LITIGATOR WARNS OF ‘COLLATERAL DAMAGE’ AS LAWMAKERS PURSUE TORT LAW LEGISLATION

Mar 02, 2023 By Jim Ash

But supporters of the bill say one-way attorney fees invite ‘lawsuit abuse,’ and all Floridians pay the price through higher insurance premiums

Florida lawmakers are risking collateral damage with a “shotgun” approach, when more targeted civil litigation reforms will do, says a veteran South Florida trial attorney.

West Palm Beach attorney Jeff Liggio, managing partner of Liggio & Cornell, has represented policy holders — individuals, families, and small businesses — in insurance disputes for more than 40 years.

The Annapolis grad and board certified civil trial lawyer warns that the sweeping reform measure, HB 837 — which includes repealing the one-way fee provision — would leave his clients at the mercy of the insurance industry.

“I represent people who are desperate, they have cancer, and they’re not getting chemotherapy, and they’re dying, and we have to go and get injunctions,” Liggio said.

But supporters of the bill say one-way attorney fees invite “lawsuit abuse,” and all Floridians pay the price through higher insurance premiums.

In a recent opinion column, Liggio described several clients — hurricane victims, cancer patients, rare disease sufferers — who needed legal help after being improperly denied benefits and care.

The list includes a Lake County couple whose young son was diagnosed with adrenoleukodystrophy, a disease that costs “thousands and thousands of dollars” to manage. The couple’s health insurer lowered a $1 million annual limit to a $1 million lifetime limit, Liggio said.

“You hear people say, ‘I don’t have to worry, I have great insurance,’” Liggio said. “You don’t know if you have good insurance until you need it.”

The reform package would repeal a one-way fee provision that makes insurers responsible for a policy holder’s legal fees and costs — but only if a court determines the company acted improperly, Liggio stresses.

“I could lose,” he said.

Liggio said none of his clients could have afforded to fight an insurance company without the one-way fee provision, a statute that he says Florida adopted in 1959.

“Because of that law, the clients whose situations I described were able to have my law firm represent them, in some cases for several years, in some very contentious and expensive litigation, and we did not charge them a penny for attorney’s fees,” he said.

The House Civil Justice Subcommittee voted 12-6 on February 24 to approve HB 837, over the objection of Democrats, the Florida Justice Association, and other critics who echoed Liggio’s concerns. It has at least one more committee stop before reaching the House floor.

 Rep. Tommy Gregory

House Judiciary Chair Tommy Gregory, R-Lakewood Ranch, told the committee he is sponsoring the measure to restore “equilibrium” to the system.

“You don’t have to wonder if your constituents’ insurance prices are rising too high, because yours are,” he said. “Economic activity responds to incentives — the litigation environment is no different.”

In addition to repealing the one-way fee provision, the measure would switch Florida from a “pure” to a “modified” comparative negligence standard and limit the awarding of fee multipliers to rare and unusual circumstances. A “damages transparency” section would repeal a 2017 Supreme Court decision, Worley v. Central Florida YMCA, and negate attorney client privilege “when a communication is relevant to the lawyer’s act of referring the client for treatment by a health care provider.”

Gov. Ron DeSantis has called for civil justice reforms, and the bill has the backing of House Speaker Paul Renner and Senate President Kathleen Passidomo. With Republicans enjoying a supermajority in the Legislature, passage seems all but assured.

The Florida Chamber of Commerce, Associated Industries of Florida, the Florida Personal Insurance Federation, and the Florida Justice Reform Institute, are enthusiastic supporters.

In a statement, Florida Chamber President and CEO Mark Wilson said that “Florida’s lawsuit abuse spending tops every other state in the nation and accounts for 3.6% of Florida’s $1.4 trillion economy, with no other state surpassing 3% of their state GDP.”

DeSantis and others like to cite an example where a dispute over less than $2 generates a lawsuit, and the awarding of thousands of dollars in attorney fees.

Liggio laments that the example has become a “poster child.”

The suits aren’t being filed by people like his clients, Liggio says, but by “commercial entities, primarily in the medical bill collection area.”

