House members in the Capitol on Friday attached a proposal to resurrect so-called “one-way attorney fees” to a Senate bill on phosphate mining. (AP Photo/Phil Sears)

By Ron Hurtibise | rhurtibise@sunsentinel.com | South Florida Sun Sentinel
UPDATED: April 26, 2025 at 9:17 AM EDT

In an effort to keep alive their bid to resurrect the availability of so-called “one-way attorneys fees” in lawsuits against insurers, the Florida House adopted a bill that added their proposal to an unrelated Senate bill on Friday.

But if the House had hoped the amended bill would slip by the Senate, proponents of reforms that reduced insurers’ legal costs are urging senators to reject it when it comes back to them in the coming days.

“I hope the Senate will do the right thing and be the adults in the room,” said Stacey Giulianti, chief legal officer at Boca Raton-based Florida Peninsula Insurance.

The effort to restore the right of plaintiffs to claim attorneys fees in lawsuits against insurers has overshadowed dozens of other insurance-related bills introduced for the session, leaving only a handful with minor impacts poised for enactment.

Until the late bid emerged, the Senate seemed content to ignore bills that would require insurers to once again pay fees incurred by policyholders who sue them.

In arguing for the reforms three years ago, insurers said that the industry had become unprofitable due to an avalanche of frivolous lawsuits filed under a century-old Florida law. That law required insurers to pay legal fees if they agreed to settle litigation by paying as little as $1 over their original settlement offer. However, insurance customers were held harmless if they sued their insurers and lost.

The reforms placed Florida’s legal system on equal footing with most of the country, insurers said. Plaintiffs who sue are now required to pay attorneys out of their own pockets or a percentage of what they win.

But attorneys say that leaves plaintiffs unable to challenge denials or underpayments of small claims because attorneys can’t make enough money to justify taking their cases.

Knowing that emboldens insurers to treat policyholders unfairly, attorneys say.

A bill introduced prior to the current Legislative session by state Rep. Hillary Cassel, a Broward County Democrat-turned-Republican who is also a plaintiffs attorney, was approved by two House committees but still awaited a hearing by a third committee. Typically, bills must pass three committee hearings in both the House and Senate.

But the Senate — potentially responding to warnings from insurance industry leaders, the state’s insurance commissioner and Gov. Ron DeSantis — failed to schedule it for a single committee hearing.

The Senate also ignored a bill by its former president, Don Gaetz, that would also have empowered judges to award attorney fees to plaintiffs who prevail in their lawsuits.

On Wednesday, House member Berny Jacques attached language from the Cassel bill to an unrelated bill approved by the Senate clarifying that certain levels of radiation must be recorded before lawsuits could be brought against owners of former phosphate mines.

Rather than “one-way attorney fees,” supporters insist that the bill should actually be called a “prevailing party” or “loser pays” measure. It would require insurers to pay plaintiffs’ attorney fees if a court awards them more than an amount offered by insurers, but plaintiffs would be required to pay insurers’ fees if a court awards them less than the insurer proposed.

During debate over the bill on Friday, Rep. Michael Gottlieb, who represents part of Broward County, predicted the prevailing party provision would “discourage litigation because you’re not going to want to, number one, prolong litigation, and number two, get involved in litigation that you’re going to lose.”

Rep. Tyler Sirois, from Brevard County, said the bill would reinstate “balance.” He added, “We made it too easy for insurers to delay, deny and underpay claims — making it harder for honest Floridians, whether they’re carrying a hammer or a calculator, to fight back.”

During the debate, no member of the House spoke against the amended bill and it was adopted by a vote of 80-20.

As part of the back-and-forth that must occur to get a unified bill approved by the entire Legislature, the amended bill now goes back to the Senate, which could vote on the House’s version, remove or change the amendment, or just let it die.

Jacque’s filing of the amendment on Wednesday set off a flurry of activity by industry supporters who again warned that passage would undermine progress tracked since the reforms were enacted, drive up litigation and force insurers to increase premiums.

It also prompted Insurance Commissioner Michael Yaworsky to send an email warning Peter Cuderman, Gov. DeSantis’ director of legislative and intergovernmental affairs, that the bill could dismantle “the hard-won progress” achieved by the 2022-2023 reforms.

