Social Media and Your Case

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

In the United States some eighty-one percent of people have some form of a social media profile. Social media is a great way to share your life with friends but it is increasingly becoming a source of evidence in legal proceedings. It is not uncommon to see that a Facebook post was the reason for the apprehension of a criminal suspect but social media is also playing a large role in civil litigation.

Gathering the Evidence
The first mechanism an attorney or investigator may use in attempting to gather social media evidence is by simply searching the individuals name. Many people do not have their social media profiles set to private which allows for a simple search of the individuals name on the leading social media websites to lead to a wealth of personal information including information that may be damaging to your case.

However, many individuals do have some level of privacy enabled on their social media accounts. In this case profiles can still be exposed by sharing content with friends who do not have strong privacy settings or through the ordinary means of discovery in a lawsuit.

In a civil proceeding, a party may obtain discovery regarding any matter that is relevant to the lawsuit, as long as such information is not protected by some form of privilege. Florida courts have already held that pictures from Facebook and other social media postings are discoverable in lawsuits. This is even true if the individual has enacted the strictest of privacy settings. Courts in Florida have effectively acknowledged that one who creates a social media account accepts that their personal information will be shared with others regardless of the user’s privacy settings.

Authenticating the Evidence
In court proceedings, it is one thing to gather the evidence and another thing to get that evidence admitted into a proceeding to be used by the judge or jury to render a decision. While discovery allows for broad requests of information, admitting a social media post at a proceeding must meet a more exacting standard.

In order for any evidence to be admitted, including social media posts, the evidence must be authenticated. The courts want to be as certain as possible that what is being admitted is not a forgery or altered in any way. This is usually done through a series of questions to a witness which include how the post was copied or saved from the website, who made the post, and who has personal knowledge that a certain individual made the post. These questions can address any other identifying features of the proposed social media evidence. Additionally, Florida courts have begun to allow expert witnesses such as internet consultants to assist in the authentication of website evidence.

Protecting your Information
The first thing everyone should do in order to better protect social media information is to make sure you take advantage of the privacy features offered by the service itself. Just as important as your own privacy settings, it is also important to ensure that those who you share information with also have strict privacy settings activated.

However, as previously explained privacy settings will not protect your information from discovery requests. The only way to truly prevent a social media post form being used as evidence is to not make the post. If you are posting something that is related or could be related to a lawsuit ask yourself if you would want the picture or post to be seen by a judge or jury. If the answer is no, do not post it. While we all want to share our lives with our friends and family, if for example you have a pending personal injury matter, the insurance company would likely be very interested in your vacation pictures as well.

Finally, once something is posted on the internet it is never really deleted as archives of the internet are being continuously made which take snapshots of the internet at certain times. So even if your post is deleted it is likely archived and may still be discoverable.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Is an oral contract binding?

By:  J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Many individuals today still conduct business or enter into agreements with handshake deals or oral statements. Generally speaking, oral contracts are enforceable in Florida. However, there are some exceptions which make certain oral contracts unenforceable.

Was a contract formed?

The first question that needs to be answered when addressing whether an oral contract is enforceable is – was a contract formed?

An oral contract is formed when (1) an offer is made, (2) the offer is accepted by the other party, (3) the offer and acceptance are supported by consideration, and (4) essential terms of the agreement are specified.

An example of a basic oral contract is as follows:

John Smith verbally offers to mow Jane Doe’s lawn tomorrow for $100. Jane Doe thinking this is a great deal accepts this offer by verbally stating to John Smith that she accepts the offer.

John Smith and Jane Doe have entered into an enforceable oral contract. John Smith made an offer to Jane Doe. Jane Doe accepted this offer by orally communicating affirmation. Legal consideration is generally something bargained for and received as part of the agreement. Consideration can include property, money, a return promise, an act, or even forbearance from an act. In this example, the consideration is the $100 which Jane Doe promised to pay to John Smith in order to induce him to take the action of mowing her lawn. Finally, it is not necessary that all terms be identified but that essential terms be defined so that each party understands what is expected of them under the agreement. Here, the essential terms are present – actions to be taken, amount of payment, location, and time of performance.

This is a simple example of an oral contract; however, oral contracts can be created and enforceable for far more complex transactions – such as the loaning of substantial sums of money, construction, or even the sale of a business.

When are oral agreements not enforceable?

