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The Feb. 9 decision by a state trial judge in Tallahassee declaring Florida’s 1999 tort liability relief law unconstitutional faces even-money odds of being overturned on appeal, legal observers say. The law, which set new time restrictions for filing suits, capped damages and expanded the legal defenses available to defendants, offered a broad package of relief to businesses ranging from rental car companies to building contractors. It also permitted jurors to take notes and submit written questions during trials. But Circuit Judge Nikki Ann Clark in Leon County called the law “a classic case of log-rolling.” She found that it failed to meet the state constitutional requirement that all laws enacted by the Legislature “embrace but one subject.” The ruling was a setback for Gov. Jeb Bush and the state of Florida, the defendants in the lawsuit — which was filed by the Academy of Florida Trial Lawyers — and several public interest groups two months after the law took effect in October 1999. It also was a defeat for the Republican-controlled Legislature, which passed the bill, and for business groups like the National Federation of Independent Business, which championed it. The plaintiffs included the National Organization for Women and the Florida AFL-CIO. The plaintiffs claimed that the law was unconstitutional because it was written to insulate special interests from liability at the expense of citizens’ right of access to the courts, due process and equal protection. Clark’s nine-page opinion left most of those constitutional arguments for another day. It addressed only the claim that the bill incorporated too many unrelated issues to pass constitutional muster. William “W.C.” Gentry, who represented the plaintiffs, says Republican lawmakers and business lobbyists have only themselves to blame for Clark’s single-subject ruling. “It was a feeding frenzy by all these special interests,” says Gentry, a partner at Gentry Phillips and Hodak in Jacksonville. “A classic hodgepodge bill where everybody at the trough got a little something.” George Meros, a partner at Gray Harris & Robinson in Tallahassee, disagrees. He represented business groups, including the Florida Chamber of Commerce, Associated Industries of Florida and the Florida Retail Federation, which intervened in the case. Meros says the 1999 tort law package is no broader than previous tort reform packages that survived both single-subject scrutiny and broad-based constitutional attacks in court. “We respectfully disagree with Judge Clark, and we have every confidence that [her ruling] will be reversed,” he says. Case law on the single subject rule, he says, requires the courts to broadly construe the concept so as not to subvert the will of the people. And, he notes, legislators closely considered the case law before the bill was enacted, and examined each provision’s relationship to the whole. “No bill has ever been more carefully vetted than these provisions,” he says. But lawyers and law professors knowledgeable about the single-subject rule say judicial application of the rule to legislation can be subjective. Thus, they say, the state’s appeal before the 1st District Court of Appeal, and, ultimately, the Florida Supreme Court, could go either way. “The cases on single subject are all over the place,” says Parker Thomson, a partner at Thomson Muraro Razook & Hart in Miami, who represented the intervening business groups. Ken Vinson, a Florida State University professor who teaches torts and constitutional law, agrees. “It’s very difficult to define what you mean by single subject,” says Vinson, who is not involved in the case. “It’s a very abstract idea.” The subjective nature of the rule, Vinson says, means there is the opportunity for judges to be influenced by their feelings about the merits of the underlying issue. “If [judges] are dealing with a piece of legislation they’re not very excited about, single-subject simply gives them a tool — a weapon they can bring out selectively.” Florida solicitor general Tom Warner is representing the state. As house judiciary committee chairman, he helped draft the tort law changes in 1998. Warner says Clark’s ruling signals very little about how the case ultimately will be resolved. “In issues this big, it’s never all done or over within just one event,” Warner says. “I certainly expected that there would be court battles and appeals.” Even if Clark’s ruling on the single-subject issue is upheld on appeal by the appeals court or the Florida Supreme Court, Warner believes the problem can easily be remedied by the Legislature. He says he’ll urge lawmakers to repass the law with stronger language describing the relationship of each provision to the overall purpose of the bill. If that happens while the appeal is pending, Warner says he’ll argue the single-subject challenge is moot. If the defendants succeed in getting Clark’s ruling reversed, the plaintiffs could face their own procedural hurdles. While she ruled for the plaintiffs on the single-subject rule, Clark denied the state’s motion to dismiss. The state had argued that the lawsuit should never have been allowed to proceed because the suit was filed as a “declaratory action,” and was not brought on behalf of any injured party actually affected by the law. But Clark wrote: “The nature of the allegations go to the heart of the plaintiffs’ rights, status and other equitable and legal relations. Litigation of these issues is unavoidable and as such, a declaratory proceeding is proper.” If such claims for declaratory relief are routinely allowed, Warner cautions, every time the legislative session ends, everybody who doesn’t like a law could file a suit asking the courts for an opinion on its constitutionality. Gentry calls the issue “bogus” and says it was argued at great length before Clark, who concluded that the claim lacked merit. “We are the representatives of consumer groups who are now and who will be affected by this legislation,” he says. “And the state of Florida is a proper defendant.” In the state’s motion for dismissal, Warner also argued that the lawsuit was technically defective in naming the state as the defendant, since the state was not charged with enforcing the 1999 tort law. An appeal of Clark’s ruling is expected to be filed with the 1st DCA within days, according to lawyers for both the defendants and the intervenors. Academy of Florida Trial Lawyers general counsel Paul Jess says the plaintiffs will ask the 1st DCA to pass the appeal directly through to the Florida Supreme Court, since that is where it will be ultimately decided.

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