Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A.; MARK

EDWARDS and MITZI DEE RODEN, as parents and natural guardians

of AARON EDWARDS, a minor; WILLIAM S. FRATES, II, P.A.; EDNA L.

CARUSO, P.A.; VAKA LAW GROUP, P.L.; and GROSSMAN & ROTH,

P.A.,

Appellants,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-3497

[July 15, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Martin H. Colin, Judge; L.T. Case No.

502012GA000558XX.

Christian D. Searcy and Jack P. Hill of Searcy Denney Scarola Barnhart

& Shipley, P.A., West Palm Beach; George A. Vaka of Vaka, Larson &

Johnson, P.L., Tampa; and Edna L. Caruso of Edna L. Caruso, P.A., West

Palm Beach; for appellants.

Pamela Jo Bondi, Attorney General, Allen Winsor, Solicitor General,

and Rachel Nordby, Deputy Solicitor General, Tallahassee, for appellee.

FORST, J.

Appellants Searcy Denney Scarola Barnhart & Shipley, P.A. (“Searcy

Denney”), et al. appeal the refusal of the guardianship court to authorize

payment of $2.5 million in attorneys’ fees to the firms involved in the

litigation of a medical malpractice lawsuit, the appeal, and a subsequent

lobbying effort to secure a claims bill (also deemed a “private relief act”)

from the Legislature on behalf of Aaron Edwards and his parents. The

legislative claims bill placed a limitation on the use of funds to pay legal

fees and costs, and it is this limitation that is the subject of the instant

appeal. Although sympathetic to Appellants’ situation, we must disagree

with their legal arguments based on separation of powers principles,

supported by reasoning set forth from the Florida Supreme Court.

Accordingly, we affirm the order denying Appellants’ motion for attorneys’

fees above the $100,000 granted by the Legislature in Aaron’s claims bill.

I. Background

In September 1997, Aaron Edwards (“Aaron”) sustained a catastrophic

brain injury during his birth as a result of negligence on the part of

employees at Lee Memorial Health System. Searcy Denney, a law firm

based in West Palm Beach, began its representation of Aaron and his

parents in 1999. The law firm and the Edwards family entered into a

standard contingency fee agreement, providing for an attorneys’ fee of 40%

of any recovery if a lawsuit was filed, plus costs. The agreement also

provided that “[i]n the event that one of the parties to pay my claim for

damages is a governmental agency, I understand that Federal and Florida

Law may limit the amount of attorney fees charged by [Searcy Denney, and

i]n that event, I understand that the attorney fees owed to [Searcy Denney]

shall be the amount provided by law.”

Searcy Denney represented the family in a five-week jury trial in 2007.

The jury found that Lee Memorial Health System’s employees had been

negligent and that their negligence had resulted in damages to Aaron and

his parents. The jury awarded Aaron over $28.3 million. His mother was

awarded $1,340,000 in damages, and his father was awarded $1,000,000.

However, the trial court found that Lee Memorial was an independent

special district of the State of Florida and, pursuant to the sovereign

immunity damage limitations in section 768.28(5), Florida Statutes (2007),

entered a judgment against the hospital in the amount of $200,000.1 The

trial court rulings were affirmed by the Second District Court of Appeal.

Lee Mem’l Health Sys. v. Edwards, 22 So. 3d 81 (Fla. 2d DCA 2009).

In an effort to obtain additional funds for Aaron and his parents, Searcy

Denney submitted a claims bill to the Florida Legislature. In 2012, after

a public campaign in support of the bill, the Legislature passed Claims Bill

2012-249, directing Lee Memorial to appropriate $10 million, with an

additional $5 million payable in annual installments, “to the Guardianship

of Aaron Edwards, to be placed in a special needs trust for the exclusive

use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, § 2, Laws of

Fla. No monies were appropriated for the use and/or benefit of either

parent for their damages. The claims bill also included a stipulation

stating “[t]he total amount paid for attorney’s fees, lobbying fees, costs,

and other similar expenses relating to this claim may not exceed

1 The entire $200,000 was applied to partially reimburse Searcy Denney for

litigation costs.

2

$100,000.” Id. § 3. It is this provision that is the focus of the matter before

us.

After the first $10 million installment had been paid into Aaron’s special

needs trust,2 the various trial, appellate, and lobbyist firms that had

worked on Aaron’s case -- with support from the Edwards family --

petitioned the guardianship court to approve a closing account statement

transferring $2.5 million to them. The petition premised this request on a

25% fee cap provision in section 768.28(8) and on the argument that the

fees and costs limitation in the claims bill was unconstitutional. Evidence

presented at the hearing on the petition showed that the firms had devoted

more than 7000 hours to representing the Edwards family at trial, on

appeal, and during the claims bill process and had also incurred more

than $500,000 in costs during the representation. However, the

guardianship court, relying on precedent from this court and the Florida

Supreme Court, found that it lacked judicial authority to grant the

requested relief in contravention of the language of the claims bill

regarding fees and costs.

Appellants now appeal that denial and argue that the language in the

claims bill limiting their recovery of attorneys’ fees and costs is an

unconstitutional impairment of their contract with the Edwards family and

should be severed from the otherwise valid private relief act for Aaron.

Alternatively, Appellants contend the guardianship court had inherent

judicial discretion to depart from the limitation imposed by the Legislature

and grant them reasonable fees and costs up to the 25% limit provided by

section 768.28(8), Florida Statutes (2007).

II. A Brief History of Sovereign Immunity

The doctrine of sovereign immunity stretches back to the foundations

of Anglo-American common law. Espousing the maxim that “the King can

do no wrong,” Blackstone explained that “no suit or action can be brought

against the King, even in civil matters, because no court can have

jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *235.

2 “A special needs trust is a trust agreement, authorized by federal law, which

excludes certain assets and income from being counted against eligibility for

certain need-based government benefits.” Rebecca Berg, et al., Q & A:

Introduction to the State of Florida Public Guardianship Pooled Special Needs Trust,

81 Fla. B.J. 64 (May 2007). “The key purpose of the special needs trust is to

provide for the person with a disability without jeopardizing the receipt of public

benefits.” Fay Blix, The World of Special Needs Trusts, 50 Orange Cnty. Law. 10

(Nov. 2008).

3

However, should a subject of the Crown have “a just demand upon the

King, he must petition him in his court of chancery, where his chancellor

will administer right as a matter of grace, though not upon compulsion.”

Id. at *236.

When the common law was exported to the American continent,

sovereign immunity came with it. Although the United States Constitution

does not explicitly grant the federal government immunity from suit,

sovereign immunity seemingly always has applied. See U.S. v. Lee, 106

U.S. 196, 207 (1882) (“[W]hile the exemption of the United States and of

the several states from being subjected as defendants to ordinary actions

in the courts has . . . been repeatedly asserted here, the principle has never

been discussed or the reasons for it given, but it has always been treated

as an established doctrine.”).

Unlike the apparently axiomatic immunity of the federal government

from suits, the states initially were subjected to liability in federal courts.

In Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), the United States

Supreme Court held that state governments were amenable to suit in

federal courts under Article III, Section 2 of the Constitution. Soon

thereafter, however, the Eleventh Amendment expanded the doctrine of

sovereign immunity to protect state governments from suit by private

citizens in federal court. Amend. XI, U.S. Const. State sovereign

immunity, protecting the states from suit in their own courts, existed prior

to the ratification of and is not derived from the Eleventh Amendment, but

is a fundamental aspect of the sovereignty which the States

enjoyed before the ratification of the Constitution, and which

they retain today (either literally or by virtue of their

admission into the Union upon an equal footing with the other

States) except as altered by the plan of the Convention or

certain constitutional Amendments.

