SENATE COVID-19 LIABILITY SHIELD BILL MOVES AGAIN

Mar 05, 2021 By Jim Ash Senior Editor 

A COVID-19 liability shield for medical providers is continuing to advance in the Senate, despite warnings by critics that it would put some of Florida’s most vulnerable residents at risk.

The Health Policy Committee voted 5-4 on March 3 to approve SB 74 by Judiciary Chair Jeff Brandes, R-St. Petersburg.

When the nation’s supply of PPE quickly became exhausted, doctors, nurses, and hospital workers in Florida donned shower caps and garbage bags to continue treating patients, Brandes said.

 Sen. Jeff Brandes

“They were there for us, they were there for our families, our communities, our neighbors, on the front end of this,” Brandes said. “We need to be here for them on the back end.”

But Democrats, trial attorneys, labor organizers, and consumer advocates argued that the bill would prevent injured patients and nursing home residents from pursuing legitimate claims.

Senate Democratic Leader Gary Farmer, a Ft. Lauderdale attorney, warned that the measure would send the wrong message to the small percentage of “bad actors” in the nursing home industry who put profits over patient safety.

“Ford didn’t build a safe Pinto until they started getting sued for building a Pinto that exploded,” Farmer said. “In this case, we’re talking about our most vulnerable citizens…veterans who stormed the beaches of Normandy.”

Farmer tried unsuccessfully to strip a provision of the bill that would grant immunity to providers if “supplies, materials, equipment, or personnel…were not readily available or were not available at reasonable cost.”

Farmer said medical providers could dismiss any claim simply by citing equipment or personnel shortages.

“When you talk about complete immunity for low staffing and inadequate PPE, there are so many considerations that come into play,” Farmer said. “We believe the jury should be able to consider the entire picture.”

But Brandes said the provision was central to his bill. He pointed out that Florida’s Division of Emergency Management couldn’t secure medical supplies at the height of the pandemic.

“If the head of the [Division] of Emergency Management can’t find masks, can’t find gowns, how in the world is a nursing home going to be able to find it?” Brandes said.

The amendment failed on a voice vote, as did a series of other Democratic amendments. One would have expanded the bill’s one-year statute of limitation to two years. Another would have exempted medical providers from the bill’s liability protection if they have been cited for infection control violations in the past three years.

Democrats also tried unsuccessfully to exempt elective surgical procedures from the liability protections, arguing that providers should know better than to schedule outpatient procedures if a nearby hospital is overrun with COVID patients and unable to provide emergency backup.

William Large, president of the Florida Justice Reform Institute, said 33 other states have attempted to enact some form of COVID-19 liability protections. Seventeen of those, Large said, adopted liability protections related to “COVID exposure.”

Critics of the bill also argue that a dearth of COVID-19-related liability suits a year into the pandemic proves that there is no need to create a liability shield.

But Orlando attorney Robin Khanal, who represents nursing homes, told the committee that his firm is currently handling 65 COVID-related cases, most of them in a pre-suit phase that follows the receipt of a notice of intent.

Brewster Bevis, senior vice president with Associated Industries of Florida, said regardless of whether there has been a wave of lawsuits, providers would rather be safe than sorry.

“It’s much easier to build a damn before the flood than during the flood,” he said.

SB 74 faces one more committee vote, in Rules, before reaching the Senate floor. A House companion, HB 7005 by Rep. Colleen Burton, R-Lakeland, also faces one more committee vote.

https://www.floridabar.org/the-florida-bar-news/senate-covid-19-liability-shield-bill-moves-again/ 

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March 1, 2017

Term limits clear first House hurdle

By Gary Blankenship – Senior Editor

 A proposed constitutional amendment to impose term limits on Florida’s appellate judiciary scraped through its first test in the Florida House, despite a stream of objecting organizations, including The Florida Bar.

The House Civil Justice Subcommittee on February 9 approved HJR 1 by Rep. Jennifer May Sullivan, R-Eustis, which would set a two-term limit for district court of appeal judges and Supreme Court justices.

Sullivan argued that since no DCA judge or Supreme Court justice has ever lost a merit retention race since that system was instituted more than 40 years ago, there is no accountability for appellate judges.

