Justice Barbara Pariente: ‘The Questioner’

December 28, 2016/in Florida Trend

Photo: Scott Keeler/Tampa Bay Times

Florida Supreme Court Justice Barbara Pariente has authored a long list of landmark decisions.

Justice Barbara Pariente: ‘The Questioner’

Barbara Pariente has been a powerful — and sometimes controversial — presence on the Florida Supreme Court for nearly 20 years.
Jason Garcia | 12/28/2016

On the morning of March 4, 2015, a day after the start of the annual legislative session, some of the most powerful politicians in Florida crossed the street from the state Capitol to watch the Florida Supreme Court consider the fate of the state’s newly drawn congressional districts.

There are seven justices on the Florida Supreme Court. But that morning, every eye in the courtroom was fixed on one judge in particular.

From her seat immediately to the right of the chief justice — the traditional place for the court’s senior member — Justice Barbara J. Pariente spent the next hour interrogating both sides of the case. A thick binder open in front of her, documents splayed across her desk, Pariente interrupted attorneys, demanded follow-ups when they did not answer precisely and even occasionally stepped in to debate her fellow justices. Pariente asked more than two dozen questions during the 66-minute hearing, more than all the other justices put together.

On July 9, 2015, she dropped the hammer, writing in her opinion that Florida lawmakers had deliberately violated the anti-gerrymandering standards that voters had written into the state constitution in 2012. Writing on behalf of a 5-2 majority, she ordered lawmakers to redraw the maps to the standards that she herself had spelled out. They weren’t able to do so; the courts wound up approving maps drawn by groups that had challenged the lawmakers’ maps.

The ruling was one of seven major opinions — 591 pages of precedent- setting jurisprudence — that Pariente wrote during the yearslong redistricting battle. It added to a long, and still-growing, list of landmark decisions she has authored shaping Florida law on everything from civil rights to executive power. And it cemented her reputation as the most important judge on the state’s highest court.

In fact, some people in Tallahassee consider Pariente — a 68-yearold grandmother who loves books and Broadway — the most important person in Florida politics right now.

“Justice Barbara Pariente’s impact on law and public policy over the last 19 years has been profound,” says William Large, president of the Florida Justice Reform Institute, a business-funded group that lobbies for tort reform and has frequently found itself on the losing end of Pariente’s opinions. “And it far eclipses the legacies of Govs. Bush, Crist and Scott — combined.”

Positive impression

Pariente was born on Christmas Eve 1948 in New York City, the first of two daughters. Her father sold bulk chocolate for the Blumenthal Brothers Chocolate Co., the maker of Raisinets, Sno Caps and Goobers. Her mother had graduated from high school at 15 and took a job paying $5 a week to do secretarial work for an attorney. The family moved to suburban New Jersey when Pariente was 9.

She studied broadcasting at Boston University and then enrolled in law school at George Washington University, where an uncle, an antitrust lawyer who served on a commission advising President Dwight Eisenhower, had once been a professor. There were about 17 male students for every female student.

During law school, Pariente interned in the District of Columbia public defender’s office and was assigned to the case of a woman who had been arrested for prostitution. She and the lawyer she was working for successfully argued that police were unequally enforcing the law because they were using only male detectives for undercover stings — and, as a result, only arresting the prostitutes themselves and never the “johns” that were soliciting them.

Pariente subsequently co-wrote a law review article called “The Prostitution of the Criminal Law,” urging other attorneys to attack prostitution statutes on equal protection and right-to-privacy grounds. The article argued that women were being victimized by prostitution laws and called for the decriminalization of prostitution: “Prostitution,” Pariente and her co-author wrote, “both in the preliminary solicitation and negotiations and in the act itself, is overwhelmingly a private, consensual affair between individuals who wish to make their own decisions as to how to control their sexual lives and use their bodies.”

Pariente graduated fifth in her class. Unable to find a job at a D.C. firm, she moved to Florida, drawn, after two decades in the Northeast, by the prospect of warmer weather. She landed a two-year clerkship with the late Norman Roettger Jr., a federal judge in the Southern District of Florida.

From Roettger’s Fort Lauderdale courtroom, Pariente met some of the top litigators in Florida. They were as impressed with her as she was with them, says Aaron Podhurst, a Miami attorney. “She was very inexperienced, and Judge Roettger was a very strong judge. But she maneuvered that very well,” says Podhurst, who encouraged Pariente to pursue a career as a trial lawyer.

Once the clerkship ended, Pariente was hired as an associate at Cone, Wagner, Nugent, Johnson, Hazouri & Roth of West Palm Beach. She was assigned to the trial team under Al Cone, founder of the Academy of Florida Trial Lawyers (known today as the Florida Justice Association). Her first case involved a workplace accident at a Pepsi bottling plant.

Forming bonds Florida courtrooms in the mid- 1970s were, Pariente says, an “allwhite- male club,” an environment where rival attorneys and judges — all men — regularly referred to her as “honey.” There were a few women practicing at Palm Beach County courtrooms at the time, and they bonded over the experience. They would meet regularly for dinner and drinks, often at one another’s home, in something of an informal support group. Some of Florida’s most important female trailblazers were at those dinners: Rosemary Barkett, who would become the first woman to serve on the Florida Supreme Court; Edna Caruso, one of the state’s first female appellate attorneys; Mary Lupo, the first female judge in Palm Beach County; and Lois Frankel, who now represents the area in the U.S. Congress.