Alden v. Maine, 527 U.S. 706, 713 (1999).

After decades of immunity from liability, the federal government

abrogated its sovereign immunity by passing the Federal Tort Claims Act

in 1946. 28 U.S.C. § 1346(b); see also The Federal Tort Claims Act, 56 Yale

L.J. 534 (1947). In the years that followed, the states likewise rolled back

the protections of state sovereign immunity. In Florida, the state

constitution stated, “Provision may be made by general law for bringing

suit against the state as to all liabilities now existing or hereafter

originating.” Art. X, § 13, Fla. Const. (1968). The Florida Legislature

passed an experimental temporary waiver of sovereign immunity for a one

4

year period in 1969 before finally enacting a permanent, limited waiver in

1973. Gerald T. Wetherington & Donald I. Pollock, Tort Suits Against

Governmental Entities in Florida, 44 Fla. L. Rev. 1, 6 (1992). However,

although 1969 saw the first general waiver of the state’s sovereign

immunity, legislative relief by means of a claims bill has been available

since before statehood – the first claims bill was passed by the Legislative

Council of the Territory of Florida in 1833. D. Stephen Kahn, Legislative

Claim Bills: A Practical Guide to a Potent(ial) Remedy, 62 Fla. B.J. 23 (April

1988); see also Cauley v. City of Jacksonville, 403 So. 2d 379, 381 n.5 (Fla.

1981).

Section 768.28, Florida Statutes, is the codification of the state’s

limited waiver of sovereign immunity in tort actions. A plaintiff’s recovery

against the state and its agencies or subdivisions is limited to no more

than $200,000 per incident. § 768.28(5), Fla. Stat. (2007).3 Moreover, in

cases where a judgment exceeds $200,000, “that portion of the judgment

that exceeds these amounts may be reported to the Legislature, but may

be paid in part or in whole only by further act of the Legislature.” Id.

Subsection 768.28(8) of the same statute states that “[n]o attorney may

charge, demand, receive, or collect, for services rendered, fees in excess of

25 percent of any judgment or settlement.”

III. The Treatment of Section 768.28(8) by Florida Courts

Shortly after the enactment of section 768.28, the Florida Supreme

Court addressed the constitutionality of the attorneys’ fees cap in a case

involving the settlement of a damages claim filed against a school board.

In Ingraham v. Dade County School Board, 450 So. 2d 847, 849 (Fla. 1984),

the court held “that section 768.28(8) is constitutional and does not

constitute an impairment of contractual obligations and does not amount

to a legislative usurpation of the power of the judiciary to regulate the

practice of law.”

During the same time frame as Ingraham, the Florida Supreme Court

was faced with another situation involving the legislative claims process.

In Gamble v. Wells, 450 So. 2d 850 (Fla. 1984), a minor sustained severe

injury while in the custody of the State Department of Public Welfare. The

child’s parent retained a lawyer, who signed a standard contingency fee

3 The initial version of this statute set the waiver amount at $50,000 per person

and $100,000 per incident. § 768.28(5), Fla. Stat. (1969). Those limits were

increased to $100,000 per person and $200,000 per incident in 1981, section

768.28(5), Florida Statutes (1981), and raised again to the present levels of

$200,000 and $300,000 effective April 27, 2012. § 768.28(5), Fla. Stat. (2012).

5

contract to represent the child. Id. at 851-52. As the state had not passed

legislation waiving sovereign immunity at the time the injury occurred

(and, thus, section 768.28 was not applicable to this case), the attorney

petitioned the Legislature for a private relief act.4 The Legislature passed

the requested bill, appropriating $150,000 for the child, but limited the

payment of attorneys’ fees to $10,000. Id. at 852. When the lawyer

challenged the constitutionality of this provision as an impairment of his

contingency contract, the Florida Supreme Court reversed the Second

District Court of Appeal’s holding that declared that portion of the bill

which limited attorneys’ fees to be invalid because of an unconstitutional

impairment of contract. The Florida Supreme Court explicitly held that no

contract right was impaired. Id. Describing the claims bill as “an act of

grace,” the court held that the Legislature could “allow compensation,

decide the amount of compensation, and determine the conditions, if any,

to be placed on the appropriation.” Id. at 853 (emphasis added).

A somewhat similar situation was presented to this court in Noel v.

Sheldon J. Schlesinger, P.A., 984 So. 2d 1265 (Fla. 4th DCA 2008). A

victim, Jean Noel, and her parents sued a governmental entity for damages

arising out of medical negligence. Id. at 1266. The jury awarded a total of

$8.5 million, but the relief was reduced to $200,000 due to the

applicability of section 768.28(5). Id. The family then petitioned the

Legislature. As the culmination of an eight-year legal and legislative

process, the Legislature passed a claims bill providing $8.5 million for Ms.

Noel and her parents. Id. at 1266. The claims bill also provided for

payment of attorneys’ fees and costs up to $1,074,667, representing

approximately 13% of the clients’ relief and considerably less than the

percentage contracted for or the 25% cap set forth in section 768.28(8).

Id. When the attorney moved for a charging lien to recover the additional

sums provided by the contingency fee contract, this court echoed Gamble

and held the claims bill to be an act of “legislative grace.” Id. at 1267. We

also reasoned that the attorneys’ charging lien was inappropriate in that

case because, as enunciated by the Legislature, the property at issue was

voluntarily given by the Legislature, “separate and apart” from the recovery

in the lawsuit. Id. Our court in Noel found “a fair reading of the claims

bill indicates the legislative intent to limit [attorneys’] fees to $1,074,667”

4 Gamble concerns a private relief act, which is the functional equivalent of a

claims bill, as presented in our instant case. Section 768.28 codified the waiver

of sovereign immunity, but the method for obtaining relief above that section’s

limits is the same as it was prior to the passage of that law – a claimant must

petition the Legislature in hopes that it, in its grace, will provide funds for the

benefit of the claimant.

6

and that “[the] legislature has the power to limit attorney’s fees in a claims

bill, no matter what the underlying fee contract provides[.]” Id.

IV. Applicability of the Statute and Precedent to the Instant Case

Judicial determinations concerning the constitutionality of statutes (or

portions thereof) are pure questions of law subject to a plenary or de novo

standard of review. State v. Sigler, 967 So. 2d 835, 841 (Fla. 2007).

Because the challenged claims bill is a validly passed law, it is “clothed

with a presumption of constitutionality,” Crist v. Fla. Ass’n of Criminal

Defense Lawyers, Inc., 978 So. 2d 134, 139 (Fla. 2008), and all reasonable

presumptions must be drawn in favor of its constitutionality. See State v.

Bales, 343 So. 2d 9, 11 (Fla. 1977).

In the instant case, as in Gamble and Noel, the Legislature passed a

claims bill that provided a specific amount of attorneys’ fees that was

significantly less than the amount contracted for between the Edwards

family and their law firm, Searcy Denney. Indeed, the Legislature in

essence reduced Searcy Denney’s contingency fee to less than 1% of the

$15 million provided by the Legislature.

Notwithstanding Appellants’ (and the dissenting opinion’s) arguments

to the contrary, Gamble and Noel, and the reasoning therein, support the

guardianship court’s decision to recognize the Legislature’s prerogative of

limiting the payment of fees and costs to $100,000. A claims bill, both

before and after the enactment of section 768.28, is a “voluntary

recognition of its moral obligation by the legislature” and, as such, is firmly

entrenched in the sphere of legislative discretion. Noel, 984 So. 2d at 1267

(quoting Gamble, 450 So. 2d at 853). “Parties cannot enter into a contract

to bind the state in the exercise of its sovereign power. . . . The legislature

was in no way bound to pass legislation conforming with the provisions of

the prior contingent fee contract.” Gamble, 450 So. 2d at 853. “That the

claim[s] bill is separate and apart from the constraints of an earlier lawsuit

is demonstrated by the supreme court’s recognition that [the] legislature

has the power to limit attorney’s fees in a claims bill, no matter what the

underlying fee contract provides[.]” Noel, 984 So. 2d at 1267. “A claim[s]

bill is not obtainable by right upon the claimant’s proof of entitlement, but

rather is granted strictly as a matter of legislative grace.” Wagner v. Orange

Cnty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007); see also United Servs.

