Florida Supreme Court Archives - Page 4 of 42 - Florida Politics

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.”

 

Supreme Court: Attorneys can collect fees for claim bill work

The Legislature can’t limit the amount of attorney fees to be paid out of money it OKs for a claim bill, a narrowly divided Florida Supreme Court decided.

The 4-3 opinion was one of nine in an unusual out-of-calendar release from the court this Tuesday. The Supreme Court normally releases opinions 11 a.m. on Thursdays.

Senior Justice James E.C. Perry and Justices Barbara Pariente, R. Fred Lewis and Peggy A. Quince were in the majority. Justices Charles Canady, Ricky Polston and Chief Justice Jorge Labarga dissented.

Perry’s “senior” status after his December retirement was considered improper by conservative critics of the court. Perry was replaced last month by former state appellate Judge C. Alan Lawson, a conservative.

The Florida House of Representatives was even prepared to legally challenge Perry’s continued work on the court until he finally withdrew into full retirement this week.

In the claim bill opinion, the majority sided with the Searcy, Denney, Scarola, Barnhart & Shipley law firm, which represented Aaron Edwards, a brain-damaged man who received a $15 million claim bill from the Legislature.

Edwards was born brain-damaged in 1997 because of medical malpractice at Lee Memorial Health System, according to briefs in the case.

Florida law limits local governments and other public bodies to paying no more than $200,000 per person in damages. To get more, lawmakers must pass a claim bill, also known as a relief act, for extra money.

The “contingency fee contract” between the firm and Edwards’ mother called for attorney fees of 25 percent.

The 2012 claim bill, however, says the “total amount paid for attorney’s fees, lobbying fees, costs, and other similar expenses relating to the claim may not exceed $100,000.”

The majority said lawmakers may approve or deny a claim bill but they can’t “impair an pre-existing contract” between an attorney and a client.

On the other hand, Polston noted in dissent that the firm’s fee agreement said, in part, that “Federal and Florida Law may limit the amount of attorney fees charged by [Searcy Denney], and in that event, I understand that the fees owed to [Searcy Denney] shall be the amount provided by law.”

“Because the fee agreement explicitly anticipates and agrees to an award of fees as limited by Florida law and in the amount provided by law, there is no impairment of contract,” Polston said.

Christian D. Searcy, the firm’s president, told the court during oral argument in June he took the case because no other firm wanted it and he believed Edwards needed to be compensated.

In emotional remarks to the court, he called the fee cap a “confiscatory limitation,” adding that “no seriously injured child will ever be able to get an attorney … or anybody with a serious claim.”

Searcy was not immediately available at his office Tuesday.

 

James E.C. Perry’s “senior service” on Supreme Court to end

Florida Supreme Court Justice James E.C. Perry‘s last day as a “senior” justice will be Tuesday, according to a court order released Monday.

Chief Justice Jorge Labarga signed the latest order Jan. 11, modifying his previous order of Dec. 1.

Spokesman Craig Waters previously explained that the court’s “longstanding practice for many decades has been that retiring justices remain in senior status to complete their unfinished work after retirement.”

Perry

Perry, who joined the court in 2009, stepped down Dec. 30, having reached the mandatory retirement age. His name appeared on several opinions, including death penalty matters, released by the court since then.

“However, it is axiomatic that continued service is not without limit,” Labarga wrote.

“…At the time that the Dec. 1 order was entered, it was not known when a new justice would be appointed to replace him,” he wrote. “That issue now has been resolved.”

Gov. Rick Scott on Dec. 16 appointed conservative appellate judge C. Alan Lawson to replace Perry. Lawson had been chief judge of the state’s 5th District Court of Appeal in Daytona Beach.

Perry has since “expressed his desire that his senior service not be protracted for a lengthy period of time,” Labarga said.

The senior status recently piqued the ire of conservative blogger Ed Whelan, who opined on National Review Online that Perry’s continuing to work on pending cases was wrongly “displac(ing)” Lawson.

 

House subcommittee looks into state courts’ caseload backlogs

The percentage of the Florida Supreme Court’s caseload still pending after 180 days doubled after the U.S. Supreme Court upended the state’s death penalty system last year, a court representative told a House panel looking into court delays on Thursday.

In Hurst v. Florida, the justices in Washington invalidated Florida’s death penalty because the law gave too much discretion to judges instead of juries in handing down death sentences. Death row inmates filed appeals en masse. The court in Tallahassee is still weighing a response.

“That has completely held up the death penalty cases in Florida,” said John Tomasino, clerk of the Florida Supreme Court.

The court has set a standard for deciding cases within 180 days. The House Civil Justice and Claims Subcommittee held hearings into how quickly  the high court and other appellate and trial courts are clearing their caseloads.

Since 2006, the Florida Supreme Court has left between 1 percent and 4 percent of its cases lingering past that deadline. In 2015, the percentage was 3 percent. It swelled to 6 percent in 2016.

Cord Byrd, a Republican attorney from Neptune Beach, wanted to know why the Supreme Court takes so long sometimes to ruling on appeals. The court took more than two years to decide Castellanos v. Next Door Co., last year’s bombshell workers’ compensation ruling.

“Those are the exception, not the rule,” Tomasini said. “It does happen from time to time. All I can do is to point to factors that can contribute to those cases when that type delay does happen. One I definitely can share is the court trying to decide it properly, trying to decide it together.”

Officials representing trial courts and district courts of appeal said that what data exist about case clearance are sometime wrong. Chief trial judge Mark Mahon of Jacksonville referred to a report that his judges let 2,789 jury cases linger for more than 18 months. In reality, he said, none has lingered for more than 180 days.