Some common transactions which must be in writing are as follows: any contract for the sale of land or real estate, any lease lasting longer than one year, any agreement that cannot be performed within one year, an agreement that is not to be performed within one year, agreements to pay the debts of another, and agreements for sale of goods valued at $500.00 or more.

While oral contracts are generally enforceable in Florida, it is recommended that any agreement be put into writing and signed by the parties involved to ensure that that expectations and requirements of the parties are clear and can be specifically recalled in the event of a dispute. It is recommended that you have an experienced attorney review any agreements before they are entered into. Having an attorney review contracts prior to execution can help the parties avoid future problems and future expenses. Finally, if you face a situation where you need to enforce an oral or written contract, or someone is seeking to enforce a contract against you, seek immediate legal assistance from an experienced contracts litigation attorney.

Matt Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland.  Questions can be submitted to thelaw@cclmlaw.com.

Tickets, Tickets, Got Tickets? A Summary of Florida’s Ticket Resale Laws

By: Dan Rich, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Question: Is “scalping,” or reselling, tickets illegal in Florida?

Remember when your favorite band came to town but you couldn’t go because all of the tickets sold out in less than five minutes, but then were being resold for thousands? I do. The art of reselling tickets at prices much higher than the face value of the ticket is commonly referred to as “scalping,” and is a very real dynamic of the live event scene that unfortunately results in far too many people purchasing tickets at much higher prices than face value.

Before delving into how Florida law handles scalping, regardless of whether the ticket sale occurred online, over the phone or directly in person, it is beneficial to get a quick background.

How do ticket sales even work?

Plainly speaking, a “ticket” is a piece of paper, or more recently an electronic access code, that permits the holder of that paper or access code the right to enter an event such as a concert, a spring training baseball game or that new blockbuster movie. Generally, you can purchase tickets from the venue itself or, from a ticketing agent like TicketMaster or StubHub, who was hired by the venue to sell tickets at face value, plus a fee.

But sales do not stop here, instead, you may be able to get your tickets from a “ticket broker.” A ticket broker is anyone who obtains tickets for the sole purpose of buying tickets and then quickly turning around and re-selling them for a profit. Ticket brokers come in all shapes and sizes ranging from professional ticket brokers who use technology to purchase up large lots of tickets for resale to the retired baseball fan who buys up a batch of tickets and resells them all season in that parking lot across the street.

Whose job is it to regulate ticket resales?

Currently, there is no federal law in place prohibiting scalping. However, fifteen (15) states have implemented their own policies and laws in regards to banning the practice of scalping in some way. The offense of scalping is most commonly classified as a misdemeanor, with penalties ranging from fines and/or up to one (1) year in jail.

In Florida, up until a bit over a decade ago, ticket scalping was illegal. However, in 2006 the Florida Legislature changed the laws, and permitted persons, including ticket brokers, to resell tickets.

What does Florida law provide?

Currently, in Florida it is legal to scalp or resell tickets at prices higher than face value as long as the seller follows the policies and procedures outlined by the Florida Legislature. These policies can be summarized as follows:

  • Mandatory Guarantees. Resellers must post specific instructions on their ticket resale websites. The instructions are intended to provide clear guidelines for when a refund will be offered to purchasers, and the seller must also disclose that it is not the issuer, original seller or reseller of the ticket.
  • Mandatory Refunds. Resellers must provide refunds to ticket purchasers if the event is canceled, the purchaser is denied admission to the event (for a reason not attributable to their own actions) and if the tickets are not delivered in the manner requested.
  • Prohibitions on Location of Resale. Resellers cannot resell tickets for an event on the property where the event is taking place.
  • Ban on Reselling Non-Profit Tickets. The resale of tickets to a charity event is strictly prohibited.
  • Dollar Surcharge. Resellers are permitted to charge a $1 surcharge for reselling tickets, but only if the tickets being resold are for passage or accommodations on common carriers, to multi-day or multi-event tickets to a park or entertainment complex, or sold through an Internet website that fails to meet the criteria mentioned above.
  • Ban on “Bot” Software. Resellers may not use “bot,” or computer software, to buy up tickets. This provision of the Florida law is intended to limit professional scalpers from buying up blocks of tickets to events, impeding purchasers from getting direct access to these tickets.

