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94. THE JUDGE RULES: New Judges and the Judicial Nominating Committee

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Your two Lake County, county court judges have been very busy. In 2004, county court handled 14,063 criminal cases. County court handled 1067 traffic infractions. County court handled 4008 civil lawsuits. That is a total of 19,138 cases which are just part of the workload. Did I mention that we were very busy?

Because of the large number of cases we handle, Lake County is getting an additional county judge. Applications are taken from interested attorneys who live in Lake County. The applications are submitted to a nominating committee. The committee is composed of people appointed by the governor and by the Florida Bar.

In our circuit the members of the nominating committee are: (1) Attorney Thomas Hogan, Jr., P.O. Box 485, Brooksville, FL 34605-0485, (2) Attorney Meredith Kirste, 610 East Main Street, Leesburg, FL 34748-5316, (3) Attorney Gary Sanders, 1333 Southeast 25th Loop, Suite 101, Ocala, FL 34471-1071, (4) Attorney Anne Corcoran, 538 North Citrus Avenue, Crystal River, FL 34428, (5) Attorney J.J. Dahl, 1001 East Avenue, Clermont, FL 34711, (6) Attorney Jeffrey Pfister, 107 W. Main St., Tavares, FL 32778, (7) Attorney Jeanette Haag, 452 Pleasant Grove Road, Inverness, FL 34452-5746, (8) Attorney Lisa Herndon, 550 W. Main Street, Inverness, FL 34450 and (9) Attorney Randolph Klein, 333 Northwest Third Avenue, Ocala, FL 34475.

They are volunteers who will be spending a lot of time narrowing down the choices. They will send the names of at least three candidates to the governor. The governor will select our new judge from the list or he can ask for a new list.

If you would like some input, you can certainly write to the members of the committee about candidates.

In addition to one county judge, the committee will be nominating candidates for other county and circuit judge positions in our circuit. Our circuit is composed of Lake, Sumter, Marion, Hernando and Citrus Counties.

Hopefully, the process will be completed by January 2006 when our new county judge is scheduled to begin.

*****(This example is based on an actual closed case.)*****

The Judicial Nominating Committee was to send the names of the nominees for three judicial positions to the Governor. The Governor would then have a 60 day time limit for appointing the new judges. The Committee sent the Governor a total of six names. The Governor wanted a minimum of nine names. The Governor said that the short list diminished his authority to make judicial appointments. The Governor asked the Supreme Court to give an opinion.

The Supreme Court gave the opinion that the Nominating Committee must provide three names for each vacancy. The 60 day time limit for making the appointments did not begin to run until the Commission submitted nine names. (551 So2 1205)

95. THE JUDGE RULES: Mediation, Arbitration, and Avoiding Court

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Sometimes avoiding court can be a good idea. Many contracts have provisions that may keep the parties out of court. The contract you sign may state that you agree to go to mediation before a judge would hear any disputes which may arise over the contract. You might be signing away your right to appear in court at all should there be a dispute, if you agree to arbitration. Nothing is wrong with these options as long as both parties agree. Read your contracts.

Arbitration is a process in which a non-judge or a panel of non-judges hears both sides of a contested matter and makes findings of facts and rulings. The decision of the arbitrator may or may not bind the parties depending on what they previously agreed in the contract. Under many circumstances a judge will sign off on the results. You may have an attorney represent you at arbitration and you can call witnesses. With non-binding arbitration, you might be able to have the case heard in court if you disagree with the arbitrator’s ruling.

Florida Statutes 44 and 682 address arbitration. The Supreme Court of Florida shall establish minimum standards for arbitrators and decide what training is required. Applicants for certification to become arbitrators must pay a fee. Arbitrators are usually paid for their work.

Mediation is different from arbitration. The purpose of mediation is to get the parties themselves to come to an agreement. If the parties reach an agreement, they will sign a Stipulation which the court could later enforce if there is non-performance. If the parties cannot agree, the case goes to the court for a decision. Many mediators are certified volunteers.

Drafters of contracts may choose to specify arbitration because it is a quicker, less expensive way of settling disputes than going to court. Court cases can take months, even years. Attorney fees can be enormous.

*****(This example is based on an actual closed case.)*****

Varga signed a contract with attorney Ramras. The contract stated that any fee dispute would be settled by arbitration. It stated that the decision of the arbitrator would be final and binding on both parties. Varga filed a malpractice suit against attorney Ramras. The attorney argued that the case should be decided by an arbitrator instead of by the court. The attorney claimed that arbitration was agreed upon in the contract and argued that the court should require the parties to submit the case to arbitration.

