March 15, 2005 Senior Editor Regular News Legislators face variety of issues Legislators face variety of issues New judges, constitutional revisions, procedural rules all on the table Gary Blankenship Senior EditorConstitutional issues, past and future, and more judges will be on the Florida Legislature’s agenda for its 2005 Regular Session.Lawmakers, after several weeks of committee meetings in January and February, opened the 60-day session on March 8 (after this News went to press). It is scheduled to adjourn on May 6.Some core issues of interest to Bar members appear not to be on the agenda. There are no proposed constitutional amendments to remove The Florida Bar from the Supreme Court’s oversight, and there are no bills to impose a sales tax on legal, or any other, currently untaxed services.But there are plenty of issues major and minor that will affect the court system and lawyers and their practices.“We would expect most of the normal issues that traditionally deal with the independence of the judiciary to be brought up and discussed, primarily the rule-making authority of the court,” said Steve Metz, the Bar’s legislative counsel. “But we feel confident that given a fair hearing and debate, that the legislature will realize there is a healthy tension there and a proper balance.“I don’t anticipate any attacks on The Florida Bar or the ability of the court to regulate lawyers,” he added. “I do think there will be a healthy discussion about advertising and whether or not there is legislation that can increase the regulation of advertising without running afoul of the constitution.”Things are also looking up for the court system with an easing of the state’s financial condition. “One very encouraging thing is the universal acceptance in the House and Senate of the need for new judges,” Metz said. For the past two years, no new judges have been approved, and this year the Supreme Court has asked for 110 new judges.Legislative leaders say they expect a busy year, including enacting implementing legislation for constitutional amendments approved last November, particularly relating to medical records and doctor discipline — amendments pushed by the Academy of Florida Trial Lawyers.There are also several proposed amendments aimed at the citizen initiative process and also a proposed streamlining of the Florida Constitution by removing “statutory” type provisions that have been added by amendment over the years.In addition to that, bills have been filed to again look at the procedural rule-making powers of the Supreme Court, and some lawmakers say those will at least be debated.On the fiscal side, expected increases in state revenues could mean not only more judges, but other improvements for the courts and their employees.“Clearly, we’re going to be focusing much needed attention on additional funding for trial court judges,” said Rep. Dudley Goodlette, R-Naples, chair of the influential Rules and Calendar Council. “There are going to be some constitutional issues that we’ll be dealing with.”Rep. David Simmons, R-Altamonte Springs, chair of the House Judiciary Committee, gave a list of likely priorities and issues.That includes implementing legislation for Amendments 7 and 8, approved by voters last year. The former gives patients access to adverse medical reports on doctors and hospitals and the latter provides for the license revocation of any doctor who has been disciplined three times by the state.Simmons noted there is controversy about whether any implementing laws are needed, but that courts are already weighing in that some statutory guidance is needed.“My committee is within the ambit of its responsibility and jurisdiction to deal with it,” he said. “So we’re going to do implementing legislation with respect to both 7 and 8.. . . I hope that there will be a resolution and a convergence of interests of both the trial lawyers and the medical profession in getting good policy, and good policy means a proper implementation of 7 and 8.”There will also likely be three or four amendments proposed dealing with the citizen initiative process for constitutional amendments (something the Bar is studying as well). Those include, Simmons said, requiring any amendment — whether initiative or placed on the ballot by the legislature — to be approved by 60 percent of the voters, requiring a fiscal impact disclosure for any amendment that would surpass a certain projected cost, and limiting amendments to certain subjects and having the Supreme Court review amendments for compliance.The changes are needed, Simmons said, because special interests have hijacked the initiative process with slick promotion campaigns that may actually have little to do with the actual impact of the proposed amendment.“Darn near anything will pass now,” he said. “What they didn’t have when this (the initiative process) was put into the constitution they have now, which is mass media with the ability to reach everyone with very slick advertising and get it done.“What is truly missing. . . is a deliberative process and a debate process. You cannot debate something in 30-second sound bites.”In conjunction with the initiative amendments, Goodlette said he has introduced a bill calling for statutory changes, including more disclosure from initiative backers including that signature gatherers must reveal when they are paid to collect signatures.Simmons also said he supports Winter Park Republican Sen. Daniel Webster’s effort to streamline the Florida Constitution by removing unnecessary provisions that should be in statute rather than the state’s basic charter.“I hope we will have the opportunity to have joint meetings to begin an article-by- article review of the constitution, so we can put a streamlined constitution. . . on the ballot in 2006,” he said. Procedural Rules Noting bills have been filed in both the House and Senate to have the legislature create a judicial council to take over court procedural rule-writing authority from the Supreme Court, Simmons expects that to be at least studied, perhaps with an emphasis on criminal procedural rules.But Webster, the Senate Judiciary Committee chair, said he doesn’t see the upper chamber moving on that issue, although he knows some lawmakers are concerned the Supreme Court has overstepped its authority.“I don’t think that I’m to the point of saying we’re going to do that,” he said. “I know it’s an issue, but I’m not ready to go there yet.”Other issues Simmons expects his committee to examine include:• Premises liability. “Some appellate judges have stated they believe we have moved to strict liability de facto,” he said. “We’re going to review that and see if there’s some way of making it more fair.”• Questions related to streetlight maintenance and liability.• Fixing glitches with the Revision 7 transfer that saw the state take over most trial court funding from the counties. Simmons said that will include substantive issues on disputes that have arisen between counties, court clerks, and judges.On the Senate side, Webster said the Judiciary Committee will consider the constitutional streamlining and amendments to change the initiative process. He noted he has long supported an amendment to allow the Supreme Court to review proposed constitutional changes to ensure they belong in that document.Those might be limited to the separation of powers between branches and levels of government, the rights of people, duties of public officers, and the like, he said.