The entities are filing small claims cases “as an assignee of,” the insured, Liggio said.

Liggio recently searched appellate court dockets and found hundreds of “a/a/o” cases. If there are that many in the appellate courts, “there must be thousands in the trial courts,” Liggio says.

One, a Third District Court of Appeal decision, was issued two days before the committee vote.

It involved a dispute between a medical entity — as assignee of an insured — and an automobile insurance company.

A lower court ordered the insurance company to pay $4,782 in attorney fees after the medical entity sued to collect a statutory late payment fee, and postage, totaling $10.55.

The Third DCA reversed the lower court and denied the attorney fee award. The appellate court noted that the insurance company paid the $10.55 approximately four months after the suit was originally filed.

“You can’t justify that, you just can’t,” Liggio says. “You can file a class action, perhaps, if the insurance company is routinely not paying statutorily required penalties and postage, but you don’t file a lawsuit for $10.”

Lawmakers could easily end the practice, Liggio said.

He notes that the Legislature recently prohibited homeowners from assigning their property insurance benefits to a third party, a practice known as “AOB.”

This year, a bipartisan measure would prohibit motorists from assigning their insurance benefits to auto glass repair companies.

“If the Legislature wants to curb these types of insignificant lawsuits by medical bill collection entities that lead to outsized attorney fee awards, there are more limited and focused ways to do so without taking away benefits provided to Florida citizens, families, and small businesses since 1959,” Liggio said.

https://www.floridabar.org/the-florida-bar-news/litigator-warns-of-collateral-damage-as-lawmakers-pursue-tort-law-legislation/ 

CY PRES BILL ADVANCES IN HOUSE; ITS FATE IS UNCERTAIN IN THE UPPER CHAMBER

Apr 13, 2021 By Gary Blankenship Senior Editor

 Rep. Anna Eskamani

A bill to adopt a civil cy pres doctrine in Florida statutes has passed its second House committee after a spirited debate over its necessity.

The House Public Integrity and Elections Subcommittee approved HB 409, by Rep. Anna Eskamani, D-Orlando, 13-2 on April 9.

“My concern with the bill is that we’re creating a perverse incentive for attorneys to create a larger class of plaintiffs [in a class action suit] knowing in advance they won’t be able to find them just so the attorney can get a bigger settlement and the attorney can get more money,” said Rep. Spencer Roach, R-North Ft. Myers.

“There is actually no evidence that the cy pres doctrine in common law has led to accretion of more class action lawsuits,” Eskamani replied.

She said the bill would put the cy pres doctrine, which already exists in the probate code and common law, in the civil law that would allow unclaimed funds to be distributed to legal aid agencies providing services related to the subject of the suit.

Eskamani, Florida Bar Foundation President Donny MacKenzie, and William Large, of the Florida Justice Reform Institute and who opposed the bill, agreed the bill would almost exclusively apply to class action suits where class members cannot be located to participate in an award.

Plaintiff and defense attorneys and the judge would have to agree on how the unclaimed funds could be used, Eskamani said, noting about 25 other states have a similar civil cy pres doctrine.

Large argued that knowing unclaimed funds would go to charitable uses — and even potentially the judge’s law school — could unconsciously affect judges’ decisions on granting class action status and in handling the case. He conceded, though, he has not found any evidence that is a problem.

“Intuitively, I believe that’s the case and I believe that is what happened,” Large said.

He also said in many cases plaintiff attorneys are only interested in getting as large a class as possible and are ready to settle when they get a sufficient fee, regardless of whether the award can be effectively distributed to class members.

Large said the purpose of litigation is for an injured plaintiff to be made whole while the civil cy pres doctrine brings in a third party that could benefit from the suit.

“That’s not fair. The folks that deserve to be compensated are the members of the class,” he said. “The whole point of our civil justice system is there is a case in controversy and the plaintiff should be made whole, that’s who the party dollars should be going to. It shouldn’t be going to the state, it shouldn’t be going to a charity.”