The Judge writing for the 3rd District Court of Appeal ruled: When ruling on a motion to compel arbitration of a particular dispute, the court must consider three things: 1.) is there a valid arbitration agreement, 2.) is there an issue appropriate for arbitration, and 3.) has the right to arbitration been waived. In this case there was a written agreement to arbitrate but it was a limited agreement. The contract only specified arbitration for fee disputes not claims arising out of representation. The former client can sue the attorney for malpractice and have the case heard by a court. (878 So2d 415)

96. THE JUDGE RULES: Courtroom Technology and Appearance by Phone

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

I have seen pictures of courtrooms with computer stations all over the room. There are courtrooms which have the equipment to do real time printed translations. There are courtrooms with large screens for video conferencing. None of those courtrooms has your zip code.

My courtroom does have a new speaker phone which enables everyone to hear testimony when I allow someone to appear by phone. Phone appearances can be very cost effective.

When can a person appear in court by phone? Judicial Administration Rule 2.071 addresses that question.

“A county or circuit judge may, upon the court’s own motion or upon the written request of a party, direct that communication equipment be used for a motion hearing, pretrial conference, or a status conference. A judge must give notice to the parties and consider any objections they may have to the use of communication equipment before directing that communication equipment be used. The decision to use communication equipment over the objection of parties will be in the sound discretion of the trial court except as noted below.

A county or circuit judge may, upon the written request of a party upon reasonable notice to all other parties, permit a requesting party to participate through communication equipment in a scheduled motion hearing; however, any such request (except in criminal, delinquency, and appellate proceedings) must be granted, absent a showing of good cause to deny the same, where the hearing is set for not longer than 15 minutes.”

Small Claims Rule 7.140 also addresses the use of the phone. “At the discretion of the court, testimony of any party or witness may be presented over the telephone. Additionally, at the discretion of the court an attorney may represent a party or witness over the telephone.”

The rules for video conferencing are a work in progress.

*****(This example is based on an actual closed case.)*****

Slawinski was charged with burglary of a dwelling and dealing in stolen property. The owner of the dwelling had recently had heart surgery and was recovering in Michigan. He appeared in court by satellite video from Michigan. The Defendant did not object to his appearance. The owner’s son, who was in Michigan taking care of his father, also testified by video. The Defendant objected. The Defendant said the son should have been in the courtroom. He did not meet the requirements to be allowed to appear by satellite video.

The Judge writing for the 4th District Court of Appeal ruled: A party who wishes to present the testimony of a witness by satellite transmission must demonstrate that the witness is beyond the territorial jurisdiction of the court or unable to attend the trial and that the testimony is material and necessary. In this case because of the frail condition of the father, the son must care for him and is unable to attend the trial in person. The son could appear by satellite video transmission. (895 So2d 483)

97. THE JUDGE RULES: Wage Garnishment and Exemptions

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

You, or someone you know, is an employee or has an employee who pays child support or owes money to a creditor. Employees’ wages can be garnished under some circumstances to pay these debts. Under other circumstances the wages may be fully or partially exempt from garnishment.

Florida Statute 222.11 defines “disposable earnings” as what is left after the lawful deductions are taken out. “Head of Household” is defined as a person who pays more than one-half the support for a child or dependent.

If a person is the head of a household and is subject to garnishment, he or she can claim the head of household exemption. To claim the exemption, the person must sign a statement under oath or affirmation that he or she is head of household and that the money in question is earnings. A copy of the affidavit must be sent to the creditor. If the creditor does not contest the claim under oath within two business days after service, the garnishment shall be ceased. If the creditor contests the claim, then the matter shall be heard by the court for determination.

If a court finds that the exemption applies, all disposable earnings of $500 or less a week are exempt from garnishment. In addition, the remainder of the disposable earnings would be exempt unless the employee had agreed in writing to allow the creditor to garnish his or her wages in the event of a judgment.

Disposable earnings of any person may not be garnished for amounts which exceed the amounts allowed under the Consumer Credit Protection Act, 15 U.S.C.s.1673.

Earnings, which can be traced as earnings, and are exempt because of the head of household exemption, and are deposited in any financial institution are exempt from garnishment for six months after they are deposited.

I addressed garnishment in a prior column [column No. 21 on this website].

*****(This example is based on an actual closed case.)*****

The Defendant claimed that he was head of household. The creditors contested. The court ruled that the Defendant was head of household. The Defendant wanted all garnishment to cease. The creditor agreed that they could no longer garnish earnings under $500 per week. But they argued that they were entitled to garnish earnings above $500 per week because the Defendant signed the original loan papers in which he agreed to pay garnishment.

Judge Miller ruled: The loan agreement the Defendant signed stated: “you agree that, should we obtain judgment against you, a portion of your disposable earnings may be attached or garnished (paid to us by your employer), as provided by Federal law.” The Defendant signed the agreement and is now bound by it. His disposable earnings over $500 per week are subject to garnishment.

98. THE JUDGE RULES: Delayed Birth Certificates

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

I am a county judge but I have been appointed to be an acting circuit judge for certain assignments. One of my duties as an acting circuit judge is to issue delayed birth certificates.

Most children who are born in central Florida are delivered by a doctor who sees that a birth certificate is completed and registered with the state of Florida. Some children are delivered at home and no birth certificate is filled out and registered to document the event. Later, sometimes many years later, a parent will request that I issue a delayed birth certificate. Usually so the child can enter school. Sometimes adults will need a delayed birth certificate for themselves for retirement purposes.

Florida Statutes 382.019 and 382.0195 address delayed birth certificates.

A delayed birth certificate can be granted by the Department of Health if the proper documentation is available. If it is not available, a person who was born in Florida or is a resident of Florida may file a petition in the circuit court for a delayed birth certificate. A reasonable interpretation of the two statutes indicates that a parent or guardian can sign the paperwork on behalf of an underage child. The petition must be on a form provided by the Department of Health. The petition must be filed in the petitioner’s county of residence or the county of his or her birth. The petition must set forth the date and place of birth. It must name the parents of the child. It must include a certified statement from the state registrar that based on the facts the petitioner submitted there is no prior birth certificate for the person in question.

The court shall hold a hearing. The court will consider evidence which would establish the fact of the petitioner’s birth and the date, place and parentage of his or her birth. Such evidence might include midwife records, school records, Social Security records, immunization records or insurance records. A certificate may not be granted solely on the uncorroborated testimony of the petitioner. Once a birth certificate is registered, it is prima facie evidence of the facts stated on the document. Judges must be confident that the child is the child of the alleged parents and that the information provided by them is accurate. The court may withhold granting a delayed birth certificate until the facts are proven to the court’s satisfaction.

Once registered, birth certificates on file are confidential.

*****(This example is based on an actual closed case.)*****

The petitioner wanted the court to grant a delayed birth certificate for a ten year old child. The only evidence submitted was the statement of the alleged parents and several reading awards in the child’s name from a local eatery. The child had supposedly been born at home and had been home schooled.

Judge Miller ruled: While the Court sympathized with the need for a child to have documentation of his or her birth, there was not enough evidence to verify the facts which the alleged parents claimed should be on the birth certificate. The petition for a delayed birth certificate was denied.

The Petitioners were welcome to reset the hearing if they were able to collect more evidence.

99. THE JUDGE RULES: Animal Public Safety Partners

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

I enjoy reading reports about how Rover saved the baby which fell in the river. Or how Fido alerted the family when the house was on fire. Animals can be heroes.

Some animals work on a regular basis with police, fire or rescue squads to make our communities safer. The Legislators have toughened Florida Statute 843.19 in an effort to protect our animal public safety partners.

It is a third degree felony, punishable by up to five years in prison, to intentionally and knowingly cause great bodily harm, permanent disability or death, to a police dog, fire dog, search and rescue dog or police horse. It is also a third degree felony to use a deadly weapon upon a police dog, fire dog, search and rescue dog, or police horse.

It is a first degree misdemeanor, punishable by up to a year in jail, to intentionally maliciously touch, strike, or cause bodily harm to a police dog, fire dog, search and rescue dog, or police horse.

It is a second degree misdemeanor, punishable by up to sixty days in jail, to intentionally or knowingly maliciously harass, tease, interfere with, or attempt to interfere with one of the animals protected by this statute, while the animal is performing its duties.

A person convicted under this statute is responsible for restitution. It is not unusual for a working dog to be worth $60,000. Sometimes the animals are purchased with grant money or tax dollars. Sometimes civic organizations pay for the animal. It does not matter who paid to purchase the animal, a convicted Defendant will be ordered to pay the REPLACEMENT COST to the Department if the animal can no longer perform its duties. Usually restitution is “fair market value” but not in this revised statute which takes effect on October 1, 2005.

*****(This example is based on an actual closed case.)*****

Thomas Bass was sentenced on four criminal charges: delivery of cocaine, resisting an officer with violence, battery on a law enforcement officer, and injuring a police dog. Because he had been to prison before, the court considered him to be a prison releasee reoffender. His sentence was enhanced accordingly for each of the four charges. The Defendant argued that his sentence should not have been enhanced for the charge of injuring a police dog. The Defendant argued that only felonies involving the use or threat of physical force or violence against an INDIVIDUAL would enhance the penalties. The Defendant claimed that a police dog was not an “individual.”

The Judge writing for the 4th District Court of Appeal ruled: The law in Florida does not treat dogs the same as humans. “As much as dogs are loved and cherished by their owners, they are not persons or “individuals” for purposes of the criminal law.” A dog is considered to be personal property. The Defendant is correct. His sentence cannot be enhanced under the reoffender statute for having been convicted of the crime of injuring a police dog.  (791 So2d 1124)

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