Tort and lobbying issues make noise but little changes
Tort and lobbying issues make noise but little changes
Expect bills on both topics to be introduced next year
Gary Blankenship
Senior Editor
Two issues with potentially wide-ranging effects on many Florida Bar members were high profile battles in the legislature this year, but when the dust had settled, not much had changed.
But those involved in the disputes over lobbying disclosure legislation and attempts to change tort laws say both are likely to be back before lawmakers in their 2006 Regular Session.
The Florida Bar, which is restricted on the legislative actions it can take, did not take lobbying positions on either issue. But many lawyers closely watched the tort and lobbying conflicts as they could affect many practices around the state.
Many observers also saw the issues as linked, with Senate President Tom Lee, R-Brandon, championing more disclosure for lobbyists and House Speaker Allan Bense, R-Panama City, favoring more protections for businesses in defending tort actions. And because of the failure of the upper and lower chambers to agree, the lobbying bill and the bills making the most serious tort changes died on the last day of the session.
Rep. Dudley Goodlette, R-Naples, isn’t so sure there was such a solid connection.
“The fact of the matter is the House in any event did pass a bill that dealt with the subject matter of lobbying reform, but did not go as far as the Senate president wanted to go [in the bill originally passed by the upper chamber and sent to the House],” he said. “Therefore, the Senate did not take it up and pass it.”
Tort reform, on the other hand, was a hodge-podge of priorities of the House leadership and individual bills by House members.
“I think that the speaker of the House is a businessman and the members of the House are free to file six bills,” Goodlette said. “Many of the members of the House had an interest in tort reform or litigation reform measures.”
Bills requiring more medical proof of injury before filing, such as asbestos claims and giving electric utilities greater protection when streetlights fail, which were Bense’s priorities, did pass, he said, while another bill giving business owners greater protections from suits by victims of crimes committed on their property, also the speaker’s priority, failed, as did many other member-sponsored bills.
Lobbying
The lobbying bill proved to be a contest of the public’s right to know versus traditional privacy privileges. And it was particularly ticklish for lawyer/lobbyists.
“I think it would have been important for the press and public to see what the real impact of money in that political process is,” said Ben Wilcox, head of the Florida Chapter of Common Cause, and a supporter of Lee’s lobbying proposals. “We’re not really getting an accurate picture with what is required now for lobbyist disclosure.”
Wlicox noted there were some criticisms that the Senate bill could cause problems, including some claims that if one lawyer in a firm did lobbying, then every attorney in that firm could be forced to reveal what clients paid, even for lawyers who did no lobbying and for clients who hired the firm for nonlobbying work.
“I realize that in the first draft of the bill, that scenario was raised as a potential problem,” Wilcox said. “I believe that problem could be dealt with; I saw it more as a red herring.
“I’m hoping that Sen. Lee will come back and take another shot at it. Maybe we can have a dialogue with lobbyists who were open to the changes. Maybe we can come forward with some compromise legislation that will move the state forward and be comparable to what other states require.”
Tallahassee attorney and lobbyist Wade Hopping said it wasn’t so much that he objected to having to report more information to the state on his lobbying activities, but that he thought much of the information that would have been required by the Senate was either confusing, impractical, or useless.
“I wish there were more give-and-take on the mechanics,” he said. “I respect the right of the legislature to fix the policies, but many, many times, on many pieces of legislation, it’s not what the legislature wants to do, but how they do it. I would hope there would be more dialogue on how to do it.”
Hopping said problems he saw included that reporting periods were changed, and the annual regular sessions would be split into two separate reporting periods. That would make it difficult to compile the information lawmakers said they were trying to make more available to the public, he said.
There was also a lack of clarity about determining what was important information. Hopping said sometimes his and other firms are hired to do both legal and lobbying work for a client, and determining where the line falls can be done, but it might waste time and resources.
Likewise there may not be a direct relationship between what a client pays and what a lawyer-lobbyist earns, Hopping said. At his firm, his compensation comes from a pool into which all of the firm’s fees go and from which are paid its expenses and overhead. Thus, a lobbying client paying a hefty fee to the firm for Hopping’s services might have little if any direct impact on Hopping’s final compensation. He noted that only five of the 37 attorneys at his firm do significant lobbying, although a few others are registered but primarily provide expert testimony at legislative hearings.