“We were just having fun and keeping our nose to the grindstone and trying to show the men that we were serious about being good lawyers,” Caruso says.

Pariente married Dennis Koehler, an environmental law attorney whom she had met in law school and who was elected to the Palm Beach County Commission in 1976. They had a son, Joshua, in 1977, but divorced in 1980. Pariente remarried six years later, to Fred Hazouri, a partner at Cone Wagner who later became an appellate court judge. They blended their families, Pariente becoming a stepmother to two children. The couple celebrated their 30th anniversary last April.

By 1980, Pariente had made partner at her firm. Three years later, she and another partner, Louis Silber, decided to start their own practice in West Palm Beach. Silber says Pariente immersed herself in the lives of her clients, forging personal and enduring bonds. She continued sending Christmas cards to former clients years after their cases had concluded.

Silber says Pariente outworked her competition, frequently toiling late into the night researching cases and writing briefs. Pariente was especially adept at anticipating opponents’ arguments and spotting potential problems in advance. “She was so good at identifying issues,” Silber says. “Some lawyers like to shoot from the hip, but you weren’t going to do that with Barbara.”

At her peak, Pariente was handling between 50 and 75 cases a year and making weekly court appearances. She won a $1.2 millionsettlement from Honda in a case in which a 9-year-old girl’s leg was amputated following a motorcycle crash. Honda fought to keep critical documents secret in the case, but Pariente persuaded the court that the car manufacturer had willfully violated discovery orders, prompting the court to enter a default judgment of liability.

Later, she won $1.2 million from International Harvester following a tractor rollover and $560,000 from Nationwide on a bad-faith insurance claim. She represented pepper farmers when they were sold defective seeds by an agribusiness and Erika Mattfield Kirk when she filed for divorce from her husband, former Florida Gov. Claude Kirk. The pepper farmers won, and the Kirks reconciled.

Pariente’s work drew the attention of Florida Gov. Lawton Chiles. Chiles, the last Democrat to serve as Florida’s governor, appointed Pariente in September 1993 to a seat on the 4th District Court of Appeal. Four years later — in December 1997, a year before his death — Chiles elevated her to the Supreme Court.

The second woman to serve on the Florida Supreme Court was still celebrating when she received a phone call from then- Justice Charles Wells: “You’re going to have to bone up because we have two death warrants,” he told her.

“That was really my introduction to the court,” she says.

On the court, Pariente has written decisions extending anti- discrimination protections to pregnant women, prohibiting the state from sentencing juvenile offenders without the possibility of parole and ensuring that the woman who provides the egg in a lesbian relationship has the same parental rights as the woman who carried the child to term.

She has been willing to defy precedent. In a 2001 case that still infuriates business lobbyists, Pariente wrote the opinion declaring that a victim who slipped on a banana peel in Publix could sue for negligence, shifting the burden to Publix to produce evidence that it exercised reasonable care under the circumstances.

Wells, who retired from the Supreme Court in 2009, says Pariente has remained consistent since joining the court. “I think she arrived fairly well-formed,” he says.

Pariente has at times proved prescient: As early as 2003, she warned in her opinions that Florida’s death penalty was unconstitutional, correctly anticipating a decision the U. S. Supreme Court handed down last year.

But she has at times overreached: In a 2011 opinion, Pariente wrote that a drug-sniffing dog alone could not provide police with probable cause to search a vehicle. The decision was later overturned by the U.S. Supreme Court.

She seems to relish having a voice in the state’s major debates. When the court ordered a statewide re-count following the 2000 presidential election, Pariente wrote a concurring opinion in which she recommended specific election-law reforms. She appended to her opinion a copy of John Greenleaf Whitter’s 1852 poem, “The Poor Voter on Election Day.” More recently, she warned in a dissenting opinion that a solar-energy constitutional amendment promoted by the utility industry was a “wolf in sheep’s clothing.” (The proposed amendment was unsuccessful in November.)

High energy

In March 2003, Pariente was diagnosed with breast cancer. She underwent a 14-hour double mastectomy and reconstructive surgery, followed by a summer of chemotherapy during which she lost her hair. She initially wore wigs to the courtroom until, she says, she tired of “masquerading as if all was normal.” On Oct. 7, she walked into the courtroom proudly bald.

“She has more energy than God should ever give one person,” jokes former Justice Kenneth Bell, who served on the court from 2002 to 2008 and often wound up on the opposite side of Pariente in cases.

What has most struck lawyers, legislators and others who watch the court closely is Pariente’s seeming knack for landing the assignment to write many of the Supreme Court’s most high-profile opinions. She wrote the ruling in Bush v. Schiavo invalidating a law passed to keep Terri Schiavo — a woman in an irreversible vegetative state — alive on feeding tube. She wrote Bush v. Holmes declaring one of former Gov. Jeb Bush’s prized voucher programs unconstitutional. And she wrote the opinion in Castellanos v. Next Door Co., throwing out strict limits on attorney fees that the Legislature had imposed in workers’ compensation cases. Pariente said the caps lead to arbitrary and sometimes unfair attorney awards and made it harder for workers to find attorneys to represent them.

