Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Florida Supreme Court overturns mandatory attorney’s fee schedule for workers’ compensation cases

Posted: April 28, 2016 Filed under: Case Law, Law-Related News

By a vote of 5 to 2, the Supreme Court of Florida today declared the  mandatory fee schedule in section 440.34, Florida Statutes, unconstitutional in Castellanos v. Next Door Company

This case asks us to evaluate the constitutionality of the mandatory fee schedule in section 440.34, Florida Statutes (2009), which eliminates the requirement of a reasonable attorney’s fee to the successful claimant. Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process.

Justices Canady and Polston dissented. Justice Canady began by stating “the majority fail[ed] to directly address the actual policy of the statute,” which he described as a “determination by the Legislature that there should be a reasonable relationship between the value of the benefits obtained in litigating a workers’ compensation claim and the amount of attorney’s fees the employer or carrier is required to pay to the claimant.” Justice Polston believes the majority opinion “has rewritten the statute to avoid the standard governing facial challenges.”

The opinion is available HERE.

Court Continues Trend of Enhancing Proposed Discipline

Posted: April 26, 2016 Filed under: Commentary, Law-Related News

With yesterday’s order in the case of Seminole County Judge Jerri Collins, The Supreme Court of Florida continues its trend of rejecting proposed discipline of lawyers and judges that the Court views as too light.
[T]he Court rejects the Stipulation and disapproves the proposed sanction. In addition to the public reprimand agreed to in the Stipulation, the Court would require successful completion of an anger management course and attendance at the domestic violence course offered during Phase II of the Florida Judicial College. Should the parties agree to these terms, a revised consent judgment shall be filed with the Court within thirty days of the date of this order.
If the parties do not agree to these terms, the parties must inform the Court within thirty days that they have not reached an agreement. In that event, this case (SC16-548) will be returned for a hearing before the Florida Judicial Qualifications Commission.
Read the Florida Supreme Court’s order HERE.

Incivility Yields Two Year Suspension

Posted: March 6, 2014 Filed under: Commentary, Law-Related News

THIS article for the Ethics and Professionalism Committee of the ABA’s Section of Litigation uses recent decisions by the Supreme Court of Florida to illustrate how lapses in professionalism — which were once thought to be gauche but not punishable — are increasingly providing the basis for disciplinary action. Lawyers work too hard to earn the privilege of practicing law to lose it as a consequence of being a cad.

I have represented and assisted lawyers facing investigation and discipline. The process is neither enjoyable nor quick. It can also be expensive. So, if bar disciplinary counsel knock on your door in Florida or Kansas, let’s talk.

New Lawyer Advertising Rules Adopted

Posted: January 31, 2013 Filed under: Case Law, Law-Related News

Today, the Supreme Court of Florida released the long-anticipated decision on The Florida Bar’s proposed advertising rules. If you have not read the court’s opinion, you should. You’ll find it HERE. Justices Pariente and Canady dissented separately; they feel the new rules go to far. In a substantial departure from the prior rules, lawyer websites and information provided upon request are now subject to the advertising rules. They are, at least, exempt from the filing and review requirements.

Agree or not, the fact of the matter is that the rules have been adopted. Noncompliance carries the risk of a grievance and disciplinary proceedings.

Overhaul of FRS Deemed Consitutional

Posted: January 17, 2013 Filed under: Case Law, Employment Law, Law-Related News, Legislation

Today, the Supreme Court of Florida overturned a trial court order that had declared a 2011 law overhauling the Florida Retirement System (FRS) unconstitutional. By a margin of 4 to 3, the supreme court ruled that the Florida Legislature had the constitutional authority to pass Chapter 2011-68, Laws of Florida, which “converted the FRS from noncontributory by employees to contributory, required all current FRS members to contribute 3% of their salaries to the retirement system, and eliminated the retirement cost-of-living adjustment for creditable service after the effective date of the act.” According to a footnote, the changes affect “55 state agencies; 396 county agencies; 67 school boards; 28 community colleges; 185 cities, 6 independent hospitals, 243 special districts (these last three categories include the 26 cities, 5 independent hospitals, and 12 independent districts that are closed to new members as of January 1, 1996); and 12 other public employers not specifically designated.”

