Home » About » Newsletters » August 1996
The ACLU of Florida's Full Legal Docket
Compiled by Former Legal Assistant Haymara Font, August 1996
Updated Quarterly
Due Process
Smith v. Avino
Cooperating Counsel: Howard Talenfeld, Maria Abate and Legal Director Andrew H. Kayton
The U.S. Court of Appeals for the Eleventh Circuit ruled against us in August 1996 in this challenge to the emergency curfew imposed in Dade County following Hurricane Andrew. The ACLU brought suit three months after the curfew was imposed because dawntodusk restrictions remained in effect long after emergency conditions had eased. The curfew was in fact thereafter lifted, but our action went forward (and lost) on damages claims. The Court of Appeals held the curfew ordinance was neither vague nor overbroad on its face, nor applied in an arbitrary manner.
Howlett v. Pinellas County School Board
Cooperating Counsel: Enrique Escarraz III and Morris V. Bornstein
This action stems from a warrantless automobile search which resulted in the expulsion from school and criminal prosecution later dropped of Mark Howlett, a student in the Pinellas County public school system. In 1990, this case went up to the U.S. Supreme Court, which held in a landmark decision, Howlett v. Rose, 110 S.Ct. 2440 (1990), that Florida state courts could not grant sovereign immunity to a local school board in a federal civil rights action. The civil suit remains pending against the school board. On August 15, 1996, the circuit court granted defendant Petit's motion for summary judgment.
Hall v. Recchi America, Inc.
Cooperating Counsel: Mark Brown
Hall was a construction worker at Recchi America, Inc., which has a drugfree workplace program. Three weeks after Hall began his employment, a coworker tripped and jabbed a steel screed into the back of Hall's head. Hall was taken to the workers' compensation medical center, where he provided a urine sample that tested positive for marijuana. As a result, a compensation claims judge denied Hall's workers compensation claims. Florida Statute Section 440.09(3) provides that when there is a drugfree workplace program, a positive drug test creates an irrebuttable presumption that a workplace injury was caused primarily by the influence of the drug. Under this law, Hall was barred from disproving his injury was caused by use of marijuana. The Florida First District Court of Appeal held that Fla. Stat. Section 440.09(3) violates rights of due process, and the company has appealed that decision to the Florida Supreme Court. In July 1996, we filed an amicus brief in the Florida Supreme Court in support of Hall, arguing that the irrebuttable presumption under Fla. Stat. 440.09(3) violates rights of due process under the Florida Constitution and that the drug test imposed on Hall under state law violates the Fourth Amendment to the U.S. Constitution.
State v. Owen
Cooperating Counsel: Legal Director Andrew H. Kayton
We filed an amicus brief in support of a defendant who received a death sentence after being convicted based on a confession obtained by police after he may have indicated he wished to remain silent. Our amicus brief argues that the use of Owen's confession violates the Florida Constitution. Under a 1994 U.S. Supreme Court decision, the confession is admissible evidence under federal constitutional doctrine. However, the Florida Supreme Court is considering in this case whether the Florida Constitution affords greater protection than the federal constitution to defendants who invoke the right to remain silent. Oral argument was held on January 5, 1996.
In the Matter Of J.A.
Cooperating Counsel: Lida TaseffRodriguez
The state appealed an order by the Dade County Circuit Court concerning "random" metal detector searches in Dade County public schools. The circuit court held that metal detector searches of students in Dade County public schools are unconstitutional, and granted a motion to suppress evidence in the juvenile criminal proceeding of J.A., stating that the police lacked probable cause to search his jacket which was hanging on the side of his chair and contained a concealed firearm. The ACLU of Florida filed an amicus brief in the Florida Third District Court of Appeal seeking affirmance of the lower court decision. On August 21, 1996, the Florida Third District Court of Appeal reversed the circuit court's decision, and held constitutional the School Board's metal detector search policy and the search of J.A.
Quinon v. FBI
Cooperating Attorney: William Walsh, James K. Green, and Arthur Spitzer, Legal Director of the National Capital Area ACLU
Plaintiff Jose Quinon and another criminal defense attorney were retained by Carlos Lehder, a Medellin drug cartel leader, to defend him on federal criminal charges brought in the Middle District of Florida. When Quinon filed a motion to recuse all judges on the U.S. Court of Appeals for the Eleventh Circuit from the case, he and his partner were immediately subjected to an FBI criminal investigation for obstruction of justice. Under the Freedom of Information Act, counsel tried to obtain FBI documents concerning the source and basis for the investigation. A federal district court upheld the FBI's contention that such documents were exempt from disclosure based solely on affidavits submitted by FBI agents. On June 28, 1996, the U.S. Court of Appeals for the D.C. Circuit adopted the position advocated by the Florida ACLU as amicus in the case, reversed the district court's order, and remanded the case with instructions that the district court must conduct an in camera inspection of the disputed documents.