That progress, Yaworsky wrote, includes declining reinsurance costs for insurers, 65 rate filings that were either reduced or included no increases, introduction of 12 new insurers into Florida’s market, and a 23% decrease in lawsuit filings year over year.

Potential impact of the House’s bill, he warned, included increases in lawsuits, insurer costs, reinsurance rates, private investment, and the population of state-owned Citizens Property Insurance Corp., the insurer of last resort.

After the vote, the pro-industry Florida Chamber released a statement saying it would continue fighting to stop the bill, which also removes restrictions on medical claims by patients, from becoming law.

“Going backwards is the wrong move for Florida,” the statement said. “We should allow these reforms to continue to work, not re-allow scamsters to artificially drive up medical costs to inflate verdicts and incentivize litigation over small dollar amounts with the promise of attorneys’ fees for the people on the billboards.”

Brian Murphy, who owns a Brightway insurance agency franchise in Palm Beach Gardens, said after the hearing that he favored keeping the reforms as they are. If positive trends continue, he said, “it’s a sign that the state’s efforts to revitalize the insurance landscape are working.”

Dulce Suarez-Resnick, an insurance agent based in Miami, said supporters predicted reforms wouldn’t be felt for three years.

“We are two years in and I’ve already seen a lot of impact,” she said. “The Legislature needs to be patient. We have one more year to go.”

William Large, president of the Florida Justice Reform Institute, said the House proposal would bring back “one-way attorney fees.”

“Unless an insurer gets a zero verdict, they’re going to end up paying attorneys fees,” he said.

Also troublesome, Large said, is a provision of the bill that would allow attorney fees to be awarded if a plaintiff wins a “declaratory judgment,” which is simply a declaration by the court that an insurer is responsible for paying a claim. It’s “going to create an incentive for attorneys to litigate declaratory judgment actions to generate fees,” Large said.

Only a few insurance bills have passed the House and Senate
The handful of bills headed to the governor’s desk after approval by both chambers include:

— SB 114 / HB 1097 — Transfers hurricane loss projection modeling from Florida International University to Florida State University.

— SB 1076 / HB 715 — Expands roofing contractors’ scope of work to include evaluation and enhancement of roof-to-wall connections; narrows cancellation window for contracts signed after emergencies.

— SB 176 / HB 1041 — Limits property tax increases for homes elevated to prevent flood damage if voters approve constitutional amendment in November 2026.

— SB 948 / HB 1015 — Requires landlords to provide flood risk information to tenants before signing leases. Gives tenants 30 days after a flood to terminate a lease if the disclosures are not provided and the tenant suffers flood damage.

Bills with little chance of enactment
Meanwhile, a long list of bills received no hearings in committee, made it through fewer than the required number of committee stops, or were ignored by one or the other chamber.

Giulianti doesn’t want to see any of them enacted this year. “It’s best for the Legislature to continue to let all the (2022 and 2023) changes work their way through the system through all of the insurance renewal cycles, and then decide next year if anything needs tweaking,” he said.

Property insurance bills left on the table would have allowed policyholders to:

— Hold the owners of fallen trees responsible for damage to their properties.

— Protect personal information entered into Uniform Mitigation Verification Inspection forms.

— Access rate transparency reports or see rating examples for their counties in filings to the Office of Insurance Regulation.

— Learn how their premiums are being distributed among subsidiaries, captive vendors, management companies and reinsurers.

— Require that their insurer pay specific fees for services provided by affiliates.

— Tap into a $500 million emergency trust fund if they are having trouble paying their insurance bill.

— Hold their surplus lines insurer responsible to pay up to the full amount of the insured value set in their policy.

— Require that their insurer participate in mandatory dispute resolution hearings prior to litigating.

— If they are a Citizens customer located outside of a FEMA flood zone, get out of the new requirement to hold flood insurance.

— Weigh advice from an Insurance Solutions Advisory Council or have access to a consumers guide to homeowner insurance.

— Be protected from cancellation while trying to repair damage from floods or hurricanes.

— Seek reimbursement for wind and flood damage mitigation projects through the My Safe Florida Home program.

Ron Hurtibise covers business and consumer issues for the South Florida Sun Sentinel. He can be reached by phone at 954-356-4071 or by email at rhurtibise@sunsentinel.com.