“Anything external to that may not be a bad idea, but maybe we should have a statutory initiative to accommodate those ideas,” Webster said.The committee will also take up Gov. Jeb Bush’s proposed litigation reform package. Webster said that includes looking at premises liability, giving sellers immunity from products liability as long as they had no part in manufacturing a defective product, and limiting plaintiffs in a state class action suit to state residents, unless an out-of-state resident has no recourse in his or her home state.The committee will also have a Revision 7 glitch bill and look at the streetlight liability. Webster said the committee, at the request of Senate President Tom Lee, R-Brandon, will look at a policy to compensate people who are wrongly convicted and serve time and later are freed without requiring them to go through the claims bill process. That stemmed from the Wilton Dedge case, where Dedge spent more than 20 years in prison on a rape charge before being exonerated by DNA testing. (See story on page 11 in this News. ) Lawyer Advertising Webster said his committee, probably early in the session, will look at a proposed law to regulate lawyer advertising.Simmons, who championed that issue last year when it passed the House but died in the Senate, said he’s not pushing it this year. This session, legislation has been introduced by Rep. Jeff Kottkamp, R-Cape Coral, and Sen. Skip Campbell, D-Tamarac.Simmons, though, said he promised the Bar he wouldn’t push his own measure while its Advertising Task Force 2004 was studying the issue. The Bar Board of Governors is scheduled to act on the task force’s recommendations at its April 8 meeting.“I would hope the Bar would realize that if it doesn’t do something, then the whole process is going to be open for review by the legislature,” he said. “I hope the Bar takes action and does what is right.”Another measure facing an uncertain future is a proposal to allow gay foster parents to adopt, irregardless of a state law banning gays from adopting, if a bond has formed with the child and a judge determines it is in the best interest of the child. The Family Law Section, which was earlier turned down on its request to lobby for the repeal of the homosexual adoption ban, is asking the Bar Board of Governors to allow it to support the new bills. That also is expected on the board’s April 8 agenda.“It remains to be seen how quickly that bill would move through the process,” Goodlette said. “My guess is there would be some obstacles to that bill proceeding.”Goodlette, Simmons, and Sen. Rod Smith, D-Gainesville, all said there is support in both chambers for approval of all or most of the 110 new judges requested by the court.“Clearly, we’re going to be focusing much needed attention on additional funding for trial court judges,” Goodlette said. “That is a high priority with the House and Senate.”Smith said that support is likely to extend to other court issues, such as increasing staff and salaries for state attorneys and public defenders.“We can’t increase the number of judges and not increase the state attorney and public defender budgets. That would be irresponsible,” he said. “Salary increases for prosecutors and public defenders and for people who are providing juvenile services, I think those are on the table in the Justice Appropriations Committee and will be dealt with.”He also agreed with Webster that the Senate is unlikely to change the Supreme Court’s procedural rule-making prerogatives. “There’s been some talk about. . . some sort of statutory address of those rules. I think that’s unlikely to come to fruition,” Smith said. “We’re at a decided disadvantage in dealing with questions of procedure, because we’re not in the courts every day.” Court Priorities Expectations that funding may be relaxed after several tight budget years is good news for the court system. State Courts Administrator Lisa Goodner said the courts have several priorities, mostly related to budget issues.First is getting the new judges sought by the court.“That is obviously a high priority issue to deal with the deficit that has been created by the lack of funding for new judges over the past few years,” she said.Along with that, the courts want 33 new trial law clerks, to keep up with the one clerk for every three judge ratio that has been set in recent years.And, about 15 years after the Supreme Court building was renovated, there are some significant and routine maintenance needs that will call for about $6 million.Another priority will be addressing salary-related budget issues. Goodner said last year the court system did not get enough appropriations to meet its salary obligations, and had to leave vacancies unfilled in order to save enough money to pay employees.Other goals are:• Working to resolve remaining glitches with the Revision 7 transition. That includes seeking about $7.5 million additional funds for court reporting services.“This would transition toward a more efficient model of court reporting and increase the use of digital technology to produce a record,” Goodner said. “That’s a big one we’re still looking for.”• Getting funding to pay for maintenance agreements and leases on equipment being turned over by counties to the state as part of Revision 7.• Getting additional funding to bring mediation court services up to the level they were before Revision 7.• Getting funding for the “judicial inquiry system,” which allows judges on the bench to link through computers to information they need, such as cases in other circuits involving someone before them, state Department of Corrections records, or a party’s criminal history. “It doesn’t give judges access to any information they are not specifically authorized by law to have,” Goodner said, but does give them much quicker access to information they routinely need. Funding for that has twice been approved, but then either cut in a budget crisis or vetoed.• Getting better pay and benefits for court employees, particularly at the Supreme Court. Goodner said salaries and benefits not only lag behind the private sector, but other government agencies as well, making it difficult to find and retain qualified staff.• Working on a family court efficiency act to streamline operations of family courts.• Passing a drug court bill to enhance operations.• Passing a bill to create a court interpreter certification program. Sections’ Efforts Praised While the state budget and constitutional amendments may get more headlines and media attention, Goodlette there are many less publicized issues that will be addressed during the 60-day session, and he said Bar sections frequently play vital roles in that work.Goodlette noted he is co-sponsoring one bill sought by the Real Property, Probate and Trust Law Section, while the Business Law Section is active on a rewrite of the state’s business entities law.“I think the sections of the Bar continue to provide meaningful input and important real leadership on substantive areas of the law,” he said. “I would like to have members of the Bar who contribute to the sections help the legislature. I would like to express appreciation and encourage them to continue to provide that kind of in-depth, of invaluable assistance.” read more