Kovacs v. Mental Health Services of Orange County
Cooperating Counsel: Professor Mark Brown, Stetson University School of Law
In April 1995, the ACLU of Florida filed an amicus curiae brief arguing that involuntary civil commitment pursuant to the Baker Act in Florida should be found to be state action. Mr. Kovacs was involuntarily hospitalized in a mental institution after he went to his local emergency room seeking information regarding aspects of consuming red meat. The physician who attended him perceived Kovacs' questions as peculiar, and recommended that he go to the Orange County Crisis Unit where, without notice, he was psychologically evaluated. As a result, Kovacs was committed and forced to take medication for four days against his will. Kovacs filed an action in 1990, but the court granted defendant's motion for summary judgment. The decision of the Eleventh Circuit Court of Appeals in this matter is pending.
Doe v. Butterworth
Cooperating Counsel: James K. Green and University of Miami Law School Prof. Susan Stefan
On August 7, 1996, the ACLU filed this action challenging the validity of Florida Statute Section 395.3025 under the American with Disabilities Act. The statute allows all patients except those given psychiatric treatment or treated for some mental or emotional condition access to their medical records without the consent of their treating physicians. In 1993, after having a fight with her father, plaintiff ingested 20 Tylenol tablets and then went voluntarily to her local hospital to have her stomach pumped. Pursuant to the Baker Act she was then held involuntarily and examined by two psychiatrists. During her stay at the hospital, plaintiff did not display behavioral problems or indications of mental illness. When she decided to leave, the hospital did not seek involuntary commitment. However, the hospital has since denied plaintiff access to her medical records.
Johnson v. Kurtz
Cooperating Counsel: James K. Green
This class action challenges the quality of care and treatment for thousands of present and former mental patients at G. Pierce Wood Memorial Hospital in Southwest Florida. In 1989, the State agreed to a consent decree to improve conditions at the hospital and in 1993 agreed to improve treatment in the community. The State defendants began reneging on their agreements and in 1994 asked the Federal Court to relieve them from their legal obligations under those agreements. The United States Department of Justice moved to intervene in the case in July 1996, asserting a position consistent with our interest in the case and grave concerns about treatment of current and former patients at the hospital.
Pred v. Metropolitan Dade County
Cooperating Counsel: Robert Parks, Legal Director Andrew H. Kayton, and Sheila Wolfson Moylan (deceased)
In a disappointing decision, the Florida Supreme Court decided by a 43 vote in June 1996 not to review the ACLU's challenge to the Dade County juvenile curfew ordinance. The ACLU initially obtained preliminary and permanent injunctions in Dade County Circuit Court striking down the ordinance as unconstitutional. Cooperating attorney Bob Parks elicited unrefuted testimony at trial from former and current police officials in Dade County who agreed that the curfew could not and would not prevent or deter juvenile crime. On appeal of the trial court's final judgment in our favor, however, the Third District Court of Appeal reversed the trial court's judgment in a per curiam decision without acknowledging that its opinion conflicts directly with appellate decisions elsewhere in Florida. Sadly, shortly before the Florida Supreme Court's decision, cooperating attorney Sheila Moylan passed away.
Sansbury v. City of Orlando
Cooperating Attorney: Howard Marks and Robert Smith
Trial date has not yet been set for this case challenging a twelve square block juvenile curfew in downtown Orlando. The case was originally challenged in May 1994, and a motion for temporary injunction was denied. That decision has since been appealed unsuccessfully to the Florida Fifth District Court of Appeal. A hearing on summary judgment was held in August 1996.
Baal v. State of Florida
Cooperating Counsel: Enrique Escarraz, III
This action involves an appeal from a conviction for violating a City of St. Petersburg Ordinance that prohibits people from entering or remaining on city park property at any time between sunset and sunrise. On September 22, 1994, Steven Baal was arrested, charged and convicted for trespassing park property at approximately 1:32 a.m. while looking for his dog around the park area. On May 6, 1996, Circuit Court Judge W. Douglas Baird found the ordinance to be unconstitutional, and reversed and remanded the trial court's final judgment and sentence. The City Attorney has filed a petition for certiorari in the District Court of Appeal of Florida for the Second District.
Gaiter v. Warren
Cooperating Counsel: Joel Perwin
The Third District Court of Appeal reversed a decision of the Dade County Circuit Court awarding custody of Janice Gaiter's children to her mother on the basis that Gaiter had AIDS. We filed a brief arguing forcefully that the custody award violated numerous provisions of Florida statutes and the state and federal constitutions. At oral argument, Chief Judge Alan Schwartz of the Third District Court of Appeal announced from the bench that the court would vacate the lower court decision and grant Gaiter immediate custody of her children.
