Michael Moline, Author at Florida Politics

Michael Moline

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

Jeffrey Rosen urges law students to channel their inner Louis Brandeis

In a post-truth world, beset by fake news, in which people segregate into information bubbles impenetrable to unfriendly ideas, constitutional scholar Jeffrey Rosen finds inspiration in Louis Brandeis, the late justice of the U.S. Supreme Court.

Addressing students Thursday at the Florida State University College of Law, Rosen, president and CEO of the National Constitution Center, called Brandeis “the greatest prophet of free speech and privacy” of the 20th Century.

“Brandeis has faith that people, self-governing citizens, will take the time to educate themselves and develop their faculties of reason, and deliberate together and converge on some sort of common understanding of the facts and the truth,” he said.

Rosen was in Tallahassee to present the keynote address to the Florida Supreme Court Historical Society’s annual dinner, but dropped by to chat with the students first.

This isn’t the first time technology has unsettled the old way of doing things, Rosen reminded the students.

“James Madison, at the end of his life, wondered whether the American experiment would survive. He feared that it would not without the sustenance of public reason,” Rosen said.

“And he examined new technologies — it was the broadside newspaper — that might unite farmers and manufacturers and elites to try to engage in public reason, and have reasoned compromise and deliberation,” he said.

“We all know … that we’re in an age when facts are contested and people are no longer able to agree on what the truth is. That poses a serious threat to Madison’s belief that, without reason, democracy would atrophy.”

Today it’s not only government that patrols speech.

“In this age of social media, who has the most power over free speech? Who has more power than any king, president, or Supreme Court justice?” Rosen asked.

Mark Zuckerberg,” a student answered.

“Absolutely,” Rosen said. Companies like Facebook and Google employ teams of lawyers to decide whether to suppress content at the demand of overseas leaders and other scolds, even when the content is legal under the First Amendment.

Rosen isn’t comforted by moves to submit these decisions to algorithms. “These are very subtle, contextual judgments, of the kind that Supreme Court judges make all the time. The idea that an algorithm can distinguish between political speech and child pornography is not convincing.”

He pointed to differing opinions on free speech around the world. Europe, for example, bans hate speech directed at, say, religious groups, that would be protected in the United States.

Europe also protects an individual right to be forgotten, meaning that even truthful information about people can be forced off the Internet on pain of huge fines.

Rosen acknowledged: “I don’t have a solution about how we can resurrect public reason.”

But he said the Constitution Center is doing its part through a national commission to debate what to make of an imperial presidency that gives both liberals and conservatives pause; a Congress that has ceded its authority to the White House; politically polarized courts; and news media that are “segregating us into filter bubbles and echo chambers.”

Rosen quoted at length from Brandeis’ concurring opinion in Whitney v. California, a seminal First Amendment case decided in 1927.

The founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile,” Brandeis wrote.

“That, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”

As a lawyer, in a 1908 case involving maximum hour laws for women, “Brandeis collects all these facts — industrial reports and medical reports — to show that women who work in dangerous industries need protection,” Rosen said.

So powerful was the weight of those facts in defense of a position that Thurgood Marshall reread Brandeis’ brief before arguing Brown v. Board of Education. It inspired Ruth Bader Ginsberg when arguing for women’s rights during the 1970s, Rosen said.

“He’s very keen on the idea of using our leisure time to educate ourselves about facts,” and prepare ourselves for the duties of citizenship, Rosen said.

“Is this too idealistic in this post-truth society?” Rosen wondered — one marked by Twitter mobs and social media distractions?

“Speaking for myself, after a long day it may be more fun to watch cat videos than read industrial reports,” he said. “But Brandeis thinks it’s important. And it is important. Because we can’t be fully engaged citizens unless we do this.”

“Enclaves of public reason” exist, Rosen said. The Constitution Center promotes “engaged civil discussion, where people separate their political views from their constitutional views, and find that sometimes unexpected areas of agreement arise.”

Juries are another example. “People are locked in a room together and forced to treat each other with respect and hear each other out and reach some kind of unanimous verdict,” he said.

“Brandeis inspires me, with all the frailties and distractions of modern life, to be a better citizen. To try to read and think more, and eat and drink a little less, and basically just force myself to use all my faculties as much as possible. And you can do that too.”

How does one separate fake news from real?

Brandeis would be suspicious of efforts to suppress even erroneous information, Rosen said.

