Wednesday, August 25, 2010

3d DCA Watch -- Ticky Tacky Wicky Whacky Meaty Beaty Big and Bouncy!


I think it's pretty funny that The Who wound up releasing about five times as many compilations as original albums, but I still retain a fondness for their first one, which as Allmusic notes, actually had a purpose.

And just like The Who kept going back to the well to release newly warmed-over collections of old material, so do the best-dressed appellate judges in South Florida, who have once again returned to the sad plight of truck owners in Coral Gables.

Is there a purpose to their returning once again to ticky-tacky land?

Read on and find out......

Kuvin v. Coral Gables:

Ok, so the original panel denies rehearing but certifies this question to the Supremes:
MAY A CITY ORDINANCE, WHICH PROHIBITS THE
PARKING OF ANY TRUCK IN A PRIVATE DRIVEWAY OR
IN A PUBLIC PARKING SPACE AT NIGHT, AS APPLIED TO
A PERSONAL-USE LIGHT DUTY TRUCK, BE UPHELD AS
CONSTITUTIONAL?
 Not so fast, says the third original panel participant Judge Rothenberg -- there's already been an en banc ruling (also issued today, coincidentally by Judge Rothenberg) that has superseded our original opinion, so what the hail are you doing?

She even throws in a (ouch!) Senior Judge reference:
The original panel majority, consisting of one active member of the Court and one Senior Judge, now attempts to certify to the Florida Supreme Court a “question of great public importance.” Respectfully, because this Court has now decided this case en banc, and the en banc opinions supersede the original panel opinions issued by this Court, the original panel is without jurisdiction or authority to certify a question to the Florida Supreme Court, in view of Florida Rule of Appellate Procedure 9.331....
Rules shmules.

She continues:
The case pending before this Court has been considered and ruled on by eight of the ten judges in regular active service (two of the judges in regular active service recused themselves from considering this case). Thus, the decision of whether or not to certify a question to the Florida Supreme Court rests with the Court en banc, not with the original panel.

The original panel majority’s attempt to certify a question to the Florida Supreme Court is also a procedural impossibility. The original panel majority did not certify a question to the Florida Supreme Court based on its original decision or the original panel opinions issued. It certified a question based on the en banc ruling of the Court. The original panel has no authority to certify a question based on the en banc decision of the Court, and procedurally it cannot reach back to take any further actions as a panel once the Court has ruled on the matter en banc. Thus, the certified question issued by the original panel majority is a nullity, and I must respectfully dissent.
What am I missing here?  This seems dead on.

Now let's take a look at Judge Rothenberg's en banc opinion.

She reverses Judge Schwartz and affirms the ordinances in question, in an opinion far more detailed than the original ruling.

More interesting is Judge Shepherd's "hold your nose" concurrence, in which he takes issue with the "enthusiasm" displayed by the majority.

He also pulls out a favorite theme of his, that the judges' role is limited and our dumb elected leaders make the laws, even especially asinine ones:
I am more concerned by the enthusiasm with which the majority embraces these ordinances. I do not believe the ordinances “make perfect sense.” See supra p. 18. In fact, it is not our place to so decide. Aesthetic judgments necessarily are subjective in nature, defying objective evaluation.
If only Florida was as smart as other states and tied aesthetic ordinances to a traditional police power, but alas "Florida does not.  Accordingly, under Florida law, I am honor-bound to join the majority in this case."

Honor-bound?

What about being honor-bound to pinch your nose while doing so?

(Simultaneously throwing up your hands is optional.)

Judge Cortinas, the other member ("active member"?) of the original panel who joined Judge Schwartz in  certifying the question to the Supremes -- pens a vigorous dissent, sprinkling in references to rednecks and lowlifes, rubber stamps, purple cars, "red cows," the Wizard of Oz, George Orwell, charges of elitism, cars that "perplexingly metamorphosize" into trucks, horses that turn into zebras, and Fritz Leiber's post-apocalyptic classic, The Night of the Long Knives (I made that last one up, but it would have worked, trust me):
Truth be told, the author of this opinion does not particularly like trucks, including the Ford F-150. He would not want to own one and does not like driving alongside or behind one. He finds the F-150 to be bulky the same way some minivans and SUVs are bulky. However, a judge must put aside his or her personal likes and dislikes and apply the law equally and fairly. Although a judge may not like trucks of any kind, he or she must recognize that there are many people who think differently. Indeed, the F-150 is the personal-use vehicle of choice for millions of Americans, including some residents of Coral Gables. It is not an aberrant vehicle cherished by rednecks and lowlifes, as the tone of the majority opinion suggests.
This is very good stuff, but I think the point is even if it were an "aberrant vehicle cherished by rednecks and lowlifes,"


the Court would be under the same obligation to decide the issue equally and fairly.

These opinions are sure going to make for some awkward coffee-swilling moments around the judicial water cooler.

37 comments:

  1. wow. a nasty day at the 3rd! guess rothenberg is not having coffee anymore with cortinas or schwartz! i hate to say it, but she is right on this one. What an arrogant thing for the dissenting judges to do and try and undermine the en banc ruling of the court. not very collegial, nor very smart. sad to say, cortinas seems to be taking after schwartz. that is not a good place to be angel!

    ReplyDelete
  2. I suggest a water balloon fight on the lawn.

    ReplyDelete
  3. The certified question allows for supreme court review. IMHO it was actually very smart.

    ReplyDelete
  4. I'm honor bound to laugh hysterically

    ReplyDelete
  5. Nice Beverly Hillbillies cite at the end.

    ReplyDelete
  6. Rothernberg needs to be denied merit retention the next time she is up.

    ReplyDelete
  7. Rothenberg got it right. I'm glad someone up there knows and follows the law, and doesn't make arguments not raised by the lawyers. Although I think Coral Gables goes too far with all of its regulations, the rational basis standard is a very liberal one which requires that if there is any rational basis to uphold the law, the court has no choice but to find that it is constitutional.

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  8. Rothenberg says there could be smelly fish nets on those trucks so you see the regulations are entirely rational. That's enough for me say five others.

    I wonder how many of those neo con judges actually live in the Gables? If trucks do affect their property values, don't they have an interest in the outcome of the litigation?

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