Equal Protection
Cleveland v. Wilken
Cooperating Counsel: James K. Green, Prof. Michael Masinter, Nova Southeastern University Law School and Prof. Mark Brown, Stetson University School of Law
On June 20, 1996, we filed appellants' initial brief in the Eleventh Circuit Court of Appeals challenging the constitutionality of Florida Statute Section 57.001 after the U.S. district court abstained from deciding the issue and denied plaintiffs' motion for a preliminary injunction in February. The statute, in existence for almost 30 years, requires nonresident plaintiffs who file an action in state court to pay a $100 bond (with no similar requirement for resident plaintiffs or any defendants). If imposed it would deny access to the courts for a number of indigent people.
Torres and Peralta v. Metropolitan Dade County and City of Miami
Cooperating Counsel: Legal Director Andrew H. Kayton, Rosemary Frankel Furman, and Dione Carroll
On June 24, 1996, the Miami Chapter filed a class action challenging a Dade County ordinance that criminalizes public solicitation of "temporary employment less than thirty days" except in designated zoned areas of the county. 100% of the individuals arrested under the ordinance have been Hispanic males. Plaintiffs claim that the ordinance is unconstitutional on its face and enforced in a discriminatory manner based on race and national origin. A motion for partial summary judgment is pending.
First Amendment
Adler v. Duval County School Board
Cooperating Counsel: William Sheppard and Gray Thomas
Oral argument was held in August 1996 for the second time in this case before the U.S. Court of Appeals for the Eleventh Circuit addressing the constitutionality of socalled "studentinitiated" school prayers instituted at high school graduation ceremonies in Duval County. The case went up on appeal nearly two and half years ago and was first argued on appeal in March 1995, but the Court of Appeals apparently was unable to decide the case and reset it for a new hearing before a new panel. A decision on the merits in this case could potentially have a significant impact nationally.
Quincy Corp. v. United Farm Workers of America
Cooperating Counsel: James K. Green, and Sarah Cleveland and Rob Williams of Florida Legal Services
We filed an appeal in March 1996 on behalf of the United Farm Workers concerning a temporary injunction issued against the union by the Gadsden County circuit court in an action brought by Quincy Corporation. Quincy Farms is the largest employer in Gadsden County; the union represents a majority of the company's workers, and the company refuses to engage in collective bargaining with the union. After some of the workers engaged in picketing, the company obtained an ex parte injunction limiting the union to eight pickets and barring union members from congregating or picketing within 50 yards of the entrance to company property. We have also filed a countercomplaint against Quincy Corporation for civil rights violations by the company against the union and its members. The court denied the company's motion to dismiss the countercomplaint on July 17, 1996.
Calvary Assembly of God of Orlando v. Rick Johnston, et al.
Cooperating Counsel: Robert Smith
Calvary Assembly of God of Orlando filed a lawsuit against members of Wholeness in Christ Ministries seeking an injunction preventing Wholeness in Christ Ministries members from picketing outside the Calvary Assembly Church. Wholeness in Christ Ministries members regularly picket (with a permit) outside churches that they believe or whose clergy they believe are theologically lax or unsound. The ACLU represented Wholeness in Christ Ministries in this action, and argued that the injunction sought in this case would violate the First Amendment rights of Wholeness in Christ protesters. At a hearing in April 1996, the Orange County Circuit Court declined to act on Calvary Assembly's motion for a temporary injunction.
Harrell v. St. Mary's Hospital
Cooperating Counsel: Legal Director Andrew H. Kayton, and Catherine Weiss and Laura Abel of the Reproductive Freedom Project of the National ACLU
Harrell, who is a Jehovah's Witness, entered St. Mary's Hospital with a blood disorder when she was twentytwo weeks pregnant. When she refused a blood transfusion based on her religious beliefs, the hospital sued her in May 1995 and obtained a court order that would allow a blood transfusion of Harrell and her fetus without her consent. The hospital claimed in this case to be protecting the rights of the fetus. In a decision rendered in August 14, 1996, the Florida Fourth District Court of Appeal agreed with the ACLU, however, that St. Mary's Hospital violated state law and infringed Harrell's constitutional right of privacy, holding that the hospital could not violate the bodily integrity of a competent adult patient without her consent.
Antolak v. Broward County School Board
Cooperating Counsel: Legal Director Andrew H. Kayton and Prof. Steven Wisotsky, Nova Southeastern University Law School
Rebecca Antolak is a student in the magnet performing arts program operated by the Broward County School Board at Dillard High School. Inspired by the works of Botero, and with her teacher's permission, Rebecca created an oversize male nude sculpture in the school lobby. The school's principal censored the sculpture when some staff members and students complained they found it embarrassing or offensive, and ordered it removed from the lobby. The principal left student art work depicting female nudes on display, however. We filed an action in federal court on March 20, 1996 seeking damages and an order declaring such censorship and the school policy under which such censorship occurred to be unconstitutional. Trial is scheduled for January 21, 1997.