“How much does the public have a right to know and what form should that be so it’s useful in making decision?,” Hopping asked. “The other part is what do they have a right to know about my compensation?”
Among the differences between the House and Senate final versions of the lobbying bill were:
• The Senate would require lobbyists to report individual expenditures for food and beverages and for whom the expenditure was made; the House deleted that provision.
• The Senate would require reporting all contributions to a political party, which in turn could be forwarded to a legislator as an indirect gift. The House deleted that provision.
• The House required reporting only categories of income by lobbyists unless the dollar compensation exceeded $150,000 per semiannual reporting period. The Senate required exact dollar reporting of a lobbyist’s compensation from an employer if the total compensation exceeded $45,000 in a quarterly reporting period.
• The Senate would have the auditor general audit 3 percent of all lobbying firms annually, while the House version did away with the auditing requirement.
• The House would require semiannual reporting, while the Senate would mandate quarterly reporting.
• The Senate would require a lobbyist submitting a report to certify it is complete and accurate, while the House would require certification that it is complete and accurate to the best of the filer’s knowledge.
Tort Bills
Alexander Clem, president of the Academy of Florida Trial Lawyers, said the deluge of tort bills — most of which did not pass — came from both legislative leaders and a variety of business interests. He speculated those interest groups are rushing to push business-friendly tort bills before the 2006 elections, and while the House, Senate, and governor’s mansion are all controlled by Republicans. Clem argued that more laws aren’t needed.
“The state of Florida and its citizens have been tort-reformed to death over the past 10 years,” he said. “There has not been any demonstrable need for any further restrictions or elimination of the people’s constitutional right to pursue redress when they’ve suffered catastrophic injuries.”
But George Meros, who has lobbied on tort issues for years, said the legislature is slowly “making common sense reforms” and restoring fairness to the tort arena. He says more needs to be done.
“There remains areas of inequity in Florida law that other states have reformed and it is high time we reformed,” Meros said. “Joint and several liability needs to be fully repealed, and the other areas that were at issue in this session I’m sure will be discussed and at issue next year.”
Meros said “significant progress” was made this year in the areas of class actions, slip and fall, and product liability matters — all of which will be revisited next year.
Of the bills that did pass, one gives power companies more protection from suits related to streetlight failures. Those companies will now have 60 days after they are notified to fix such a problem before they would be liable for damages, Clem said.
Likewise, another bill gives asbestos companies greater protection, by requiring those exposed to asbestos show an injury before being allowed to file suit, Meros said.
“What this bill will do is require a screening to show actual physical injury,” Meros said, adding those exposed to asbestos who do not show physical impairment now, but show physical impairment in the future, will still be able to sue and the statutes of limitations will be tolled until evidence of impairment is detected.
Another bill that didn’t pass would have given business property owners greater protections from lawsuits from victims of crime committed on their properties. Clem said a major sticking point was business owners wanted the criminal listed as a defendant on the jury verdict form, but lawmakers failed to go along with that provision. Meros said the holdup was due to a misunderstanding that the bill would have immunized property owners or that it somehow would have a negative impact on crime prevention.
Bills aimed at restricting lawsuits based on product liability and class actions claims also failed, in part, Clem said, because the agriculture industry and others realized they would have to pursue such claims in federal court, making those actions more expensive and time-consuming.
Other failed bills would have given radiologists more protection from lawsuits, limited damages for teaching hospitals, and given nursing homes some protections if they guaranteed a certain minimum liability standard.
Clem said the academy also saw as part of the tort battles legislation to implement amendments 7 and 8 approved by voters last November. The former gives patients and potential patients more access to adverse incident reports and other medical records, while the latter requires removing the license of any doctor found to have committed three acts of malpractice. The legislation to carry out those amendments “gutted” their intent, Clem said, adding, “Our expectation is we do go to court to reinstate amendments 7 and 8.”
“Florida lawyers ought to look at the reality of it rather than the spin,” Meros said. “Look at it from the perspective of do the reforms make good common sense, are they fair. And, if so, we as lawyers should always advance the social interest of making our laws fairer and more predictable to the common person, regardless of whether we are financially impacted by it.”