He blamed delays on self-represented litigants who don’t understand the system; difficulties in securing language interpreters, parties’ requests for continuances, and an increasingly complicated case load.

Plus difficulties integrating new electronic filing systems, which are not always compatible with each other.

Death cases also can tie up the courts.

“It’s something that technology may not be the solution to. It’s just inherent in the system,” Mahon said. “Death is different, and it’s going to take a higher level of scrutiny. You just can’t afford to make a mistake.”

Lack of expertise in court clerks’ office can also inflate the statistics, he said. For example, he once found a first-degree murder case counted as a death penalty case when prosecutors weren’t seeking that sanction.

“You have to understand what you’re looking at. I think someone looked at it and said, ‘First-degree murder — that’s a death penalty case,’ ” Mahon said.

“I have not witnessed a systemic procedural delay issue at the trial court level,” said Rep. Shawn Harrison, a commercial litigator from Tampa.

“When the foreclosure crisis hit several years ago, that did have an impact. We noticed a delay there,” he said. “But most of the things I have seen are based on the geography of where the cases are brought; cases in South Florida tend to move slower than cases in different parts of the states. That’s just because things work that way there.”

George Moraitis Jr., a Republican from Fort Lauderdale, complained that, as a probate attorney, it can take months to see a case docketed.

“What tangible benefits are we seeing from this e-filing system?” he asked. “As a practitioner, it’s entirely frustrating.”

Judge Robert Roundtree of Alachua County, which has developed its own court management system, guessed there might be delays in Moraitis’ electronic filings being approved and sent to a judge.

“That’s what the clerks are struggling with, with their lack of resources, is having the tools to make sure they can maintain the file. The court is struggling with the overlay, the case management system, so we can see the file.”

This is the fourth year the trial courts have asked the Legislature for updated technology. “We saw the train wreck coming as we transfer from analog to digital,” Roundtree said.

“We’ve got the front end done with the electronic filing,” he said. “You bought all the bells and whistles on the data plan, and some us have a flip phone trying to access it.”

Committee chairwoman Heather Fitzenhagen, a Republican attorney from Fort Myers, asked whether administrators were moving toward a common system, accessible statewide.

Roundtree said the courts have established a common standard for these system and is working toward allowing different courts to communicate. “We are working to that level,” he said.

“Ultimately, it will be some form of a homegrown, internally grown system,” he said. “We cannot always be at the mercy of a third-party vendor who says now we have to upgrade to version 2.0 — now we won’t support the last system.”

Whether the courts are resolving delays, “it’s a problem for those people whose cases are delayed. We want to find out why that’s happening and if we can correct it,” Byrd said following the hearing.

Of the steps toward a coordinated database for trial judges and court clerks, he said: “It would seem like that would go a long way in solving some of these problems.”

Is there money for that?

“That’s a great question,” Byrd said. “Not one that I have an answer to.”

 

Bill would force case reporting requirements on Supreme Court

A bill filed Thursday in the Florida House would force the state Supreme Court to produce a yearly report on how many cases it’s finishing with opinions.

It seems to go against the court’s official Latin motto, “Sat Cito Si Recte,” translated as “Soon enough if done correctly,” or even “Justice takes time.”

“The phrase indicates the importance of taking the time necessary to achieve true justice,” the court’s website says. Supreme Court spokesman Craig Waters declined comment on the bill.

The legislation (HB 301), filed by new Republican state Rep. Frank White of Pensacola, would require the court to tally in detail “each case on the court’s docket … for which a decision or disposition has not been rendered within 180 days.” 

It then requires a “detailed explanation of the court’s failure to render a decision or disposition” in pending cases older than six months.

The bill also instructs the court to tally cases it decided in the previous year but took longer than six months.

The report “shall be submitted in an electronic spreadsheet format capable of being sorted” and sent to “the Governor, the Attorney General, the President of the Senate, and the Speaker of the House of Representatives.”

In a phone interview Friday, White – an attorney – said he started hearing from constituents soon after his election about “painfully long wait times for appellate opinions.”

“I thought, let’s just simply ask the court, starting with the Supreme Court, for a modest report,” he said. “A little sunshine and some data will all help us do a better job.”

To those who bring up the court’s motto, he counters with another expression: “Justice delayed is justice denied.”

Waters did say the court currently has 785 pending cases. “By comparison, the court disposed of 2,432 cases in calendar year 2016,” he said, adding that number “is subject to correction as we routinely audit the final results.”

Coincidentally, the bill is the latest legislation from a Republican-controlled House that’s long been antagonized by rulings its leaders have characterized as “judicial overreach.”

In October, for example, House Speaker Richard Corcoran lambasted a decision invalidating part of the state’s death penalty.

The ruling, requiring a unanimous jury recommendation for a death sentence, “is just the latest example of the Florida Supreme Court’s ongoing effort to subvert the will of the people as expressed by their elected representatives,” Corcoran said.

The House also is considering a measure for the 2017 Legislative Session that would impose term limits on judges. At its last hearing, the panel reviewing the legislation also discussed how quickly courts are clearing their caseloads.

Earlier this month, Heather Fitzenhagen – chairwoman of the Civil Justice and Claims Subcommittee – rejected a suggestion that House Republicans want to publish the court for rulings striking down the GOP’s priorities. White also sits on that committee. 

“Absolutely not,” she said. “What we’re trying to do is … (make) 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.”

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