Florida Supreme Court Archives - Florida Politics

Judicial term limits, death penalty bills clear final House committee votes

Bills that would require unanimous jury votes to impose the death penalty, and ask voters whether to impose term limits on appellate judges, were headed to the House floor following their approval Tuesday by the House Judiciary Committee.

The death penalty bill attracted a single “no” vote, and that was from Democrat Joe Geller, who said he would never again support any proposal that would “keep the horror of a death penalty.”

The judicial term limits bill passed on a vote of 11-8. The only Republicans to vote against it were Jay Fant and George Moraitis Jr.

The committee also approved HB 65, which would allow victims of terrorist acts to sue perpetrators and their enablers in state court; and HB 301, requiring the Florida Supreme Court to report each year to the the governor, attorney general, and legislative leaders the number of cases still pending 180 days after oral argument.

HB 527, the death penalty bill, answers qualms by the Florida Supreme Court about putting people to death absent unanimous jury recommendations. In October, the court struck down a law allowing executions upon 10-2 jury votes.

Only Monday, the court said executions could proceed in cases where that wasn’t a factor.

“We’ve had paralysis in our death penalty cases until yesterday,” said sponsor Chris Sprowls, who chairs the committee.

The Palm Harbor Republican said that, when he was a prosecutor, uncertainty regarding the penalty for murder was painful to victims’ families.

In sending the bill to the floor, “we would do just our small role for these families, in ensuring we have a death penalth statute that is constitutional, legal, and that these cases can move forward.”

The committee voted after death penalty opponents — including a man exonerated after serving on death row, and the mother of a murder victim — argued for abolition of capital punishment.

HJR 1, the term limits bill by Eustis Republican Jennifer Sullivan, would need approval by three-fifths of the House and Senate to appear on the ballot, where it would become a constitutional amendment upon approval by 60 percent of the voters.

It would limit judges of the district courts of appeal and justices of the Florida Supreme Court to 12 years in office.

Representatives of an array of legal groups — including the Florida Bar, the Florida Board of Trial Advocates and the Florida Justice Reform Institute — warned it would discourage bright lawyers from seeking the bench and interfere with judicial independence.

The latter argument struck a cord with Tallahassee Democrat Ramon Alexander.

“There was a time when people who look like me weren’t allowed to vote,” he said. “Because of the independent judiciary, I am afforded the opportunity to sit here today.”

Yalaha Republican Larry Metz said judges should be subject to term limits, the same as governors and legislators.

“With respect to the judiciary, one might argue, well, they’re not policymakers,” he said.

“But I would say that appellate judges in Florida — not all of them, but many of them — act as policymakers; they actually legislate from the bench.”

Supporters including Sullivan argued the bill would promote accountability — and noted that the proposal would merely place the question before the voters.

“At the end of the day, leave it to the voters of Florida decision,” she said.

Redistricting overhaul barely clears second Senate panel

The legislation (SB 352) was OK’d by the Senate Ethics and Election Committee, with all three Democrats on the panel voting no.

The bill is a response to court challenges over the state’s redrawn districts after the 2010 Census.

“The Florida Supreme Court issued eight separate apportionment opinions, the trial court issued additional opinions, and litigation spanned nearly 4 years in the state courts,” a staff analysis said.

“The litigation often proved confusing to candidates hoping to qualify and run for office because the candidates were uncertain where the district boundaries were located,” it added.

The bill, sponsored by Republican Sen. Travis Hutson of Elkton, will next be considered by the Rules Committee.

Florida prosecutors can seek death penalty despite questions

Florida prosecutors can seek the death penalty in ongoing cases despite a state Supreme Court ruling that found a new death penalty law unconstitutional.

The court ruled Monday that the death penalty can be applied as long as there is a unanimous jury recommendation.

It ruled last October that a new state law requiring at least a 10-2 jury recommendation is unconstitutional.

But Monday justices said other aspects of the law are constitutional and prosecutors can proceed in capital punishment cases.

Prosecutors had been in limbo wondering whether the death penalty could be applied. Attorney General Pam Bondi asked the court to clarify.

The court released an opinion last month saying the death penalty couldn’t be applied in pending cases, but then withdrew the opinion hours later.

Bar exam board seeking two lawyer members

The organization responsible for writing the state’s bar examination is looking for two good lawyers.

The Florida Board of Bar Examiners has two openings for attorney-members, it said in a Monday news release.

Applicants have to be “practicing lawyers with scholarly attainments” and must have been a member of The Florida Bar for at least five years.

Sorry, judges and law professors are ineligible.

Members have to “attend approximately ten meetings a year in various Florida locations, be willing and able to devote the equivalent of 3-4 days’ work a month, or up to 350 or more hours per year on Board business,” the release added.

