Florida Supreme Court Archives - Page 4 of 40 - Florida Politics

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.

Who knows best, parents or teachers’ union?

In a recent POLITICO article, Florida Teachers’ Union President Joanne McCall said the following: “We believe that those closest to the students should be making the decisions about what is best for the students they serve.”

At issue was the controversy surrounding the state Board of Education’s efforts to turn around Florida’s worst performing public schools. McCall was stressing her belief in local control of schools, saying that her members are bogged down with state requirements and don’t have enough freedom in the classroom.

It’s a shame that McCall doesn’t always follow the belief she articulates. She and her union have sued to shut down the state’s tax credit scholarship program and evict nearly 100,000 poor, mostly minority children from schools that fit them better than their assigned district schools.

Both a trial court and an appeals court have ruled that the union didn’t even have the right to bring the case, but McCall has appealed to the Florida Supreme Court. Like a hungry dog with a piece of steak, she just refuses to let go – even though it’s far past time to drop the suit and let the focus return to where it belongs: the kids.

To McCall’s point, I would ask her this: Who is closer to a student than his or her parent? Why don’t you believe these poor parents should be making the decision about what school is best for their children?

Finally, why do you persist in this misguided lawsuit whose aim is to keep kids away from the best educational opportunities available to them?

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.”

Former death row prisoner appears before House panel

A House committee considering the future of Florida’s death penalty statute heard Tuesday from a man once sentenced to Death Row.

Henry Brown, who described himself as a capital mitigation consultant in Tallahassee, said he was sentenced to death in 1973 but released after he pleaded to second-degree murder in 1993, although he denied killing anyone.

He urged committee members to consider making any changes to the sentencing guidelines retroactive beyond 2002, when the U.S. Supreme Court first ruled that juries must decide whether murders deserve the death penalty.

“Had I still been on death row, I wouldn’t fall under that part of the retroactively. I’d be stuck back there,” he said.

“I’ve done some pretty great things since I’ve been out,” he continued. Florida has one of the country’s largest death rows, but “Florida also has the largest population of exonerees in the country. So consider that also.”

The issue is before the Legislature because in October, in a long-litigated case, the Florida Supreme Court voted, 5-2, to strike down Florida’s death penalty law because it doesn’t require a unanimous jury verdict to put someone to death.

Florida now allows death sentences upon 10-2 votes by juries.

Michael Allen, a professor at Stetson University College of Law, noted a rush by capital defendants and their lawyers to have their cases tried while the death statute remains unsettled.

“If one wanted to make a very quick fix, you change 10-2 to unanimous, and you leave everything else in the statute exactly the same,” Allen said.

“That’s not to say somebody else couldn’t raise an issue down the road, but that solves the issue that’s out there right now, for certain.”

Making changes retroactive to 2002 would probably require the state courts to resentence between 150 and 170 people now on death row, Allen said.

If the state limits retroactivity, Brown predicted, “that’s going to be a problem for the Legislature; that’s going to be a problem for the state; that’s going to be a problem for the death penalty. Because it’s going to be litigated. It’s going to go back to the Supreme Court, and Florida wouldn’t be able to carry out its death penalty statute.”

Blogger still irate over Justice James E.C. Perry’s continued presence at Supreme Court

Conservative blogger Ed Whelan isn’t giving up his position that retired Florida Supreme Court Justice James E.C. Perry continuing to work on pending cases “appears to be in plain violation of Florida law.”

Whelan wrote on National Review Online last week that Perry was wrongly “displac(ing)” Justice C. Alan Lawson, the newest conservative jurist on the state’s high court.

In the court’s defense, spokesman Craig Waters 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.”

He also said “there are serious workload issues involved in processing cases because the work is cumulative … asking a new justice to step in … can greatly slow decision-making in those cases – a result that would impose delay and additional expense on the parties to those cases, some of which are facing the death penalty.”

Whelan’s recent rebuttal said “the proposition that the court has employed this ‘practice for many decades’ does not speak meaningfully to the legality of the practice.

“If the court can’t offer a compelling legal explanation for its practice of allowing a retired justice to continue to decide cases after his retirement, it ought to terminate that practice pronto.”

Moreover, “it’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases,” Whelan wrote.

Any “efficiency gains that Waters touts would be achieved by simply deciding the case without him,” he added.

“To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable.”

Charles Canady may be off Donald Trump’s Supreme Court wish list

The Above The Law legal website is “handicapping Donald Trump’s Supreme Court shortlist” – and Florida Supreme Court Justice Charles Canady isn’t on it.

“In case you missed it over the holidays, Jan Crawford of CBS News, one of the most plugged-in Supreme Court reporters around, revealed Trump’s five finalists” to replace the late Antonin Scalia, who died last February.