“This bill is about good government and accountability,” Sullivan said. “Since implementing this system more than 40 years ago, there’s never been a justice or a judge that has not been retained. An accountability system that doesn’t hold people accountable is not truly an accountability system.”

That assertion prompted Rep. Sean Shaw, D-Tampa, whose father, Leander J. Shaw, Jr., served on both the First District Court of Appeal and the Supreme Court, to ask Sullivan, “Because no one has lost a merit retention election, is that enough to suggest there is no accountability?”

“Yes,” Sullivan replied.

Bar Outside Legislative Counsel Warren Husband noted that not only did the Bar Board of Governors vote to oppose the amendment, but so did 17 sections and the Young Lawyers Division and the Out of State Division.

That widespread opposition is for practical, not political reasons, he added.

“It all focuses on the increased turnover of judges on the bench and what that would entail,” Husband said. “Less effective, lengthier, and most costly resolution of cases; less consistency in the development of Florida law; a significant decline in the quality of judicial applicants; and an erosion of public confidence in the judicial system.”

Because it would force good lawyers to give up lucrative practices and then try to restart a practice after leaving the bench, Husband argued that attorneys who are already not judges would be unlikely to apply for any appellate vacancies if they are younger than 54. He noted that in Gov. Rick Scott’s first term, one-third of the DCA judges left the bench so there is already a healthy turnover. About half of those who applied were lawyers under the age of 54 and 60 percent of his appointees were under that age, he added.

Husband also noted no other state had judicial term limits, except New Mexico, where an arcane provision applies to probate judges.

Former Lt. Governor Jeff Kottkamp, representing the Florida Board of Trial Advocacy Fund, said the amendment undermines the principle of judicial independence built into the U.S. Constitution by the founding fathers. He said higher turnover would hurt business because there would be less consistency in the law.

“It’s enormously important to have stability in the court system and to have settled law. If we are turning over our appellate courts every decade, we’re going to have conflicting opinions. Frequently we’re going to have reversal of legal precedent and we’re going to create an environment that’s very unstable, Many businesses may very well decide not to come to Florida simply because the business community will not know for certain what the law is going to be decade to decade,” Kottkamp said.

William Large, president of the Florida Justice Reform Institute, ran off a list of lawyers who had been appointed directly from private practice to the DCAs in the past three to four years and who would have been unlikely to apply under the proposed amendment. He listed several others who were 39 or 40 when appointed and likely would have been unwilling to give up a successful practice that they would have to try to rebuild after two terms on the bench.

“The bottom line is term limits are not going to ensure the best judges are on the bench,” Large said.

Representatives of the Trial Lawyers Section and the Institute for Legal Reform also voiced opposition to the amendment, but did not testify.

Committee members split over the amendment. Shaw noted his father appeared on several retention ballots, including in 1990 when he had organized opposition but still won with a 60-percent yes vote.

“I’m still not certain there is a problem we are addressing,” he said. “If you don’t agree with an opinion of the Florida Supreme Court or of the district court of appeal, that’s fine. That means separation of powers is working.”

He said experienced Supreme Court justices are particularly needed to rule in complex death penalty litigation.

Rep. George Moraitis, R-Ft. Lauderdale, said the judiciary needs to remain independent and the Legislature has sufficient countervailing authority through its ability to pass laws and proposed constitutional amendments.

“Changing the way this nation was set up fundamentally . . . is not the way to go,” he said.

Rep. Shawn Harrison, R-Tampa, said jurists forced off the bench would find ample and lucrative employment opportunities, adding there is a large demand for former judges to serve as mediators and arbitrators.

Sullivan dismissed objections to the amendment saying, “I have not had one lawyer come into my office . . . and say if this is implemented, I will not apply for the DCA.”

A move by Speaker Richard Corcoran, R-Land O’ Lakes, who has strongly supported the termlimits amendment, helped ensure the passage of the amendment.

As the meeting started, Chair Rep. Heather Fitzenhagen, R-Ft. Myers, announced that Corcoran had named Rep. Dane Eagle, R-Cape Coral, to serve as an ex-officio member of the committee for that meeting, which is allowed under House rules.

Legislative records show the bill passing 8-7. However a webpage on the bill vote shows Eagle as voting yes, but that vote not being including in the 8-7 tally. Every Democrat on the committee voted against the amendment, joined by Moraitis and Rep. Jay Fant, R-Jacksonville, the subcommittee’s vice chair.