Interested? Click here to download the application or call (850) 561-5757 to get one.

Completed applications must be received by the Executive Director, The Florida Bar, 651 East Jefferson St., Tallahassee, Florida, 32399-2300 or submitted via e-mail to <specialapptapp@floridabar.org> no later than close of business on Monday, April 3.

A “screening committee” will recommend six nominees for the two vacancies at its May 26 meeting.

“The nominations will then be forwarded to the Supreme Court to fill two five-year terms commencing November 1, 2017, and expiring on October 31, 2022,” the release said. 

Florida’s bar exam is given twice yearly over two days, in July and February, at the Tampa Convention Center. The next exam is this Tuesday and Wednesday.

Florida abortion waiting period law temporarily blocked

A state Supreme Court order blocking enforcement of Florida’s 24-hour abortion waiting period will remain in place while a lower court determines whether the law is constitutional.

The Florida Supreme Court issued its ruling Thursday, leaving in place its order from 10 months ago.

The court said there’s a strong likelihood that a lower court will determine the law is unconstitutional and the state provided no evidence that the law addresses a compelling state interest.

Gov. Rick Scott signed the waiting period into law in 2015 and it was quickly blocked by a lower court after the ACLU sued.

But an appeals court lifted the injunction a year ago and the law was in effect until the Supreme Court temporarily blocked it two months later.

Supreme Court limits information insurers may demand under PIP policies

The Florida Supreme Court has taken a narrow view of the amount of evidence hospitals and other health care providers are obliged to turn over to insurance companies concerning the reasonableness of personal injury protection claims.

In a unanimous ruling, the court sided with the 1st District Court of Appeal over the 4th District Court of Appeal, which had issued conflicting interpretations of Florida’s PIP statute.

“We conclude that discovery is limited to the production of a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement, as well as the production, inspection and copying of records regarding such history, condition, treatment, dates, and costs of treatment,” Chief Justice Jorge Labarga wrote.

“Furthermore, we agree that (the statute) provides limited pre-litigation discovery into specified information about the treatment and charges for treatment provided to an injured party, and that the discovery tools found in the rules of civil procedure … are not triggered until litigation over the reasonableness of those charges has ensued.”

Justice C. Alan Lawson, who only recently joined the court, did not participate.

The dispute in State Farm Mutual Automobile Insurance Co. v. Shands Jacksonville Medical Center Inc. centered on the insurer’s attempt to collect information about the treatment afforded 29 insured following auto accidents.

Florida’s PIP statute allows insurers “discovery of fact” — meaning access to provider records to determine whether the treatment was reasonable.

Shands delivered medical records, documents detailing treatments and charges, its Medicare cost report, and data reflecting what other hospitals charged for the same procedures.

Shands refused to turn over copies of third-party documents covering discounts it had negotiated with other carriers. State Farm sued for those records. A trial judge ruled that the company was entitled to them.

The 1st DCA and the 4th DCA, in a similar dispute, disagreed about the amount of information Shands was obliged to turn over. The first court took a narrow view, holding that State Farm was entitled only to records spelled out in subsection 6 (a) — essentially, the information Shands had delivered.

The latter court took a more expansive view, ruling that the Florida Rules of Civil Procedure’s broader discovery rules applied.

The Supreme Court agreed with the 1st DCA that the Legislature intended the statute to afford a “limited pre-litigation procedure for a PIP insurer to obtain specified information about the treatment provided to its insured and the charges for that treatment.”

Supreme Court rejects evidence standard supported by Rick Scott, lawmakers

In yet another rejection of a policy backed by conservative lawmakers and Gov. Rick Scott, the Florida Supreme Court Thursday “declined” to change the state’s expert evidence rule to one used by federal courts and most states.

“We decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy,” said the majority opinion by Chief Justice Jorge Labarga and Justices R. Fred Lewis, Barbara Pariente and Peggy A. Quince.

Those concerns include “undermining the right to a jury trial and denying access to courts.”

Florida uses the Frye standard, generally considered easier for plaintiffs to get damaging expert testimony before a jury, while it’s much harder to do so under Daubert.

That’s why Frye is preferred by plaintiffs’ attorneys, and Daubert became a favorite of the defense bar and its big business clients. The Florida Bar’s Board of Governors last year voted to recommend to the court against the change.

Justices Charles Canady and Ricky Polston, the court’s conservative minority, disagreed with their colleagues. The newest justice, conservative C. Alan Lawson, did not participate in the decision.

Polston, in a dissent in which Canady joined, questioned the majority’s concerns.

“Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not,” he wrote.

