Week 4: March 24 - 28, 2014
Weekly Legislative Session Updates
Week 4: March 24-28, 2014
The Legislature is inching toward the halfway point of the session as it completed its fourth week of business. Along with dozens of committee hearings and passage of hundreds of bills in those committees, each chamber is poised to put the finishing touches on its respective budget proposals.
House and Senate budget proposals for the 2014-15 fiscal year are not that far apart, with the Senate’s $74.9 billion plan just $400 million short of the House’s $75.3 billion plan. More importantly, the allocations in each budget category – education, health and human services, criminal justice, etc. – also similarly align. These figures suggest a smooth, and possibly quick, conference process.
As expected, this week many of the House subcommittees held their final meetings for the session. As the session crosses the halfway mark next week, expect a flurry of full committee activity followed by more and more time on the floor.
Following is a summary of the issues of importance to The Florida Bar.
Responding to drastic employee turnover in the court system statewide, the State Courts System has made pay equity and retention its top budget priority this session. A recently updated study indicates the average salary for a court employee is 12.59% below the average salary of other state employees in similar job categories.
This imbalance has resulted in turnover exceeding 50% in some circuits, and the loss of key managers and high performers. The imbalance also makes it difficult to develop and retain remaining employees to fill the knowledge and experience gaps, to keep the courts running efficiently for the benefit of the individuals and businesses that turn to the justice system for the peaceful resolution of disputes.
The State Courts System believes the salary imbalance exceeds $18 million but – in recognition of the considerable size of that request – has asked the Legislature to provide $9.8 million this year as part of a two-year implementation period.
UPDATE: The full Appropriations Committee of the Senate and the House approved their versions of the state budget, including the State Courts System budget. Good news. The Senate budget provides some authorization and funding for efforts to address the State Courts System’s pay equity issue. The House budget does not provide monies for this issue, but does contain $5 million for 21 new judgeships. Efforts will continue to convince both chambers to address a number of important court funding issues that are not included in either budget, including monies for: court reporting equipment; foreclosure backlog reduction; conflict counsel payments over the flat fee; and electronic transmission of judicial orders to clerks of court. Another important issue left unresolved is enhanced funding for state attorneys and public defenders to address pay issues for their employees similar to those encountered by the courts.
Next week the budget bills are expected to be debated and voted upon by the full chambers. Once completed, the stage will be set for conference committees to meet and negotiate their differing proposals.
UNAUTHORIZED PRACTICE OF LAW
Currently F.S. §454.23 makes the unlicensed practice of law (UPL) a third-degree felony. Both SB 1496 by Senator Greg Evers and HB 7039 by Rep. Mike Hill would exempt certain activities from the criminal penalties for UPL under that statute. Those exempt activities would be: pro se representation; serving as a mediator or arbitrator; providing services under the supervision of a lawyer in compliance with The Florida Bar’s Rules of Professional Conduct; providing services authorized by court rule; acting within the lawful scope of practice of a business or profession regulated by the state; the giving of a legal notice in the form and manner required by law – but do not include any notices required as part of a court proceeding or as required by court, or representation before a legislative body, committee, commission, or board.
Proponents of the legislation are concerned over the application of a criminal penalty for the “unlicensed practice of law” when that term is not defined in F.S. §454.23. But, separately, the bill does not appear to reduce or affect the current civil authority of the Supreme Court and the Bar to regulate UPL consistent with Article V, Section 15 of the Florida Constitution.
Although the criminal penalty in the statute is rarely – if ever – utilized, there is concern by The Bar that the legislation will cause confusion and may encourage bad actors to engage in even more creative instances of UPL and cause additional harm to Florida consumers.
The House staff analysis of HB 7039 recognizes that the Florida Supreme Court has the exclusive jurisdiction to regulate attorneys and the inherent jurisdiction to prohibit UPL. The analysis also states the exceptions listed in the legislation do not constitute a substantive change because the exceptions are a codification of existing rules, case law, and practices already recognized by the Supreme Court.
The Florida Bar opposes this legislation and adopted the following position:
“Supports the exclusive jurisdiction of the Supreme Court of Florida to define the practice of law in this state consistent with Article V, Section 15 of the Constitution of the State of Florida. In furtherance thereof, The Florida Bar opposes SB 1496 and HB 7039 in the 2014 Legislative Session.”
UPDATE: After hearing testimony from the Bar opposing SB 1496, and the community association managers supporting the measure, the Senate Judiciary Committee temporarily postponed action on the bill. Before taking the postponement action, the committee did adopt a strike-all amendment which clarified that the bill does not apply to that portion of the UPL state that provides a third degree felony for “holding one’s self out as a lawyer”. As amended, SB 1496 would only provide exemptions from the third degree felony provision for “practicing” as a lawyer in certain enumerated activities. The Bar is still concerned the legislation will allow bad actors to hide behind the enumerated activities and harm consumers.
During the committee meeting Senator Soto offered, but then withdrew, amendments to the bill that would have allowed the Florida Supreme Court to admit an applicant to The Florida Bar who was not lawfully present in the United States upon certification by the Florida Board of Bar Examiners that the applicant has fulfilled all requirements for admission.