In alphabetical order, they are Judge Steven Colloton (8th Cir.) of Iowa; Judge Thomas Hardiman (3d Cir.) of Pennsylvania; Justice Joan Larsen of Michigan; Judge William Pryor (11th Cir.) of Alabama; Judge Diane Sykes (7th Cir.) of Wisconsin, according to Crawford.

“These five judges all appeared on Trump’s first SCOTUS list of 11 names, suggesting that his supplemental list of 10 names might represent something of a second tier,” ATL reported.

Canady’s name was on that second list.

The former lawmaker has been one of two reliable conservative votes on the state’s highest court, along with Ricky Polston. But now joining them is conservative jurist C. Alan Lawson, replacing retired Justice James E.C. Perry.

Canady, a Lakeland native, served three terms in the Florida House of Representatives (1984-90) and four terms in the U.S. House of Representatives (1993-2001) as a Republican, rising to chairman of the House Judiciary Subcommittee on the Constitution.

He became general counsel to Gov. Jeb Bush, who later appointed him to the state’s 2nd District Court of Appeal in Lakeland in 2002, the bio says.

Gov. Charlie Crist then named him to the state Supreme Court in 2008. Canady also served as the court’s chief justice in 2010-12.

 

Survey finds dissatisfaction with Florida’s workers’ compensation system

How confident are stakeholders that Florida’s workers’ compensation system strikes the right balance between protecting injured workers while keeping costs under control?

Not very, according to a survey released this week by the Division of Workers’ Compensation.

Nearly 66 percent disagreed or strongly disagreed that the system strikes the right balance. At nearly 40 percent, “strongly disagree” got more votes than any other category.

Nearly 18 percent agreed the balance was right, and a little more than 6 percent strongly agreed.

“The words ‘complex,’ ‘litigious,’ ‘outdated,’ and ‘overregulated’ were most often used in describing the system,” division assistant director Andrew Sabolic said.

Sabolic presented the findings Wednesday to the Three-Member Panel — its actual name — which sets reimbursement policies and payment levels for health care providers, pharmacists, and medical suppliers working with workers’ compensation claimants.

The findings recalled the Florida Supreme Court’s April ruling in Castellanos v. Next Door Co., in which the court complained “the workers’ compensation system has become increasingly complex to the detriment of the claimant, who depends on the assistance of a competent attorney to navigate the thicket.”

The court struck down limits on attorney fees in that ruling, one of two decisions blamed by many in the business community for a 14.5 percent in workers’ compensation premiums that began taking effect last month. The 1st District Court of appeal is weighing whether that increase was calculated in violation of Florida’s open-government laws.

The division surveyed 4,468 people on its electronic notification list, including representatives of carriers; attorneys for workers, employers, or carriers; and health care providers or facilities.

Only 447 responded, but Sabolic hopes for better results next time.

The findings are presented here (scroll down to Exhibit 1 on Page 18).

“Going forward, I think we’re going to periodically ask these same questions, so we have a benchmark to see how things change,” Sabolic said.

The survey presented a list of words and asked respondents to pick the one that best describes the workers’ compensation system. The top pick was “complex,” at 20.8 percent.

Next came “litigious” at about 20 percent; “outdated” at a shade over 19 percent; and “overregulated” at nearly 17.9 percent.

Only 5.3 percent thought the system “fair to all parties,” and 6.7 percent chose “self-executing.”

The system is designed to provide a self-executing way for injured workers to recover lost wages and health care costs, without the need for attorneys and lawsuits.

Under Florida law, workers give up their right to sue in court in exchange for assurances they’ll be taken care of.

“Of all the descriptor words you used in the survey, the one that is statutory is ‘self-executing,’ and only 6.7 percent of your respondents agreed with you that it was a self-executing system,” said Tamela Perdue, a senior vice president for Sunshine Health, who represents employers on the panel.

“I think that’s pretty telling about where the system is and where it’s supposed to be,” she said.

Asked whether “carriers and health care providers collaborate to provide the best medical care for injured workers,” 29.4 percent strongly disagreed; nearly 27.6 percent disagreed; 23.8 percent agreed; and 4.4 percent strongly agreed.

In other findings:

— 43.55 percent of respondents thought the system favored employers, and 27.4 percent workers.

— Nearly 47.5 percent thought indemnity benefits were about right; 36 percent too low; and 16.5 percent about right.

— 52.8 percent thought medical reimbursement payments were too low; 35.8 percent about right; and nearly 11.4 percent too high.

— Asked, “Is overutilization a major medical cost driver in Florida’s workers’ compensation system?” the largest group, at a little more than 27 percent, agreed; 13.4 percent strongly agreed; 24 percent disagreed; and 13.4 percent strongly disagreed.