Therefore, if a person or business violates any of the above-referenced provisions their attempt to resell those tickets will be considered a violation of Florida statutory law, and in turn would make their scalping attempt illegal. By understanding what is permissible and what is prohibited or required, event goers will be able to appear informed and knowledgeable the next time they are approached by a scalper. If you feel you have been wronged or cheated by a scalper, I would encourage you to contact an attorney that has knowledge of these laws and how they apply.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland.  Questions can be submitted to thelaw@cclmlaw.com.

Clearing the Mist: A Brief Glance into the Breadth of Florida’s Medical Marijuana Amendment

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What type of medical conditions can be treated by medical marijuana in Florida?

A: On November 8, 2016, more than 71 percent of Florida voters approved Amendment 2, Florida’s medical marijuana amendment. While it is clear that a majority of Florida voters support, at least in a limited capacity, the legalization of medical marijuana, what remains unclear, among many other issues, is how broadly the amendment will apply, and what type of medical conditions it will cover? The answers to these questions, and others, will most likely not be revealed for many months and years as the amendment is implemented; however, we can look to the text of the amendment itself, as well as to other states that have implemented similar laws, to get a glimpse of the breadth of its application.

Florida’s medical marijuana amendment allows an individual who is diagnosed with certain enumerated debilitating medical conditions, such as cancer, epilepsy, Crohn’s disease, or (perhaps most importantly) “other debilitating medical conditions of the same kind or class”, to use marijuana for medicinal purposes, if a physician believes the medical use of marijuana for such condition would outweigh the potential health risk for the patient. The inclusion of “other debilitating medication conditions” broadens the scope and applicability of the amendment, and provides Florida’s doctors with substantial discretion to determine those medical conditions that apply, and those that do not.

Other states, such as Illinois and Alaska, have defined debilitating medical conditions to include conditions such as rheumatoid arthritis, severe fibromyalgia, and Tourette’s syndrome, and have extended the term’s application to certain symptoms, such as chronic pain or severe nausea.  While Florida’s Department of Health will likely enumerate rules and guidelines regarding the determination of “debilitating medical condition”, the Department is limited in its rule making authority by the discretion the amendment affords to physicians to determine when the use of medical marijuana outweighs any potential health risks.  Consequently, although the application of the amendment will become clearer in the coming months, its breadth, while limited, is currently unknown, and Florida’s physicians will play a significant role in determining how the amendment will apply and who can partake in medical marijuana.

Watch Out for Arbitration Clauses in the Terms of Service for your Mobile Apps

By: Clark, Campbell, Lancaster & Munson, P.A.

Q:  I recently downloaded a mobile app without reading the Terms of Service. What concerns should I have?

A: Although each set of Terms of Service will have its own unique issues, a common concern is what would happen if there is a dispute between the user and developer of the mobile app. A growing number of companies, including Uber and Pokémon Go, require the dispute to be resolved through arbitration according to their Terms of Service.

Arbitration is the process where a dispute between the parties will be resolved outside of the courtroom by a third party, the arbitrator. Although arbitration is conducted outside of the courtroom, it is not necessarily a form of mediation. The arbitration process is actually adversarial much like traditional litigation – one party will be deemed the “winner” and the other party will be the “loser” upon resolution of the dispute.

Some of the advantages of arbitration are as follows:

(1) Flexibility. Unlike traditional litigation, the parties to the dispute are often able to schedule arbitration at their convenience, including evenings and weekends. In contrast, with traditional litigation, the courts generally have overcrowded calendars, whereby the parties have to schedule trial whenever the court has availability.

(2) Simplicity. Discovery is the process where the parties to a dispute obtain information from one another. In arbitration, the scope of discovery is often determined by the parties or by the arbitrator. Unlike traditional litigation, which requires a strict procedural process for discovery, arbitration often results in the discovery phase being simplified or completely bypassed.

(3) Expertise. If effectively chosen, arbitrators tend to be more experienced and skilled in the particular subject matter at the heart of the dispute compared to a judge or jury in traditional litigation.

(4) Potentially Cheaper. Due to the simplification of the discovery phase and the potential for a quick resolution of the dispute, the arbitration process may be cheaper, but this is not guaranteed.

Some of the disadvantages of arbitration are as follows:

(1) Limited Recourse. In arbitration, a party’s ability to successfully appeal an arbitrator’s decision is extremely limited. An arbitration clause will often provide that the arbitrator’s decision is final and binding upon the parties, even if the resolution is unfair. In traditional litigation, a party generally has the option to appeal a court’s decision.