Cases are assigned to each of the court’s seven justices on a rotating basis and that process typically determines who writes the opinion. But justices say there are times — enough that “it’s not surprising” when it happens, says former Justice Harry Lee Anstead — that a justice who is on the dissenting side after the initial internal conference persuades enough colleagues to their side that she or he winds up with the majority — and then writes the opinion.

Having her name on so many important opinions has fueled the perception that she is the leader of the justices perceived as “liberal.”

“Justice Pariente has a reputation as one of the court’s hardestworking justices and has been extremely effective in having her perspective on the law announced as the opinion of a majority of the Florida Supreme Court,” says Daniel Nordby, a partner in the Tallahassee office of Shutts & Bowen.

Pariente dismisses the notion that she is any more a leader than any other justice on the court. She says it is a misconception driven by the fact that she simply asks more questions than most during oral arguments. “Every time I go out for an oral argument I realize, ‘Maybe I shouldn’t ask too many questions.’ And yet it is in my nature to be a questioner,” she says. “I question a lot, even in my personal life. That’s just who I am.”

Now in her 20th year on the court, Pariente splits her time between Tallahassee and Palm Beach, living alone in the capital during the week when the court is in session and spending weekends at home with Hazouri, who retired from the 4th DCA in 2013 and now works as a mediator. She is in a book club with friends in Palm Beach (she’s been pushing to include more non-fiction), and she and Hazouri have an annual weekend in New York City with Silber and his wife to take in a Broadway show (she’s already seen “Hamilton” — twice).

Fellow justices uniformly describe Pariente as a passionate debater during internal conferences — though they all also say she is collegial, willing to listen to all sides of a debate and respectful of those who disagree with her.

One of her closest friends on the court was former Justice Raoul Cantero, who served from 2002 to 2008 and frequently argued against Pariente’s interpretations. The two worked out of adjacent offices, ate lunch together and occasionally dined with their spouses. At Cantero’s retirement ceremony, Pariente gave one of the speeches.

“It was a lot of fun to work with her and to debate with her,” Cantero says. “We would talk about cases together and sometimes I would change her mind; sometimes she would change my mind. We were both coming at it from intellectual places.”

‘Political football’

Outside the court, though, conservatives are more hostile. A few years ago, the Republican-controlled Florida House of Representatives attempted to split the Supreme Court and prevent Pariente — along with Justices Fred Lewis, another Chiles appointee, and Peggy Quince, a joint appointee of Chiles and Gov. Jeb Bush — from voting in any civil cases. Then the Republican Party of Florida urged voters to oppose the three justices’ merit-retention re-elections, the first time a political party had taken sides in a judicial-retention election. Both efforts were unsuccessful, though new House Speaker Richard Corcoran (R-Land O’ Lakes) has suggested he will pursue more court changes.

Pariente has, somewhat unusually for a sitting judge, pushed back. She has been critical of the Legislature, as well as Bush and Gov. Rick Scott, for making the judicial nominating process more partisan. She has warned of a “systematic attack” on the judiciary aimed at making the courts “more responsive to special interests.” She has even joked about wishing for the ability to “cross-examine” Republican Party of Florida leaders over claims they made during the 2012 retention campaign.

That 2012 campaign appears to have been deeply scarring to Pariente. At one point during that race, a GOP lawmaker who disliked Pariente, Quince and Lewis called for an investigation of them for using a court employee to notarize their re-election documents — a common practice among judges at all levels. Gov. Scott obliged, ordering the Florida Department of Law Enforcement to conduct a probe. Pariente has described the experience of having to answer questions from FDLE agents as “personally just very devastating.”

Friends say Pariente, who will be forced to retire from the court in January 2019 after reaching the mandatory retirement age of 70, has come to view the battle to preserve the political independence of the judiciary as a legacydefining issue.

“I am so fearful that this third branch of government is going to remain a political football,” she says. “If you ask what do I think is the most important part of the judicial branch, (it is that) we are the branch to uphold the rule of law, to apply laws equally, to uphold the Constitution and to enforce rights. If you get judges or justices who see their role as advancing one party’s agenda or another, that is very dangerous.”

Pariente’s Pen

Some important opinions written by Justice Barbara J. Pariente:

Owens v. Publix 2001/majority opinion
Ruled that a business could be sued in a slip-and-fall negligence case if it can be shown that the business should have known about the hazard that caused the accident, instead of requiring the victim to prove that the business did know about it.

Butler v. State 2003/dissenting opinion
Warned that Florida’s death-penalty law was unconstitutional, correctly anticipating a decision handed down by the U. S. Supreme Court 13 years later.

Bush v. Schiavo 2004/majority opinion
Ruled unconstitutional a law to keep a braindamaged woman alive despite rulings in favor of her husband, who wished to remove her from life support.

Bush v. Holmes 2006/majority opinion
Declared unconstitutional a private-school voucher program championed by former Gov. Jeb Bush.

Harris v. Florida 2011/majority opinion
Determined that an alert from a drug-sniffing police dog does not by itself constitute probable cause for an officer to search a vehicle, a decision later overturned by the U.S. Supreme Court.

D. M.T. v. T.M.H. 2013/majority opinion
Provided that a woman in a same-sex couple who contributes the egg for a pregnancy maintains the same parental rights as the woman who carries the child to term.

