The fate of convicted killers on Florida’s death row – as well as the fate of people awaiting trial for murder – was put in limbo Friday after the Florida Supreme Court ruled that death sentences require a unanimous jury.
By a 5-2 vote the court struck down a newly enacted law allowing a defendant to be sentenced to death as long as 10 out of 12 jurors recommend it. The court added that the new law can no longer be applied to pending prosecutions in the state.
Meanwhile, in another important decision Friday, the court opened the door to inmates already on death row getting their sentences reduced.
By a 5-2 vote, justices concluded that Timothy Lee Hurst — convicted of a 1998 murder at a Pensacola Popeye’s restaurant- deserves a new sentencing hearing.
A jury had divided 7-5 over whether Hurst deserved the death penalty, but a judge imposed the sentence. The state Supreme Court initially upheld his sentence, but the U.S. Supreme Court this past January declared the state’s death penalty sentencing law unconstitutional and forced the state court to reconsider.
That ruling by the U.S. Supreme Court led the state to halt two pending executions. State legislators responded by overhauling the law and requiring that at least 10 out of 12 jurors must recommend execution for it to be carried out. Florida previously required that a majority of jurors recommend the death sentence.
But justices said that change didn’t do enough.
“If “death is different,” as this Court and the United States Supreme Court have repeatedly pronounced, then requiring unanimity in the jury’s final recommendation of life or death is an essential prerequisite to the continued constitutionality of the death penalty in this state,” wrote Justice Barbara Pariente in a concurring opinion with one of the rulings.
Justices in their ruling did reject a request that all 385 inmates on Florida’s death row have their sentences reduced to life in prison. But based on the court’s decision in the Hurst case other inmates may wind up seeking new sentences.
Jackie Schutz, a spokeswoman for Gov. Rick Scott, said the governor’s office was “reviewing” the ruling and did not have any further comment.
The court’s decision means the Florida Legislature will have to overhaul the death penalty law once again. Lawmakers are scheduled to return to the Capitol for a one-day organizational session in November, but they are not scheduled to hold a regular session until March.
Reprinted with the permission of the Associated Press
Gov. Rick Scott accepted Florida Supreme Court Justice James E.C. Perry’s resignation Friday and gave the Judicial Nominating Commission until Dec. 13 to submit a list of possible replacements.
“The commission’s expeditious handling of this matter is most appreciated,” the governor said in a letter to commission chairman Jason Unger.
To replace Perry, the state’s Judicial Nominating Commission will take applications and submit three to six names “of the most highly qualified applicants to the governor, who must make a final selection from the list,” according to its website.
“I strongly prefer submission of the maximum number of nominees (six) for the vacancy,” Scott wrote.
Perry, 72, announced his retirement Sept. 12. He stayed past the mandatory retirement age of 70 because of a provision allowing justices whose “70th birthday occurs in the second half of their six-year term (to) remain on the bench until the full term expires.”
In his letter accepting Perry’s resignation, Scott wrote: “Yours has been a life and legal career devoted to public service. As you retire from the bench, I hope you look back on your accomplishments with pride.”
It will be Scott’s first appointment to the state’s high court and an opportunity to add to its conservative minority of Charles Canady and Ricky Polston. The liberal wing includes Perry, Chief Justice Jorge Labarga, and Justices R. Fred Lewis, Barbara J. Pariente, and Peggy A. Quince.
Quince will be the only African-American justice on the seven-member court following Perry’s departure.
As the chair-elect of the Workers’ Compensation Section of the Florida Bar, I believe it is important to correct misconceptions and misstatements made by the head of the Florida Chamber regarding Florida’s workers’ compensation system and the attorneys who represent injured Floridians.
In a recent column, Mark Wilson and the Chamber suggest the workers’ compensation rate increase approved by Florida’s new Insurance Commissioner benefits only “billboard trial lawyers.”
Nothing could be further from the truth.
The commissioner approved a ridiculous 14.5 percent increase in workers’ comp rates. It could have been worse — the insurance industry tried to stick businesses with an increase one-third higher.