“The idea of a central regulatory body, whether its Facebook and Google or the government, officially deciding what it true … is the antithesis of the Jeffersonian ideal,” he said.

“My instinct is that it all has to be admitted into the public square,” he said. “The best remedy for evil speech is good speech.”

Court question’s insurance office’s claim to State Farm sales information

A state appeal court panel appeared skeptical Thursday of the Office of Insurance Regulation’s arguments that trade-secrets protections don’t exempt State Farm Florida from having to turn over business information for public scrutiny.

The judges wondered whether the plain language of the trade-secret exemption in Florida’s public records law doesn’t protect the information at issue — data about policies sold, not renewed or cancelled every month by county.

Elenita Gomez, a litigator in the insurance office, insisted that State Farm turned over the information regularly since 1999. It balked in 2014, when it began reselling property insurance in Florida following a hiatus.

“What has changed to suddenly make a routine submission a trade secret, when it has never been a trade secret before? Particularly when, over the last 20 years, none of the approximately 150 insurers in the state of Florida, residential insurers who do business in Florida, have never requested the same protection,” Gomez said.

The office collects data for every insurer in its Quarterly and Supplemental Reporting, or QUASR, database, where it is available to the public and competitors in the insurance market. Officials use the data to monitor market conditions and prepare reports.

A Leon County trial judge ruled in March that State Farm’s data were protected. The appeal before the three-judge 1st District Court of Appeal panel was Office of Insurance Regulation v. State Farm Florida Insurance Co.

State Farm’s position would harm the state by denying regulators, the public and elected leaders access to complete data about the insurance market, Gomez said.

“The manner of submission allows for comparisons and numerous industry reports to be run, utilizing that data for all or any of those insurers,” she said. “If one is missing, the information that is left becomes not only limited, but basically either useless or unusable.”

Judge Harvey Jay III asked whether State Farm didn’t have the right to decide for itself which information constituted trade secrets.

“Meaning to the extent you keep it privileged or secret, there’s no disclosure,” Jay said.

“Suppose you had an ice cream company and you came out with a new flavor every year, and you always made it public, you put it on the Internet, you said, ‘Look, we want everyone to have our recipe and have the opportunity to make this,” Judge Allen Windsor asked.

“And one year you decide, ‘We have some new flavors and we’re going to protect these.’ You wouldn’t say that, by virtue of giving up the original recipes, that a new recipe wouldn’t be a valid trade secret,’ would you?”

State Farm’s position presumes other insurers would accept its data as 100 percent accurate and that they’re going to compete head to head, Gomez responded. “That’s a lot of assumptions.”

In the lower court, State Farm’s expert witnesses testified that the data would be useful to competitors, but Gomez said regulators were not aware of any actual use by competitors, or by State Farm of competitors’ data.

“There’s no evidence in the record that a potential competitor can use QUASR data on its own for any competitive marketing purpose or otherwise,” she said.

“But the QUASR data does tell what markets it’s entering. That’s what I understand their concern is,” Judge Timothy Osterhaus said. The county-specific data would “reveal where they’re going.”

As for the harm to the public, Osterhaus asked whether that was the proper question.

“It seems to me there is a trade secret under the statute — in which case the chips fall where they may with respect to the examples you’re giving — or it’s not trade secret.”

“The main issue here is whether the QUASR data has independent economic value,” and there’s doubt that it does to State Farm, Gomez said.

Arguing for State Farm, Karen Walker, of Holland & Knight’s Tallahassee office, argued that the company’s data meet the statutory definition of a trade secret, and therefore are protected.

“If it’s trade secret under the statute, that’s the end of the story. This is not a policy argument,” she said. In this case, the data do meet that definition and therefore are “confidential and exempt from the Public Records Act.”

No one asked for the data, she conceded. “But the office made it abundantly clear to State Farm that it was not going to honor State Farm’s trade-secret designation of its QUASR data beginning in 2014. And that was what initiated the action below in the trial court.”

She picked up on Windsor’s metaphor.

“The flavor of ice cream was changed. The flavor prior to the first quarter of 2014 was that State Farm was not writing new property insurance policies in the state of Florida. In 2014, that changed. They began writing new policies and, as part of that, implementing a marketing strategy — a marketing strategy that has value to State Farm.”

For example, she said, information about where the company is writing, cancelling or not renewing policies might influence competitors’ marketing.