Graham v. Haridopolos 2013/majority opinion
Ruled that the Legislature had the power to set tuition rates at state universities and colleges, siding with the Legislature in a dispute with the Board of Governors.

Redistriciting 2013-15/six majority opinions, one concurring opinion
Pariente’s rulings included interpreting new redistricting standards for the first time, ruling that legislators could be compelled to testify at trial and ultimately declaring that the Legislature had drawn unconstitutional congressional districts.

Delva v. Continental 2014/majority opinion)
Prohibited discrimination on the basis of pregnancy.

Castellanos v. Next Door 2016/majority opinion
Declared unconstitutional strict limits on attorney fees that the Legislature had imposed in workers’ compensation cases.

Westphal v. St. Petersburg 2016/majority opinion
Declared unconstitutional limits set by the Legislature for disability benefits in workers’ compensation cases.

Atwell v. State 2016/majority opinion
Prohibited juvenile offenders from being sentenced to life in prison without the possibility of parole.

See Full Article

Appeals Court Rules $18.5 Million Award too Much Following Tobacco Lawsuit

December 18, 2016/in Florida Record

Chandra Lye Dec. 18, 2016, 1:26pm

FLORIDA — An appeals court has ruled that an $18.5 million penalty on R.J. Reynolds (RJR) Tobacco was excessive.

The monetary reward was granted to the daughter of a smoker who died of lung cancer.

Gwendolyn Odom was awarded $6 million in compensatory damages and $14 million in punitive damages after the death of her mother, Juanita Thurston. The second phase of the case was to determine how much Odom was entitled to for punitive damages.

“When there is a large verdict oftentimes a defendant will file a motion for remittitur and it is a motion to reduce the verdict,” William Large from the Florida Justice Reform Institute told the Florida Record. “They are basically asking the trial judge to rule that the verdict was too high.”

Yet Large said it was not easy to win the favor of a judge in these cases.

“It is difficult to get a judge to grant a motion for additur or remittitur. It is not common,” he said, explaining that the additur is when the plaintiff files to have additional damages added to the original reward.

RJR raised questions about Odom’s claims, “because plaintiff failed to prove that her mother relied on a false or misleading statement made by RJR after May 5, 1992.”

The tobacco company also claims that comments made by Odom’s lawyer in the courtroom require a new trial.

The case was divided into two phases, the first was to determine if Odom was eligible to be part of the Engle class action lawsuit and to see if RJR could be held legally responsible for Thurston’s death. Part of the issue, according to court documents, was that Odom was not dependent upon her mother in a meaningful way.

“The case is about remittitur and giving a large economic reward to an adult who did not live with their mother,” Large said.

In the filing RJR also argued that, when compared to other awards in similar cases involving adult children, the award it was ordered to pay was excessive. But the trial court denied the motion.

In this case the appeals court sent it back to the same circuit judge, “with directions that the trial court grant a motion for remittitur or order a new trial on damages only,” Large said.

RJR has been fighting individual plaintiffs connected to the Engle class action suit initially filed in 1994. In 2006 a Florida judge declared that those involved in the class action could move forward as independent plaintiffs. They were permitted to rely on findings from the Engle and other similar cases to support their claims. Anyone wanting to use such cases needs to establish a link between the marketing of tobacco companies and smoking addiction.

During the case the attorney for RJR said that the company had changed its ways and has “started doing things the right way, acting as a responsible company in the tobacco industry.”

The company’s vice president of cigarette product development testified that they had been working on creating safer alternatives to smoking.

There are reportedly thousands of cases like Odom’s waiting for their day in court.

http://flarecord.com/stories/511057629-appeals-court-rules-18-5-million-award-too-much-following-tobacco-lawsuit

Rick Scott Picks C. Alan Lawson for Supreme Court

December 16, 2016/in Florida Politics

Jim Rosica – December 16, 2016

Conservative appellate judge C. Alan Lawson will become the next Florida Supreme Court justice, Gov. Rick Scott announced Friday morning.

Lawson, who will replace retiring Justice James E.C. Perry, is chief judge of the state’s 5th District Court of Appeal in Daytona Beach. Perry’s retirement is effective Dec. 30; Lawson’s first day is the 31st.

“He’s got a 20-year track record, he’s been a public servant, he clearly believes in following the rule of law,” Scott said, standing next to Lawson – his first ever Supreme Court pick – and his family. “He is going to do a good job … and he’s not going to legislate from the bench.”

Lawson now makes a third conservative vote on a seven-member state Supreme Court that often splits 5-2 on matters of public policy. To date, Justices Charles Canady and Ricky Polston have been the court’s most reliable conservative voices.

In a statement, both men “applaud(ed)” the appointment, calling Lawson “a true leader (who) brings strong conservative principles” to the court.

Conservative lawmakers and business interests have long derided the court – specifically its liberal-leaning triumvirate of Justices Barbara Pariente, Peggy A. Quince and R. Fred Lewis – for “judicial overreach,” saying the court often breached the separation of powers between the lawmaking and judicial branches.

Recently, they denounced decisions chipping away at protections afforded business owners in the state’s workers’ compensation law, striking down caps on attorney fees and ordering disability benefits extended for injured workers.

The state’s highest court also becomes more white; Perry is black. With his departure, Quince is the now the lone African American on the court.

