Florida Supreme Court Archives - Page 4 of 23 - SaintPetersBlog

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.”

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.”

Winning elections best way to achieve favorable judiciary

If you are one of those who are sick and tired of judges ruling against your policy preferences, the Florida House of Representatives is offering an elixir for what ails you.

Judges are in the news a lot lately. From the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, to the drama in the U.S. Court of Appeals for the Ninth Circuit, many Americans are paying attention to black robes.

Florida is now adding to the conversation on the judicial branch. If HJR 1 is enacted, Florida Supreme Court and appeals court judges could serve no more than 12 years. While several states have term limits on the executive and legislative branches, Florida would become the first state to impose limits on the judicial branch

If approved, the measure would go before voters in 2018 with 60 percent needed to amend the Florida Constitution. While there is a chance it could pass the House, there is no companion measure in the Florida Senate.

Clearing the House is not a slam dunk. The measure barely emerged from the House Civil Justice and Claims subcommittee. Republicans George Moraitis and committee vice-chair Jay Fant voted with the five Democrats to provide a razor-thin 8-7 vote to move the bill forward.

Judicial accountability is said to be a priority of Speaker Richard Corcoran. Rep. Jennifer Sullivan, a Republican from Mount Dora, makes the case for her bill and for Corcoran.

“An accountability system that does not hold people accountable is not truly accountable,” she told the subcommittee. “This bill seeks to correct that and give the people of Florida another opportunity to implement the accountability they originally intended to place upon our judicial branch of government.”

All of that is well and good, but perhaps it is time to pause and reflect on a couple of important facts.

First, haven’t the Republicans been in charge of judicial appointments for the past two decades? Governors have appointed the members of the Judicial Nomination Commissions, who have forwarded candidates generally palatable to the governor.

With the appointment of Judge C. Alan Lawson to the Supreme Court by Gov. Rick Scott, Florida is now only one justice away from a conservative majority. That will come to a head near the end of Scott’s term.

Second, perhaps the remedy is worse than the “disease.” Term limiting judges creates more problems than it solves. On this some conservatives are in agreement with liberals.

There are reasons judges and justices have lifetime appointments, or at least until the mandatory retirement age of 70. One of the best arguments against the bill comes from former Lt. Gov. Jeff Kottkamp, who also served with distinction in the Florida House.

“Our founding fathers believed deeply in the independence of the judiciary, making sure that we protected our judges from the winds of change, from politics and from worrying about making an unpopular decision,” he told the subcommittee.

The Florida Justice Reform Institute, who advocates conservative, originalist judicial thinking, has a sound argument against the measure. He believes fewer lawyers will want to become judges.

“We want judges that are knowledgeable, experienced, diligent, and who are texturalists and originalists,” said the institute’s director, William Large. “And judges who can say what the law is, not what it should be.”

The bill now heads to the full House Judiciary Committee.

It is true that no Florida judge or justice has been removed under the current system of merit retention. Instead of changing the constitution, conservatives should ensure they elect another conservative in 2018 to continue making judicial appointments.

That will primarily achieve the results conservatives seek from the judiciary.

 

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

Lawyers married to military could bypass bar exam in Florida

The Florida Bar wants lawyer-spouses of active 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.”

, 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.

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