Florida: Courts often have final say in legislative process


By Marianela Toledo | Florida Watchdog

MIAMI —Approve it and see you in court.

In recent years new laws enacted in Florida are being challenged in court and are ending up costing taxpayers a bundle in legal fees.

LEGAL COSTS RISE: Kevin M. Wagner, a FAU Professor, says increasingly courts are used as a means to contest loses in the legislative arena. “It is possible that it’s being driven by the increasing inability of the political parties to work together,” he said.

Defending just four laws signed into law in 2011 already has cost taxpayers more than $171,000 in legal fees. And figuring in the new retirement plan law, which requires state employees to contribute a percentage of their salary to their retirement plan, this number could soar even higher.

Putting a law on the books is no easy task. The legislative maze starts the moment the bill is introduced. From there it must navigate its way through a complicated and time-consuming process including committee review, Senate and House debate, lobbyists influence, and end with the Governor’s signature. At least that’s how it is supposed to work.

But increasingly, these newly enacted laws are being challenged in court.

Case in point: In September 2011, Luis Lebron, a 35-year-old Navy veteran, single father, and a University of Central Florida student, with the help of the American Civil Liberties Union, sued the state over the new law requiring drug testing of all welfare applicants stating that it violated the Fourth Amendment.

The state appealed and its brief is due in the 11th Circuit on May 5, the ACLU confirmed. Cost to taxpayers so far: More than $100,000 and counting.

In another example, a bill that was sponsored by Sen. Tom Lee R-Brandon, and Rep. Matt Gaetz R-Fort Walton, which allows for private conversations about a patient’s medical condition between defense attorneys and a third party without the patient or the patient’s attorney present, according to redstate.com.

Attorneys from around the state file legal challenges on the constitutionality of that bill, alleging the new law is a violation of the right to privacy as guaranteed by the Florida Constitutio, and the federal Health Insurance Portability and Accountability Act.

In the case Murphy v. Dulay, Federal Court Judge Robert Hinkle issued an order holding the communication provision of the 2013 legislation invalid, writing that it was pre-empted by federal HIPPA laws.

The tab for taxpayers was $ 7,880.60.

In another example, a bill signed into law June 2012 by Gov. Rick Scott restricting companies with operations in Cuba or Syria from doing business with the state or any of Florida’s local governments was challenged by Odebrecht USA, a Brazilian construction firm based in Coral Gables. The court sided with the contractor saying they were free to do business with whomever they wished.

Taxpayers take the hit even when the courts side with lawmakers.

When a group of acupuncturists, chiropractors and therapists challenged a law that threatens their livelihood by excluding them from the list of personal-injury-protection providers and preventing them from being paid for treating injured drivers, the cost to taxpayers was more $15,000.

Florida teachers are joining the bandwagon and taking the evaluations fight into the courtroom. The teacher-evaluation system, based on test scores, that was approved in 2011 by the Legislature is being challenged by the Florida Education Association. Cost so far: $37,800

Kevin M. Wagner, a lawyer and associate professor of political science at Florida Atlantic University, said courts increasingly are used to contest loses in the legislative arena. He said the frequency of such challenges has risen over the years.

“It is possible that it’s being driven by the increasing inability of the political parties to work together,” he said.

Wagner said that historically, legislation has been a collective endeavor and not a zero-sum game.

“Even the minority party would get something they wanted in major legislation,” Wagner said.

But today, he explained, the majority takes all and the minority is left with nothing. They see litigation as the only way to be heard.

“This is especially evident in Florida where Democrats and the traditional supporters of the Democratic Party, such as teachers, advocates for the disadvantaged and environmentalists have seen their influence on the legislative process sharply reduced,” he said.

Legal challenges to laws aren’t unusual in Florida. Former Gov. Charlie Crist was sued by the Legislature — successfully — over a gambling compact he negotiated with the Seminole Tribe. And in 2010, several lawsuits overturned proposed constitutional amendments that Republican lawmakers had wanted on the ballot, according to SunSentinel.

Former Gov. Jeb Bush also tangled with the Florida Education Association over his school-voucher program.

Contact Marianela Toledo at Marianela.Toledo@FloridaWatchdog.org or on Twitter @mtoledoreporter

Please, feel free to “steal our stuff”! Just remember to credit Watchdog.org. Find out more