Reading the Tea Leaves: What Does the Future Hold for the 2003 Attorney's Fee Amendment? (Part III)
(Cont'd from Part II)
SUPREME COURT REVIEW IN MURRAY AND BUITRAGO
In Murray, in addition to filing her notice to invoke the discretionary jurisdiction of the Supreme Court on 2/8/2007, she also filed with the Court a motion entitled “Motion to Determine Whether Jurisdictional Brief is Due and Motion for Extension of Time to Serve Jurisdictional Brief if Due.” (SC07-244). By order dated 4/17/2007, the court entered an order once again declining review on the basis of the certified question but ordering the parties to submit jurisdictional briefs “as to the validity basis only.”
So did the First DCA in Murray “expressly declare valid” the 2003 amendment to §440.34? The employer/carrier argued in their jurisdictional brief that it did not. Rather, they argued that the First DCA’s decision was in essence just a “citation PCA.” See Gandy v. State, 846 So.2d 1141, 1144 (Fla. 2003)(holding that “we do not have jurisdiction to review per curiam unelaborated denials of relief from the district courts of appeal that. . . merely cite to a case not pending on review in this Court, or to a statute or rule of procedure, and do not contain any discussion of the facts in the case such that it could be said that the district court ‘expressly addresse[d] a question of law within the four corners of the opinion itself’” (Emphasis added)). Though the First DCA’s Murray decision does note that the claimant’s constitutional challenges to the amendment were previously considered and rejected by the court in Lundy and Campbell, it contains no discussion of the facts of the case whatsoever.
Nevertheless, by their 4-3 vote we now know that at least four of the justices agreed not only that the First DCA’s decision in Murray did “expressly” declare the 2003 amendment valid, but that the Court should exercise its discretion and review the validity of the amendment on the merits. What we do not know at this point is whether the three dissenting justices believed that the First DCA’s decision did not “expressly” declare the amendment valid, i.e., whether they believed that the Court was without jurisdiction to review the decision, or whether they simply believed that the Court should decline to exercise its discretionary jurisdiction.
You might also be wondering why all seven of the justices participated in the decision to accept jurisdiction in Murray instead of five as in all of the other cases. The answer again lies in the Supreme Court’s Manual of Internal Operating Procedures. According to section II(A)(1) of the manual, in cases not involving a certified question, assuming that the clerk’s office determines that the case is not subject to administrative dismissal, the case is docketed, and when all jurisdictional briefs have been filed it is assigned to a panel of five justices. If at least four of the five panel members vote to deny discretionary review, an order is entered indicating such. If at least four of the five panel members vote to grant discretionary review, the Court will enter an order so indicating, along with an order directing the parties to file briefs on the merits of the case. See Fla. R. App. P. 9.120(f). If fewer than four of the five justices on the panel agree on disposition, the case is circulated to the other two justices. Therefore, because the decision on jurisdiction in Murray was rendered by all seven of the justices, we know that at least two (but not more than three) of the justices on the original panel voted to grant review, and at least two (but not more than three) of them voted not to grant review. How the fifth member of the original panel voted is impossible to tell.
You might also wonder why the Court chose to accept jurisdiction in Murray on the ground that the decision "expressly declare[d] valid" a state statute, when the claimant in Duprey made the same argument in her jurisdictional brief? I don't know the answer to that question. In addition, even though the claimant in Lundy didn't file a jurisdictional brief asserting the constitutional issues as a basis for jurisdiction, the Court could have addressed the constitutional issues if it had accepted the case for review. (Once the Court grants review, it is free to decide any issue presented by the case, not just the question certified by the district court). So why did the Court decline to grant review in Lundy if it wanted to address the constitutionality of the amendment? I don't know the answer to that question either.
In any event, the Court now seems poised to consider the constitutional validity of the amendment in Murray. (In Buitrago, the Court entered an order on 5/23/2007 staying further proceedings pending the Court’s disposition of Murray). What does this mean for the amendment’s future? (Cont'd in Part IV)