— Just shy of 29 percent agreed that carriers timely authorize medical treatment.

The largest response was from health care providers, at 42.4 percent. Next was employers at 26.2 percent; carriers at 11.4 percent; employee attorneys at 7.4 percent; health care facilities at 2.2 percent; and attorneys for employers or carriers at 1.1 percent.

“Other” respondents accounted for 9.2 percent.

Closing statement: Florida Supreme Court justice steps down

Florida Supreme Court Justice James E.C. Perry has reached his final day in office.

Perry

Perry is stepping down Friday because he reached the mandatory retirement age for justices.

Perry was appointed by then-Gov. Charlie Crist to the court in 2009. He was the fourth black justice appointed to the court.

During his tenure, he was part of a group of justices that has issued rulings that angered the Republican-controlled Florida Legislature and Gov. Rick Scott.

Perry last week issued a lengthy dissent that asserted the state had applied the death penalty in a “biased and discriminatory fashion” and that there was no way it could be carried out in a constitutional manner.

Scott earlier this month appointed C. Alan Lawson, the chief judge of the 5th District Court of Appeal, to replace Perry.

High-profile Supreme Court cases still hanging fire at year’s end

With the Florida Supreme Court‘s opinion releases on winter break till Jan. 12, several high-profile cases will remain unresolved in 2016.

Here are a few, starting with the court’s official case summary:

— Debaun v. State of Florida: “This case asks whether laws governing sexually transmissible diseases apply only when the parties involved are a man and a woman.”

Gary Debaun is trying to have a charge dismissed under a 1986 law designed to prevent the spread of the human immunodeficiency virus.

The case, argued in February, involves the definition of sexual intercourse in a case involving a gay man charged with not letting a partner know he was HIV-positive.

Lawyers for Debaun argued the law says it’s illegal not to disclose an HIV infection before “sexual intercourse,” but that definition only appeals to traditional sex between a man and a woman—not two men.

A lower court judge dismissed the charge against Debaun, but an appeals court reinstated it saying the law was clearly intended to include other sexual activity where there is a risk of transmitting the virus.

— Florida Department of Revenue v. DirecTV: “This case challenges a state law that taxes satellite television providers at a higher rate than cable TV.”

The question here is whether satellite-television service be taxed at a higher rate than cable. Oral argument was held in April.

Satellite TV companies, including DirecTV, want the court to uphold the 1st District Court of Appeal’s 2-1 decision last year, which said that taxing the two services differently is unconstitutional. The state’s Revenue Department and Florida’s cable TV industry want it overturned.

At issue is the state’s communications services tax (CST), which charges “direct-to-home satellite service” at a total rate of 11.44 percent. Cable TV, however, is taxed at a total of 7.44 percent. (The state reduced the CST effective last July 1.)

The lower court’s majority ruling held that different tax rates violate the U.S. Constitution’s Commerce Clause because they tend to benefit in-state cable companies over out-of-state satellite companies.

— Gretna Racing v. Department of Business & Professional Regulation: “This case asks whether local voters can authorize the operation of slot machines in counties outside of Dade and Broward.”

A horse track in Gretna, Gadsden County, about 30 miles west of Tallahassee, is asking the court to let it have slot machines because voters approved them in a local referendum in 2012.

If the court rules favorably, it could expand slot machines to counties where voters passed slots referendums: Brevard, Duval, Gadsden, Hamilton, Lee, Palm Beach, and Washington. That could result in the single biggest gambling expansion in the state.

Marc Dunbar, the track’s attorney told justices that the Legislature intended to allow for an expansion of slot machines in the state, saying counties were empowered under state law to decide whether to allow slots.

— Norman v. State of Florida: “This case challenges the constitutionality of Florida’s statute restricting the ‘open carry’ of firearms.”

Also in June, the court heard the case of Dale Lee Norman, which could uphold or overturn Florida’s ban on openly carrying a firearm. The National Rifle Association filed a friend-of-the-court brief.

Norman was arrested by Fort Pierce police in February 2012 after having gotten his concealed weapon license earlier that day, according to his initial brief.

“A concerned citizen noticed Mr. Norman’s firearm on his right hip and called police,” the brief said. “The State’s sole allegation in this case is that Mr. Norman carried a firearm conspicuously and openly rather than concealed.”

His attorney, gun-rights activist Eric Friday, said the ban should be stricken because it “infringe(s) on the fundamental individual rights of citizens to bear arms in defense of themselves, their families, and the State.”

The Associated Press contributed to this post, reprinted with permission. 

Show Buttons
Hide Buttons