“We know, based on the testimony not only of the witnesses that State Farm presented, but the office’s own witnesses, that companies are looking at QUASR data of other companies, and we also know they’re doing it for economic reasons,” Walker said.

And if there’s no evidence that State Farm itself uses its competitors’ data, such information would be of the most use to smaller insurers who lack her client’s resources, she added.

“Really, the value element is the value in not being known to others. There is clear evidence below that this information, beginning in 2014 when State Farm begins writing new policies in the state Florida, not being known to its competitors, has value to State Farm. And that is all that State Farm has to prove.”

She concluded:

“I know the office would like for the Legislature to say QUASR data, even if it meets the trade-secret designation, can never, never be exempt. That’s not the law in the state of Florida.”

Council sees breakdown of trust with Office of Insurance Regulation

Proposed reforms to Florida’s continuing care retirement community regulations ran into heavy flak Wednesday during an advisory council meeting, with the body’s president lamenting a breakdown of trust in the Office of Insurance Regulation.

Joel Anderson, chairman of the Governor’s Continuing Care Advisory Council, complained that office staff unexpectedly unloaded a 61-page rewrite of the statute governing the facilities, also known as CCRCs.

Anderson said he hoped the staff would not view his comments as overly “inflammatory,” saying the council has worked productively with them in the past.

Then he unloaded.

“I promise you that these proposed changes to the law would cause an immediate impact on good-performing CCRCs with proven track records, and also lead to severe consequences for the future of Florida’s CCRCs,” he said.

As an executive at the Village on the Isle retirement community in Venice, he impresses on his colleagues the importance of “trust, rapport, and credibility with each other,” he said.

“These core beliefs apply to us as well, and I am concerned that they do not exist in today’s working relationship with the office and the council and for the Florida CCRCs,” he continued.

“My question is, ‘What has happened … to cause the OIR to act on its own and abandon this approach when it has been proven to work for decades,” Anderson said.

“We won’t survive if we don’t trust each other and trust the process. A unilateral move by any stakeholder, even with the best intentions, can cause a misstep for us as a whole.”

Following hours of testimony and debate, the council voted to encourage the office to continue to investigate increased oversight of ownership changes in financially troubled communities.

But the members turned thumbs-down on proposals to tighten minimum liquidity reserves and other proposed regulations. They wanted emergency repairs where necessary this year, and time to draft broader reforms for the 2018 legislative session.

“We really need a proper vetting of these issues overall, with all the stakeholders involved,” Anderson said in an interview following the meeting.

Of the insurance office staff, he said: “We hope that they will continue to use the council as their resources for advice and support in any of these changes.” He offered to confer with the office via telephone conference call in person.

The dressing-down came during a special meeting of the council, which advises the insurance office about CCRC regulation. It comprises representatives of the industry, accountants and facility residents.

Anderson complained that, during its last meeting in September, office staff said they planned reforms in reaction to a series of CCRC bankruptcies — most notably that of University Village in Tampa.

The office has accused the facility of filing false information, failing to pay more than $4 million in refunds to residents, taking on new residents while being “financially insolvent,” and conducting business in a fraudulent or dishonest manner.

The council asked the office to meet with LeadingAge Florida, a trade organization representing most Florida CCRCs, and the Florida Life Care Residents Association, to come up with a solution.

But council members never had warning of the scale of the changes the office would seek, Anderson said.

“I never believed that we’d end up where we are today,” Anderson said.

Rich Robleto, deputy commissioner for life and health, replied that staff members were trying to solve a threat to senior citizens who place their trust in an insurance product.

“That trust relies in part on the understanding that the office oversees the CCRC industry, and they expect that the office can intervene when the CCRC’s ability to meet its promises is in jeopardy,” Robleto said.

In light of the insolvencies, “further legal protections are needed for us to be able to fulfill that trust that’s put on us. We think it’s dangerous when people think the government can do something for them that it cannot.”

OIR believes the reforms would give the office greater oversight of facility finances, including over dividends and reserves designed to make sure CCRCs meet their obligations to house and care for residents. According to the OIR presentation, such reserves would have to be banked with the state Bureau of Collateral Management.

The office would also oversee ownership changes and facilities expansions. Residents would see improved consumer protections, including notice of any examination reports or legal proceedings.

Anderson and other members of the council — including CCRC representatives and Jacksonville CPA Trey Gunn — worried the regulations would put a financial straitjacket on the facilities. And punish well-run facilities along with the bad.