MacKenzie said the doctrine of cy pres has been around for 800 years and some judges already use it in Florida cases. But putting it in law would make more judges and lawyers aware of it and willing to use it in cases.

He also said distributions have to be accepted by both parties and the judge, and an early distribution agreement can avoid problems and potentially more litigation over residual awards at the end of the case.

“We are simply telling lawyers and judges in Florida this is a tool in your toolbox,” MacKenzie said. “And it’s better to agree on the front end than fight at the back end….

“That doesn’t violate the Constitution, that doesn’t violate the rules of procedure, and it has nothing to do with the merits of the lawsuit.”

“This provides an option and an opportunity to provide funding to support civil legal services to the poor without those funds having to come from state coffers,” said Rep. Geraldine Thompson, D-Orlando, whose husband, retired Fifth District Court of Appeal Judge Emerson Thompson, is a former Foundation president.

“Our motivation about this bill was very much grounded in working closely with legal aid organizations over this past year and realizing the lack of support for civil legal aid, realizing how overworked and underfunded they are,” Eskamani said. “This is not only common law, this is common practice in courts around America and states across this great country.”

HB 409 next goes to Judiciary Committee. SB 1270, by Sen. Shevrin Jones, D-Miami Gardens, the upper chamber’s counterpart, has not been heard in committee, making it unlikely any bill will pass the Legislature this year. But success in House committees or the entire House could improve chances for passage next year.

https://www.floridabar.org/the-florida-bar-news/cy-pres-bill-advances-in-house-its-fate-is-uncertain-in-the-upper-chamber/ 

BILL RAISING COUNTY COURT CIVIL JURISDICTION ADVANCES IN THE SENATE

Feb 13, 2019 Gary Blankenship • Senior Editor • Regular News

County court jurisdiction in some civil cases would rise first to $30,000 and then $50,000, Supreme Court justices would be able to work remotely away from Tallahassee, and trial judge candidates who run unopposed would have their filing fees refunded under bill that recently cleared the Senate Judiciary Committee.

Sen. Jeff Brandes, R-St. Petersburg, made some changes to the county court jurisdictional limits in SB 328 at the meeting and conceded more changes are likely as the measure makes its way through more committee reviews.

Aside from those limits, the filing fee refund, and allowing justices to have home offices away from Tallahassee, the bill also addressed court-house security coordination between sheriffs, county commissions, and chief judges.

Brandes originally proposed, effective January 1, raising the county court jurisdiction from $15,000 to $25,000 for cases involving insurance coverage and to $50,000 for non-insurance cases. At the committee meeting, he proposed an amendment — which was adopted — setting the limits in non-insurance cases at $30,000 beginning in 2020 and then hiking it to $50,000 two years later, with court officials reporting on the impacts of the $30,000 limit before the higher figure goes into effect.

The Supreme Court appointed a workgroup to study county court jurisdiction limits and endorsed its recommendation to raise the limit to $25,000 in all civil cases.

In response to a question, Brandes said be was balancing the court’s recommendation with preferences in the House for the $50,000 limit.

“In my conversations with the court, even a couple days ago, their concern was going from $15,000 to $50,000 overnight was overly burdensome in some jurisdictions,” he said.

The Supreme Court based its $25,000 figure on the workgroup finding that just by adjusting for inflation since the county court jurisdictions was set at $15,000 in the early 1990s, it would be about $27,000. The court rounded that down to $25,000, Brandes said, while he chose to round it up to $30,000 to be closer to the House preferences.

Giving a two-year pause before going to $50,000 would allow court officials to study the impact of the rise to $30,000 and recommend any adjustments, he said.

The section on Supreme Court residency allows a justice who “permanently lives outside Leon County” to have an “official headquarters” in a district court of appeal, county courthouse, or other appropriate facility with the state picking up travel expenses when the justice must come to Tallahassee.

On trial court candidate filing fees, the bill provides those fees will be refunded within 20 days for candidates who are “unopposed at the time the qualifying period closes.” The filing fee is 4 percent of the job’s salary, or in the case of circuit judges, $4,843.20 and slightly less for county judges.