But NCCI, the rating arm of the insurance industry, has acknowledged the court decision has very little direct impact on rates.
The bulk of what the insurance industry sought in a rate increase was, by NCCI’s own admission, related to the fact that injured Floridians who retain attorneys receive more in benefits than workers who do not retain counsel.
Yet the decision in Castellanos did not increase the pool of benefits available to injured Floridians. What legal representation does is hold an insurance company’s feet to the fire. It forces them to comply with the law and provide injured workers medical care and lost wage benefits that are already due — the same benefits that profit-first insurers routinely deny to injured workers who are not represented by an attorney.
Wilson and the Chamber would have Florida return to the system enacted in 2003. While the reforms enacted that year generated rate reductions, let’s not pretend these reforms did anything to assure injured Floridians would receive prompt medical care or lost wage benefits.
The exact opposite happened.
Let’s also not pretend that the caps on attorney fees adopted in 2003 were reasonable. The Chamber supported the Florida Legislature removing the word “reasonable” from the fee statute in 2009. Finally, let’s not pretend that attorneys accept workers’ compensation cases to “hit the jackpot” on fee awards; employers and insurance carriers who furnish the benefits due under the statute NEVER pay attorneys’ fees — and even when they wrongfully deny benefits, the statute gives them a 30-day safe harbor to provide the benefits and still avoid paying attorney fees.
The Chamber points out correctly that the attorney who represented Mr. Castellanos ultimately earned a fee many times the value of the benefits the carrier refused to provide.
That begs the question of why the insurance company denied him the benefits in the first place — and why they then fought so hard to avoid providing the benefits.
Insurance executives may not understand, but an $800 benefit means everything to a family that lives from paycheck to paycheck.
When premium rates fell more than 60 percent following the 2003 reforms, the Chamber advocated legislation that now allows insurance companies to keep “excess profits” instead of returning those profits to Florida businesses.
Catering to the insurance industry that is one of its biggest funding sources, the Chamber opposes insurance reform that would help businesses across the state by creating competition among carriers on rates and allowing businesses a choice on workers’ compensation rates.
Rather than work toward a comprehensive solution, the Florida Chamber chooses to simply demonize attorneys. If the Chamber were truly interested in the welfare of injured workers and in assuring that these workers receive access to quality care and the court system, it would not deny them the opportunity to hire attorneys at reasonable fees.
What Florida needs is fair and balanced reform — not knee-jerk “reform” that plays on stereotypes of attorneys while taking advantage of the very workers who help businesses succeed.
Paul M. Anderson serves as chair-elect of the Florida Bar Workers’ Compensation Section.
Attention Florida business owners — in case you missed it, you are about to be hit with a workers’ compensation insurance increase that you most likely haven’t planned for, all for the benefit of Florida’s billboard trial lawyers.
This week, the Florida Office of Insurance Regulation approved a 14.5 percent workers’ compensation rate increase that takes effect Dec. 1 for new and renewal policies, the fallout from two damaging Florida Supreme Court decisions, Castellanos and Westphal.
A rate increase this big, this sudden, hurts Florida’s competitiveness and employers large and small. Many businesses will be forced to delay hiring — or even cut existing staff — to cover this leap in their workers’ comp premiums.
The increase is also a direct blow to Florida’s business-friendly climate and jeopardizes the 62 consecutive months of private-sector job growth we’ve experienced.
Let’s rewind back to 2003. At that time, Florida had the second-highest workers’ comp rates in the United States. These rates were threatening our state’s competitiveness. In response, the Florida Chamber of Commerce joined with then-Gov. Jeb Bush to pass a series of commonsense legislative reforms.
These reforms have become a national success story. Since enactment, Florida’s workers’ comp rates dropped approximately 60 percent, while at the same time injured workers got the care they needed more quickly and were able to return to work an average 10 days sooner than in the past.
But the Supreme Court rulings, issued earlier this year, have jolted job creators and threaten to unravel all the great progress our state has made over the past 13 years.