(2) Lack of Information. Since the discovery process is usually simplified or bypassed in arbitration, the parties may discover after the arbitrator’s decision that vital information to the dispute could have been obtained through traditional forms of discovery, such as depositions.

(3) Upfront Costs. In arbitration, the costs are often substantial from the outset, which may foreclose an early settlement to the dispute.

(4) Limitation on Class Actions. An arbitration clause may prevent a party from joining a class action against the other party.

I accepted the Terms of Service for a mobile app and now realize there is an arbitration clause with which I do not agree.  Is there anything that I can do?

Depending on the Terms of Service, a user may have the opportunity to opt out of an arbitration clause so long as the user provides adequate notice. For example, in Pokémon Go, the user may opt out of the arbitration clause if the user provides written notice within 30 days from the date the user accepted Pokémon Go’s Terms of Service. Further, a user may be able to seek remedy in the courts that the arbitration clause is unconscionable, but generally arbitration clauses are looked upon favorably by the courts. Due to the implications of arbitration, it is important for a user of a mobile app to read, or at the very least, skim over the Terms of Service before clicking “I accept.”

The October 20th edition of “The Law” will discuss so-called “vulnerable road user” hit-and-run laws.

Collaborative Law

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What is a collaborative divorce?  Can the process be used in a business divorce?

A: As a litigator recognizing the costs, risks, and extended timeline of an old-fashioned lawsuit, and noting the existing burdens on our judicial system, I look for ways alternative resolution options for my clients.  In addition to common methods of mediation and arbitration, the family law arena may use collaborative law, which allows separating or divorcing couples to work with their own lawyers plus one or more other professionals to achieve an agreement that addresses the needs of the parties and their children without the threat of litigation.  The couple agrees in advance to have their lawyers collaborate with each other and any third party professionals, who might include, for example, child psychologists and accountants.  As the lawyers work together, and to encourage freely sharing information and ideas, the lawyers cannot represent their clients in any family-related litigation that might occur if no settlement is reached.  The collaborative process can also be used for prenuptial agreements.  Here especially, the process is designed to keep a loving couple from becoming adversarial.  Although collaborative law was first used in the United States in the late 1980s, it was not until March of this year that Florida became the fourteenth state to adopt a uniform law when Governor Rick Scott signed a version that imposes confidentiality on communications during the collaborative process.

In a business partnership, much like a marriage, the parties should not delay discussing ownership of assets, contributions and obligations, and what happens if it all goes south.  When things do go wrong, it is helpful to have had a clear and structured agreement in place to guide the process and avoid litigation.  But even with the clearest agreement, emotions can run high during a business divorce.  The costs of experts to value interests during a buyout and the intrusiveness of financial, asset, and intellectual property disclosures might lead businesspeople to want to find a better way than a lawsuit.  The collaborative process can be used in business formation, restructuring, buyout, and dissolution.  Unlike family law, it can be done completely without filing of any petitions and without regard to any court rules.

Like mediation, the collaborative process allows the parties, who may have creative ideas for resolution, to retain greater control over the outcome, with a settlement offer being accepted only if all parties want to do so.  Unlike mediation, however, the collaborative process eliminates the third-party facilitator who guides the process and places the parties in the driver’s seat.  Many businesspeople prefer to drive with the legal and financial professionals helping to navigate.

In considering whether to use the process, it bears repeating that the collaborative lawyer is not able to participate if litigation eventually arises.  But collaboration is almost always less expensive that the long path to trial.  It also has the business benefit of keeping trade secrets and confidential business information out of the public record.  Under the right circumstances, the process can even preserve a relationship from becoming a burned bridge by focusing on mutual respect and openness.  In the business world, the collaborative approach can make a lot of sense.

The July 14th edition of “The Law” will discuss the process and ramifications of homeowner’s associations foreclosing on their owners for delinquent assessments.

Questions can be submitted online to thelaw@cclmlaw.com

 

Contract Interpretation

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: When does a poorly drafted contract become unenforceable?

A: Having someone with a background in contracts and litigation help you draft agreements will decrease disputes over the interpretation and effect of your bargains. But even with the best legal assistance, unanticipated circumstances may arise that lead you wishing you had clearer terms in the beginning.