Ed Kenny, president and CEO of Des Moines-based LCS, which operates CCRCs, said his company has pulled out of plans to acquire a troubled Florida community because of the proposals.

Robleto said the office did confer with LeadingAge Florida and the residents, and planned continued discussions. The draft bill, he said, staff presented for purposes of discussion.

Following the meeting, Robleto said he was grateful for the council’s advice.

“We will take these back, and we will see what we can do without proposed legislation to recognize some of the good points they made,” he said.

“They didn’t direct us to change the bill,” he continued. “They gave us advice. We will continue to work with other parties. We’re still in the gathering-of-information stage, but this has been very helpful for us.”

FSU “policy pub” chat surveys a future with robot cars

Self-driving cars promise to reshape the country into a more urban, but more humane, place. But we need to make sure the technology serves human needs, rather than adjust ourselves to technology’s demands.

That was the word Tuesday evening from Tim Chapin, a professor of urban and regional planning and interim dean of the College of Social Sciences at Florida State University.

“It’s happening, and it’s happening very quickly. Your grandkids and great-grandkids are going to grow up in a very different world because of this technology,” Chapin said during a “policy pub” discussion the college staged at a Tallahassee restaurant.

“It’s my view that we need to make sure we get in front of the technology and what we want our communities to look like — and have the technology serve the communities rather than the communities we build to serve the technology as it comes to the fore.

“Because that’s what happened with the automobile 100 years ago,” he continued. “It’s about us as humans and not the expensive vehicles that we drive or that we ride in.”

Self-driving cars — also called autonomous vehicles or robot cars — promise to undo some of the damage done to the landscape by human-driven cars, Chapin said. They could free real estate occupied by parking lots, and ease traffic and urban sprawl.

And they’re legal in Florida.

They will communicate with one another and potentially with road infrastructure to warn of potholes, congestion, and other hazards. They could be shared, obviating the requirement to purchase a personal vehicle. One could simply summon a car for the morning commute — as with ride-sharing services like Uber and Lyft.

That would mean many fewer cars on the road. One autonomous vehicle could replace as many as 11 personal vehicles, Chapin said.

We wouldn’t need expansive parking lots — just drop off zones. People could live in that space, instead of cars, which could be relegated to exurban parking facilities when not in use.

The United States sees 5.5 million auto accidents every year, 93 percent of them because of human error, Chapin said. But autonomous vehicles don’t fall asleep or spill hot coffee in their laps.

“The vehicle will have true situational awareness that will be able to react better and more quickly than a human driver would be, and they are paying attention better than a human driver would be,” Chapin said.

He foresaw “free-flowing” intersections that don’t need traffic lights.

“You’re sitting in the vehicle. It doesn’t have a steering wheel. It doesn’t have brakes. It doesn’t have a gas pedal. You’re just going to go through that interchange and trust the vehicle is smart enough not to hit any other vehicle out there,” Chapin said.

“And I can tell you; we’re pretty sure we can get that right,” he said.

As in “99.9999 percent” sure.

“That’s a pretty high probability you’re going to make it through that intersection.”

Someone asked: With so many fewer cars on the road, how would people in Florida evacuate ahead of a hurricane?

Chapin said his researchers raised that very question with state officials, asking them to consider that scenario.

“We talked to our friends at emergency management about this, and their answer is, ‘Huh. Yes, we should.’ ”

Chapin’s a professor, so he naturally had a reading list: He recommended this book and this report, prepared for the Florida Department of Transportation by the FSU Department of Urban and Regional Planning.

The college began staging these discussions before last year’s elections, “to bring the scholarship of our outstanding college to the community,” Chapin told the crowd at Tallahassee’s Backwood Bistro. “And to get your feedback on the work we do.”

1st DCA rejects challenge to evidence standard in workers’ comp case

An intermediate state appeals court refused Monday to let a workers’ compensation claimant introduce a second medical opinion, in a case testing an evidence code provision the Legislature adopted in 2013.

Baricko v. Barnett Transportation Inc. turned on the applicability of the Daubert evidentiary standard. The Florida Supreme Court heard arguments in September about whether it should embrace the standard, but has yet to rule.

A three-judge panel of the 1st District Court of Appeal rejected an attack on Daubert filed on behalf of David Baricko, a truck driver seeking to introduce evidence that sitting for long periods caused his embolism.

Michael Winer of the Law Office of Michael J. Winer in Tampa argued that a judge of compensation claims had impermissibly applied Daubert in advance of its approval by the state high court.