The changes, which one of the majority justices described as “a 3% pay-cut in addition to years without cost-of-living adjustments,” were described more dimly by a dissenting justice as “an insufferable and unconstitutional ‘bait and switch’ at the expense of public employees who were members of the [FRS] prior to July 1, 2011.”

Decide for yourself which side has the better descriptor by reading the opinion in Scott v. Williams HERE.



Potential for Lower Take Home Pay in 2013

Posted: January 11, 2013 Filed under: Commentary, Law-Related News, Legislation

If your take home pay is lower in 2013, it’s probably because the two percent payroll tax cut for employees provided by the the Temporary Payroll Tax Cut Continuation Act of 2011 and the Middle Class Tax Relief and Job Creation Act of 2012 expired at the end of 2012. On a positive note, at least we had a little more money for a couple of years.

Talking About “Obamacare”

Posted: September 12, 2012 Filed under: Commentary, Employment Law, Law-Related News, Legislation, Uncategorized

Thomas Wade Young was recently honored with the opportunity to speak to members of the Central Florida Compensation & Benefits Association regarding the Patient Protection and Affordable Care Act (PPACA) – the law pejoratively or affectionately, depending on one’s viewpoint, as “Obamacare.” The talk was entitled PPACA & SCOTUS: It’s Constitutional. Now What?  The PowerPoint presentation and a list of online resources for further information are available at the following links.

PPACA Presentation Disclaimer-The presentation slides provide only an outline and do not reflect all of Mr. Young’s remarks. The presentation slides are not intended to be a substantive resource and should not be relied on as such.

Online Resources

Estate Planning in the Digital Age

Posted: July 25, 2012 Filed under: Commentary, Law-Related News, Uncategorized

Few people enjoy thinking about death, which explains why so many folks procrastinate when it comes to making and executing plans for the distribution of their estate following their own death. In this article, the American Bar Association raises an interesting question: “What happens to your online accounts, computer files and other ‘digital assets’ when you die or become incapacitated?” Think about it. Then plan accordingly.

“Obamacare” Survives Attack

Posted: June 28, 2012 Filed under: Case Law, Commentary, Law-Related News

In a 5-4 vote, with usually conservative-leaning Chief Justice Roberts casting the deciding vote, the Supreme Court of the United States has affirmed the constitutionality of the Patient Protection and Affordable Care Act, which is derisively or affectionately, depending on one’s perspective, known “Obamacare.” The opinion is HERE. The controversial individual mandate was upheld on the basis government’s third argument – that the mandate is a tax. As the Court notes in footnote 11 on page 44:

Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

The court did, however, restrict the federal government’s power to withhold existing Medicaid funding from states that fail to accept additional federal funds to expand the availability of health care. Seven members of the court agreed in that regard.

The four dissenting justices would have declared the entire Act unconstitutional.

Chief Justice Roberts provides an invaluable lesson regarding separation of powers and the role of courts on page two of the majority opinion. Thalia Burks, my high school civics teacher, lectured the same lesson many, many times.

In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that “the question respecting the extent of the powers actually granted” to the Federal Government “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). In this case we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess. Resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

Decision on Healthcare Will Create Issues

Posted: June 11, 2012 Filed under: Commentary, Law-Related News, Uncategorized

With the U.S. Supreme Court’s anticipated decision regarding the constitutionally of the law known, both affectionately and derisively, as Obamacare expected on or before June 30, many are awaiting anxiously. As with many things in life, the fix isn’t as simple as affirming the law in toto or finding the law unconstitutional in whole. This AP article highlights some of the effects employers, working families, seniors, and others can expect to encounter regardless of the outcome.

Admitted: Florida, Kansas, New Mexico (inactive)