The bill next goes to the full Judiciary Committee, scheduled for February 21 (after this News went to press). If it passes, it goes to the House floor. Last year, the House passed a nearly identical amendment, but it was never heard in a Senate committee. This year’s Senate version of the amendment, SJR 482, sets a three-term limit for DCA judges and a two-term limit for Supreme Court justices. The Senate version also requires Supreme Court justices to have served a year as a judge before their appointment. It has been referred to the Senate Judiciary, Ethics and Elections, and Rules committees, but, as this News went to press, had not been set for a hearing.

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April 1, 2009

Senate revamps court, clerk funding bill

By Kim MacQueen
Associate Editor

The Senate Judiciary Committee unanimously amended and moved a bill that redirects $102 million in filing fees collected by the clerks of the court to a special court trust fund established during the January Special Session.

SB 2108, filed by Sen. Ken Pruitt, R-Port St. Lucie, also was amended to remove provisions that would have transferred various clerk functions to the courts and removed a call for a study of clerk functions.

The bill still contains language calling for legislative oversight of clerks’ court-related functions for budget purposes.

“Contrary to what’s being spread around the Capitol and around this state, I want to assure you that this is not a money grab by the courts,” Pruitt told those crowded into the Judiciary Committee meeting room on March 18.

“It’s really a philosophical argument. It’s one of principle. If you don’t believe that the Legislature should have oversight over every dollar, then you’re not going to support this bill. But if you believe that every dollar should be scrubbed and scrutinized by this Legislature — that that is our legislative prerogative — then obviously you’ll support this bill.”

In meetings during the first few weeks of this year’s Regular Session, legislators have been hearing a lot of debate on whether the Legislature should assume budgetary oversight of clerk functions, which are currently controlled by the Florida Clerks of Court Operations Corporation. The clerks now collect over $500 million annually and can establish new positions, set salaries, and increase their budgets, all without legislative oversight.

The Supreme Court, supported by the Bar, has been seeking more funding to help ease the courts’ budget shortfalls. A larger share of filing fees collected by the clerks is considered by many to be the most logical source.

“We have 20 circuits and 20 chief judges who have to work with 67 independent clerks, which can lead to serious inefficiencies in the administration of civil justice,” said Justice Reform Institute President William Large. “This would be like if we had a reconnaissance mission and we wanted to implement a new and efficient Air Force, and we put all of our money in airplanes and not enough in training pilots. The judges are the pilots, and they’re the ones that need to benefit from the efficiencies. Right now our members are scratching their heads about where the money has been going.”

Sarasota County Clerk of Court Karen Rushing told the committee while the clerks support Sen. Pruitt’s desire for more transparency and accountability, “We believe there is a better alternative to accomplishing this other than having the 67 clerks in the state appropriations process.

“We are committed to working with Sen. Pruitt and the other interested parties with a desire to reach a mutual understanding as the bill goes forward,” said Rushing, a past president of the clerks’ association.

As the bill went up for a vote, committee Chair Sen. Lee Constantine, R-Altamonte Springs, told Pruitt, “I think all of us appreciate how hard you’ve worked with each group. This was a contentious issue prior to this late-filed amendment. . . . I know that, even this morning, some clerks had some concerns. I know that you’ll continue to work with them as this goes through the process, and thank you very much for the hard work that you’ve done to this point.”

The $102 million the bill would send to the court trust fund represents fees that are now collected by clerks and remitted to the state Department of Revenue for general state expenditures. It did not affect fees and costs collected by clerks and retained by them to pay their expenses. The bill also removed from the court’s trust fund fines that had been assigned to it during the January special session. Judges had been concerned that sending fines to the court trust fund would create the appearance of cash register justice.

The Senate bill is scheduled to be heard in four more committees, while its House counterpart had not been heard in committee as this News went to press.

Ongoing, continually updated information on court funding issues is now available on the home page of The Florida Bar’s Web site, or can be accessed directly at www.floridabar.org/fundingfloridacourts.

The week before the vote in the Senate committee, the House Criminal and Civil Justice Appropriations Committee held a hearing on the issue where pointed questions flew:

• Are the courts trying to grab power from the clerks?

• How can the clerks justify paying bonuses when the courts are laying off employees?

