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March 1 — Judge Charles R. Wilson's three dissents defending the First Amendment rights of Florida doctors to ask patients about firearm ownership shouldn't be taken lightly.
Wilson has said he only dissents when he feels strongly about a decision, and that his dissents keep a possible U.S. Supreme Court audience in mind.
He'll now have a fourth chance to weigh in on Florida's Firearm Owners Privacy Act, which prohibits doctors from asking patients about whether they own a firearm.
The full U.S. Court of Appeals for the Eleventh Circuit set oral argument for June 21, 2016, in Wollschlaeger v. Governor of Fla., 11th Cir., No. 12-14009, en banc review granted 2/3/16 , the case that has come to be known as “Docs v. Glocks.”
Three times—twice on reconsideration—a court panel has ruled against doctors challenging the law on free speech grounds.
Three times Wilson has dissented.
Wilson, the only black judge on the Eleventh Circuit and a former U.S. Attorney, has been described as “low-key.”
But he's no stranger to high-profile cases, including the headline-grabbing Terri Schiavo and Elian Gonzalez controversies.
Wilson offered a glimpse into how he writes decisions and dissents in a law review article, How Opinions Are Developed in the United States Court of Appeals for the Eleventh Circuit, 32 Stetson L. Rev. 247 (2003).
While judges should write in their own style, they should avoid writing opinions that are too lengthy and have too many citations, Wilson said.
Judges should also focus on using “ ‘plain words and sentences' ” instead of confusing readers, Wilson said.
“That is why my rule is to follow the three C's of judicial opinion writing: be clear, be concise, and write with character,” he said.
While he makes “significant use of my law clerks' talents and abilities,” it doesn't affect his writing style.
That's “because I am responsible for each opinion, and I edit each opinion to ensure that the final draft reflects my thoughts and analysis,” Wilson explained.
The judge said his “personal practice” is to write a dissent only when he feels “strongly about the result reached in the majority opinion,” Wilson said.
When Wilson does write a dissent, he often considers whether a party will seek review from the U.S. Supreme Court.
If he believes that a party will do so, “I will write the dissent with the Supreme Court in mind,” Wilson said.
Wilson's three dissents in Wollschlaeger therefore warrant close attention.
An Eleventh Circuit panel has three times upheld Florida's prohibition on doctors asking patients about guns.
The panel initially said the law was a “legitimate regulation of professional conduct” in Wollschlaeger v. Governor of Fla., 760 F.3d 1195 (11th Cir. 2014) .
“Simply put, the Act is a gag order that prevents doctors from even asking the first question in a conversation about firearms,” Wilson's first dissent said.
The state claimed the law was intended to protect gun owners' privacy rights and rights not to be harassed or discriminated against based on gun ownership, Wilson said.
But the law's “true purpose” was to silence “doctors' disfavored message about firearm safety,” Wilson said.
A law burdening speech doesn't avoid First Amendment scrutiny simply because the “burdened speech occurs in the course of conducting one's business as a professional,” Wilson's first dissent said.
The Supreme Court has applied intermediate scrutiny even when the speech burdened “is spoken only in pursuit of one's profession,” Wilson said.
Intermediate scrutiny considers whether a law is narrowly tailored to serve a substantial governmental interest.
Following Wilson’s dissent, the court chose to reconsider its original opinion sua sponte to apply intermediate scrutiny to the law.
The panel majority found that it did survive such scrutiny, in Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015) .
The majority pointed to the “highly disparate power balance of the physician-patient relationship.”
A “real harm” occurs when a doctor extracts “private information from a patient, knowing such information to be irrelevant in the provision of medical care,” the second decision said.
While the majority's decision to apply intermediate scrutiny was “an encouraging development,” it wasn't enough, Wilson's second dissent said.
Florida “offered no evidence to show” that firearm owners' rights were “under threat” or that the law would serve those interests, Wilson said.
The third time the panel considered its decision, it again did so sua sponte.