U.S. v. Mack
Cooperating Counsel: Benjamin Waxman
Defendants and their respective attorneys in this criminal prosecution in Miami criticized the U.S. Department of Justice's decision to seek the death penalty, asserting it was racist. Federal prosecutors sought a gag order prohibiting dissemination of any information by a party or that party's agents to any nonparty until the jury returned its final verdict. On July 21, 1995, we filed an amicus curiae brief arguing that the gag order would unjustifiably infringe upon First Amendment free speech rights of defense counsel and defendants. The judge refrained from entering the gag order, and in early 1996 defendants were acquitted of all capital charges.
Dadic v. Kersey
Cooperating Counsel: Valentin Rodriguez and James K. Green
On April 15, 1994, Dadic went to a U.S. post office to collect signatures for a petition to repeal a sixcent gas tax imposed in Palm Beach County. However, post office officials required that Dadic carry out her solicitation at least ten feet away from the post office entrance, set up a table, and solicit signatures only from behind the table. Officials also allegedly formed a semicircle around the table. When Dadic decided to step away from the table to collect signatures and returned, the postmaster asked her to leave. Upon her refusal, she was handcuffed and put in the back seat of a patrol car. Dadic was then transported to a dead end street and forced to remain in the car for an hour in excess of 85ø temperature. Dadic was finally taken to the Palm Beach Stockade where she was detained, and later charged with trespass after warning. Trial was held during the week of August 12, 1996 on a civil action alleging violations of Dadic's constitutional rights. A verdict was entered for the defendants.
Gibson v. Babbitt
Cooperating Counsel: Arthur Schofield
Harvey "Fire Bird" Gibson applied to be certified as a Native American by the Bureau of Indian Affairs in order to receive bald eagle feathers for tribal religious ceremonies. The Bureau refused to certify him, finding Gibson is not a member of a federally recognized tribe, and Gibson therefore has no legal access to bald eagle feathers. Gibson alleged that the Bureau's actions violated his rights of free exercise under the First Amendment and the Religious Freedom Restoration Act. His appeal to the U.S. Department of the Interior Board of Indian Appeals was denied in May 1996.
Krzeminski v. HRS
Cooperating Counsel: Prof. Steven Gey, Florida State University Law School and Walter Forehand
Larry Krzeminski's Medicaid benefits for his sons were discontinued by HRS because he failed to provide them with social security numbers. Krzeminski had submitted an affidavit to HRS, however, explaining his religious objections to providing social security numbers. In June 1996, we filed a complaint in this case addressing whether a state agency may require provision of social security numbers as a condition of receiving government benefits when furnishing such information to the agency would violate sincerely held religious beliefs. The state has filed a motion for judgment on the pleadings.
Positive Expressions Gallery v. City of Gulfport
Cooperating Counsel: Marcia Cohen and Legal Director Andrew H. Kayton
In February, an art show, entitled "Many Expressions of Love," at the Positive Expressions Gallery in Gulfport was censored by the city because it included male nudes in its exhibition. The art gallery is operated by a nonprofit AIDS support organization. The Pinellas Chapter plans to file an action challenging the Gulfport City code, as written and as applied to the show and gallery.
Hoffman v. Butterworth
Cooperating Counsel: Wayne Thomas
We filed an action on May 17, 1996 in the U.S. District Court for the Middle District of Florida on behalf of Susan Hoffman against the Florida Attorney General, the Pasco County Sheriff and a Pasco County Sheriff's Deputy, alleging violations of her First and Fourth Amendment rights. Hoffman received a citation for violating Florida Statutes 847.011(2) which makes it a crime to display an obscene bumper sticker on one's vehicle. Hoffman's four square inch bumper sticker simply contained the statement "Censor This!", along with a sketch of a manacled wrist and a hand depicting a common gesture known to most of us as "giving the finger" or "flipping a bird."
Schenck v. ProChoice Network of Western New York
Cooperating Counsel: Legal Director Andrew H. Kayton, James K. Green, Joan M. Englund and Scott T. Greenwood, ACLU of Ohio, and Richard Waples, ACLU of Indiana
On May 17, we filed an amicus brief in the U.S. Supreme Court in this case addressing the constitutionality of "floating" buffer zones and other speech restrictions imposed on protestors at seven abortion clinics in Western New York State. The brief was in support of neither party, but urged reversal of a decision of the U.S. Court of Appeals for the Second Circuit upholding imposition of the buffer zones and other restrictions. Oral argument in the matter is scheduled for October 19, 1996.