The most damaging of the two court rulings overturned reasonable attorney fee caps established to stop trial lawyers from using often minor workplace injuries as a means for suing businesses in hopes of hitting the jackpot on fee awards.
Florida’s insurance regulators had little choice but to approve the sudden rate hikes we’re seeing now because they forecast that the court’s approval of runaway legal fees is retroactive and will set off a tidal wave of trial lawyers refiling old cases and concocting new ones.
The worst part of this mess is that it isn’t about improving safety or care for injured workers. It’s been thoroughly documented that the 2003 reforms succeeded in getting workers well and back to work faster, while eliminating unnecessary legal costs. The only group benefiting from this ruling is the trial lawyers.
In fact, in Castellanos, the trial lawyer argued for $38,000 in attorney fees in a case in which the injured worker was awarded only $800 — and the Supreme Court now says those fees are acceptable.
We urgently need a legislative solution to address this looming crisis. Our goal must be to ensure injured workers continue to receive access to quality care and the court system, while providing job creators cost controls and the benefits of reining in outrageous attorney fees.
The Florida Chamber is actively leading the charge to help lower workers’ comp rates once again. Our Workers’ Compensation Task Force has been engaging Florida’s highest elected leaders, working with the brightest legal minds and coordinating with other states to develop the right solution. We are also working closely with business leaders and local chambers throughout the state to ensure Florida’s success story does not unravel and become a nightmare again.
Putting injured workers and job creators first, not trial lawyers, is the right thing to do to keep Florida’s workers’ comp system working.
Mark Wilson is the president and CEO of the Florida Chamber of Commerce and can be reached at email@example.com.
What sort of Supreme Court justices would Donald Trump appoint?
For an insight, consider the case of Kathy Johnson v. Omega Insurance Co., decided by the Florida Supreme Court Sept. 29.
One of his prospective nominees was on the wrong side of that.
The business model of an insurance company is to take as much of the policyholder’s money as possible and pay back as little as the law allows. To use a currently familiar phrase, its “fiduciary responsibility” is to the stockholders, not the policyholders.
It sometimes takes an expensive court case like Johnson’s to put the relationship in a better balance. That’s what the Florida Supreme Court did when it ruled, 6-1, that an insurance company had to pay the legal fees and costs she racked up in proving that a sinkhole was responsible for the major damage to her home in Marion County. It ultimately cost $213,465 to repair.
Omega Insurance denied her claim on the basis of an engineering firm’s finding that the damage owed to something other than a sinkhole. Johnson hired lawyers to file suit. They hired another engineering consultant, who opined that yes, it was a sinkhole, and that Omega’s report was badly done.
When a third consultant confirmed the sinkhole verdict, Omega gave up and agreed to pay for the damages, but not for Johnson’s yet-to-be-decided attorney fees or some $100,000 in court courts. The trial judge ruled Omega should pay those too. The 5th District Court of Appeal disagreed.
At Tallahassee, the Supreme Court chastised the 5th District for not paying attention to what it had already said in such cases.
“We have consistently explained that the purpose of this statute is to provide an adequate means to afford a level process and make an already financially burdened insured whole again, and to also discourage insurance companies from withholding benefits on valid claims,” wrote Justice C. Fred Lewis.
The need is “deeply rooted in public policy,” he explained.
Indeed it is. Otherwise, insurance companies would have a compelling incentive to deny claims on the basis of “evidence” that hapless policyholders couldn’t afford to contest.
Omega argued that it should be on the hook for Johnson’s fees and costs only if it had deliberately acted in what lawyers call “bad faith.” Not so, countered Lewis.
“It is the incorrect denial of benefits, not the presence of some sinister concept of ‘wrongfulness,’ that generates the basic entitlement to the fees if such denial is incorrect,” Lewis wrote, quoting from an earlier decision.
The national significance in this is that the solitary dissent was by Justice Charles Canady, the Florida Court’s most conservative member. He is among 21 people Trump has said he would consider for the nation’s highest court.
Canady’s dissent — which Lewis wrote extensively to rebut — turned on technicalities. He argued that the court didn’t have jurisdiction to hear Johnson’s appeal. The merits of her case didn’t matter.