Mary Jo Cain Reis says she was outraged to learn that Florida is the only state with a law that bans people like her from suing a hospital that she says negligently killed her father. So she put up billboards like this one in Orlando in 2023 that call for repealing Florida’s so-called “free kill” law. She might get her way this year. (Ricardo Ramirez Buxeda/ Orlando Sentinel)

By Scott Maxwell | smaxwell@orlandosentinel.com | Orlando Sentinel
UPDATED: March 25, 2025 at 4:34 PM EDT

You may have read about something known as Florida’s “free kill” law — a bizarre law that exists only in Florida.

It basically says that, even if you can prove that a health care provider’s negligent actions killed an adult member of your family, you can’t sue for pain and suffering — unless the dead family member has a spouse or minor children.

In other words, the lives of single Floridians, including widows and widowers and those over 25 who haven’t yet married, are worth less here. The law essentially channels George Orwell’s satirical declaration that all animals are equal — but some are more equal than others.

If you know nothing else about this law, it should be a bright, red flag that Florida is the only state with this special protection for negligent practitioners.

Well, after decades of criticism, there’s momentum to change that. A repeal bill has already cleared several committees this legislative session with broad bipartisan support.

But first, it’s worth understanding how Florida ended up with a law like this is the first place — namely because Florida lawmakers have systematically stripped you of your rights to sue companies that do you wrong.

You’ve seen it before. Most recently, GOP lawmakers teamed up with insurance lobbyists to make it harder for you to sue your insurance company — even when your company tries to stiff you out of benefits to which you’re clearly entitled.

The rationale for stripping you of your right to go after bad actors is usually the same: Businesses shouldn’t be bothered with frivolous lawsuits. They drive up everyone’s costs.

But these laws strip everyone’s access to the courts, not just frivolous filers. And the arguments about savings for consumers are usually a bunch of trickle-down fiction. On the heels of Florida’s so-called insurance “reform,” rates shot up for nine consecutive quarters. And “free kill” critics say Florida never saw the benefits that health care lobbyists promised in exchange for shielding negligent doctors and hospitals from lawsuits.

South Florida Republican Rep. Hillary Cassel lit into a health-care lobbyist last week when he made another round of dubious claims, suggesting that repealing this law would simply enrich estranged family members looking for a cash grab. Cassel said the representative for the Florida Chamber of Commerce-created Florida Justice Reform Institute didn’t have “an ounce of data to support that,” calling the claims “scare tactics.”

Florida’s business lobby does more than just try to scare lawmakers, though. It also threatens them.

In 2021, the Florida Chamber of Commerce warned that any lawmaker who voted in favor of repealing the “free kill” law that year would have their vote negatively double-weighted in the chamber’s annual “How They Voted” report card, according to a Tampa TV station. (The report card lets business lobbyists know which politicians will follow their orders and are consequently worthy of endorsements and campaign checks.)

The Chamber wields this double-counting strategy when it knows it’s on the wrong side of public opinion and needs to exert extra pressure. It used a similar tactic last year when pressuring lawmakers to make it illegal for Florida counties to pass laws that would guarantee outdoor workers the right to things like shade and water on blistering hot days — a law I dubbed “The most shameful law Florida passed this year.”

Historically, the heavy-handed lobbying tactics have been effective with both parties. Democrats, after all, controlled Florida when the “free kill” provision was enacted in 1990. But this year, both parties seem poised to push back, probably because the horror stories are piling up: A father who died after being given a toxic dose of medication. Or a son whose routine hospital visit ended in death.

This year’s measure that would repeal Florida’s “free kill” provision, HB 6017, has passed committees with votes along the lines of 20-1. Its local sponsors include Democrat Johanna Lopez with co-sponsorship from Republican Susan Plasencia and Democrat Anna Eskamani.

Lawmakers were moved by stories they’ve heard from people like Mary Jo Cain Reis, who says her father died of medical negligence. “These bad doctors and medical personnel cannot continue to keep killing people and be able to move on,” said Reis, who put up billboards in Central Florida that called for reform. “There needs to be accountability.”

Theoretically, the state has other accountability measures for medical negligence. Families can still sue for economic damages. But complaints to the state are often ignored or slow-rolled. A 2018 investigation by the South Florida Sun Sentinel found Florida’s system was slow to punish doctors and quick to let them settle charges without accepting responsibility.