It again upheld the law, but this time applied the more demanding strict scrutiny standard, in Wollschlaeger v. Governor of Fla., 2015 BL 408755, 11th Cir., No. 12-14009, 12/14/15 .
Wilson's third dissent said he continued to believe the law didn't “survive First Amendment scrutiny.”
“Numerous voices have weighed in on this appeal,” including 30 amici curiae, Wilson said.
But because he had “already written two dissents to this effect,” Wilson declined to respond further “to the Majority's evolving rationale.”
Wilson clerked for the first black judge to serve on the circuit, former Judge Joseph W. Hatchett.
Having worked “at the distinguished jurist's side,” it was “entirely appropriate” that Wilson succeed Hatchett, Sen. Bob Graham (D-Fla.) said during Wilson's 1999 judicial confirmation hearing.
Wilson keeps a low-profile, Hatchett said in a 2009 Daily Business Review story.
Wilson is “very, very smart” but “doesn't flaunt it,” Hatchett said.
He never tried to bring attention to himself, Hatchett said.
Wilson “has practiced law from a variety of perspectives,” Graham said.
Those perspectives included five years in private practice and working as an assistant county attorney for Hillsborough County, Fla.—one of the state's largest counties.
Wilson next served as a county judge and then as U.S. magistrate judge for the Middle District of Florida.
Wilson left the bench after President Bill Clinton nominated him to be U.S. attorney for the same district in 1994, where he served until he returned to the bench as an Eleventh Circuit judge.
The Tampa (Fla.) Tribune urged the Senate to confirm Wilson for the Eleventh Circuit in a 1999 editorial, The Strong Case for Charles Wilson, TAMPA TRIB., April 15, 1999, at 14.
It praised Wilson's service as U.S. Attorney, during which he was “the leader of one of the busiest and fastest-growing law enforcement districts in the country.”
Similarly, Graham praised Wilson for meeting the challenges of the position, which included “an exploding caseload.”
The editorial credited Wilson with bringing “health care fraud to the forefront in Tampa,” undertaking “difficult prosecutions for environmental crimes” and investigating local government corruption.
The “low-key and deliberate Wilson keeps his counsel,” the editorial said.
“He has not always been as forthcoming answering questions about his office as we would like, but he is known to be a man of convictions whom we can trust to act fairly and wisely,” the editorial said.
Wilson dissented in another high-profile case when he weighed in on the Terri Schiavo controversy in Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223 (11th Cir. 2005).
Schiavo's parents sought a temporary restraining order requiring that her feeding tube be reinserted, the court said.
The court affirmed the district court's denial of relief.
Wilson's dissent said the principles of “ ‘mercy and practicality' ” demanded that relief be granted.
Schiavo's “death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits” of her parents' constitutional claims, Wilson said.
Wilson was also on the panel that adjudicated the international child-custody controversy involving Elian Gonzalez in Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000).
The six year-old Cuban child requested asylum, but his father demanded that he be returned to Cuba, the court said.
Wilson joined the court's decision refusing to compel the Immigration and Naturalization Service to consider the merits of Gonzalez's asylum applications.
Wilson defended the use of unpublished opinions in How Opinions Are Developed.
Courts “would be overburdened” without them, Wilson said.
Further, courts publish too many opinions that don't contribute anything new to the law, Wilson said.
Judges should instead focus on writing opinions “that involve issues of first impression,” circuit-splits or other “issues of continuing public concern,” Wilson said.
(Correction: Originally, the story implied that the court’s reconsideration of its decision was entirely unprompted by the parties. However, petitions for rehearing were filed following each opinion.)
To contact the reporter on this story: Patrick L. Gregory in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Jeffrey D. Koelemay at email@example.com
The order setting the en banc oral argument date is at http://www.bloomberglaw.com/public/document/Dr_Bernd_Wollschlaeger_et_al_v_Governor_State_of_FL_et_al_Docket_/10.
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