In 2013, the Legislature approved and Scott signed into law the changing of Florida’s expert evidence rule to the Daubert standard, but the courts did not immediately follow suit.

The judicial branch avoided having to follow the change because of a question over whether switching the expert testimony rule is substantive or procedural. Generally under the state constitution, the Legislature has authority over the “substance” of court operations and the courts decide matters purely of “procedure.”

State Rep. Larry Metz, who sponsored the law that included the Frye-to-Daubert swap, had argued before the court last year that the change “gets to the fundamental purpose of courts,” having “a greater standard of reliability so we can get to the truth in cases.”

On Thursday, he said the court ignored the fact that his legislation passed in both chambers with comfortable majorities: “And we are representing the people of Florida in doing that.”

But William Large, president of the Florida Justice Reform Institute, a group created by the Florida Chamber of Commerce, said in a statement “there are no federal cases holding (that) Daubert violates a right to a jury trial and access to courts. The court was wrong to insinuate otherwise.”

The court noted it had received 56 comments in favor of keeping Frye and 131 comments in favor of switching to Daubert.

Of those, 77 were “form emails from ‘small business owners’ repeating the same request that the court (move to) ‘the Daubert expert witness standard that the Florida legislature passed in 2013,’ ” a footnote in the majority opinion said.

The Frye standard asks whether expert testimony is “generally accepted” in a particular scientific community. Daubert is stricter scientifically and can often require a kind of “mini-trial” even before an expert can appear in front of jurors. Both are named after court cases.

Oral argument in the case last year added the wrinkle of criminal cases, where advocates said Daubert might help defendants’ lawyers hold police crime labs more accountable, in cases involving drug-sniffing dogs and testing for arson, for example.

The full court Thursday also turned down two other proposed evidence changes.

One would require “a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered.”

The other would change “the hearsay exception relating to reports of abuse by elderly persons or disabled adults.”

 

House panel approves three measures tamping down on the judiciary

A House committee voted Thursday to approve three proposals to tie the hands of Florida’s judiciary, including a proposed constitutional amendment to impose term limits on judges of courts of appeal and Supreme Court.

Altogether, the measures would limit appellate judges to two six-year terms; remove a judicial education program from the Supreme Court’s supervision; and require the high court to report its caseload clearance rate to the governor and House and Senate leaders.

Legislative leaders have chafed at court rulings striking down their priorities in recent years, but supporters in the Civil Justice & Claims Subcommittee have insisted this had nothing to do with that.

Committee member Sean Shaw — a Tampa Democrat whose father, Leander Shaw, served for many years on the appellate bench, including the Florida Supreme Court — wasn’t persuaded.

“We seem to forget that the judiciary is a co-equal branch of our government,” he said following the committee’s meeting. “The judiciary is just as important as the branch that I serve in. They’re sure not being treated like it.”

HJR 1 would limit judges of the district courts of appeal and the Supreme Court to 12 years in all. They’d have to sit out a year after being termed out to become eligible to rejoin the bench. The measure passed, 8-7.

Mount Dora Republican Jennifer Mae Sullivan sponsored the bill. She noted that, since Florida adopted the merit-retention system for judges during the 1970s, not one has been defeated in a retention election.

“Any accountability system that doesn’t hold people accountable is not truly an accountability system,” she said.

The measure drew opposition from groups including the Institute for Legal Reform, the Florida Board of Trial Advocacy Education Fund, the Florida Judicial Reform Institute, and various sections of the Florida Bar.

The thrust of the opponents’ argument was the danger to judicial independence; that the existing system works; and that change would discourage the brightest young legal minds from seeking the bench, for fear of having to restart a law practice after 12 years away.

At the same time, Jeff Kottcamp, of the advocacy fund, argued the state would be foolish to discard experienced judges.

“When it comes to dispensing justice — to matters of life and liberty — there is no substitute for experience,” he said.

As a proposed constitutional amendment, the bill needs the support of three-fifths of the membership of the House and Senate plus 60 percent of the voters.

HB 301 would require the state’s chief justice to deliver its annual report on the number of cases undecided after more than 180 days to the governor, House speaker, and Senate president.

The reports would be due each Oct. 15. At present, the chief justice receives the report.

The bill passed, 13-3.

PCB for HB 175 would transfer oversight of Florida’s training programs for judges from the high court to Florida Court Education Council, which now advises the court on judicial education. Its staff would be cut from 15 employees to three.

The measure passed, 11-5.

military bar

Lawyers married to military could bypass bar exam in Florida

The Florida Bar wants lawyer-spouses of military members stationed in Florida to be able to practice law here without having to take the state bar exam.