Auto Ass’n v. Phillips, 740 So.2d 1205, 1209 (Fla. 2d DCA 1999).

We are sympathetic to the fact that the legislatively enacted attorneys’

fees cap in this case failed to cover even the $500,000 in Appellants’ costs

advanced by Searcy Denney during their representation of the Edwards

7

family. But our responsibility in this matter is to ensure that the claims

bill passed by the legislative branch of government meets constitutional

muster. As noted above, the Florida Supreme Court, in no uncertain

terms, has held that the limitation of attorneys’ fees in a private relief

act/claims bill “is a constitutionally permissible exercise of legislative

authority and does not constitute an impairment of contractual obligations

proscribed by article I, section 10 of the Florida Constitution.” Gamble,

450 So. 2d at 851; see also Ingraham, 450 So. 2d at 849..

Appellants contend the Legislature’s claims bill’s fees and costs

limitation impermissibly runs contrary to preexisting statutory limitations.

They posit that the Supreme Court’s decision in Ingraham, decided the

same day as Gamble, supports the argument that “the 25% limitation on

attorney’s fees and costs provided by § 768.28(8) applied” to claims bills,

as well as settlements and judgments reached outside of the claims bill

process. Ingraham addressed an effort by the plaintiff’s attorney to receive

fees in excess of 25% of a structured settlement and the Supreme Court’s

application of section 768.28(8) to negate that effort. In the instant case,

by contrast, the law firms are seeking fees and costs representing 25% of

a special legislative appropriation.

Regardless of whether Aaron’s claims bill appropriation is categorized

as a “judgment or settlement,” section 768.28(8) does not mandate that

the fees collected or received cannot be less than 25%, only that the fees

cannot be “in excess of 25 percent.” The statute places a cap on the

recoverable attorneys’ fees, not a floor. Twenty five percent is not, by its

very terms in this statute, a mandatory minimum.

Appellants also argue that the courts’ respecting the Legislature’s

$100,000 limitation is a usurpation of judicial power and that this

limitation violated the separation of powers doctrine. To the contrary, the

course of action proposed by Appellants would violate the separation of

powers doctrine, rewriting two legislative enactments, both section

768.28(8) and Aaron’s claims bill, to dictate attorneys’ fees that are neither

mandated by the former (because it sets a ceiling, and not a floor) and are

expressly contrary to the latter (which limits fees and costs to $100,000).

Appellants’ alternative arguments, including that the legislative action

amounted to an unconstitutional taking, violated the due process clause,

or denied them equal protection, are likewise unpersuasive, particularly

where the Florida Supreme Court already has explicitly sanctioned the

action at issue. Gamble, 450 So. 2d at 851.

Conclusion

8

Appellants’ (and the dissenting opinion’s) dissatisfaction with the

limitation on attorneys’ fees and costs imposed in Aaron’s claims bill is

understandable, and the possibility of such a restriction in a claims bill

posits an additional factor to be considered by counsel in deciding whether

to take on representation in a case in this state involving a sovereign entity

defendant. Appellants’ reply brief states, “If there is no reasonable

financial incentive for lawyers to take these type cases, the injured will go

unrepresented.” To what extent this is true is beyond our focus.5

Therefore, we affirm the guardianship court’s ruling.

Affirmed.

CONNER, J., specially concurs with opinion.

CIKLIN, C.J., dissents with opinion.

CONNER, J., concurring.

Anytime legal analysis traces back to Blackstone and the foundations

of Anglo-American law, one knows core legal values are being addressed.

I write to further explain why I cannot agree with the reasoning of the

dissent, although the dissent makes very cogent arguments as to why

Gamble and Noel should not control the outcome of this case.

The premise of the dissent is that by enacting section 768.28, Florida

Statutes, the legislature altered the “legislative grace” attribute of its

monetary awards by making a judicial or administrative award a

precondition for initiating the claims bill process. The argument is that

you can’t even try to pass through the doors of the legislature until you

successfully pass through the doors of the courthouse. Thus, the two

processes are welded; this means the “act of grace” analysis has been

“transcended” because the weld now raises the specter of “a chilling effect

upon the sacrosanct and fundamental constitutional right to access to our

courts.”

The fly in the ointment regarding the dissent’s argument is the failure

to recognize that seeking redress from the legislature is fundamentally

different from seeking redress from the court. Every citizen has a

fundamental right to seek redress from the court because that is a core

function of the judicial branch of government. There is no fundamental

right to seek redress from the legislature because such is not a core

5 Our sister courts have commented in cases involving section 768.28(8),

Appellants’ “remedy is in the legislature, not the courts.” City of Live Oak v.

Harris, 702 So. 2d 276, 277 (Fla. 1st DCA 1997) (quoting Hellman v. City of

Orlando, 634 So. 2d 245, 246 (Fla. 5th DCA 1994)).

9

function of that branch. Within the judicial branch, an injured party has

a legal right to an award of damages if procedural and substantive law

principles are successfully maneuvered. There is no similar right within

the legislative branch.6 The concept of “legislative grace” espoused by our

supreme court in Gamble implicitly recognized the difference in core

functions between the two branches of government. That recognition

resulted in the rather forceful statement by the court in Gamble, that

“[p]arties cannot enter into a contract to bind the state in the exercise of

its sovereign power.” Gamble, 450 So. 2d at 853. Out of respect for the

separation of powers between the two branches, even considering the

statutory and legislative rule changes since Gamble, it is unlikely the court

would rule that the legislature’s ability to limit attorney’s fees payable out

of a claims bill award is unconstitutional because such power impacts

access to the courts.

Therefore, I agree with the majority opinion that unless our supreme

court changes course in its legal analysis regarding separation of powers,

arguments regarding impairment of contract, unconstitutional taking,

denial of due process and equal protection and all variations on those

themes are unpersuasive.

Affirmed.

CIKLIN, C. J., dissenting.

I respectfully dissent and offer my overall assessment of the crucially

important issues involved in this case, the ultimate resolution of which

will have deep and profound ramifications for many Floridians—and for

many years to come.

The instant appeal involves a claim bill passed by the Florida

Legislature granting Aaron Edwards and, in essence, his parents a

substantial sum of money as compensation for damages occurring

because of the negligence of Lee Memorial Health System (“the hospital”),

an entity with sovereign immunity, but yet effectively prohibiting the

Edwards’ attorneys from collecting anything but nominal fees and costs

connected with their services throughout the twelve years leading up to

the enactment of the subject claim bill. In 1999, Aaron’s parents and

Searcy Denney, et al. (“the firm”), entered into a binding contract which

6 It is also significant that the successful outcome of redress through the courts

is a judgment for damages, with no guarantee that money will ever be paid to the

claimant. The successful outcome of redress through the legislature is a sum of

money received by the claimant.

10

provided that the firm was to receive a defined percentage of any recovery

it obtained on Aaron’s behalf. The agreement included a reduced fee

provision in accordance with the limit on attorneys’ fees imposed by the

statute governing waiver of sovereign immunity in tort actions, section

768.28, Florida Statutes (1997). Pursuant to the contract, if the firm

obtained zero for Aaron, the firm would be compensated zero, without

regard to firm time expended or monies advanced. The Edwards and the

firm appeal the guardianship court’s denial of the firm’s petition seeking

approval of a closing statement which was in conformity with section

768.28 and a declaratory judgment relating to attorneys’ fees and costs

owed to the firm.