This isn’t Lawson’s first attempt to join the court. Perry, whom Lawson is replacing, beat him in 2009 for the opening created by the retirement of Justice Charles T. Wells.

Lawson appeared with his wife Julie and son Caleb, as well as his father and mother, Charles and Velma Lawson, sister Laurie Lawson Cox and brother-in-law Thomas Cox.

Lawson, whom Scott had first mistakenly introduced as “Lanson,” told reporters that the judiciary’s mandate to interpret laws “came with a promise, that it would be exercised with judicial restraint.”

“There are a lot of precedents from the Florida Supreme Court and U.S. Supreme Court that details what judicial restraint means and is not supposed to mean,” he added. Many critics have noted that “judges and courts have moved away from what is clearly laid out … that says, ‘this is what courts are supposed to do.’ “

When asked if he could name decisions in which judges have “overreached,” he said, “No. It’s not ethical for judges to comment on issues that could come before the Supreme Court.”

Lawson was then backed by “religious conservatives and the National Rifle Association,” wrote politics reporter William March in a February 2009 story for the now-defunct Tampa Tribune, while Perry was favored by “liberal groups and black leaders.” Those backers were largely silent this time around.

The appointment created a quandary for then-GOP Gov. Charlie Crist, March wrote, “pit(ting) conservatives in his own party (then Republican) against a minority community Crist is courting.” He eventually picked Perry, who joined the court the next month.

Lawson, born in Lakeland, grew up in Tallahassee. He graduated from Tallahassee Community College and later Clemson University with a degree in Parks, Recreation & Tourism Management, according to his online bio. He got his law degree from Florida State University in 1987.

He was in private practice for several years before becoming an assistant county attorney in Orange County and then a circuit judge in 2002.

Lawson also was a Florida Bar exam question writer and grader. He moved to the 5th District appellate bench in 2006. Both his judicial appointments were by Republican former Gov. JebBush.

In 2012, he was a member of a three-judge appeals panel that considered a custody battle between two women who were formerly in a relationship.

The majority said both women have parental rights, but Lawson wrote “a blistering dissent,” in which he said a child can have only one mother, according to the Associated Press.

The court shouldn’t recognize two mothers “unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy, or adult incestuous relationships on the same basis,” Lawson said. In a 4-3 opinion, the state Supreme Court later said the non-birth mother could seek shared custody.

Scott picked Lawson over two other conservative finalists for the post: Wendy W. Berger, another judge on the 5th District Court of Appeal, and Dan Gerber, an Orlando civil-trial defense attorney.

Scott “had three excellent candidates to consider,” Florida Bar President William J. Schifino Jr. said in a statement.

“I applaud the governor, the Judicial Nominating Commission and the process, and very much look forward to working with soon-to-be Justice Lawson in the future,” Schifino said. “He has demonstrated himself to be an excellent jurist and someone who has the best interests of all Floridians at heart.”

Business interests also commended the pick.

William Large, president of the Florida Justice Reform Institute, a group created by the Florida Chamber of Commerce, said Lawson’s appointment is a “reaffirmation of our system of checks and balances between the three branches of government.”

Scott “based his decision on the precepts that judges should strictly adhere to the rule of law,” he said in an email. The governor’s “thoughtful choice in this solemn duty will have a profoundly positive impact on Florida for a long time.”

Tom Feeney, CEO of Associated Industries of Florida, added that his members have been “anxious for the day that a majority of the Florida Supreme Court can restore respect for the constitutional separation of powers, including legitimate powers of the popularly elected members of the legislative and executive branches.”

“If the Florida Supreme Court will exercise only those legitimate judicial powers, such as deciding controversies of fact and enforcing the language of our duly enacted statutes and Constitution, as opposed to arbitrarily injecting their personal and political preferences, a constitutional balance can be restored.”

Scott could have the opportunity himself to put a conservative majority on the bench. Pariente, Quince and Lewis face mandatory retirement in early 2019, and Scott said he plans to replace them before he leaves office that January.

“I will appoint three more justices the morning I finish my term,” he said.

http://floridapolitics.com/archives/229060-rick-scott-supreme-court

Gov. Scott Appoints Conservative Appellate Judge Alan Lawson to Florida Supreme Court

December 16, 2016/in Tampa Bay Times

Gov. Scott appoints conservative appellate judge Alan Lawson to Florida Supreme Court

Mary Ellen Klas, Times/Herald Tallahassee Bureau

December 16, 2016

TALLAHASSEE — Gov. Rick Scott appointed C. Alan Lawson to be Florida’s next justice of the Supreme Court Friday, choosing a conservative appellate judge to leave the governor’s mark on a moderate court that has been responsible for some of sharpest defeats of his political career.

Gov. Rick Scott chose C. Alan Lawson as the new justice of the Florida Supreme Court. From left his mother Velma Lawson, sister Laurie Cox, Gov. Scott, Alan Lawson, his son Caleb Lawson. (Mary Ellen Klas | Times/Herald)

Lawson, who currently serves as chief judge on the 5th District Court of Appeal that stretches from Orlando to Daytona Beach, fills the seat on the seven-member court that is being vacated by Justice James E.C. Perry, a liberal jurist who is retiring at the end of the month. Perry was the fourth African-American jurist to serve on Florida’s high court. Lawson, who lives in the Orlando suburb of Winter Park, is white.