Certainly some doctors make earnest mistakes. Some are unfairly sued. But Florida’s “free kill” law doesn’t address that. It just says that a health care provider could negligently kill your 75-year-old mother without being sued for pain and suffering — as long as your mom isn’t still married. And what kind of sense does that make?

Not much, even according to one physician and former GOP legislator who urged lawmakers to repeal Florida’s “free kill” law this year. As Florida Politics reported, Dr. Joel Rudman told lawmakers to ignore the scare tactics. “Doctors aren’t going to leave Florida because of this bill — no good doctor,” Rudman said. “If a bad doctor wants to leave, bye.”

smaxwell@orlandosentinel.com

Sixth District Court of Appeal Chief Judge Meredith Sasso was named to the Florida
Supreme Court by Gov. Ron DeSantis on Tuesday, May 23, 2023. (Handout)

By JIM SAUNDERS | News Service of Florida
PUBLISHED: May 23, 2023 at 1:36 p.m. | UPDATED: May 23, 2023 at 1:56 p.m.

TALLAHASSEE — Continuing to mold a conservative Florida Supreme Court, Gov. Ron DeSantis on Tuesday named Meredith Sasso to succeed former Justice Ricky Polston, who stepped down in March.

Sasso, of Orlando, has served as a state appeals-court judge since 2019 and is chief judge of the Lakeland-based 6th District Court of Appeal. Her previous positions included chief deputy general counsel for former Gov. Rick Scott.

With the pick, DeSantis has appointed five of the seven Supreme Court members, as the court has become much more conservative since the Republican governor took office in January 2019.

“I am proud to appoint Judge Meredith Sasso to the Florida Supreme Court because her fidelity to the Constitution will help preserve freedom in our state for generations to come,” DeSantis said in a prepared statement.

Since Polston announced his resignation, speculation had swirled about Sasso as a potential successor. Along with serving in the Scott administration, she has been active in The Federalist Society, a conservative group that has played a key role in state and federal judicial appointments.

In her application for the Supreme Court seat, Sasso wrote that while working in the executive branch of government, she “gained an informed appreciation for the separation of powers.”

“Appropriate deference to coordinate branches is not a matter of courtesy; it is essential for the people’s chosen representatives to operate,” Sasso wrote. “Likewise, judicial decisions are not the only available solution to problems. When judges step outside their role, they often justify it by claiming an altruistic purpose of correcting a perceived injustice. But as judges, we should honor both our defined role and the overall system in which we operate.”

The Florida Justice Reform Institute, a legal group that advocates on issues such as limiting lawsuits against businesses, praised the appointment. William Large, the organization’s president, issued a statement that said the pick continued DeSantis’ efforts to carry out a promise to reshape the Supreme Court.

“The governor’s appointment of Meredith Sasso to the Florida Supreme Court cements this promise of appointing justices with a proven record of embracing textualism and the notion that the courts should interpret our laws, not write them.” Large said.

Sasso will join Chief Justice Carlos Muniz and Justices John Couriel, Jamie Grosshans and Renatha Francis as DeSantis appointees on the court. Justices Charles Canady and Jorge Labarga were appointed by then-Republican Gov. Charlie Crist.

Before DeSantis took office, the Supreme Court had a generally liberal majority — much to the frustration of state Republican leaders and business groups. But three longtime justices, Barbara Pariente, R. Fred Lewis and Peggy Quince, left the court in early 2019 because of a mandatory retirement age, allowing DeSantis to make appointments.

Polston, another Crist appointee, was usually part of a conservative majority, so it is unclear how much Sasso will affect the ideology of the court. Labarga is the only remaining justice from the more-liberal previous majority.

Sasso became a judge on the 5th District Court of Appeal in 2019 and shifted to the newly created 6th District Court of Appeal this year after a reorganization of the appellate-court system.

Sasso has ties to Grosshans, who also served on the 5th District Court of Appeal before being appointed to the Supreme Court in 2020. Sasso spoke at a Supreme Court investiture ceremony for Grosshans in 2021, according to Sasso’s application.

Sasso, who grew up in Tallahassee, received bachelor’s and law degrees from the University of Florida. Her paternal grandparents left Cuba in 1953, according to the application.