Saridakis v. Brady
Cooperating Attorney: Michael J. Pucillo, and James K. Green
Ramona Saridakis was one of the state's top female high school athletes. She transferred from her public high school to a Catholic parochial school in 1995 for religious reasons during her junior year of high school. Without notice or hearing, she was then barred by the Florida High School Athletic Association (FHSSA) from competing at future high school track meets on behalf of her new school. A temporary injunction was granted by the Palm Beach County Circuit Court in Ramona's favor allowing her to compete at her new school, and the FHSSA's appeal was later dismissed as moot when Ramona graduated from high school this last spring.
O'Rourke v. Palm Beach Sheriff's Department
Cooperating Counsel: Jill Hanson, James K. Green and Sarah Cleveland
Linda Greene O'Rourke, a former deputy sheriff of the Palm Beach Sheriff's Office, challenged the constitutionality of a policy prohibiting all sheriff's personnel from associating with persons who have criminal or "immoral" reputations in the community. O'Rourke worked at the Sheriff's Drug Farm, a lowrisk, nonviolent drug offender program, at the time she met her husband, Thomas Possey O'Rourke, who is also a former graduate of the drug program. In 1994, the ACLU filed a complaint alleging that O'Rourke was fired in violation of her rights to privacy and freedom of association. In April 1995, the Palm Beach Circuit Court found no constitutional violation and denied plaintiff's claims. The Fourth District Court of Appeal affirmed the circuit court's decision in June 1996.
Wyner v. Dewald
Cooperating Counsel: James K. Green
On July 14, 1990, Wyner and a group of supporters conducted a peaceful demonstration at John D. McArthur State Park protesting recentlyadopted Department of Natural Resources regulations regulating bathing attire and First Amendment activity. Wyner was arrested and charged with disorderly conduct. In January 1995, the Palm Beach Chapter filed a lawsuit on Wyner's behalf challenging whether the police officers had probable cause to arrest her when, as part of a peaceful demonstration celebrating the First Amendment, she was actually complying with dress regulations. After a weeklong jury trial, the court entered a direct verdict for Wyner against the arresting officer and held the disorderly conduct statute was unconstitutional. The Florida Fourth District Court of Appeal reversed the lower court's decision this past May, and denied a motion for rehearing in July.
Smithers and Trowbridge v. Florida Elections Commission
Cooperating Counsel: Legislative Staff Counsel Larry H. Spalding, Legal Director Andrew H. Kayton and James K. Green
Ray Smithers and Jerry Trowbridge live in Jensen Beach, and oppose reelection of their state representative, Ken Pruitt. They printed and posted on their cars a bumper sticker that stated: "Dump Pruitt Free Sticker Call (407)3346556." Smithers and Trowbridge are now under investigation by the Florida Elections Commission for alleged violation of a Florida statutory provision that in effect prohibits anonymous campaign literature. We intend to take whatever action is necessary to prevent prosecution of Smithers and Trowbridge by the elections commission, or any other restriction on their actions.
Florida Department of Corrections Proposed Amendments to Rules 333.004 & 333.012
Cooperating Counsel: Legal Director Andrew H. Kayton
In April, it was brought to our attention that the Florida Department of Corrections had proposed changes to its administrative rules that, if implemented, would have censored any written or published material depicting actual or imminent sexual conduct. We submitted an opinion letter to the Department of Corrections' counsel expressing the ACLU's view that the proposed rules exceeded the Department of Corrections' statutory authority and would violate First Amendment rights of prisoners and of publishers of such material. The proposed amendments subsequently were withdrawn by the Department of Corrections.
Florida Consumer Action Network v. City of Pembroke Pines
Cooperating Counsel: Loring N. Spolter
The City of Pembroke Pines enacted an ordinance prohibiting solicitation by commercial or charitable organizations within the corporate boundaries of the city between the hours of 7:00 p.m. and 9:00 a.m. The Broward County Chapter of the ACLU intends to challenge the constitutionality of this ordinance once its client is arrested for violating this ordinance.
Gay and Lesbian Rights
Amer v. Children's Home Society
Cooperating Counsel: Karen Amlong
On December 10, 1991, June Amer, a lesbian, went to Children's Home Society to begin the process of adopting a "special needs" child. While filling out the application form, Amer read a line stating that homosexuals are not accepted as adoptive parents. "Homosexuals" are not permitted to adopt a child under Florida Statute Section 63.042(3). In May 1992, the ACLU filed a complaint in circuit court challenging the constitutionality of this statute. The case was continued pending the Florida Supreme Court's decision in another ACLU case, Cox v. HRS, which also challenged (unsuccessfully) section 63.042(3). This case is scheduled to go to trial on an equal protection challenge by yearend 1996.