This was the third time Lawson had applied to the high court bench. In 2009, he applied to the court for two openings and was recommended by the nominating commission but was passed over by former Gov. Charlie Crist, who appointed Perry in March 2009. Perry must retire because of a state law requiring justices to retire on their 70th birthday or the end of their six-year term if they are halfway through the term. Perry turned 70 in January 2015 but his term ends Jan. 3, 2017.

Lawson’s appointment as Florida’s 86th justice will allow the governor to add to the court’s conservative minority but it is not expected to tip the ideological balance. The conservative faction is now comprised of Justices Charles Canady and Ricky Polston. The other justices — Barbara Pariente, R. Fred Lewis, Peggy Quince and Chief Justice Jorge Labarga — are considered moderates.

Scott said he chose Lawson for his 20-year track record, his public service and because “he’s not going to legislate from the bench.”

Scott wouldn’t cite examples of how the court creates laws but emphasized that he wants his judicial hires to stick to interpreting the law.

The court has handed Scott and the Republican-led Legislature a slew of defeats, ruling that several laws have failed to adhere to the Florida Constitution. Among them were rulings that invalidated the state’s congressional and state Senate redistricting plans, rejected the Legislature’s rewrite of the death penalty statute and threw out the Legislature’s scheme for imposing limits on attorneys fees in workers’ compensation cases.

“The judges should not be passing laws on their own,” Scott said. “They should not be creating law. They get to interpret the law, enforce the law but they should not be creating new law.”

If Scott and other conservatives have their way, the court will overturn some of its previous rulings.

Lawson, 55, has served as a circuit judge, appellate judge and trial lawyer. He joined Scott in the governor’s office with his wife, parents and son.

Lawson said that he will approach the job with “judicial restraint” and said there are “a lot of precedents from the Florida Supreme Court and U.S. Supreme Court that detail what judicial restraint means and what it’s not supposed to mean.”

But he refused to provide examples in which he believes the Florida Supreme Court overreached, “because it’s not ethical for judges to comment on the issues that are likely to come before the Supreme Court, and the kind of issues that have come recently before the Supreme Court could come again,” he said.

In his interview before the Judicial Nominating Commission earlier this month, Lawson gave some hint that he is willing to jettison legal precedent, known as stare decisis, in certain circumstances — an approach Legislative critics of the court have said may be necessary to overturn rulings that have slapped the Legislature for overreach. Stare decisis is Latin for “to stand by things decided.”

“It you have laid out something that’s constitutional, there is no way to change that unless you revisit the precedent,” he said.

But, he noted, if the court opinion is wrong, “if the Legislature didn’t like it, they can change it.”

Dan Nordby, a Tallahassee lawyer and member of the JNC that nominated Lawson, said the shift in approach that Lawson brings will be manifest in how he interprets the underlying statutes in a case. “Some judges look more heavily in favor of what is the overarching purpose of the statutes, others look at the language and text and give primary weight to that.”

In his interview, Lawson said his judicial philosophy is “a very originalist and textualist approach,” which is favored by conservatives.

The Florida Justice Reform Institute, a conservative legal advocacy group that supported Lawson’s application to the bench in 2009, commended the appointment.

“Gov. Scott’s thoughtful choice in this solemn duty will have a profoundly positive impact on Florida for a long time”‘ said William Large, the group’s president.

Florida Bar President William J. Schifino, Jr. said Lawson “has demonstrated himself to be an excellent jurist and someone who has the best interests of all Floridians at heart.”

Lawson attended high school in Tallahassee, went to Tallahassee Community College and Clemson University and earned his law degree from Florida State University.

Before law school he worked at the Florida Department of Corrections as a legislative liaison and was a candidate for the state House of Representatives from Tallahassee in 1986. After he passed the Bar, he worked in private practice before becoming an assistant county attorney in Orange County in 1997. He was appointed to the trial court by former Gov. Jeb Bush in 2002 and appointed by Bush to the appellate bench in 2005.

During his term, Lawson has twice been retained by voters and has sought additional funding for the court system, particularly for technology.

Lawson’s wife, Julie, is a board member and volunteer for Mi Esperanza, a nonprofit corporation that provides micro loans to underprivileged women in Honduras. They have two grown children.

The governor was given three names to choose from by the JNC to make his first pick to the state’s high court. In addition to Lawson, the finalists were Wendy Berger, a 5th District Court of Appeal judge, and Daniel J. Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell.

The governor’s appointment is the final step in the process of naming a new justice. There is no requirement that appointments be confirmed by the Legislature.

Contact Mary Ellen Klas at [email protected]. Follow @maryellenklas.

http://www.tampabay.com/news/politics/stateroundup/gov-scott-appoints-conservative-appellate-judge-alan-lawson-to-florida/2306538

Florida Supreme Court Ruling Addresses Insurance Payment Clause Debate

December 16, 2016/in Florida Record

Carrie Salls Dec. 16, 2016, 12:32pm

TALLAHASSEE – The Florida Supreme Court has sided with a homeowner who sued American Home Assurance Co. Inc. after the insurer denied his claim related to water damage in his Naples home.

John Sebo filed the claim after water damage at the multimillion-dollar home, allegedly resulting from poor workmanship, was exacerbated by further damage caused by Hurricane Wilma in 2005.