Courts do not want to interfere with freely made deals. If everyone agrees that the contract should have said X even though it really says Y, you can agree to live with X. If the other side wants to take advantage of the mistake but you can prove X was his original intent, you can ask a court to “reform” the agreement to match the intention. When there is a dispute over original intent, however, the original intent must be “clear and convincing” to overcome the clear terms of the written agreement.

Reformation is used for many purposes, including inserting obligations, signatures, and property erroneously not in the original writing or even deleting property erroneously added to the contract. Depending on the facts, you typically have to ask the court within four or five years to reform the deal, but a twenty-year period applies to reformations of deeds.

Similarly, if the other side knew and took unfair advantage of your mistake, reformation may be appropriate. In the absence of unfair conduct, however, courts cannot help resolve a one-sided mistake except to rescind (or undo) the contract and put the parties back in the positions they were in before the agreement. That option is available only if the mistaken party was not negligent and the non-mistake party will not be significantly harmed.

Like with mistakes, if a contract has ambiguities or vague terms but the parties agree what was intended, they can live by whatever legal terms they wish. Where the parties do not agree on interpretation, however, courts will review for two types of ambiguities: those clearly existing on the face of the contract due to insensible or unusual language (“patent ambiguity”), and those that become apparent only when some outside evidence is presented, including how the contract plays out in practice (“latent ambiguity”). Showing that a particular term makes sense in the four corners of the contract but could have multiple meanings to the parties because of other information is the classic latent ambiguity. Patent ambiguity, if not resolvable through reformation of mistake, may lead to an unenforceable contract, because Florida does not allow evidence beyond the four corners of the document to explain the ambiguity. Latent ambiguities by their nature, however, require resorting to outside evidence.

Through these processes, courts look to determine what parties actually intended and avoid preventing receipt of intended benefits.

The June 16th edition of “The Law” will cover when leases become equitable ownership and create property tax liability.

Questions can be submitted online to thelaw@cclmlaw.com

Supreme Court Justices

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: How are state and federal Supreme Court justices appointed?

A: A swarm of controversy resulted from the death of United States Supreme Court Justice Antonin Scalia, as political parties argue over when a replacement should be appointed and by whom.  The appointment process for judges on the highest courts of both the country and the State of Florida involves steps covered by constitutions and tradition.

First, the United States Constitution requires the President to nominate justices for the United States Supreme Court.  Typically, the President will look for someone who is well qualified and serves his political interests.  Because the Senate’s consent is required before the nominee takes the bench, the President may discuss the nomination with key senators and choose someone who strikes a balance palatable to a majority of the gatekeepers.  The first gatekeeper is the Senate Judiciary Committee, currently made up of 11 Republican senators and 9 Democrats (none from Florida).  That committee, which as originally designed did not interview candidates, researches and reviews the candidate’s background and holds a hearing with witnesses in favor and against the nominee, including the nominee himself or herself answering committee questions.  Tradition calls for sending the nominee to the full Senate for consideration regardless of whether the recommendation is to confirm or to reject.  Because a vote of 60 of the 100 senators is required to stop a filibuster and to force a vote, 41 senators (and there are 54 Republican senators at the moment) could presumably block the vote from occurring.  Notwithstanding the political considerations, nominees have been confirmed almost ten times as often as rejected.  Notably, the Chief Justice position is not automatically filled by an existing justice, but rather that role is to be filled through these same confirmation proceedings.  Only about one-third of the Chief Justices ever sat as Associate Justices.

Second, there is the Florida Constitution.  Most of the procedures discussed above have formed from tradition and necessity, since the federal Constitution told us little more than that the President had to appoint justices with the advice and consent of the Senate.  Our state’s governing document is much more detailed.  Although the legislature does not serve a gatekeeping function, the governor’s choices are limited to the three to six nominees proposed by a Judicial Nominating Commission, which is made up of three lawyers appointed by the Florida Bar Board of Governors, three electors appointed by the governor, and three additional non-lawyer electors chosen by a majority vote of the first six commissioners mentioned.  While this process may appear to give the Governor great power in selecting the judiciary, the new justice will face statewide voter consent to retention at the first general election that occurs more than one year after the initial appointment.

With the vacancy left by Justice Scalia, there are eight sitting United States Supreme Court justices—four appointed by a Republican President and four appointed by a Democrat.  There are seven Florida justices, with the majority appointed by Republican governors.