Habeas Corpus
Jordan v. Towey
Cooperating Counsel: Louis K. Nicholas II and Louis Jepeway
Adolphus Jordan was acquitted in 1981 by reason of insanity on three counts of murder with a firearm and involuntarily hospitalized at Florida State Hospital. Since then, Jordan sought both conditional and unconditional release from the hospital, but was denied release, even though the treatment staff reported in 1985 that Jordan no longer met legal criteria for involuntary hospitalization. A petition for writ of habeas corpus and a memorandum of law in support was filed by the ACLU on July 31, 1995. The federal magistrate issued a favorable ruling finding Jordan's commitment to be a violation of due process and ordered HRS to come up with a conditional release plan releasing him to a residential facility for six months, after which, if he abides by the rules of the program, he should be released from state confinement. We are currently awaiting the federal district court's decision as to whether or not to accept the magistrate's report.
Police Misconduct
Washington v. Vogel; Evans v. Vogel
Cooperating Counsel: Charles Burr, Tulane University Law Prof. Terry Allbritton, and James K. Green
These cases challenge Volusia County Sheriff Robert Vogel's practice of stopping and searching vehicles driven by persons matching a drug courier profile that, we allege, targets AfricanAmerican and Hispanic motorists. In many instances, with no evidence of criminal wrongdoing and no criminal charges filed, the department retains all or part of the cash and other property seized from motorists, which amounts to several million dollars. In June 1994, the U.S. District Court for the Middle District of Florida denied a motion for class certification. In January 1995, the district court entered a direct verdict at trial for defendant Vogel. We filed an appeal in the U.S. Court of Appeals for the Eleventh Circuit. Oral argument has been scheduled for September 16, 1996 in Atlanta.
Bauder v. Dade County
Cooperating Counsel: Louis Jepeway
This action seeks damages suffered by plaintiff, Gary Bauder, when in January 1991, an officer of the Metro Dade Police Department forcibly entered his residence, seizing items of personal property and effects, and arrested him for various alleged criminal offenses. Bauder was prosecuted by the State of Florida and sentenced to 30 years imprisonment. After serving two years, however, his conviction was reversed by the Third District Court of Appeal, and the state dismissed all charges. A motion for summary judgment was granted on behalf of the individual police officer in this case. The case against county has been set for trial in December.
Casimir v. City of Miami Beach
Cooperating Counsel: Charles Baron
Casimir, a HaitianAmerican, was seized and arrested under a drug sting operation carried out in his neighborhood by the Miami Beach Police Department. Casimir was seen in the vicinity of an unidentified white Latin male suspect, but no drug transaction occurred or was witnessed by police officers. Officers proceeded to go to Casimir's apartment, knocked down the door, entered the apartment without consent or warrant, assaulted Casimir and searched his person, belongings and the entire apartment. Criminal charges against Casimir were dismissed four months later. This case has been set for trial in November 1996.
Prisoners' Rights
Lamarca v. Turner
Cooperating Counsel: David Lipman and William Amlong
In 1982, eight present and former inmates of Glades Correctional Institution filed suit seeking injunctive relief and money damages for cruel and unusual punishment. The plaintiffs alleged and proved widespread indifference by prison officials to rapes, widespread violence, corruption and contraband. The majority of the plaintiffs were victims of brutal sexual assaults in prison with little or no interference, investigation or protection by prison officials. At a bench trial, plaintiffs were awarded damages and injunctive relief. In 1994, the U.S. Court of Appeals for the Eleventh Circuit overturned the judgment on grounds that defendants had been entitled to a jury trial. At retrial the jury reached a verdict for the defendants on five of the plaintiffs, but awarded damages to the other three. Last November, defendants appealed the damage awards to the Eleventh Circuit.
Rights of Homeless
Pottinger v. City of Miami
Cooperating Counsel: Benjamin Waxman
This historic action was instituted in 1987 in order to enjoin and recover damages for police misconduct pursuant to the City's decision to sweep the downtown Miami area of all homeless persons before the 1988 Orange Bowl Parade. In 1991, U.S. District Court Judge C. Clyde Atkins found the City's practices to be violative of numerous constitutional rights, and agreed with the position of the ACLU that it is not a crime to function as a human being while being homeless. His ruling resulted in the creation of "safe zones" where the homeless could exist without harassment from the police. The City appealed Judge Atkins' ruling. This case has been to the U.S. District Court of Appeals for the Eleventh Circuit twice. Currently, it is in courtordered mediation. The period set by the Eleventh Circuit to conduct mediation has been extended due to City of Miami Mayor Stephen P. Clark's death.
Chad v. City of Fort Lauderdale
Cooperating Counsel: Bruce Rogow and Beverly Pohl
The ACLU is currently awaiting a court decision on cross motions for summary judgements in this case involving the homeless population of Fort Lauderdale. The City of Fort Lauderdale is denying the homeless access to social services, sleeping or storing of personal property in city beaches or parks. In 1994, when the Broward Chapter filed an action to enjoin the city from enforcing the ordinance, U.S. District Judge Norman C. Roettger claimed that it was in the public interest to maintain a safe tourist zone and that this interest outweighed allowing the homeless to panhandle, solicit or beg on the city streets. Since then, some of the homeless have moved to a camp instituted by the city, and most of the original issues the ACLU argued have become moot.