Brandes said he was concerned that many trial judges, who are largely unopposed when they seek reelection, pay their own expenses.

“For someone who’s self-funded, that’s thousands of dollars out of their pocket so they can continue to do their jobs,” he said, likening that to “a tax on continuing to do their job.”

The security section of the bill requires sheriffs to coordinate with county commissions and chief judges on security issues, with the counties funding that security.

It specifically provides: “Each sheriff shall retain authority over the operational control and provision of law enforcement services associated with the plan. The chief judge of the circuit shall retain decision making authority to ensure the protection of due process rights, including, but not limited to, the scheduling and conduct of trial and other judicial proceedings, as part of his or her responsibility for the administrative super-vision of trial courts.. . . ”

William Large of the Florida Justice Institute opposed the bill, saying it should stick with the $25,000 limit supported by the Supreme Court and warning the higher county court jurisdictional limits would result in more appeals of county court decisions to circuit courts, which are not equipped to handle them. Some circuits have three judge panels while others allow a single judge to handle the appeals, he said.

Large noted the Supreme Court in its recommendations called for more study of the county court appeals to circuit court.

Second District Court of Appeal Judge Robert Morris, who chaired the Supreme Court workgroup, said the $25,000 recommendation was based on inflation and the experience of a hike from $15,000 to $25,000 in the Virginia court system.

“We thought a safe place to start based on that data was $25,000,” Morris said. “I don’t have the authority to quibble over $30,000, but I appreciate the number.”

He did express concern about the hike to $50,000 after two years, saying if it was in the bill it would be harder to take back regardless of data. He also had reservations about setting different limits for insurance and non-insurance cases.

The Supreme Court study estimated that raising the jurisdictional limit to $25,000 would result in about 7.4 percent of all circuit cases being filed in county courts. Going to $50,000 would result in 25.9 percent of circuit civil cases winding up in county courts. It did not have figures for differing limits on insurance and non-insurance filings.

Dale Paleschic, representing the Florida Defense Lawyers Association, said the association supports the Supreme Court’s position, but doesn’t support a second bump to $50,000, and is also concerned about appellate issues.

Second Circuit Chief Judge Jonathan Sjostrom said the Conference of Circuit Court Judges is continuing to study the bill’s provisions on courthouse security and has not reached a consensus. He noted the issue was raised at the end of the 2018 session but was not resolved.

Although the bill passed the committee 5-0, Brandes and committee members said they expect further refinements.

Sen. Jose Rodriguez, D-Miami, said he was concerned loss of judicial filings fees, which like other campaign filing fees go to fund election law enforcement, would hamper that enforcement and questioned whether a second jump in jurisdiction limits for non-insurance cases was needed by 2022.

Nonetheless, “I’m going to vote for the bill,” he said. We all agree we need to do this in some form.”

“I can’t imagine this is the final form,” added Sen. Kelli Stargel, R-Lakeland. “I’m looking forward to working with you.”

“What you’re seeing is us roughing out the first form of this bill,” Brandes replied. “I think we’re moving in the right direction.”

The bill next goes to the Appropriations Subcommittee on Criminal and Civil Justice and the Appropriations Committee.

A similar House bill, HB 337 on increasing the jurisdiction of county courts, has been referred to the Civil Justice Subcommittee, Justice Appropriations Subcommittee, and the Judiciary Committee. It has not been set for a meeting. Another bill, HB 639 on courthouse security, was filed February 4 but has not been assigned to committees.

https://www.floridabar.org/the-florida-bar-news/bill-raising-county-court-civil-jurisdiction-advances-in-the-senate/

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.”

   https://www.floridabar.org/news/tfb-news/?durl=/DIVCOM%2fJN%2fjnnews01%2ensf%2fArticles%2f1C58BF96861009238525806E00782A19 

Senate revamps court, clerk funding bill

By Kim MacQueen – February 9, 2009
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.

Sen. Pruitt 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.”

https://www.floridabar.org/news/tfb-news/?durl=/DIVCOM%2fJN%2fjnnews01%2ensf%2fArticles%2f41197363E0A3AC648525757F005E1B8D