Justice Ricky Polston is the court’s other frequent conservative dissenter, but even he broke with Canady this time, concurring only in the majority’s result but not in its reasoning. He didn’t say why.
Both of them dissented in April when the majority agreed to stay Florida’s latest anti-abortion law, a 24-hour waiting period, while the court decides whether to hear an appeal on the merits.
Although many of the court’s decisions are unanimous, dissents by Canady and Polston are common on questions of access to the court by individuals doing battle with corporations. The stock conservatism of either justice would appeal to the U.S. Chamber of Commerce and other business lobbies that appear to have the Trump campaign’s attention.
They dissented also when the court overturned the Republican Legislature’s congressional redistricting as a violation of Florida’s constitutional “fair districts” amendments.
Canady’s name, in particular, is a dog whistle to the anti-abortion lobby. As a member of Congress, he claimed credit for crafting the emotionally laden phrase “partial birth abortion.”
He was one of the managers the House appointed to prosecute its unsuccessful impeachment case against President Bill Clinton.
On the infrequent occasions when the court overturns a murder conviction or reduces a sentence from death to life, Canady and Polston usually dissent. In one case, however, they voted as the condemned man wished: to let him die. The liberal justices ordered a new trial.
It would be difficult to find a more sanguinary opinion than the dissent they filed in March 2014, when the majority upheld the Jacksonville murder conviction of Michael Yacob but reduced his death sentence to life in prison.
Florida’s law requires the court to review every death sentence for “proportionality” — in other words, does the condemned person deserve execution as much as others?
Writing the dissent, Canady agreed that “the death sentence in this case is not proportionate.” But he argued that Florida’s Constitution bars the court from considering proportionality because the U.S. Supreme Court doesn’t require it.
That point of view could become the majority’s following the mandatory retirement of the court’s four most liberal members by January 2019. Gov. Rick Scott‘s hand-picked nominating commission will select all the finalists.
The Canady dissent shocked Chief Justice Jorge Labarga into writing an extensive rebuttal.
” … Unless an edict is handed down by the (U.S.) Supreme Court declaring that comparative proportionality review is inconsistent with proper capital sentencing review, I will continue to make a proportionality review in every case in which I am called upon to place my judicial imprimatur on a sentence of death. It is my fervent hope that this Court will also continue to do so as a body,” he wrote.
With Canady and other like-minded Trump appointees on the U.S. Supreme Court, his hands could be tied.
Martin Dyckman is a retired associate editor of the newspaper now known as the Tampa Bay Times. He lives in suburban Asheville, North Carolina.
A policyholder forced to file suit to get her insurer to repair sinkhole damage is entitled to recover her litigation costs from the company, the Florida Supreme Court has ruled.
The Omega Insurance Co. paid more than $200,000 for the repairs only after homeowner Kathy Johnson hired counsel to press a legal claim. The company finally conceded its initial inspection of damage missed evidence that a sinkhole was to blame, the court said.
“Once an insurer has incorrectly denied benefits and the policyholder files an action in dispute of that denial, the insurer cannot then abandon its position without repercussion,” the court said.
To allow the insurer to backtrack after the legal action has been filed without consequence would “essentially eliminate the insurer’s burden of investigating a claim,” Justice Fred Lewis wrote in Thursday’s majority opinion.
Joining him were Chief Justice Jorge Larbarga and justices Barbara Pariente, Peggy Quince, and James E.C. Perry. Justice Ricky Polston concurred without comment. Justice Charles Canady dissented.
The high court overturned a ruling in favor of Omega by the Fifth District Court of Appeal.
“The Legislature recognized that it was essential to ‘level the playing field’ between the economically advantaged and sophisticated insurance companies and the individual citizen,” Lewis wrote.
“The reality is that once the benefits have been denied and the plaintiff retains counsel to dispute that denial, additional costs that require relief have been incurred,” he continued.