Over on the House side, HB 7039 remains in the Judiciary Committee.
CIVIL LEGAL ASSISTANCE FUNDING
The Florida Access to Civil Legal Assistance Act (FACLA) was enacted in 2002 and passed overwhelmingly in a bipartisan vote, and signed into law by Governor Bush. The act provides legal assistance to the poor in a select and limited number of cases dealing with family law, juvenile law, entitlements to federal government benefits, including veterans’ benefits, protection from domestic violence, elder and child abuse, and immigration. None of the funds can be used for class action suits or to sue state or local government entities. The Legislature has funded the program each year in a range between $1 million to $5 million, but the appropriation has been vetoed by the Governor the last three years. We remain hopeful the Legislature will again fund the program and that the Governor will approve the appropriation this year.
UPDATE: Both the Senate and House budget bills contain funding for civil legal assistance funding – $2 million in the Senate budget bill and $1 million in the House budget bill.
STUDENT LOAN ASSISTANCE
SB 146 by Senator Jeremy Ring and HB 77 by Representative Jim Waldman - This legislation creates a student loan program for certain attorneys employed as an assistant state attorney, assistant public defender, assistant attorney general, or assistant statewide prosecutor. The attorney must have been employed at least 3 years, but not more than 12 years of continuous service as an eligible attorney. The purpose of the program is to provide financial assistance to eligible attorneys for the repayment of student loans. The amount of assistance provided would be determined each year by the Legislature but would provide annual maximum caps as well. Similar bills have been filed in past sessions but have not generated much momentum – evidencing the difficult part of balancing the benefits of this great program with other pressing needs of increasing base salaries and benefits. The bills have been referred to various committees but have not been placed on any agendas.
UPDATE: Neither bill was heard in committee this week.
DISABLED DEPENDENT CHILDREN - APPOINTMENT OF ATTORNEY
SB 972 by Senator Bill Galvano and HB 561 by Representative Erik Fresen - This legislation requires a judge to appoint an attorney for a dependent child with a suspected or known disability. The legislation is consistent with the Bar’s general position on children representation. Currently a court may appoint an attorney to represent a child in a dependency proceeding, but the representation is not mandatory. The proposal contains legislative findings that recognize there are already existing organizations that provide effective representation to children, and that funding under the bill is not intended to supplant existing monies.
The bills provide that their implementation is dependent on funding by the Legislature. The House staff analysis for HB 561 points out a December 2011 DOJ finding that the State of Florida had failed to provide for severely disabled, dependent children in accordance with the ADA. HB 561 passed the House Civil Justice Subcommittee (10-0) and is now in the House Justice Appropriations Subcommittee. SB 972 has not yet been heard.
UPDATE: Neither bill was heard in committee this week. However, SB 972 is scheduled to be heard by the Senate Judiciary Committee on Tuesday, April 1st.
PROSPECTIVE JUDICIAL VACANCIES
SJR 1188 by Senator Tom Lee. The Senate staff report summarizes this measure as follows: “This proposed amendment to the Florida Constitution would require the Governor to prospectively fill a vacancy that will occur due to a justice or judge reaching the mandatory retirement, failing to qualify for a retention election, or failing to be retained in office at an election. Currently, the Governor’s authority to appoint a Supreme Court Justice or district court of appeal judge does not manifest itself until the expiration of the sitting judge’s or justice’s term. Additionally, under the existing timeframes for filling a judicial vacancy, the potential exists for a judicial office to be vacant for 120 days after a vacancy occurs. Under the amendment, the existing timeframes for a judicial nomination commission to nominate individuals to fill a prospective vacancy begin at the conclusion of the qualifying period for retention or immediately following the general election in which the voters do not vote to retain a judge or justices. In some cases, the amendment will require an outgoing Governor to appoint an individual to fill a judicial vacancy that under current law may be within the purview of an incoming Governor.”
The sponsor of the measure, who is chairman of the Senate Judiciary Committee, argued the measure is needed to avoid constitutional confusion when, in January of 2019, due to mandatory retirement, the terms of three Supreme Court justices will end on the same day that an incumbent Governor leaves office and a new Governor’s term begins.
SJR 1188 passed the Senate Judiciary Committee March 11 on a 5-3 vote, with all 3 Democrats voting against the measure, and some of the members arguing the incoming Governor should make the appointments. No companion House measure has been filed as of yet. The Bar is monitoring this issue.
UPDATE: SJR 1188 was debated on the floor of the Senate on Wednesday. No amendments were offered to the bill. A few of the Democratic senators questioned the need for the bill and indicated they believed the proposed amendment should allow the incoming Governor to make these judicial appointments. The bill now moves to third reading and will be available for a full vote by the Senate. Proposed constitutional amendments must pass each Chamber by a 3/5 vote. There is no House companion legislation at this time.
Information on all bills of general interest within the profession can be found in The Bar’s “2014 Legislation of Interest to the Legal Profession” at this link: