Having represented the Secretary of State in the matter, I felt compelled to respond to Debra Tuomey’s case comment on Harris v. Moore. The comment indicates that, unless every aspect of the proposed changes to a county charter is clear to the average voter, the citizens of the jurisdiction should be prevented from voting on the matter at all. I believe that the appropriate emphasis is on allowing members of the electorate to decide the matter for themselves, unless the ballot summary is misleading in some significant manner.
What most disturbs me about the case comment is the assertion that the ballot summary failed to explain adequately the effect of the amendment, as required by Grose v. Firestone, and that the ballot summary did not make obvious to the average voter that the county manager would be replaced by a veto wielding, strong mayor.
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The only realistic limits imposed on the police in our society are those defined by the courts. In a time of fear of crimes, both real and imagined, the social climate appears distinctly to favor a more aggressive approach to law enforcement and the public attitude is seemingly more accepting of fewer controls over the police.
The facts of the false arrest case of Melvin Walker, Leila Stephens, Terrance Tignor, and Otis Tignor against the City of Pompano Beach illustrate the danger innocent citizens can face in this modern society and, more significantly, the degree to which police discretion can subject any member of society to moments of helpless terror.
In Daley v. City of Sarasota, Florida’s Second District Court of Appeal struck down a municipality’s attempt to impose an absolute ban on amplified noise emanating from unenclosed structures within certain zoning districts during specified hours of the day and night. The appellate court found that, despite the City’s laudable goal in attempting to regulate unreasonable noise, the First Amendment prohibits local governments from completely banning amplified noise. The Second District Court of Appeal’s holding extends to amplified commercial noise as well. Hence, any attempt to regulate amplified noise is “subject to strict guidelines and definite standards closely related to permissible governmental interests” and “must be sufficiently definitive as to secure against arbitrary enforcement.”
In Young v. Progressive Southeastern Insurance Company, the Florida Supreme Court held that insurance provisions excepting self-insured vehicles from the definition of “uninsured motor vehicle” violated Florida public policy. The Young decision was a significant change in insurance law, and it may raise more questions than it answers in the complicated field of uninsured motorist coverage.
This “Last Word” first reviews the basic principles and history of uninsured-motorist law in Florida, then discusses the specific facts and holding of the Young case, and finally suggests how the Young decision may impact some of the basic principles of insurance law well beyond the original parameters of the case.
In July of 1988, the American Bar Association Commission on Legal Problems of the Elderly and Commission on the Mentally Disabled convened a National Guardianship Symposium that became known as Wingspread, after the conference center of that name in Racine, Wisconsin. The 1988 Wingspread Symposium produced a set of landmark recommendations for reform of the nation’s guardianship system. Wingspan—The Second National Guardianship Conference, was convened November 30 through December 2, 2001, more than a decade after the original 1988 Wingspread Symposium, to examine the progress made in the interim, and the steps that should be recommended for the future with respect to guardianship law, policy, and practice.
The American judicial system has seen much change in the years following the 1988 National Guardianship Symposium, known as Wingspread. Two components of this change—the burgeoning use of “alternative dispute resolution” (ADR) and the proliferation of adult guardianship cases—have proceeded virtually independently of each other. The purpose of this Article is to explore the potential for integration of a specific form of ADR—mediation — into the adult guardianship system.
There has been considerable debate about the role of the appointed attorney for the alleged incapacitated person in a guardianship case. On one side are those who believe that the attorney should be an advocate for the alleged incapacitated person, argue zealously against the guardianship, and try to limit the extent of the powers of the guardian. According to the ABA Model Rules of Professional Conduct, the attorney must treat the subject of the guardianship as any other client. The attorney must follow the dictates of the client, regardless of whether there is evidence enough to support those ideas, or whether the attorney agrees with what the client wants.
On the opposing side of this argument are those who believe the attorney should substitute his or her judgment for that of the incapacitated person and act as a guardian ad litem. In this role, the attorney determines what is in the best interest of the person who is the subject of the guardianship. The attorney uses his or her own judgment to decide whether the person is competent, investigates the situation, and typically files a report with the court advocating what the attorney decides is in the best interest of the client.
Guardianship comes within the special province of judges. In the great majority of guardianship hearings, there is no jury. The presiding judge is the sole arbiter of whether the alleged incapacitated person meets the legal standard of mental incapacity and whether that person would benefit from the appointment of a guardian. If a guardian is appointed, the judge determines the type and extent of the powers granted to the guardian. Of course, the judge is not simply free to follow his or her own instincts or desires, for the judge is bound to determine the facts carefully and apply the law faithfully. Still, as the saying has it, “reasonable persons can disagree,” and the judge has some latitude in how he or she responds to the facts and circumstances that arise during the guardianship hearing. Within that zone of discretion, the judge may have a range or set of choices, any of which is defensible on legal and ethical grounds. No matter which course of action the judge takes, his or her decision is unlikely to be overturned on appeal. How, then, does a judge decide what to do? Put another way, what motivates a judge who presides at a guardianship hearing and how do those motivations translate into judicial action?
The purpose of this Article is twofold: First, to examine one state’s (California’s) legal framework governing adult protective proceedings (“conservatorships”) and aspects thereof specific to the litigation process1 and, second, to review the state of the law nationally regarding the liability exposure of lawyers for guardians and conservators to malpractice claims by wards or conservatees injured by a misguided, fraudulent, or negligent conservator or guardian.
The first part of this Article discusses California’s procedural and substantive rules governing conservatorship proceedings with an emphasis on issues arising in litigation. The second part, taking a national approach, discusses the competing theories used in determining whether the attorney for a guardian or conservator may be held liable in a malpractice or other tort action brought directly by the ward or conservatee.
Plenary guardianship is an extreme measure; the appointment of a guardian can result in the serious deprivation of a person’s rights. In the best of circumstances, a person of severely diminished capacity may be well served by a trustworthy and conscientious guardian who acts as a protector and advocate. In the worst of circumstances, the guardian might deprive the ward of any meaningful participation in the decisions that affect the ward’s life and might even exploit and abuse the ward.