• And what about 41 of 67 clerks using the same collections agency owned by the wife of the president of the clerks’ association?

State court officials and representatives of the court clerks were grilled by committee members in the information-only meeting.

The committee was not hearing HB 1121, the House counterpart to Pruitt’s bill filed by Rep. Ellyn Bogdanoff, R-Ft. Lauderdale. But committee members quizzed both sides in a thorough review of their procedures and spending during tight budget times.

After a presentation on the clerks’ funding corporation budget model by Rushing, committee Chair Sandra Adams, R- Oviedo, zeroed in on reports of clerks distributing hundreds of thousands of dollars in bonuses last year, just as budget reductions forced the courts to cut hundreds of employees.

“Can you tell me how many of your clerks — I know of at least four, and think there’s more — that gave out bonuses last year, one being as high as $800,000, another as high as $300,000?” Adams asked.

While she didn’t know which clerks had given out bonuses, Rushing said sometimes those payments go to reward employees without raising their base pay.

“That’s something that we need to just remember; a bonus is one mechanism, financially, to keep a payroll from inflating into the next year,” Rushing said.

Adams also focused on the clerks’ use of outside collections agencies to collect court-imposed fines.

“I notice that 41 out of 67 clerks use the same collections company. . .and I believe the woman who owns it is the wife of Dewitt Cason, the president of your association, is that correct?” Adams asked.

“That is correct,” said John Dew, executive director of the Clerks of Court Operating Corporation, adding that clerks often will use two or three collections agents to inspire competition among them.

Adams responded that she had a list of clerks’ offices, and apart from Miami-Dade County, none of the clerks used more than one collections agent.

State Courts Administrator Lisa Goodner and Trial Court Budget Commission Chair Judge Belvin Perry both addressed the committee on the courts’ budget priorities. Representatives asked Goodner to elaborate on the main budgetary difference between the clerks and the courts, namely that heavy caseloads mean more revenue for clerks and less for the courts.

“The clerk’s budget is workload-based,” Goodner said. “When the workload goes up, there is additional revenue as a result of that increased work. An individual clerk is able to add resources to address workload within the statutory revenue caps.”

Conversely, she said, the budget model for the judicial branch is needs-based. The Legislature determines budget priorities for the courts, state attorneys, and public defenders and the level of resources provided to address increased workload, if any at all.

The issue of legislative oversight came up repeatedly, and both sides were asked to speak to it.

Rep. Nick Thompson, R-Ft. Myers, asked if the clerks would be amenable to having the Legislature review their budgets.

Rushing responded: “The budgets do go through the process adopted by the Legislature…. Secondly, if there is going to be more oversight from the legislative perspective, we want to be at the table discussing that with the Legislature, because we don’t want this criticism.”

Goodner said it’s “absolutely” the Legislature’s responsibility to oversee the spending of state funds allocated to clerks.

“I don’t believe that anything the court system has put forth could be considered a power grab,” Goodner said. “We’ve asked for a fair and equitable allocation of resources that are coming in from court-related revenues.”

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Business leaders feel the sting of court cuts

By Jan Pudlow, Senior Editor – February 1, 2009

Startling sound bites fell from the lips of Coral Gables economist Tony Villamil: Civil case delays caused by the court funding crisis are resulting in $17.4 billion lost in Florida economic output each year.

And those civil case delays also “adversely impact” more than 120,000 Florida jobs each year.

Those figures laid the foundation for two panels — business leaders on one, and lawyers and judges on the other — to unite to find a permanent solution to Florida’s court funding crisis.

The event, sponsored by The Florida Bar and the Young Lawyers Division, was billed “Funding Justice: The Summit for Florida’s Courts.” Moderated by Dudley Goodlette, a Florida Bar legislative consultant, the summit was held January 16 at the Bar’s Midyear Meeting in Miami, with a simultaneous Web-cast.

“There is no question that the judicial branch, what I call the silent branch of government, is critical as a foundation to our economic development. A smooth and efficient court system is essential to be able to increase the standard of living of all of our citizens,” said Villamil, an economist with 30 years of experience and principal advisor to The Washington Economics Group.

With a Power Point presentation of charts and graphs, his analyses of backlogs and delays in civil cases, Villamil said, show “significant impacts on the economic development of Florida.”

