be either putting the defense to the cost of a full trial, a cost they will probably never recover even if they later prevail on appeal, or raising the cost and risk of proceeding so much that a settlement is reached because of the plaintiff’s renewed leverage.  Perhaps, particularly in cases in which there are no material facts in dispute, so that the case is ripe for summary judgment, it would be much more efficient to allow a direct interlocutory appeal from a denial of a motion for summary judgment.

Nahmias adds conservative voice to Ga. high court | ajc.com.

A good profile of the newest appointed Justice to the Georgia Supreme Court, a Justice who interestingly enough worked for Judge Silberman, Justice Scalia, and Justice Roberts at different points in his career.  His philosophy is contrasted with that of former Justice Sears, who was described as being so far to the left you could not find someone more to the left.