After stepping down from the Supreme Court, Polston became general counsel of the state-backed Citizens Property Insurance Corp. He had served on the Supreme Court since 2008.

https://www.orlandosentinel.com/2023/05/23/desantis-names-sasso-as-next-supreme-court-justice/ 

 

Florida Supreme Court shields top corporate executives from depositions
By JIM SAUNDERS AUG 30, 2021 AT 10:35 AM

NEWS SERVICE OF FLORIDA |

TALLAHASSEE — Prompted by a case involving the retired chairman of Suzuki Motor Corp., the Florida Supreme Court has shielded high-ranking business executives from having to give depositions in lawsuits.

Justices, in a 6-1 decision on Thursday, extended to corporate executives a protection that has long allowed top government officials to avoid being required to testify about government actions. The decision said broadening what is known as the “apex doctrine” will help prevent harassment of corporate leaders.

“Over the years, varied government officers in Florida have benefited from the apex doctrine,” said the 15-page decision, written by Justice Carlos Muniz and joined by Chief Justice Charles Canady and Justices Alan Lawson, Ricky Polston, John Couriel and Jamie Grosshans. “We think that the efficiency and anti-harassment principles animating that doctrine are equally compelling in the private sphere.”

Muniz wrote that the decision is not a “blanket prohibition” on high-ranking corporate executives facing depositions. In part, declarations or affidavits will have to be filed that indicate the executives lack “unique, personal knowledge of the issues being litigated.”

But in a dissent, Justice Jorge Labarga wrote that the majority decision “abandons Florida’s longstanding refusal of affording special discovery protections to top-level corporate decision-makers.” He also argued that Florida already had adequate legal rules to prevent potential harassment.

“Florida’s existing discovery framework provides trial courts with the necessary tools to address abusive discovery practices, ranging from mandating the method of discovery to be used, to prohibiting the discovery from occurring in the first place. … Accordingly, there is no need for the special discovery protection afforded to top-level corporate officers by the majority’s new rule,” Labarga wrote.

Muniz wrote that the “impetus” for the Supreme Court to address the issue was a dispute about whether Osamu Suzuki, who retired in June as the chairman of Suzuki Motor Corp., should have to be deposed in a Florida products-liability lawsuit.

 That lawsuit was filed against the Suzuki company by Scott Winckler, who was paralyzed from the waist down in a 2013 motorcycle accident, according to an appellate court ruling. Four months after the accident, the company issued a recall of the brakes on the type of motorcycle Winckler was riding, and the lawsuit related to the brakes issue.

 In the lawsuit, Winckler’s attorneys argued that the Suzuki chairman had knowledge about facts relevant to the case and should testify. But the company’s attorneys fought efforts to depose the chairman, arguing in part that the plaintiff’s attorneys could get the information from lower-level company officials.

A divided panel of the 1st District Court of Appeal in 2019 rejected an attempt to prevent Osamu Suzuki from testifying, saying the apex doctrine had not been extended to high-ranking corporate executives.

“The problem with its (Suzuki’s) argument is that the doctrine is only clearly established in Florida in the government context, with respect to high-ranking government officials,” appeals court Judge Timothy Osterhaus wrote in a majority opinion joined by Judge Lori Rowe.

That spurred Suzuki’s attorneys, including former Justice Raoul Cantero, to appeal to the Supreme Court. In a brief filed last year, the attorneys wrote that Osamu Suzuki’s only involvement in the brake issue had been initialing a document.

 “Mr. Suzuki is the chairman of a global company,” the brief said. “His extensive duties consume his schedule. The notion that he has any personal knowledge about a motorcycle accident in Florida is not credible on its face, and plaintiff does not claim that he does.”

The Supreme Court heard arguments in December in the Suzuki case but had not ruled. Along with the decision Thursday to expand the apex doctrine, it issued an order saying it would not rule in the Suzuki case.

The Suzuki case drew friend-of-the-court briefs from a series of business and legal groups, including the Florida Justice Reform Institute, the U.S. Chamber of Commerce and the Florida Defense Lawyers Association.

William Large, president of the business-backed Florida Justice Reform Institute, issued a statement Thursday praising the court’s broader decision on the apex doctrine.