In October 2008, there were more than 335,000 civil cases pending in Florida’s courts. Of this total, about 286,000 were real property/mortgage foreclosure cases. He estimated at the current case disposition rates, it will take almost 18 months for the foreclosure cases currently in the courts to be disposed of.

A conservative estimate of the direct economic impacts of civil case delays, Villamil calculated, are $10.1 billion per year, when you add up $1.2 billion in additional legal and other case-related expenses; $4.6 billion in lost/foregone mortgage interest on foreclosed properties; and $4.3 billion in declines in property values due to case delays.

He then took that $10.1 billion a year caused by the broken funding mechanism and big backlog in adjudicating cases and “filtered it through the economy in terms of adverse impacts on economic activity.”

“So, in one year, as a result of backlogged cases, given the multiplier effect of this, throughout the economy and linkages that exist with other industries . . . we are suffering $17.4 billion in lost output,” Villamil concluded.

Next, the panel of business leaders assembled: Barney Bishop, president and CEO of Associated Industries of Florida; Dominic Calabro, president and CEO of Florida TaxWatch; William Large, president of Florida Justice Reform Institute; and Rick McAllister, president and CEO of the Florida Retail Federation.

“The court system is important to the business community, for it’s in our best interest,” said Bishop.

Bishop made what he called a “simple observation: Keep the money. Let’s face it. The courts generate dollars to fund the judicial branch. The problem is the Legislature steals the money to fill other holes in the budget. It’s a matter of keeping the funding you already generate.”

Having technology to improve court efficiency is important to AIF, Bishop said, adding his frustrations about a seven-year lawsuit AIF was entangled in. But, he said, the Legislature has not been persuaded to spend money on court technology.

“Frankly, the mood in the Legislature and in the last executive branch is that the judiciary had enough funding and doesn’t need more,” said Bishop, adding that some in the Legislature view the judiciary as “activist judges” and “they don’t want you having money because they don’t want you to make decisions.”

Evidence of a “lack of respect” for the judiciary in Tallahassee, he said, can be found in the fact that the entire court budget is seven-tenths of 1 percent of the state budget.

“That doesn’t sound like a lot of respect,” Bishop said.

Large, president of Florida Justice Reform Institute created by the Florida Chamber of Commerce to look at costs within the civil system, said an element of what attracts business to move to a state is how long it takes to dispose of civil cases.

“Because of cuts to the judiciary in Florida, we are seeing Fortune 500 companies moving to Alabama and South Carolina . . .instead of Florida. So it’s also jobs.”

Calabro, of TaxWatch, said, “The challenge is the courts have been treated as state agencies for budget purposes in good or bad times. There is no sympathetic constituency. You guys get that, right?”

The issue of funding for clerks versus funding for courts, Calabro said, is “frankly, the issue at hand.”

“Unlike others, the court system did not develop a sophisticated tap on the funding. Another group you work with has wisely taken the lead in that regard. That is the court clerks,” Calabro said.

McAllister, of FRF, noted that everyone on the panel has met as a coalition to support the court system, and said he was thankful for the summit and access to the research.

“One of the things we have faced over five years . . . is lack of data. I think this will help us substantially as we make your case in the halls of the Legislature in Tallahassee. I commend you for this important first step,” McAllister said.

Drastic effects on access to the courts were detailed when the lawyers and judges panel gathered (Chief Justice Peggy Quince; Justice Charles Canady; 15th Circuit Chief Judge Kathleen Kroll; Merrick “Rick” Gross, immediate past chair of the Business Law Section; and Eugene Pettis, chair of the Bar’s Committee on Judicial Independence).

“I’m looking at a chart here that shows the clerks receive approximately $540 million from court-related sources of fines, fees, and service charges,” said Canady, one of the newest justices on the Florida Supreme Court.

“Well, that is more than the whole budget for the judicial system. That is a startling fact, and I think a very striking fact that needs to be examined. I believe that a priority as we go forward in this process is to evaluate the proper distribution of revenues from existing filing fees and other court-related sources. Look at some of the numbers before us. It really cries out for reexamination,” Canady said.

Chief Justice Quince added: “One of the important things we have to keep in mind is the money comes in, but the Legislature doesn’t really have any oversight of it. They get what they get at the end of the day. They don’t have, and we cannot get, any clear idea of where that money — all the rest of the money — is being used.”

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