State law “takes these additional costs into consideration and levels the scales of justice for policyholders by providing that the insurer pay the attorney’s fees resulting from incorrectly denied benefits. Without this approach, we would leave the insured to foot the bill not only for attorney’s fees, but also for experts to overcome the denial, which would render insurance payments insufficient to cover the loss.”
Attorneys for the statewide teachers’ union on Monday filed a brief asking the Florida Supreme Court to review a lower court decision involving the state’s largest private school voucher program.
The Florida Education Association said the supreme court “should accept jurisdiction and review the (1st District Court of Appeal)’s decision.”
The appellate court had sided with a trial court’s decision to throw out the lawsuit filed by the association and others. They argued that its method of funding private-school educations for more than 90,000 schoolchildren this year is unconstitutional.
A three-judge panel said the plaintiffs don’t have standing to sue because they haven’t been harmed by the program. The panel also denied that it violates state law.
The vouchers are funded by corporations, which in turn receive tax credits on money they owe to the state.
But the brief filed Monday said “the decision not only undermines the law of taxpayer standing, but it effectively holds the Scholarship Program – and any other government program similarly funded by a targeted tax credit rather than direct appropriations – to be immune from challenge under … the Florida Constitution.”
The state Supreme Court previously ended a different voucher program championed by former Gov. Jeb Bush.
Florida has several voucher programs in place; the one being challenged extends vouchers to low-income families, most of them black or Hispanic, who send their children to religious schools.
It began in 2001 under Bush, and legislators approved expanding it to middle-income families starting this fall.
The union’s lawsuit asserted that it violates the state’s constitution by creating a parallel education system and directing tax money to religious institutions.
Background material from The Associated Press used in this post, reprinted with permission.
The Florida Supreme Court has ruled that carrying a replica of an antique gun doesn’t violate the state’s prohibition on felons possessing firearms.
The court on Thursday ruled 5-2 that Christopher D. Weeks’ “conviction for possession of a firearm by a convicted felon” should be reversed and his sentence of three years’ probation vacated.
Notably, the majority opinion found the court’s progressive and conservative wings in agreement.
Weeks had been arrested in 2012 while hunting in the Blackwater Wildlife Management Area in Santa Rosa County, according to the opinion.
Weeks later argued he “was allowed to hunt with an antique replica muzzleloader rifle employing a percussion cap ignition system” because “the Legislature exempted ‘antique firearm’ from the statutory prohibition.”
The exemption to the second-degree felony was grounded in the belief that “a firearm with such a firing system cannot load ammunition as easily as modern firearms.”
As the trial judge put it, “(A)fter listening to all that testimony about that gun, (Weeks) would be in a world of hurt if a bear was charging after him to reload,” according to the opinion.
The opinion, written by Justice Barbara Pariente, said even though Weeks was carrying a working replica and not an actual antique, it still “used a type of firing system specifically mentioned” in the law’s exemption language.
Chief Justice Jorge Labarga agreed, as did Justices James E.C. Perry and Ricky Polston, a conservative member of the court. The court’s other conservative, Justice Charles Canady, concurred separately.
But Justices R. Fred Lewis and Peggy A. Quince, who usually are the other two members of the court’s liberal triumvirate, dissented.
Weeks’ gun could not be considered a replica of an antique—and thus subject to exemption under the felons-in-possession law—because Weeks had put a scope on it, they said.
“(P)lain language and common sense dictate that a replica should, at the very least, look like the original object,” Lewis wrote. “The addition of a modern scope to an otherwise antique firearm removes (it) from the exception provided by the Legislature.”
Florida’s business owners will soon find out the fate of a proposed increase of nearly 20 percent in workers compensation insurance rates.
“We’re getting very close to being finished with those review and putting these rate filings out into the public, so our business owners and community can respond to that and plan effectively,” state Insurance Commissioner David Altmaier told Gov. Rick Scott and the Florida Cabinet Tuesday.
The Florida Office of Insurance Regulation held a public hearing in August on an industry group’s proposal to hike rates by 19.6 percent, effective on Oct. 1.
That group, the National Council on Compensation Insurance, reviews premium levels on behalf of most Florida insurance companies.