Because the claim bill’s limitation on attorneys’ fees and costs is an

unconstitutional impairment on the Edwards family and firm’s right to

contract, I would reverse. I have taken the liberty to also write to remind

the readers of this dissent and all Florida lawyers, that contingency fee

agreements are directly connected to every citizen’s right to access to our

courts. I cite to the Florida Code of Professional Responsibility which

contemplates the ethical and moral obligation of “us lawyers” licensed to

practice in this state, to always consider the contingency fee agreement as

the “poor man’s key to the courthouse.” Because of the enactment of

section 768.28, which now requires that aggrieved individuals first invoke

the civil process of law before even approaching the Legislature for

sovereign immunity relief, the “key” should be easily accessible. The right

to this key is rich and deeply rooted in American history and it is a judicial

time-honored duty and responsibility to protect the inalienable rights of

our people in this regard.

Legal Background

Pursuant to Article X, section 13 of the Florida Constitution, section

768.28, Florida Statutes was enacted as the first codification of the state’s

limited waiver of sovereign immunity in tort actions. Stated another way,

section 768.28 is the state’s consent to be sued. Pertinent to the issues at

hand, section 768.28 provided, and continues to provide: a limited waiver

of sovereign immunity for actions against the state and its agencies, the

possibility of additional compensation for injuries through legislative claim

bills, and a twenty-five percent maximum limit on fees for lawyers who

offer legal assistance.

In 1997, the year the subject cause of action accrued, the statute

permitted recovery of up to $100,000 per person and $200,000 per

incident or occurrence:

11

Neither the state nor its agencies or subdivisions shall be

liable to pay a claim or a judgment by any one person which

exceeds the sum of $100,000 or any claim or judgment, or

portions thereof, which, when totaled with all other claims or

judgments paid by the state or its agencies or subdivisions

arising out of the same incident or occurrence, exceeds the

sum of $200,000.

§ 768.28(5), Fla. Stat. (1997).7

Most notable from a statutory analysis standpoint, however, was this

legislative enactment’s first-time-ever-authorization and consent to be

sued by a private party. The statute was specific and empowering for

legitimately injured individuals:

[A] judgment or judgments may be claimed and rendered in

excess of these amounts and may be settled and paid

pursuant to this act up to $100,000 or $200,000, as the case

may be; and that portion of the judgment that exceeds these

amounts may be reported to the Legislature, but may be paid

in part or in whole only by further act of the Legislature.

Id. In giving its consent to be sued, the Legislature—also for the first

time—required that all aggrieved parties seeking just compensation

beyond the maximum amounts permitted by section 768.28, first obtain

an award of a civil judgment under the processes supervised by the courts.

The Legislature also contemplated the very real possibility that the newly

required “judgment or judgments” might exceed the statutory caps and

therefore authorized the aggrieved party to “report” and make a “claim” to

the Legislature as to the excess amount.

As a matter of fact, through its internal rule making process, the Florida

Senate went so far as to expand upon section 768.28, and while

consenting to be sued, created an unequivocal threshold. Pursuant to the

Rules of Senate, a claim bill may not be heard or considered by the Senate

“until all available administrative and judicial remedies have been

exhausted.” Senate Rule 4.81(6). In other words, while the Senate Rule

has acknowledged the new rights afforded by section 768.28 by permitting

a person to report a claim and seek just compensation, the Senate went

one step further and decided to shut out all aggrieved persons from the

7The statute was subsequently amended to allow liability of up to $200,000 per

person and $300,000 per occurrence. § 768.28(5), Fla. Stat. (2012).

12

Senate claim bill process until the person suffering damages first obtains

a judgment or other administrative final order. With that final document

in hand, the aggrieved individual is then permitted to navigate through the

claim bill process.

Finally, and perhaps most significant of anything, subsection 768.28(8)

implicitly (and presumably) recognized, for the first time, that an aggrieved

party might very well be foolhardy to enter into the complex legal world of

the now required civil negligence litigation (and subsequent claim bill)

process without full access to the courts through a lawyer/client

contingency fee agreement:

No attorney may charge, demand, receive, or collect, for

services rendered, fees in excess of 25 percent of any judgment

or settlement.

§ 768.28(8), Fla. Stat. (1997). The subsection, incidentally, which puts a

cap or “ceiling” on contingency fee contract compensation, has been held

by the Florida Supreme Court to be a constitutionally permissible limit on

attorneys’ fees. Ingraham v. Dade Cnty Sch. Bd., 450 So. 2d 847, 849 (Fla.

1984).

Factual Background

The firm represented the parents of Aaron Edwards, a child born with

catastrophic brain injuries in 1997 due to the overt negligence of the

hospital and its employees, in a medical malpractice claim against the

hospital. The firm entered into a standard contingency fee agreement with

the Edwards family, providing for an attorney’s fee of forty percent of any

recovery if a lawsuit was filed, plus costs. The contract appropriately

reduced the fee to the amount provided by law—the twenty-five percent

cap contained in section 768.28(8)—in the event the hospital was declared

a sovereign immune defendant.

After a trial lasting approximately five grueling weeks, the jury awarded

Aaron $28,310,544 in damages. Aaron’s mother was awarded $1,340,000

and his father was awarded $1,000,000. The trial court found that the

hospital was an “independent special district” of the state, and therefore

had sovereign immunity. Consistent with the damages limitation provided

for in section 768.28(5), the court entered a judgment against the hospital

in the amount of $200,000. On appeal, the judgment was affirmed and

the hospital did not challenge the amount of damages awarded by the jury.

13

At the behest of the firm and Aaron’s parents, a member of the Florida

Senate and a member of the Florida House of Representatives requested

that the Florida Legislature enact a claim bill to further compensate Aaron

and his family. After a highly protracted legislative process spanning a

two-year period, the Legislature passed Claim Bill 2012-249. The bill

directed the hospital to pay $15,000,000 “to the Guardianship of Aaron

Edwards, to be placed in a special needs trust created for the exclusive

use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, Laws of Fla.

The claim bill provided for an initial payment of $10,000,000 on or before

December 31, 2012, and for subsequent periodic payments of $1,000,000

each year through 2017. It also included the following provision, which is

the focal point of the issues raised in this appeal: “The total amount paid

for attorney’s fees, lobbying fees, costs, and other similar expenses relating

to this claim may not exceed $100,000.”

After a guardianship proceeding was instituted by Aaron’s parents, the

firm filed a petition requesting that the guardianship judge approve a

proposed closing statement that would have authorized an award of

$2,500,000 to the firm, which represented twenty-five percent in attorneys’

fees (and which would have included all costs and lobbying fees). These

payments, it was proposed by the Edwards family and the firm, would be

deducted from the initial claim bill payment of $10,000,000 to Aaron. The

petition before the guardianship court also sought a declaratory judgment

upholding the constitutionality of Aaron’s claim bill, but striking the

$100,000 attorneys’ fees and costs limitation as unconstitutional on its

face or as applied. The guardianship judge denied the petition, accepting

the attorney general’s argument that the claim bill was an “act of grace,”

thus entitling the Legislature to limit attorneys’ fees and costs payable to

the firm. In a conspicuously reluctant order, the guardianship court

recognized that the firm had provided “exemplary” legal services and that

fees of $100,000 were unreasonable where the firm had advanced

$500,000 in costs alone, but the court determined it was bound by two

cases, Gamble v. Wells, 450 So. 2d 850 (Fla. 1984), and Noel v. Sheldon J.