The appellate panel did not explain its thinking, but Judge Kent Wetherell II said in a concurring opinion that the appeal was “frivolous.” The 1st DCA had ruled in 2014 that Daubert applies in workers’ compensation cases, he wrote.

In any event, he added, “it is well established that the (Supreme) Court does not have the authority to establish procedural rules for executive branch quasi-judicial proceedings such as those under chapter 440, Florida Statutes” — the workers’ compensation code.

Even if the justices decline to enforce the new evidentiary standard in trial courts, “that decision will have no impact whatsoever on the applicability of the Daubert test in workers’ compensation proceedings,” Wetherell wrote.

The 4th District Court of Appeal rejected a similar claim in November, Wetherell added.

“He just couldn’t be more wrong about his conclusion,” Winer said in a telephone interview. In suggesting the Supreme Court lacks jurisdiction to set evidentiary standards in workers’ compensation courts, Wetherell “ignores precedent,” Winer said.

He plans to seek a written ruling by the 1st DCA panel to clarify the court’s thinking.

The U.S. Supreme Court adopted the evidence standard at issue in 1993, in Daubert v. Merrell Dow Pharmaceuticals Inc. The standard prevails in federal courts and in courts in other states.

Judges apply the test when weighing whether proposed expert testimony is generally accepted by the scientific community.

Insurance office finds workers’ compensation market stable, competitive

Despite broad consternation over rising workers’ compensation insurance rates, Florida’s market is relatively stable and competitive, according to an analysis released Friday by the Office of Insurance Regulation.

The market “is served by a large number of independent insurers and none of the insurers have sufficient market share to exercise any meaningful control over the price of workers’ compensation insurance,” the report says.

Entrants to and withdrawals from the market produce “no market disruptions,” the report continues, signalling “that the Florida workers’ compensation market is well-capitalized and competitive.”

Furthermore, there have been no bankruptcies by insurers requiring the Florida Workers’ Compensation Insurance Guaranty Association to absorb policies.

“There are some good things about the workers’ compensation system — which is that the market is stable and very diverse, and that’s a good thing for the small business insurance consumer,” said Bill Herrle, Florida director for the National Federation of Independent Business.

The Florida Supreme Court threw the market into a tizzy last year by striking down elements of reforms passed in 2003 to drive down costs. They included a cap on attorney fees and limits on temporary disability payments.

The attorney fee ruling accounts for around 10 percent of the 14.5 percent premium hike approved the insurance office last year, according to ratings agency the National Council on Compensation Insurance.

The legality of that increase is before the 1st District Court of Appeal.

The report says the attorney fee provisions “were a significant factor in the decline of workers’ compensation rates and continues to impact them. It is also the case, however, that most of the improvements resulting from legislative changes may have been realized, as there were four rate increases from 2010 to 2014 after seven years of decreases following the 2003 reforms.”

The report points to additional price pressures, including the cost of drugs and of treatment in hospitals and ambulatory surgical centers, which are running ahead of the national averages.

The recent rate increase, which began to take effect last month and will roll out as employers buy new or renewed policies this year, has sparked calls for renewed reforms. Insurers and business groups have focused on controlling attorney fees, but the Legislature also may look at additional cost drivers.

Herrle, who serves on an Associated Industries of Florida task force on workers’ compensation reform, argued attorney fees are the chief enemy.

”We don’t need to be making changes to the rating process,” he said. “That dynamic is good. The dynamic that is not good is the (Supreme) Court cases.”

The report notes that, before the 2003 reforms, Florida tended to rank either No. 1 or No. 2 among the states in terms of high rates, according to data collected by the Oregon Department of Consumer and Business Services. It had dropped to No. 40 by 2010.

Even before last year’s rate hike, the state had climbed to No. 33.

Even so, Florida’s rates ranked below the national median.

Campaign against guns on campus adds lobbyist

The Campaign to Keep Guns off Campus has added Jacob Elpern, the former chief of its Florida State University chapter, to its lobbying team in Tallahassee.

Elpern, who graduated this year, joins the organization’s staff full time, state affairs director Kathryn Grant said.

His registration took effect on Dec. 14. Grant also lobbies for the group, which belongs to the Florida Coalition to Prevent Gun Violence.

Targets this year, Grant said, include SB 140, which would allow people to openly carry guns on college campuses, local government meetings, the Legislature, airport passenger terminals outside security screening areas, and elsewhere.