“In our amicus (brief), we argued that allowing the deposition of an apex corporate employee who does not have uniqu information could lead to a flood of discovery demands for that same employee in other cases, leaving that person no time to actually run the business,” Large said. “The (Supreme) Court agreed, but in an unexpectedly profound way.”

https://www.orlandosentinel.com/politics/fl-ne-nsf-florida-court-shields-corporate-executives-20210830-zdr6xz56h5enpgw3qsz7w3nxie-story.html 

 

Florida Supreme Court conservatives reverse longstanding criminal protections. It’s ‘alarming,’ defense lawyers say

By MONIVETTE CORDEIRO
ORLANDO SENTINEL | JUN 08, 2020

Gov. Ron DeSantis’ two new picks for the Florida Supreme Court represent diversity of gender and ethnicity,
but not ideology.Both are members of the Federalist Society. So were the two justices they replaced. So were all nine people
considered. It is increasingly apparent that the Federalists have a monopoly on the courts. (Associated Press)

The Florida Supreme Court made it easier last month to execute some inmates who may be intellectually disabled.

A week before, justices threw out a legal standard used for more than 100 years as a safeguard against wrongful criminal convictions based solely on circumstantial evidence.

The conservative majority, which includes Chief Justice Charles T. Canady and Justices Ricky Polston, Alan Lawson and Carlos G. Muñiz, has not shied away from saying past rulings “got it wrong.” In January, justices decided juries do not need to unanimously agree when recommending a judge sentence someone to death, calling the 2016 mandate from its predecessors “clearly erroneous.”

Continuously ignoring stare decisis, the doctrine of adhering to previous rulings when making decisions on similar cases, undermines the credibility of the institution and creates chaos in the legal system, Harper said.

“From the public’s point of view, this is a rogue court,” he said.

But William Large, president of the Florida Justice Reform Institute, a lobbying group that works to limit “wasteful” civil litigation, said he doesn’t see the court playing a political role. Large praised Gov. Ron DeSantis’ latest Florida Supreme Court picks for “[continuing] his mission to restore the court to its proper role as the interpreter of our laws, not the author,” according to the Florida Times-Union

No court ruling is untouchable, Large told the Orlando Sentinel.

“Stare decisis provides stability but it doesn’t provide blind adherence,” he said. “Perpetuating a pre-existing error in the law under the guise of stare decisis doesn’t serve society and undermines the integrity and credibility of the court. The court has shown its willingness to overturn unsound rulings in the criminal context — hopefully it will do so in the civil context.”

Court discards precedent

Neither the state nor the defense asked the Florida Supreme Court to discard the circumstantial evidence standard in the Bush v. State ruling issued May 14, said Orlando criminal defense attorney Richard Hornsby.

On their own, justices decided to abandon the heightened standard, which held that if a case was based solely on circumstantial evidence and prosecutors were unable to exclude a reasonable hypothesis of innocence, the trial judge must acquit the accused rather than send the case to a jury, or the appellate court must reverse a conviction.

Sean Alonzo Bush, who is facing the death penalty for the 2011 murder of his estranged wife, wanted the state’s high court to review his conviction, which he argued was legally insufficient because it was based entirely on circumstantial evidence.

The Florida Supreme Court affirmed his conviction 4-1 and discontinued the special standard because it is “unwarranted, confusing and out of sync” with the rest of the country’s courts, according to the majority’s opinion.

The lone dissenting Justice Jorge Labarga argued Bush’s conviction would have stood even without changing the standard.

“This Court eliminates another reasonable safeguard in our death penalty jurisprudence and in Florida’s criminal law across the board,” he wrote.

Attorney General Ashley Moody’s office, which handled the prosecution side of Bush’s appeal, did not respond to a request for comment.

Though the decision to discard it came in a murder case, the circumstantial evidence standard was most beneficial to people accused of drug crimes “simply because they were in the wrong place at the wrong time,” Hornsby said.

“Let’s say law enforcement raids a house and someone is standing by the table where the drugs are,” he said. “The prosecutor has to prove the drugs are theirs more than just by being in mere proximity. Because of that standard, prosecutors don’t bring hundreds of prosecutions.”

The pre-existing standard was “an important safeguard against innocent people being wrongly convicted based on flimsy evidence,” said Maitland criminal appellate attorney William Ponall.

“I have an appeal currently pending before a Florida appellate court where the circumstantial evidence standard that existed before Bush resulted in the trial court dismissing the charge against my client’s co-defendant,” Ponall said. “Now that Bush has been decided, it is unclear whether my client will get the benefit of the same standard that applied to his co-defendant.”