Schlesinger, P.A., 984 So. 2d 1265 (Fla. 4th DCA 2008).

On appeal, the appellants argue the fee-limiting provision of the subject

claim bill is in contravention of the Contract Clause of the United States

Constitution and that the cases the guardianship court relied upon,

Gamble and Noel, are not controlling. They seek severance of the fee-

limiting provision from the claim bill. The state responds by asserting that

the provision passes constitutional muster because claim bills are “acts of

legislative grace” and further that the fee provision is not severable.

Discussion and Judicial Review

14

I believe the primary issue for our review centers around the

constitutionality, vel non, of the subject claim bill provision limiting

attorneys’ fees and costs to $100,000, juxtaposed against the twenty-five

percent fee agreed upon in the contingency fee contract entered into

between the Edwards family and the firm.

This court’s constitutional responsibility to review the subject claim bill

at issue stems from and is deeply embedded in the doctrine of separation

of powers, under which the legislative branch of government creates laws

and the judicial branch reviews laws, including for purposes of

determining that the laws are constitutionally permissible. The role of the

judiciary in this process is known as judicial review, which is defined as

“[a] court’s power to review the actions of other branches or levels of

government; esp., the courts’ power to invalidate legislative and executive

actions as being unconstitutional.” BLACK’S LAW DICTIONARY 864 (8th ed.

2004).

The original idea of judicial review seems to have been

conceived primarily to preserve the integrity and uphold the

independence of the courts as against the other departments,

and to preserve and protect certain personal and private

rights, such as the right of trial by jury, which were thought

to be natural and inalienable.

Charles Grove Haines, Judicial Review of Legislation in the United States

and the Doctrines of Vested Rights and of Implied Limitations on

Legislatures, 2 TEX. L. REV. 257, 270 (1924) (footnote omitted). Describing

judicial review, commentators have explained that “because of its status

as a coordinate branch of government, the judiciary must refuse to enforce

unconstitutional laws in the course of performing its unique function of

deciding cases or controversies.” Saikrishna B. Prakash & John C. Yoo,

Questions for the Critics of Judicial Review, 72 GEO. WASH. L. REV. 354, 356

(2003).

Turning to the matter at hand, “judicial interpretation of statutes and

determinations concerning the constitutionality of statutes are pure

questions of law subject to the de novo standard of review.” State v. Sigler,

967 So. 2d 835, 841 (Fla. 2007).

Contract Clause

Pursuant to Article I, Section 10 of the federal Constitution, states may

not pass “any law that impairs ‘the Obligation of Contracts.’” Columbia

15

Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236, 243 (Fla. 4th DCA 2009).

Similarly, Article I, section 10 of the Florida Constitution provides that “No

. . . law impairing the obligation of contracts shall be passed.”

The Florida Supreme Court “has generally prohibited all forms of

contract impairment.” State, Dep’t of Transp. v. Edward M. Chadbourne,

Inc., 382 So. 2d 293, 297 (Fla. 1980). It has described the constitutional

bar on such impairments as a “wall of absolute prohibition.” Id. The court

has explained, “The fact that a law is just and equitable does not authorize

its enactment in the face of a constitutional prohibition.” Id.

The right to contract for legal services is a fundamental constitutional

right implicating strict scrutiny. Jacobson v. Se. Pers. Leasing, Inc., 113

So. 3d 1042, 1050 (Fla. 1st DCA 2013). “[W]hen a right to recover . . .

attorney’s fees (as damages or as costs) is provided by contract, such

contractual right cannot be constitutionally impaired by subsequent

legislation which attempts to restrict, expand, or eliminate that

contractual right.” Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518,

519 (Fla. 5th DCA 1987).

“In order for a statute to offend the constitutional prohibition against

enactment of laws impairing the obligation of contracts, the statute must

have the effect of rewriting antecedent contracts, that is, of changing the

substantive rights of the parties to existing contracts.” Manning v.

Travelers Ins. Co., 250 So. 2d 872, 874 (Fla. 1971) (citations omitted).

Where subsequent legislation impairs an existing contractual right,

“[c]ourts employ a balancing test which measures the level of impairment

against the public service to be served.” Fain, 16 So. 3d at 243. And, to

be sure, ‘“[a]n impairment may be constitutional if it is reasonable and

necessary to serve an important public purpose.’” Id. (quoting Pomponio

v. Claridge of Pompano Condo., Inc., 378 So. 2d 774 (Fla. 1979)).

This required balancing test has been described by the United States

Supreme Court as follows:

[T]he first inquiry must be whether the state law has, in fact,

operated as a substantial impairment of a contractual

relationship. The severity of the impairment measures the

height of the hurdle the state legislation must clear. Minimal

alteration of contractual obligations may end the inquiry at its

first stage. Severe impairment, on the other hand, will push

the inquiry to a careful examination of the nature and purpose

of the state legislation.

16

Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244-45 (1978)

(footnotes omitted).

[A] finding of a significant and legitimate public purpose is not,

by itself, enough to justify the impairment of contractual

obligations. A court must also satisfy itself that the

Legislature’s adjustment of the rights and responsibilities of

contracting parties [is based] upon reasonable conditions and

[is] of a character appropriate to the public purpose justifying

[the Legislature’s] adoption.

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 505 (1987)

(alterations in original) (internal quotation marks omitted).

Because Aaron’s claim bill substantially, if not entirely, impaired the

Edwards’ ability to perform their contractual obligation to pay attorneys’

fees amounting to twenty-five percent of their recovery, the balancing test

must clearly and obviously be applied. At the time Aaron’s parents and

the firm entered into their contract, the law provided for a maximum

contingency fee of twenty-five percent pursuant to subsection 768.28(8).

In accordance with the $15,000,000 appropriation to Aaron under the

claim bill, the bargained-for attorneys’ fees totaled $3,750,000 plus costs

which the record reveals to be approximately $500,000. The record further

reveals that, over a twelve-year period, the firm laboriously committed

thousands of pretrial, trial, and post-trial hours, culminating in

compensation for a severely brain damaged child caused by the outright

negligence of a medical provider. Yet, the claim bill proviso restricted and

limited attorneys’ fees and costs to $100,000—less than one percent of the

recovery achieved for Aaron. Certainly, an alarming, inexplicable, and far

cry from the 25% contractual fee and cost provision agreed to by the firm

and Aaron’s parents. The attorneys’ fee provision of the subject claim bill

delivers a substantial impairment of the contract between the firm and the

Edwards family, requiring this court to examine the nature and purpose

of the statute.

I believe the state has not shown that its draconian limitation on

attorneys’ fees and costs was necessary to accomplish some type of

“important public purpose.” It cannot be reasoned that the provision was

inserted to accomplish preservation of the State’s treasury, since the claim

bill provided that the attorney’s fees and costs would be deducted from the

total appropriation which total sum would ultimately be paid by the

hospital with its own funds.

17

Therefore, without a logical, practical, or otherwise discernable public

purpose, the fee limitation imposed in Aaron’s claim bill does not pass

muster under strict scrutiny. Simply put, the Aaron Edwards claim bill

contravenes the constitutional prohibition on the impairment of existing

contracts.

Gamble, Noel, and Legislative Grace

The state argues that the Legislature was within its rights to limit the

attorneys’ fees to the extent it did because the claim bill was an act of

“legislative grace.” It relies on two cases for support, Gamble and Noel, the

same two cases by which the trial court felt bound to deny both the petition

and declaratory judgment. For several reasons, Gamble is decidedly

distinguishable.

