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Thursday, January 14, 2021

JUDGE WILKIE D FERGUSON, Jr.

 There is a remarkable concurrence that was written by Judge Logue in this case published this week in the Third District Court of Appeals. 

The issue for the court, sitting en banc, happens to be one we have a hobbyist interest in: the legal interpretation of section in 11 U.S.C.  362(a)(1) of the United States Bankruptcy Code and whether the automatic stay provision in inapplicable where the debtor has filed for federal bankruptcy protection.  As we have long said, it is past time for the oft and long criticized opinion in  Shop in the Grove, Ltd. v. Union Federal Savings & Loan Ass’n of Miami, 425 So. 2d 1138 (Fla. 3d DCA 1982), to be discarded to the ash heap of wrongly decided cases. And while the en banc opinion finally, and admirably did just that, Judge Logue wrote about the Judge who was forty years ahead of his time. It is a wonderful concurrence and deserves to be posted here in full. And so we shall. 

LOGUE, J. (concurring). I concur in the majority opinion receding from Shop in the Grove, Ltd. v. Union Fed. Sav. & Loan Ass’n of Miami, 425 So. 2d 1138 (Fla. 3d DCA 1982). I write only to point out that we are adopting almost word-for-word the legal interpretation of section 362(a)(1) of the United States Bankruptcy Code put forward some forty years ago by Judge Wilkie D. Ferguson, Jr. of our Court in his dissent. Shop in the Grove concerned the issue of whether an appeal by a debtor of an adverse judgment qualified as a “continuation . . . of a judicial . . . proceeding against the debtor” under the Bankruptcy Code and therefore automatically stayed. The majority in Shop in the Grove held it was not. Judge Ferguson dissented, writing: . . . The requirement imposed upon an appellant-debtor by the majority to “fish or cut bait” translates into a Hobson’s choice between waiver of bankruptcy for the purpose of an appeal from the adverse judgment or conceding the contested debt in order to seek relief in the bankruptcy court. I am aware of no rule of bankruptcy law or federal procedure that would require such an election. In my opinion the appeal by the appellant-debtor from a judgment against it is a continuation of the judicial proceeding against debtor, clearly within the purview of the Act’s automatic stay provision. Id. at 1140 (Ferguson, J. dissenting). When Judge Ferguson issued his dissent in 1982, the “new” form of the Bankruptcy Code was only four years old. Over the ensuing decades, as the majority points out, every state and federal court that considered the issue reached the interpretation first put forward by Judge Ferguson. The judgment of this soft spoken, scholarly, and insightful jurist has stood the test of time on this highly technical issue of commercial law, as it has in so many matters reaching to civil rights and constitutional law.

Although known for his gracious good will and punctilious courtesy, Judge Ferguson did not hesitate to chide lawyers and even colleagues for indulging in cant or legal obscurities.  

[Rumpole notes we will not again make such a mistake when referring to Due Process]:  See, e.g., Cramer, 33 F. Supp. 2d at 1352, n.4 (“In discussing the notice issue the parties have used the term ‘procedural due process’ which I shun because it is, as one commentator observed, redundant. John Hart Ely, Democracy and Distrust 18 (1980). The word following ‘Due’ in the Fourteenth Amendment is ‘Process’ the writer notes, which is the same as procedure. Process is defined as a ‘normal course of procedure.’ Black’s Law Dictionary 1205 (6th Ed. 1992). By the same token, he continues, ‘substantive due process’ is a contradiction in terms. A right in the constitutional sense, generally, is either substantive or procedural. Writers who use substantive or procedural to describe due process appear trapped and the work product may lack clarity. There is no doubt that this discourse on advance notice and opportunity to be heard is about procedural fairness. Saying it twice is unnecessary.”).

Judge Ferguson was born in 1938 to Bahamian immigrants and was raised in Miami’s Liberty Square public housing project. He joined the U.S. Army and rose to the rank of captain. He obtained his B.A. from Florida A&M University and his J.D. from Howard University School of Law. He served on this Court from 1980 to 1993 until he was appointed to the federal district court for the Southern District of Florida where he served with distinction until shortly before his death in 2003. The Congress of the United States named the federal courthouse in Miami in his honor. As this case comes full circle, and we adopt the position first advocated by Judge Ferguson almost forty years ago, I think it is fit and proper to bear in mind we are following in the footsteps of this distinguished, past member of our conference.

Well said Judge Logue. And thank you. 


1 comment:

Anonymous said...

You failed to mention the new Clarington decision by the 3rd- so does this mean that PVH can go forward by Zoom?