Hamilton v. Town of Jupiter
Cooperating Counsel: Frank A. Kreidler
The Town of Jupiter amended its comprehensive plan along with adopting and proposing ordinances which impose the land use designation of residential low land use on various acreage within the town with no provision for facilities for the homeless. The plaintiff class consists of homeless people who object to the proposed project and amendment to the comprehensive plan. On June 29, Kreidler wrote a letter to the Director of Housing and Community Development in Palm Beach County, requesting the county site a homeless service facility in every municipality in the county. A voluntary dismissal was later filed.
Right to Privacy
Beagle and Beagle v. Beagle and Beagle
Cooperating Counsel: Legal Director Andrew H. Kayton, and Ross Bar, Sue Ellen Kenny and Genine Germanowicz of the West Palm Beach Legal Aid Society
In 1995, the ACLU of Florida joined an amicus brief filed by the Legal Aid Society of West Palm Beach in this case challenging a Florida Statute that allows grandparents to sue their children for visitation rights if they are not content with the amount of visitation time they are allowed with their grandchildren. Our amicus brief argued that the statute violates the constitutional rights of parents. Oral argument was held in January 1996. On August 22, 1996, the Florida Supreme Court entered a 70 decision in favor of the position advocated by the ACLU.
McKiver v. Krischer
Cooperating Counsel: Robert Rivas
This case challenges Florida's prohibition on assisted suicide, and was filed in Palm Beach County Circuit Court on behalf of a physician and three of his patients against four State Attorneys and the Florida Board of Medicine. The trial court denied a motion to dismiss brought by the state attorney for Palm Beach County, but granted a change in venue for the other defendants on grounds they are entitled to a home venue privilege in each of the counties where they reside. The result would require that we litigate the same issue simultaneously in five different cases. On June 14, we filed an appeal of the venue decision in the Florida Fourth District Court of Appeal. Trial otherwise is set in this matter in Palm Beach Circuit Court in October 1996.
Doe v. State of Florida, HRS and AHCA
Cooperating Counsel: Legal Director Andrew H. Kayton, James K. Green, Louis Silber, Legislative Staff Counsel Larry Spalding, and Cathy Albisa, Center for Reproductive Law and Policy
The ACLU and the Center for Reproductive Law and Policy filed this class action in Palm Beach County in 1993 challenging the constitutionality of Florida's Medicaid funding scheme. That scheme provides funding for all pregnancyrelated services for indigent women, but excludes funding for abortions, and is alleged to thereby violate women's rights of privacy, equal protection and due process under the Florida Constitution. Following class certification, the case was appealed unsuccessfully before the Fourth District Court of Appeal solely on the issue of venue. It was transferred to Leon County in June 1996, more than three years after the case was first filed.
State v. Kawana Ashley
Cooperating Counsel: Legal Director Andrew H. Kayton, and Louise Melling and Lenora Lapidus of the Reproductive Freedom Project of the National ACLU
This case addresses the propriety of criminal charges filed against a nineteen year old woman who shot herself in the stomach in the third trimester of her pregnancy when she was unable to afford an abortion. The baby died ex utero 15 days later. The Florida Second District Court of Appeal upheld the prosecution of manslaughter charges against the woman, Kawana Ashley. The appellate court cited no precedent in the United States for allowing criminal charges against an expectant mother for the death of her newborn child based on actions taken during her pregnancy. We filed an amicus brief with the Florida Supreme Court in conjunction with the Reproduction Freedom Project of the National ACLU in this case involving a woman's right to privacy, equal protection and due process. Oral argument has been set for November 5, 1996.
Search and Seizures
Merrett v. Moore
Cooperating Counsel: Ed Stafman
A petition for certiorari was filed in the U.S. Supreme Court in April 1996 in this case, now pending for over twelve years, that challenges large scale roadblocks instituted in 1984 by police agencies in North Florida. Nearly 1500 vehicles were stopped by police and sniffed for drugs by canines under the pretext of vehicle registration and drivers license checks. Traffic was held up for delays of 3045 minutes. In July 1995, the U.S. Court of Appeals for the Eleventh Circuit upheld a federal district court's grant of summary judgment for defendants, a motion for rehearing was denied in January 1996, and a motion for rehearing en banc was denied in February 1996.