American Home Assurance argued that the water damage resulted from shoddy workmanship, which was expressly listed as being not covered under Sebo’s policy. However, Sebo’s lawyers argued that the wind and rain caused by the hurricane constituted “concurrent causes,” which were not excluded from the policy.

In response to the claim, American Home Assurance only agreed to pay Sebo $50,000 to cover mold damage resulting from the water infiltration.

“The policy had a very specific exclusion,” William W. Large, president of the Florida Justice Reform Institute, told the Florida Record.

Specifically, Large said the policy did not cover damage arising from faulty planning and construction defects.

“The loss was water coming in but it was also shoddy workmanship,” Large said.

A Florida circuit court judge originally ordered American Home Assurance to pay Sebo $8.07 million. However, the Second District Court of Appeal reversed that ruling. The Florida Supreme Court agreed with the circuit court, although one justice dissented and said the case should have been sent back to the appeals court.

Large agreed with the dissenting opinion.

“The issue whether to apply the efficient proximate cause (EPC) doctrine instead of the concurring cause doctrine (CCD), was not raised by the parties before the trial court or the Second District,” Large said. “The case should have been remanded back to the Second District to consider the issues.”

Large said cases like Sebo’s are not at all uncommon, adding “Coverage under an ‘all-risk policy’ when multiple perils combine often raises issues associated with EPC or the CCD.”

In the majority opinion authored by Florida Supreme Court Justice James E.C. Perry, the court said “there is no reasonable way to distinguish the proximate cause of Sebo’s property loss – the rain and construction defects acted in concert to create the destruction of Sebo’s home.”

Justice Ricky Polston wrote the dissenting opinion, saying he thought the appeals court should consider the matter in lieu of the high court’s broader interpretation.

The Florida Supreme Court, however, has provided some clarity on how the issue related to the two doctrines will be decided in the state.

“The CCD will be applied in a loss associated with an all-risk policy,” Large said.

The Florida Insurance Council, the Property Casualty Insurers Association of America, the National Association of Mutual Insurance Companies and the American Insurance Association submitted friend-of-the-court briefs in support of American Home Assurance, while the Florida Association of Public Insurance Adjusters and United Policyholders supported Sebo’s case.

In addition to the insurance company, Sebo sued the previous homeowners, an architect and a construction company. Those defendants reached settlements with Sebo. The plaintiff’s home eventually was demolished as a result of the significant water damage.

American Home Assurance did not respond to requests for comment.

http://flarecord.com/stories/511058409-florida-supreme-court-ruling-addresses-insurance-payment-clause-debate?t=6CGdyqWMptu0CZL4dRPC

Court Takes Up Attorney-client Privilege

December 1, 2016/in Florida Bar News

December 1, 2016

Court takes up attorney-client privilege

By Gary Blankenship
Senior Editor

Can a law firm representing a personal injury client be compelled to reveal if it referred the client to a particular medical facility, how many past clients have been referred to that facility, and whether it has a “cozy” relationship with those medical providers? Or is that information protected by attorney-client privilege?

The Florida Supreme Court wrestled with those issues in oral arguments November 3 for Heather Worley v. Central Florida Young Men’s Christian Association, etc., case no. SC 15-1086

Worley had tripped and fallen in the YMCA parking lot and made two trips to an emergency room with an injured knee. After the last visit, doctors there advised her to seek treatment from a specialist. But without insurance, Worley didn’t seek that treatment, and instead hired the high-profile law firm, Morgan and Morgan.

The law firm eventually filed suit against the YMCA and Worley was treated at the Sea Spine Orthopedic Institute under a letter of protection from Worley and her law firm.

During depositions, the YMCA’s attorney asked Worley if her law firm had referred her to Sea Spine. Her attorney objected and instructed her not to answer, asserting attorney-client privilege, and the YMCA attorney took the matter to the trial judge. The judge ruled that Worley did not have to answer that question, but that she could be asked about others who might have referred her.

In a subsequent deposition, Worley said she had not been referred by other doctors, the emergency room, friends, or relatives. The YMCA then filed interrogatories asking Morgan and Morgan how many times it had referred clients to Sea Spine, the amount of the bills, whether Sea Spine doctors had testified as experts in the firm’s cases, and other information.

Morgan and Morgan objected and said providing the information would cost more than $94,000 and was either not necessary for the case or available from other sources. After a hearing, the trial judge allowed some of the questions and disallowed others. Morgan and Morgan appealed to the Fifth District Court of Appeal, which upheld the trial judge, but certified the issue to the Supreme Court, citing a conflict from the Second DCA.

In its initial brief to the court, Worley argued, that “[T]his decision undermines the sanctity of the attorney-client privilege by creating a need/want exception to the privilege that should not stand. Therefore, this Court should hear this case on the merits and protect the privilege from untoward erosion.”

In its follow-up filing, Worley said the defense had questioned representatives from Sea Spine who said they thought Worley had been referred by the emergency room and that Sea Spine’s corporate representative said the facility did not take lawyer referrals.

In its reply brief, YMCA argued that Worley had unusually high medical bills and it suspected a “cozy relationship” between Morgan and Morgan and the medical providers. It said the court should uphold the Fifth DCA because “the decision supports the truth-seeking function of our judicial system. On the other hand, the holding in Burt [the conflicting decision from the Second DCA] that a plaintiff’s referral by her attorney to her doctor is a privileged communication, has been used to hide the existence of the lucrative financial relationships between treating physicians and lawyers.”