The Bar, which regulates the state’s 100,000-plus licensed attorneys, filed its request with the Florida Supreme Court last week. The change would require court approval.

Twenty-three other states, including Texas and New York, “have adopted a military spouse rule,” the Bar’s petition says. It “received no comments in opposition.”

“Due to the unique mobility requirements of military families, lawyers licensed in a jurisdiction other than Florida often have to relocate to Florida with their spouse who is in the military,” the petition explains. “Currently, that lawyer is unable to engage in the practice of law in Florida” without passing the state bar exam.

There were “over 900 military spouse attorneys worldwide as of November 2013,” according to the Military Spouse JD Network.

“Moving to Florida and taking the Florida Bar Examination is often impractical because of the timing of the deployment to Florida and the dates the bar examination is given,” in February and July, and only in Tampa, the Bar’s petition adds.

“The timing issues could result in the military spouse being reassigned before the lawyer spouse is admitted … For these reasons, some lawyer spouses choose to remain in the jurisdiction where they are licensed, splitting families apart while the military spouse is stationed in Florida.”

The new rule “would only apply to lawyers who are spouses of active military personnel stationed in Florida,” and they would be considered Florida lawyers only “during the time their military spouse is stationed in Florida.”

“Although the number of military spouse attorneys is relatively small, the positive impact of this proposed rule on their families will be enormous,” said a report by the Military Spouse JD Network to the Bar.

Its passage “will send a clear message that the Florida legal community encourages the participation of the talented diverse group of military spouse attorneys.”

Jorge Labarga answers critics about James E.C. Perry’s ‘senior’ service

Florida’s chief justice Friday publicly defended his decision to allow Justice James E.C. Perry to continue working on cases after his retirement.

On Dec. 1, Jorge Labarga assigned Perry “senior” status for a period after his mandatory Dec. 30 retirement.

News since surfaced that the Florida House of Representatives, led by Republican Speaker Richard Corcoran, was preparing a legal challenge to Perry’s continued work saying, among other things, Perry was an unconstitutional “eighth” justice on the seven-member court.

“It’s in the constitution,” Labarga told reporters, speaking in advance of a meeting of the state’s Commission on Access to Civil Justice in Tallahassee. “The constitution permits the chief justice of the Florida Supreme Court to appoint senior justice and senior judges.”

The state’s governing document says the chief justice “shall have the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified.”

“When I signed the original order, way back in December,” Labarga said, “the names (of nominees to replace Perry) had just been sent to the governor, and I had no way of knowing how long the governor was going to take to make the appointment within the period in which he’s allowed to make it.”

Gov. Rick Scott Dec. 16 announced then-5th District Court of Appeal Chief Judge C. Alan Lawson, a conservative jurist, to replace Perry, who often voted with the court’s liberal contingent.

“Once the governor appointed Justice Lawson, then I amended the order,” Labarga said. That amended order, relieving Perry of his extended service as of Jan. 31, was signed Jan. 11 and released to the media Monday.

Labarga said the court’s practice, “as long as I can remember,” has been to grant retired justices senior status to finish work they started; that is, to work on opinions in cases in which they participated in oral argument.

According to court records, the last justice afforded such status was Charles T. Wells, the man Perry replaced on the court in 2009. Before that, Labarga said then-Justice Raoul Cantero, a conservative, also had gone on senior status. Cantero left the court for private practice in 2008.

Critics privately have referred to a section of state law providing that “upon the resignation, death or impeachment of any judge, all matters pending before that judge shall be heard and determined by the judge’s successor.” That law does not use the word “justice,” others say.

“Appellate work is not like trial work,” Labarga said. “If I leave the bench today and a new judge comes in, that judge can’t just start that morning. The records are huge. It takes time to read” all the material.

“This way, when you’re almost out of the woods, almost done with an opinion, you can get it done.”

The chief justice also noted Perry was not paid as a senior justice, that he worked as a “volunteer:” “He served a long and distinguished career and was ready to move on with his life.”

Labarga also said, when he amended his order to end Perry’s senior status, he did not know the House was preparing to challenge Perry’s still being at the court.

“Absolutely not. I learned about that in a newspaper article,” Labarga said. Court spokesman Craig Waters “came to me and said, ‘They’re making this allegation.’ My reaction was, ‘What?’ “

Labarga later declined comment on bills now filed in the Legislature to place term limits on appellate judges and allow legislative overrides on court decisions.

Moreover, another reporter pointed out the governor’s proposed budget does not fund the state court system’s request for new judges or improved technology.

When asked if he felt “like the judiciary has a bull’s-eye on its back,” Labarga said, “We’re prepared to answer any questions they have about how we use the taxpayers’ money … But I’m not going to comment on motivations.”

 

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