Voting Rights
Burton v. City of Belle Glade
Cooperating Counsel: Staff Counsel Cris Correia, Neil Bradley of the ACLU Southern Regional Office and Rob McDuff
This joint action by the ACLU Southern Regional Office, the Florida Rural Legal Services and cooperating attorney Rob McDuff challenges the City of Belle Glade's discriminatory annexation policy as it applies to housing projects. The Okeechobee Center Housing Project, with an AfricanAmerican population, is geographically located within Belle Glade city limits, but the city has not annexed the Project while maintaining a practice of annexing white developments outside city limits. This practice has enabled the city to maintain a white voting majority. Plaintiffs filed a complaint alleging that the purpose and/or result of the City of Belle Glade's refusal to annex the Okeechobee Center Housing Project is to deny or abridge AfricanAmericans' voting rights, and to discriminate on the basis of race. On February 7, 1996, the court denied motions to dismiss filed by the city council and the housing authority. Trial date has been set for March 1997.
Stovall v. City of Cocoa
Cooperating Counsel: Staff Counsel Cris Correia and Jacqueline Berrien of the NAACP Legal Defense & Educational Fund
This case brought under the Voting Rights Act, challenges the atlarge method of electing the Cocoa City Council. The Council is a 5 member body elected atlarge with numbered posts and staggered terms. The parties submitted a proposed consent decree to the federal district court in July 1994. The remedy consisted of four singlemember districts, one of which had a strong majority AfricanAmerican population, with the mayor continuing to be elected atlarge. The city council voted 3 to 2 for the settlement. In October 1994, the court issued an order voiding the consent agreement on grounds that the sole AfricanAmerican council member had a conflict of interest under a state statute and should have abstained from voting on it. On February 29, 1996, the U.S. Court of Appeals for the Eleventh Circuit ruled in our favor, reversing the district court's order voiding the consent decree, pursuant to our appeal. The City of Cocoa proceeded to file a motion to withdraw the joint motion to enter consent decree and judgment, which was granted. We have filed an appeal, and are currently waiting for the appellate court to issue a briefing schedule.
Washington v. Arcadia City Council
Cooperating Counsel: Staff Counsel Cris Correia and Neil Bradley of the ACLU Southern Regional Office
This case challenges the atlarge method of electing the Arcadia City Council. The city council is a five member body elected atlarge and by majority vote. Despite the fact that 30% of the city's population is AfricanAmerican, no AfricanAmericans had ever been elected to the city council. Defendants filed and lost a motion for summary judgment on liability. Trial date has not been scheduled.
Johnson v. DeSoto County Board of Commissioners and School Board
Cooperating Counsel: Staff Counsel Cris Correia and Neil Bradley of the ACLU Southern Regional Office
This case challenges the atlarge method of electing both the DeSoto County board of commissioners and school board. Both commission and school are five member legislative bodies, elected atlarge from residency districts, with staggered terms and a majority vote requirement. The school board elects its members pursuant to Fla. Stat. 230.08 and 230.10 which have twice been found by the federal courts to have been adopted with invidious racially discriminatory intent. Plaintiffs filed a motion for summary judgment which was granted by the district court. Defendants filed an appeal in the U.S. Court of Appeals for the Eleventh Circuit, which reversed, holding that proof of discriminatory intent is insufficient to establish a violation of Section 2 of the Voting Rights Act. The court also held that proof of discriminatory intent is a factual issue and that the trial court was not bound by previous holdings that Fla. Stat. 230.08 and 230.10 were enacted with discriminatory intent. Petition for rehearing en banc was denied. A hearing on the school board's method of election is scheduled in October 1996. Currently awaiting a trial date to be set for all other issues.
Green v. Mortham
Cooperating Counsel: Stetson University Law School Prof. Mark Brown
Rev. Henry Green is the Democratic candidate for the U.S. House of Representatives in Florida's Tenth Congressional District. In order to enter the Democratic primary and the general election, Green was required under Florida law to pay registration fees of $10,400. (Alternatively, in lieu of the fee, he could have submitted more than 4,000 signatures of Democratic voters in the district). Florida's fee and signature requirements for obtaining access to a Congressional ballot are, by far, the most onerous in the nation. Green has brought suit challenging such fee and signature requirements in Florida.
Wrongful Death Act
Young v. Saint Vincent's Medical Center, Inc.
Cooperating Counsel: Legal Director Andrew H. Kayton, Caitlin E. Borgmann, and Rocio L. Cordoba and Louis Melling of the ACLU Foundation Reproductive Freedom Project
Gwendolyn Young was pregnant with twins when she underwent an amniocentesis at Saint Vincent's Medical Center. During the procedure one of the fetuses' lungs was punctured and the fetus was dead upon delivery. Ms. Young's complaint alleged negligent prenatal care resulting in the wrongful death of her unborn daughter. In September 1995, the ACLU filed an amicus brief with the Florida Supreme Court addressing the question of whether a fetus is a "person" under the Florida Wrongful Death Act entitled to damages as a result of injuries received while in utero. On March 14, 1996, the Court ruled that a fetus is not a person within meaning of the Wrongful Death Act.