YMCA also contended because the treating doctors could be both fact witnesses and expert witnesses at a trial, extra scrutiny was warranted.

During oral arguments at the Supreme Court, Philip Padovano, representing Worley, said the attorney-client privilege should be interpreted broadly. In response to a question from Justice Charles Canady, Padovano noted that F.S. §90.502 in the evidence code “says a communication between a lawyer and a client — doesn’t say legal advice; it says communication — is confidential if it is not intended to be disclosed to third persons.”

That is necessary, he said, because “if you have a situation in which a person is in a lawyer’s office talking about a case and the lawyer makes a comment or they have a discussion about some subject, the entire course of that conversation is privileged and subject to the attorney-client privilege. We don’t go back through and parse out, ‘Well, what about this? Was this legal advice or was that legal advice?’ The whole design of it is to ensure that the conversation is protected.”

Justice Barbara Pariente wondered if the underlying case was getting off track with concerns about relationships between the plaintiff’s lawyers and doctors instead of on the plaintiff’s alleged injuries. She noted if the lawyers were acting improperly, The Florida Bar would be the proper agency to investigate.

Padovano agreed, calling it a “dangerous” diversion. But that prompted Justice Ricky Polson to ask if it would ever be appropriate for the defense to probe into a possible “special relationship” between the plaintiff’s attorneys and doctors.

“I think there could be some cases where that is appropriate,” Padovano replied. “But I don’t know that having a letter of protection and showing that the bills were extraordinarily high in this case would open that door.”

He added later, “We’ve always been careful not to allow collateral matters to overtake the main show.”

Joseph Flood, representing the YMCA, said the defense was not seeking privileged communications, only to confirm “the fact of the referral.”

He also argued the relationship between law firms and doctors in such cases are important because jurors might tend to see the treating doctors as impartial when in fact they gain substantial economic benefits from their ties to the law firms who can supply both patients and lucrative payments.

In response to questions from the justices, Flood said Worley’s medical bills were $66,000 where other medical providers would have charged $3,000 to $5,000 and that the knee surgery she had at Sea Spine was on the other side of the knee than where she originally complained of her injury. Morgan and Morgan has also revealed in the past three years 238 of its clients have been treated at Sea Spine (Padovano noted the firm has had around 75,000 clients).

Pariente asked why the defense needed more information if it already had that information ready to introduce at trial.

“The next step is simply to establish, as the courts have indicated we have the right to do, of the relationship between Mrs. Worley’s counsel and these doctors,” Flood replied.

When Pariente pressed further about how that would force the law firm to keep more detailed records on how and why clients were referred, Flood said, “I would suggest whenever lawyers enter into the world of medical management, as here, picking which clients go to which doctors, that they should be required — just like defendants and defense lawyers and insurance companies have for years and years — to keep records of that. And when medical professionals decide to get into the litigation world, that they should be required to keep records.”

The case attracted outside interest. The Florida Justice Association said it was not concerned about financial discovery on any relationship between treating doctors and plaintiff attorneys, but agreed with Worley that the Fifth DCA decision should be reversed.

“The decision and others like it in recent years will likely hinder the ability of patients to receive quality medical care when they are injured in accidents and there is a possibility of litigation. These cases may also deny access to the courts for those patients who end up in litigation. The FJA strongly believes that if financial discovery is permitted, to minimize the chilling effect of intrusive discovery, rules should limit discovery to that available from retained expert witnesses. This Court previously approved rules for retained experts,” the FJA said in its amicus brief, adding some medical providers already shun treating such accident patients because of potential problems in resulting litigation.

The Florida Justice Reform Institute supported the YMCA and said the current process is an incentive for lawyers and involved doctors to have the doctors charge high rates. Doctors many times sell off the letter of protection to a third party, the institute argued.

“The higher the stated medical expenses, the higher the overall damages award will be if the patient/plaintiff’s claim is successful. Because law firms are paid on a contingency basis, law firms have every incentive to refer clients to physicians who charge high prices for their services. And because private health insurance is not involved, payment for medical damages in these cases is not limited by provider contracts. This allows (and incentivizes) physicians to charge prices significantly higher than the customary prices charged for identical treatment and to perform unnecessary medical procedures,” the institute argued in its amicus brief. “These same treating physicians may then testify in depositions and at trial, acting as purported experts, even though they are extremely biased towards supporting the reasonableness and necessity of their own inflated medical bills. . . .

“If the plaintiff’s attorney referred the plaintiff to the treating physician, and the treating physician will also testify as the plaintiff’s purported expert witness, the inherent bias of the physician’s opinions and potential for inflated or fraudulent billing must be exposed.”

The Florida Defense Lawyers Association agreed with the YMCA and the reform institute, saying, “that where a plaintiff’s lawyer and treating doctor are involved in an ongoing referral arrangement, fundamental fairness requires that the defense be entitled to discover this fact and that such information be available to preclude or rebut arguments that are often made at trial, that the plaintiff’s treaty physicians’ opinion are more worthy of belief than the defense’s medical experts, because the plaintiff’s physicians are allegedly independent of the litigation.”

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