HB 6005, meanwhile, would allow concealed weapons on campus but not in the other places envisioned in the Senate bill.

Jack Latvala to House: The Senate makes its own rules

Senate Appropriations Chairman Jack Latvala sent a message Thursday to the House leadership: Don’t expect to force the Senate to abide by your strict new budget rules.

“We have our own rules in the Senate. We are going to abide by our own rules,” Latvala told reporters following a committee meeting.

“I think it would be unfortunate if we got to a position where, because the House is trying to force their rules on the whole process, that we get into some kind of government shutdown or something like that,” he said.

“The way to avoid that is to have conversation and negotiation early on in the process. Next month, you’ll see us take some steps to try to bring that about.”

Under rules approved when Richard Corcoran assumed the speakership, members must file a specific bill describing each project they hope to insert into the state budget. The idea is to get away from secretive logrolling late during sessions.

Corcoran has suggested that senators seeking projects find a House co-sponsor, to remain within the spirit of the House’s drive for transparency.

Latvala, a Republican from Clearwater, wasn’t having it.

“We are going to have our own process, just like we have from time immemorial. We are going do things differently than the House does,” he said.

“Each subcommittee is going to have one or more hearings where we’re going to thoroughly vet those projects that people have put forward. Each of our conference meetings that we host this year, we are going to make sure there’s time for public participation. Some of these things haven’t been done in the past. There’s different ways of getting transparency.”

As for whether senators should file project bills, Latvala allowed that might be a good idea.

“I’m encouraging people to file these bills. It kind of helps catalog what’s in the system. I have no objection to it,” he said.

“It’s important to have a consistent set of rules that both sides adhere to and agree to,” he said.

“But you can’t have a set of rules in the House and a set of rules in the Senate and they’re different. That’s never happened before. There’s a lot of case law that says this is a bicameral legislature, and that one house in this legislature can’t encumber or make decisions for the other house.”

He added: “It’ll all work out.”

As for the House’s tightened disclosure requirements for lobbyists, Latvala said:

“All that’s done is create some more bookkeeping for the lobbying firms. It’s helping Tallahassee employment, because some of the lobbying firms have told me they’re having to add people to fill out the paperwork. So much for government staying out of business.”

Meanwhile, Latvala welcomed news from the Division of Bond Finance that Florida’s debt load has declined by $4 billion during the past six years.

It means “we’ve got some room to do some bonding for projects like Sen. (Joe) Negron’s Everglades project,” Latvala said.

Ratings agency warns in brief against ‘dramatic expansion’ of Sunshine Law

State regulators and an organization that proposes workers’ compensation coverage rates in Florida defended themselves in pleadings to a state appeals court this week, seeking to overturn a lower court ruling that they had violated open-government laws.

Attorneys for the National Council on Compensation Insurance, or NCCI, submitted their arguments in a brief filed Wednesday with the 1st District Court of Appeal. The state office of Insurance Regulation is also a party to the suit, filed by Miami workers’ compensation attorney James Fee.

“The trial court’s order is flawed in numerous respects, fails to follow decades of binding precedent, ignores the plain language of relevant Florida statutes, and makes factual findings that lack record support and are directly contrary to the uncontradicted evidence,” the brief says.

“Florida’s Sunshine Law applies only to boards or commissions of governmental entities,” the document says. “NCCI is a private corporation, not a governmental entity, and no governmental entity has delegated the performance of its public, rate approval purpose to NCCI.”

The insurance office submitted its own brief the same day, reiterating many of NCCI’s arguments.

Leon County Circuit Judge Karen Gievers ruled in December that NCCI and the insurance office had violated the Sunshine Law in formulating a 14.5 percent in workers’ compensation premiums that will take effect through the end of this year.

Gievers pointed to statutory language requiring state-sanctioned rating agencies, like NCCI, to conduct their business in the sunshine. NCCI, she said, had been obligated to open its internal committee work on the rate to the public, as well as relevant documents.

The 1st DCA allowed the rate to begin to take effect pending the outcome of the appeal.

In its brief, NCCI argued that it lacks the sort of committee contemplated in the law. It once maintained such a panel, the summary says, comprising of representatives of Florida insurance companies. But it dropped the board in 1991 over antitrust concerns.