In Gamble, the plaintiff was in the custody of the State Department of

Public Welfare8 for a number of years and was injured due to the

department’s negligence. The plaintiff’s guardian entered into a

contingency fee agreement with an attorney. Because the defendant was

a sovereign entity and section 768.28 was not yet in effect,9 the plaintiff’s

only avenue for recovery from the welfare department was a direct appeal

to the Legislature through a claim bill. Because the arduous undertaking

of malpractice litigation was not contemplated, or for that matter even

permitted by the statute in effect when Gamble was decided, no lawsuit

was ever filed. Nonetheless, as a result of a legislative act of grace, no

doubt undergirded by a commendable sense of moral obligation, the

Legislature enacted a claim bill to compensate the plaintiff, and limited

any attorneys’ fees to $10,000. The attorney sought fees in the probate

court pursuant to the terms of the contingency fee agreement and was

awarded $50,000. On appeal, the district court reversed, finding that the

8 The State Department of Public Welfare was administered, along with twelve

district boards, by the State Welfare Board, which was created in 1937. These

agencies administered state and federal funding for social welfare services and

relief aid. The State Department of Public Welfare became the Division of Family

Services in 1969. Presently, family services are administered by the Department

of Children and Families. Fla. Dept. of State, State Archives of Fla.,

http://archivescatalog.info.florida.gov/default.asp?IDCFile=/fsa/detailsg.idc,SP

ECIFIC=1635,DATABASE=GROUP, last visited Apr. 1, 2015.

9 As a reminder, 768.28 now contemplates the plaintiff’s procurement of a

“judgment” and Senate Rule 4.81(6) requires it . . . or at least that “all available

administrative and judicial remedies” shall have been “exhausted” before a

plaintiff will even be permitted to enter into the uphill battle that is the claim bill

process.

18

attorneys’ fees limitation in the claim bill “amounted to an

unconstitutional impairment of a contractual obligation but that this

limitation was severable from the remainder of the private relief act.”

Gamble, 450 So. 2d at 852.

The Florida Supreme Court reversed, explaining that passage of the

claim bill was an “act of grace” by the Legislature and that as a “matter of

grace,” the Legislature could place limitations on any compensation it

allowed therein:

We disagree and hold that no contract rights were impaired

by section 3 of chapter 80-448 [the private relief act]. By

enacting chapter 80-448, the legislature found that a moral

obligation existed on its part to redress the physical and

emotional injuries of Cynthia Gamble sustained as a result of

the negligence of a state agency. This voluntary recognition

of its moral obligation by the legislature in this instance was

based on its view of justice and fair treatment of one who had

suffered at the hands of the state but who was legally

remediless to seek damages. Chapter 80-448 is an act of

grace to redress a wrong suffered by Cynthia at the hands of

the state which is not otherwise legally compensable. In

seeking to obtain relief for Cynthia by means of a private relief

act, [claimant’s attorney] was not in a position to demand that

the legislature grant compensation to Cynthia. He could only

request that the legislature grant the compensation sought.

The legislature then, as a matter of grace, could allow

compensation, decide the amount of compensation, and

determine the conditions, if any, to be placed on the

appropriation.

Parties cannot enter into a contract to bind the state in the

exercise of its sovereign power. The legislature had the power

to place the attorney’s fee limitation in chapter 80-448.

[Gamble’s attorney], by the terms of his contingent fee

contract with Gamble, could not deprive the legislature of this

power. The legislature was in no way bound to pass legislation

conforming with the provisions of the prior contingent fee

contract.

Id. at 852-53.

However, changes in the law and legislative procedure have rendered

Gamble distinguishable and inapplicable to the facts at hand. After the

19

cause of action accrued in Gamble and before Aaron’s family formally

entered into the subject contingency fee agreement, the Legislature

enacted section 768.28, which, for the first time, (1) afforded a limited

monetary waiver of immunity for tort actions; (2) required finality in an

official judicial or administrative proceeding as a condition precedent to

invoking the claim bill process; (3) recognized the possibility of a

contingency fee agreement in procuring the official judicial or

administrative final order by imposing a twenty-five percent cap as to any

attorneys’ fees payable under a contingency fee agreement; and (4)

provided for ultimate presentation to the Legislature for its consideration

when the newly required official administrative or judicial action exceeded

the limits of liability.

With the enactment of section 768.28, the Legislature’s exercise of its

prerogative to choreograph rights pertaining to sovereign immunity went

from a blank page with no codified rights, save for some undefined

historical doctrine, to a multi-step process for those who suffered damages

because of the negligence of a sovereign entity. It was in reliance on this

legislative action that the Edwards family and the firm came to a rock solid

agreement.

Unlike the instant case, where the Edwards family was permitted and

required to file a lawsuit and obtain a bona fide judgment pursuant to

section 768.28(5), the plaintiff in Gamble was not entitled—and thus had

no need—to seek relief and exhaust any remedies before going directly to

the Legislature. Because no statutory mechanism for sovereign immunity

relief existed for Cynthia Gamble, she could only recover through an

amorphous act of legislative grace as part of a private relief act. It was

against this backdrop that the supreme court held the claim bill in Gamble

was solely an act of legislative “grace to redress a wrong . . . at the hands

of the state which is not otherwise legally compensable.” Gamble, 450 So.

2d at 853. And that once an injured party requested relief, the Legislature

could, “as a matter of grace,” bestow compensation for damages suffered

by the victim and determine any conditions to place on the appropriation

made under the private claim bill. Id.

Interestingly and notably, since Gamble, the Florida Senate has gone

so far as to adopt its Rule 4.81(6), which provides in pertinent part, “The

hearing and consideration of a claim bill shall be held in abeyance until

all available administrative and judicial remedies have been exhausted . .

. .” As recognized by the trial court below, “[i]t is undisputed that under

the rules of the Florida Legislature, in force throughout the representation

of Aaron Edwards by [the firm], Aaron Edwards and his family were

20

required to exhaust all legal remedies before pursuing legislative relief to

recover damages in excess of the sovereign immunity limits of $200,000.”

Aaron’s road to a fair recovery was completely different from Cynthia

Gamble’s. Before making his pitch to the Legislature, Aaron was required

to first invoke all judicial and administrative processes perhaps because,

presumptively, policy makers recognized the efficient, fair, orderly and in

some cases, quite civic process involved in presenting a case to an

independent fact finding person or cross-section of the community. In the

case of a jury trial, the Legislature has called upon the citizens of our

communities to judge the claims of our peers through the civil jury

system—free of politics and in accordance with America’s sacrosanct jury

system. Or if a non-jury or other administrative matter is to be conducted,

one can only assume that the Legislature designed that process to likewise

give a fair and just hearing, leading to a final disposition based ideally on

the strict merits (or lack thereof) of any given claim.

Because of the sea change that occurred as a result of the Legislature’s

enactment of 768.25, Gamble’s “act of grace” reasoning is significantly and

necessarily altered. A would-be claimant is now required to undertake

formal judicial (or administrative) action before bringing his or her plea to

the Legislature.

Here, subsection 768.28(5) and Senate Rule 4.81(6) compelled the

Edwards family to seek a judgment before seeking a claim bill. That is,

colloquially speaking, the Edwards family was required to “lawyer up.” The

Edwards family complied with these requirements, and wisely obtained

counsel to assist them in doing so. See, e.g., Lawline v. Am. Bar Ass’n,

956 F.2d 1378, 1387 (7th Cir. 1992) (“[L]aypersons have a right to obtain

meaningful access to the courts, and to enter into associations with

lawyers to effectuate that end.”). Clearly, Aaron was able to procure the

necessary representation because of the exact wording of the Legislature’s

enactment of subsection 768.28(8). The Legislature advised the firm and

all lawyers similarly situated that contingency fee agreements between the

aggrieved party and legal counsel would be recognized and permitted albeit

with a 25% maximum legal fee.