The May 5th edition of “The Law” will discuss the display of political and other signs within a homeowners association.

Questions can be submitted online to thelaw@clarkcampbell-law.com

Quasi Public Records

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: When can private entities working in concert with the government be subject to public records requests?

A: A Florida appellate court recently reversed a trial court’s ruling that the Space Coast’s Economic Development Commission is subject to public records laws. Florida has made great strides to bring the government “into the sunshine” with rules that sweep even certain casual encounters between government officials into the “open meetings” category and pull certain semi-private entities into public scrutiny. The Attorney General’s Office has spoken as to economic “councils” being within the purview of public records laws when they serve, as they generally do, an advisory role to the government.

It therefore surprised some when the appellate court reopened the question as to whether an economic development commission must respond to public records requests. The real reason for reversal was that the trial court applied the wrong test. The trial court used a “delegation of functions” test to determine that economic development activities having been delegated to the commission made it as though the commission was stepping into the shoes of the government. Where there is clear and complete delegation of function, the court said, the private agency is subject to public records laws. The appellate court did not reject that test but said that the test was misapplied, because the commission was left without some economic development functions, such as job training, and could not make binding decisions on tax incentives and abatements.

Absent complete delegation of function, the appellate court held that a “totality of factors” test applied. Factors include public funding (in this case, about half of the entity’s budget), commingling of public and private funds, conducting of business on public property, whether the services are integral to governmental decision-making, performance of a function the government would otherwise perform, extent of governmental control over the entity, creation of the entity by the government, substantial financial interest in the entity by the government, and operation of the entity for the public’s or government’s benefit. Undoubtedly, some of these factors appear to weigh in favor of treating an economic development commission as public enough to respond to public records requests. But the fact that the commission at issue received substantial investor funding, sat dozens of investors and few governmental appointees on its board and committees, and lacked final decision-making power for much of its advisory role made the appellate court question whether the public records laws applied. Absent a rehearing or another appeal, the trial court will now have to apply the totality of factors test to determine whether the commission is public enough.

When a quasi-public entity refuses your requests for public records, it is important to conduct an investigation, often with the assistance of an attorney, as to whether there is a good argument that the refusal is unwarranted, in which case you could have remedies to pursue in court.

 

The December 3rd edition of “The Law” will cover end of year tax tips.

Questions can be submitted online to thelaw@clarkcampbell-law.com.

How We Select Our Judges

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Polk County has recently seen judges appointed by governor and elected by the people. What is the process for judicial appointments, elections, and resignations?

A: The short but problematic answer is that trial court judges are elected by the people unless a vacancy arises (by resignation, by a judge being elevated to another court, or otherwise). This answer is problematic, because courts continue to grapple with how and when judicial resignations create a gubernatorial power of appointment.

For example, in March, Jacksonville’s Judge Donald R. Moran, Jr. tendered a letter of resignation to the governor, effective one business day prior to the end of the judge’s term this coming January. Days later, the Secretary of State received the first candidate submission. Once the governor accepted the resignation, however, the Division of Elections advised the candidate that the position would be filled by appointment rather than election, because the judge was resigning.

The timing of the letter and effective date were important. If the date the resignation letter is accepted by the governor predates the election process (i.e. candidate submissions), regardless of whether the effective date is later, the position is filled by the governor; otherwise, the election process continues. According to a 1970s Florida Supreme Court decision, however, if the judge resigns effective as of the end of his term, creating no actual vacancy, Florida favors elections.

An appeals court last month held that, even though the effective date of Judge Moran’s resignation created only a single business day of vacancy, there was no clear right to an election. The court’s Judge Philip J. Padovano, in dissent, expressed concern that such a ruling creates the potential for abuse; specifically, a judge could give the governor appointment power by resigning effective just hours before the end of his term or could strip the governor of that power by refusing to formally announce resignation until after the election process begins.

Above, I refer to how trial court judges get on the bench. Florida has also has an intermediary “court of appeals” and a “supreme court”. Judges on those benches are appointed by the governor after a nominating commission provides the governor with suggested candidates. Appeals and Supreme Court judges, like other judges in Florida, typically serve six-year terms and must go through a retention election process at the end of each term.

The October 23rd edition of “The Law” will address the sometimes confusing HOA covenants and restrictions.

Questions may be submitted online to thelaw@clarkcampbell-law.com.