“Undisputed record evidence demonstrates that NCCI does not now, and did not at any time relevant to this proceeding, have a committee with responsibility for Florida workers’ compensation insurance rates,” the brief says.

Instead, a single employee — Jay Rosen, NCCI’s lead actuary for Florida — was the sole “decision-making authority” for the filing, although he worked on it with his staff.

He submitted his findings to peer review within the organization and to employees who would explain it to state regulators.

The brief says NCCI posted on its website, in advance of regulatory hearings, “hundreds of pages of documents” that the organization relied upon.

“The OIR’s process allowed for significant public participation during the hearing, as well as before and after. The OIR received substantial input from interested stakeholders and the public, including persons in favor of, and opposed to, NCCI’s filing.”

Ultimately, regulators approved a smaller rate hike than NCCI had proposed.

“If allowed to stand, the trial court’s order will mark a dramatic expansion of the requirements of Florida’s Sunshine and Public Records Laws, as well as an expansion of (the insurance code) beyond their plain language, in violation of clear binding precedent,” the NCCI brief says.

“Any such expansion would greatly inhibit the ability of private entities, as well as government entities, to conduct business in Florida.”

In its own brief, the insurance office’s brief argued:

“Single individuals vested with executive decision-making authority can meet with staff for fact-finding and technical assistance in the normal course of business without first having to provide public notice and comply with the other requirements. Only when public duties are delegated and a portion of the decision-making process given to a collegial body does the Sunshine Law attach.”

The office concluded:

“If NCCI is found to have committed any Sunshine Law violations, they were cured by the office’s Aug. 16, 2016, public hearing (on the rate increase). This hearing was noticed and open to the public, who were allowed the opportunity to provide comments, and was also streamed live on the Internet.

“All information that had been submitted to the office by NCCI was available to the public two weeks prior to the hearing. The office’s public hearing could hardly have shined more sunshine on the rate filing.”

House civil justice subcommittee takes up judicial term limits

A House panel began talking Thursday about imposing term limits on judges — and also reviewed how quickly the courts are clearing their caseloads.

Judicial term limits failed in the Legislature last year, but House Speaker Richard Corcoran has declared the issue an important priority.

Heather Fitzenhagen, chairwoman of the Civil Justice and Claims Subcommittee, said she has not yet taken a position.

She rejected a suggestion that House Republicans want to publish the Florida Supreme Court for rulings striking down GOP priority legislation.

“Absolutely not. What we’re trying to do is the people’s business and making sure that all of our branches of government are functioning at the best possible efficiency, and that we’re getting things done in the best manner possible. That justice is served in a timely manner.”

In Florida, appellate judges — including justices of the Supreme Court — are appointed by the governor subject to merit retention elections. They may serve until age 70 if the voters retain them.

No appellate judge has ever been bounced via a merit retention vote, according to Nathan Bond, policy chief for the subcommittee. He supplied the committee with statistics detailing court efficiency levels.

Warren Husband, a Tallahassee attorney appearing for the Florida Bar, said the organization’s Board of Governors unanimously opposed last year’s proposal over practical concern that higher turnover might affect the administration of justice.

As it happens, the appellate courts experienced a nearly 30 percent turnover rate between 2011 and 2015, he said.

“You’re probably going to get older applicants than you get now — and, in fact, older appointees and nominees than you get now,” Husband said.

“You can’t carry on a law practice while you’re a judge. You have to leave your practice, leave your clients, turn those over to other folks, go on the bench for 12, 13, 15 years, whatever it happens to be, and you can’t reasonably expect to pick up where you left off when you get off the bench.”

No specific bill language has emerged this year, and Fitzenhagen, a Republican from Fort Myers, reiterated that she is not taking a position. “I’m going to look at everything with fresh eyes,” she told reporters.

Tampa Democrat Sean Shaw saw a possible threat to judicial independence. He is the son of the late Leander Shaw, who served 20 years on the Supreme Court and was targeted for defeat during a merit retention vote for writing a 1989 ruling affirming women’s right to abortion.

“Apparently, under these scenarios we’re talking about, the last 10 years of his time on the Supreme Court would have been null and void,” Shaw said.

“I don’t know what problem we’re trying to solve.”

Regarding efficiency, “there’s one answer to that. I thought that was one of the easiest things. Give them more judges. When was the last time we gave the court budget allocations for more judges?”

And if no judge has ever been defeated for merit retention? “So what? They have faced the voters. Just because no one’s lost is not a good reason to say it’s not working.”

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