The state urges us to consider the fact that this court echoed Gamble’s

reasoning in Noel, 984 So. 2d at 1267, well after the enactment of section

768.28. There, the plaintiff and her parents obtained a $6.5 million jury

award against the State Department of Health and Rehabilitative Services

arising out of a botched medical treatment. The Noels received $200,000,

consistent with section 768.28(5)’s damages cap. Subsequently, the

Legislature passed a claim bill appropriating $6.5 million for the plaintiff

21

and $2 million for her parents. The bill limited attorneys’ fees and costs

to $1,074,677. Against the parents’ wishes, their attorney sought to obtain

a charging lien against the appropriation for the balance of attorneys’ fees

owed under the contingency fee agreement. This court held the charging

lien could not be imposed against the claim bill:

A charging lien “is an equitable right to have costs and fees

due an attorney for services in the suit secured to him in the

judgment or recovery in that particular suit.” Rudd v. Rudd,

960 So. 2d 885, 887 (Fla. 4th DCA 2007) (internal citations

omitted). “[T]he lien will attach only to the tangible fruits of

the services.” Id. (citation omitted). “By definition, an

attorney’s charging lien cannot attach to property not involved

in the suit and not before the court.” Id. (quoting Cole v.

Kehoe, 710 So. 2d 705, 706 (Fla. 4th DCA 1998)).

Noel, 984 So. 2d at 1266-67. Our determination that the trial court erred

was largely, if not entirely, based on the fact that the trial court permitted

the attorneys for Noel to re-open the case to impose an attorneys’ fee

charging lien when the funds from the claim bill were never a part of the

stand-alone charging lien action before the trial court. And unlike the

instant case where the Edwards family protested the impairment of their

contract with the law firm, the Noel family did not object to the

Legislature’s limitation on fees. Noel’s reasoning remains sound because

the facts relating to the issue in that case—the improper charging lien—

were dispositive.10

In the final analysis, approval of a claim bill that impermissibly includes

an impairment of a constitutional right to secure counsel through a legally

binding contract now, for many reasons, transcends previous “act of grace”

analyses.

In sum, I would find that the attorneys’ fee provision as to Aaron’s claim

bill was unconstitutional as it acted as a substantial impairment on the

vested contract rights that the Edwards family enjoyed with the firm. And

equally as determinative, there was no significant, legitimate or otherwise

discernable public purpose for imposing the impairment. Instead, the

unconstitutional impairment of the fees and arbitrary cap on costs

10 While the single issue in Noel was the Noel lawyer’s attempt to attach an

attorney lien against the claim bill proceeds, the Noel opinion, in pure dicta, goes

on to discuss the legislatively-imposed limit being permissible due to the nature

of the claim bill as an “act of grace.” Id. at 1267.

22

advanced on Aaron’s behalf renders it a near certainty that the Edwards

family would not have been able to secure representation of their

abundantly meritorious—and their now legislatively required—claim had

they and the firm known at the time that their duly executed contingency

fee contract could be subsequently nullified by a legislative claim bill. The

impairment and actual evisceration of the subject contract is not permitted

under the United States Constitution or the Florida Constitution.

The Power of a Contingency Fee Agreement

Though often unfairly reduced to nothing more than a product of

barristerial greed, contingency fee contracts can and do serve a pivotal

function in our justice system. When put to their strongest and most

ethical purposes, contingency fee agreements are an essential part of

Florida’s legal assistance delivery system. In many circles, they are

considered sacrosanct vehicles through which injured persons of limited

means are given a key to the courthouse. In enacting section 768.28, the

Legislature, when considering waivers of sovereign immunity, demurred to

the judicial system’s legal process as a necessary first step before seeking

a sovereign immunity waiver from the Legislature. Automatically

therefore, that triggers the constitutional mandate that all citizens—rich

or poor—have the same “all access pass” to our system of justice.

Access to courts is a fundamental bedrock principle of our legal system

recognized by the Florida Constitution: “The courts shall be open to every

person for redress of any injury, and justice shall be administered without

sale, denial or delay.” Art. I, § 21, Fla. Const. This is as originally

constructed as it gets, with its roots in Florida’s constitution of 1838. See

Art. I, § 9 Fla. Const. of 1838 (“[A]ll courts shall be open, and every person,

for an injury done him, . . . shall have remedy by due course of law; and

right and justice administered without sale, denial, or delay.”).

The right of access to courts is deeply rooted in American history. As

was notably recognized in chapter 40 of the Magna Carta:

To no one will we sell, to no one will we refuse or delay, right

or justice.

See Henderson v. Crosby, 883 So. 2d 847, 851-52 (Fla. 1st DCA 2004)

(discussing the origin of the access-to-courts provision of the Florida

Constitution). And in Justice Bradley’s dissent in the Slaughter-House

Cases:

23

But even if the Constitution were silent, the fundamental

privileges and immunities of citizens, as such, would be no

less real and no less inviolable than they now are. It was not

necessary to say in words that the citizens of the United States

should have and exercise all the privileges of citizens; the

privilege of buying, selling, and enjoying property; the privilege

of engaging in any lawful employment for a livelihood; the

privilege of resorting to the laws for redress of injuries, and

the like. Their very citizenship conferred these privileges, if

they did not possess them before.

83 U.S. (16 Wall.) 36, 119 (1872) (Bradley, J., dissenting).

And in 1907, when the United States Supreme Court recognized the

right to seek redress as one of the most essential privileges of citizenship

in our country:

The right to sue and defend in the courts is the alternative of

force. In an organized society it is the right conservative of all

other rights, and lies at the foundation of orderly government.

It is one of the highest and most essential privileges of

citizenship. . . .

Chambers v. Balt. & Ohio R.R. Co., 207 U.S. 142, 148 (1907) (citations

omitted).

Indeed, Chief Justice Marshall, in delivering a unanimous opinion for

the Court, addressed the fundamental right to claim the protection of laws:

The very essence of civil liberty certainly consists in the right

of every individual to claim the protection of the laws,

whenever he receives an injury. One of the first duties of

government is to afford that protection. . . .

....

“[I]t is a general and indisputable rule, that where there is a

legal right, there is also a legal remedy by suit or action at law,

whenever that right is invaded.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 WILLIAM

BLACKSTONE, COMMENTARIES *23).

24

Courts have long recognized the ability to employ legal counsel as an

important part of the right of access to courts. Lawline, 956 F.2d at 1387

(interpreting United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n,

389 U.S. 217, 221–22 (1967) (holding “the freedom of speech, assembly,

and petition guaranteed by the First and Fourteenth Amendments gives

petitioner the right to hire attorneys on a salary basis to assist its members

in the assertion of their legal rights.”)). Additionally, the right of access to

courts has been interpreted to include a prohibition on the imposition of

unreasonable financial burdens that serve to obstruct individual access to

our courts. See generally Achord v. Osceola Farms Co., 52 So. 3d 699, 702-

04 (Fla. 4th DCA 2010).

Unfortunately, competent legal representation, effectively now

legislatively mandated for individuals like Aaron, necessarily comes at a

high cost. Clearly, there are people, such as the Edwards family, who

simply cannot afford to hire a counselor-at-law on an hourly rate, nor pay

the out-of-pocket costs of malpractice litigation.11 Thus, for those

economically disadvantaged individuals who have been quantifiably

injured at the hands of a clearly negligent party, an attorney who agrees

to enter into a contingency fee agreement may be a victim’s only option.12

11A recent essay published by Duke Law Magazine, cited alarming access to court

statistics:

It’s a sobering statistic: About 80 percent of the serious civil legal

needs of low-income Americans go unmet. Millions of people with

claims to assert, claims to defend, or both, simply never connect

with lawyers or obtain the legal help they need. Perhaps it is

because they don’t know their rights, because they don’t know how,

or because they can’t afford to pay an attorney and can’t find one

to work for free. Whatever the reasons, the results can be dire for

people in or on the edge of poverty . . . .