Hornsby predicts a “hundred-fold” increase in drug prosecutions because the state no longer has to worry about a circumstantial case being dismissed.

“It’s a concern for everybody,” Hornsby said. “We’re seeing a politicization of the Florida Supreme Court. … The new standard for becoming a justice is, are you a member of the Federalist Society? Are you politically aligned with the governor — which is not how it should be.”

DeSantis recently appointed two new justices for the state’s high court, from a pool of candidates who were all affiliated with the Federalist Society, a conservative-libertarian organization that advocates for “the judiciary to say what the law is, not what it should be.”

The Federalist Society did not respond to request for comment.

“The Supreme Court’s decision to reverse so many of its owns cases in a short period of time leads the public to question whether those decisions are based on politics instead of the actual merits of a case,” Ponall said.

Hornsby said other recent decisions from the court show an “assault” on protections for criminal defendants, including receding from a 2010 ruling that it’s a “fundamental error” not to instruct juries on lesser offenses they can choose to convict on as an alternative to the charge a defendant faces, as well as an attempt to rewrite speedy trial rules that would “make it less helpful to criminal defendants.”

“I think it’s very alarming,” said Hal Schuhmacher, president of the Florida Association of Criminal Defense Lawyers. “It’s coming in this rapid succession of just blatantly ignoring the rules that have been established and protected us all.”

‘No second chance’

Harry Franklin Phillips wanted the Florida Supreme Court to consider again if he was intellectually disabled before being put to death.

Phillips was convicted of first-degree murder for gunning down a Miami parole supervisor in 1982 and sentenced to death twice after the high court found his counsel was ineffective the first time.

During a decades-long appeals process, Phillips argued he could not be executed because of his intellectual disability. In 2002, the U.S. Supreme Court found that sentencing intellectually disabled people to death is a “cruel and unusual” punishment forbidden under the Eighth Amendment.

To meet the intellectual disability standard, Florida required defendants to have an IQ of 70 or below, a condition that was ultimately struck down by the U.S. Supreme Court in 2014 because justices said the strict cutoff “creates an unacceptable risk that persons with intellectual disability will be executed.”

State courts found Phillips failed to meet the standard, scoring 70, 74 and 75 on IQ tests.

To fix the issue, Florida would have to consider whether a defendant’s IQ score fell within the test’s 5-point margin of error, which expanded the score range to between 65 and 75 points. The state Supreme Court ruled in 2016 the new rule would apply retroactively, giving inmates like Phillips another chance to prove their intellectual disability.

But the Florida Supreme Court denied Phillips’ latest appeal May 21 and decided to go further, ruling that it “clearly erred” when deciding the rule should apply to older cases.

“While this Court has consistently acknowledged the importance of stare decisis, it has been willing to correct its mistakes,” the majority wrote. “… Stare decisis provides stability to the law and to the society governed by that law. Yet stare decisis does not command blind allegiance to precedent.”

Justice Labarga said the ruling was “patently unfair” because some death row inmates had received new hearings under the retroactive rule.

“Yet again, this Court has removed an important safeguard in maintaining the integrity of Florida’s death penalty jurisprudence,” Labarga wrote. “The result is an increased risk that certain individuals may be executed, even if they are intellectually disabled.”

The court’s decision to overturn the unanimous jury rule for defendants in capital cases drew praise from conservative Ocala-based State Attorney Brad King in January. King could not be reached for comment this week.

“We’ve seen in this experiment with unanimous jury verdicts for death recommendation that the results are arbitrary,” King said then. “You basically let one juror out of 12 dictate the result and that’s not democracy. … That’s not a legitimate process when one juror can hijack the entire sentencing result.”

But Melba Pearson, the former prosecutor and ACLU of Florida deputy director who is now running for Miami-Dade state attorney, said the high court’s removal of protections for defendants in capital cases is “concerning” given the high number of exonerations from Florida’s death row.

In light of the Phillips case, prosecutors will have to take a more proactive role to make sure they’re not seeking the death penalty for someone who may have intellectual disability, Pearson said.

“We have to make sure we get it right, especially when it comes to the death penalty,” she said. “There is no second chance.”

[email protected]

https://www.orlandosentinel.com/news/crime/os-ne-florida-supreme-court-criminal-protections-20200608-na7vxxptpndzfpqtklxrrxy5lq-story.html