Frances Presma, Can We Close the Justice Gap?, 34 DUKE L. MAG. 20, 21 (2015).

12 Chief Justice Jorge Labarga recently launched the Florida Commission on

Access to Civil Justice to study “unmet civil legal needs of disadvantaged, low

income, and moderate income Floridians.” In re Florida Commission on Access

to Civil Justice, Fla. Admin. Order No. 14-65 (Nov. 24, 2014) (on file with Clerk,

Fla. Sup. Ct.). One of the tasks ascribed to the Commission is to, “[i]dentify and

build partnerships among the courts, members of the private bar, providers of

legal services, and other stakeholders who are engaged or interested in expanding

access to civil justice for disadvantaged, low income, and moderate income

Floridians.” Id. Presumably, this group of practitioners includes those attorneys

willing to take on low income clients pursuant to a contingency fee agreement

even though sometimes at a considerable, certifiable, and potentially huge

financial risk.

25

To that end, one would expect that contingency fee contracts are

directly related to the constitutional right of access to courts together with

ethical and moral obligations of lawyers. And in fact, they are. The Florida

Code of Professional Responsibility “expressly sanctions the contingent fee

arrangement” based on the rationale that it is the “poor man’s key to the

courthouse.” Fla. Bar in re Amendment to Code of Prof’l Resp., 349 So. 2d

630, 633 (Fla. 1977) (citing Ethical Consideration 2-20, Code Prof. Resp.).

“It is irrefutable that the poor and least fortunate in our society enjoy

access to our courts, in part, because of the existence of the contingent

fee.” Id. The costs associated with representing legitimately injured

plaintiffs in medical malpractice cases such as Aaron’s catastrophic brain

injury are exceptionally steep. This is obviously due largely to the unique

expertise required to prove causation and injuries in complex fact and law

situations.

Empowered by the contingency fee contract, individuals such as Aaron

and his family who are without economic means to pay attorneys’ fees and

advance the costs of litigation are able to bring their legislatively-mandated

claims without the concern of reimbursement for these fees and costs in

the event they do not prevail. Already facing substantial medical bills, had

the Edwards family been unable to find an attorney willing to enter into a

contingency fee arrangement, the hundreds of thousands of dollars

required to pursue this legislatively-required cause of action and thereby

access justice, would have been improbable at best.

Accordingly, I would also reverse the guardianship court on the basis

that the subject claim bill’s attorney’s fee limitation—and the majority’s

affirmation of this legislative proviso—has now invaded and will continue

to wreak a chilling effect upon the sacrosanct and fundamental

constitutional right to access to our courts—particularly for those

suffering damages at the hands of government. To require individuals to

first access our courts before availing themselves of the claim bill process

but then likewise creating an impediment toward that access is the

antithesis of our very essence of civil liberty. Certainly the Legislature did

not intend to amputate a person’s fundamental right of redress.

Severability of the Attorneys’ Fee Provision of the Claim Bill

Finally, this court must determine whether the constitutionally invalid

attorneys’ fee provision—as I believe it to be—may be severed from the

claim bill or whether it is essential to the bill’s operation. See Fla. Dep’t of

State, Div. of Elections v. Martin, 916 So. 2d 763, 773 (Fla. 2005).

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“Severability is a judicial doctrine recognizing the obligation of

the judiciary to uphold the constitutionality of legislative

enactments where it is possible to strike only the

unconstitutional portions.” Ray v. Mortham, 742 So. 2d 1276,

1280 (Fla. 1999). The doctrine of severability is “derived from

the respect of the judiciary for the separation of powers, and

is ‘designed to show great deference to the legislative

prerogative to enact laws.’” Id. (quoting Schmitt v. State, 590

So. 2d 404, 415 (Fla. 1991)).

Id. “The severability analysis answers the question of whether ‘the taint

of an illegal provision has infected the entire enactment, requiring the

whole unit to fail.’” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999)

(quoting Schmitt, 590 So. 2d at 415), holding modified by Cook v. City of

Jacksonville, 823 So. 2d 86 (Fla. 2002). Courts must be mindful of

legislative intent in determining whether a provision may be severed, and

“[i]f the legislative intent . . . cannot be fulfilled absent the unconstitutional

provision, the statute as a whole must be declared invalid.” Martin, 916

So. 2d at 773.

The claim bill provides in pertinent part:

An act for the relief of Aaron Edwards, a minor, by Lee

Memorial Health System of Lee County; providing for an

appropriation to compensate Aaron Edwards for damages

sustained as a result of medical negligence by employees of

Lee Memorial Health System of Lee County; providing a

limitation on the payment of fees and costs . . . .

....

The amount paid . . . [is] intended to provide the sole

compensation for all present and future claims arising out of

the factual situation described in this act which resulted in

the injuries suffered by Aaron Edwards. The total amount

paid for attorney’s fees, lobbying fees, costs, and other similar

expenses . . . may not exceed $100,000.

Ch. 2012-249, Laws of Fla.

The language of the claim bill clearly conveys that its sole purpose is to

adequately compensate Aaron. Thus, taking into account the intent to

redress the wrong committed upon Aaron and his parents’

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acknowledgement that their attorneys can be paid without adversely

affecting the required rest of life care for Aaron, I would find that the

unconstitutional attorneys’ fee provision is severable. The remainder of

the claim bill which, after the contractual fee deduction, amounts to

$11,250,000 does not prevent fulfillment of the remaining (constitutionally

sound) provisions including the stated legislative purposes of the bill.

Conclusion

The attorneys’ fee provision of the claim bill unconstitutionally impairs

the pre-existing contract between the Edwards family and the firm. The

Edwards family and the firm justifiably relied upon the enactment of

section 768.28 when engaging in the solemn right to contract. Although

the guardianship court relied on Gamble and Noel in denying the firm’s

petition for an award of attorneys’ fees, I strongly believe that both Gamble

and Noel are either clearly distinguishable, clearly not applicable, or both.

Finally, I would find that the attorneys’ fee provision may be severed from

the claim bill without frustrating the Legislature’s intent to generously

compensate Aaron. As a final reminder, I feel compelled to once again

state that Aaron’s parents—perhaps the two individuals who love him

most—have steadfastly insisted that the firm (their firm) be compensated

for over a decade’s worth of legal services and pursuant to a valid, arm’s

length, and Florida Supreme Court-approved contingency fee agreement

where the result, the risk of which the firm was contractually obligated to

assume, could have been zero.

Bedrock constitutional principles command all of us to closely

safeguard the basic right to contract but admittedly provide that a rare

exception may exist to permit government to impair a duly executed

agreement. If “reasonable and necessary to serve an important public

service,” an impairment of a contract can withstand the constitutional test

we are required to employ.

Here though, no apparent public service was served by obliterating the

contract between the Edwards family and their lawyers. The impairment

does not pass muster and is, I believe, therefore unconstitutional.

Finally, the attorneys’ fee provision of the claim bill unconstitutionally

sideswipes an individual’s fundamental right to Access to Courts. The

Legislature was clearly within its unquestionable prerogative to defer to

the courts to render judgment as a condition precedent to invoking the full

legislative claim bill process. That, one can argue, makes total sense on

many different levels. But the Legislature may not—in the same breath—

then restrict, delay, or deny access to the people’s judicial process, a

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concept firmly rooted in the basics of our beloved democracy. To do so is

unconstitutional.

I would reverse and remand for proceedings consistent with this

opinion.

* * *

Not final until disposition of timely filed motion for rehearing.

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