Claimant's Initial Brief filed in Murray v. Mariners Health (Part II)
(Cont'd from Part I)
Here's my summary of the claimant's arguments before the Supreme Court:
- STATUTORY CONSTRUCTION
(1) The limitation on attorney's fees is contained in subsection (1) of §440.34. However, it is subsection (3) of §440.34 which governs the award of fees to be paid to the claimant's attorney by the employer/carrier, and that subsection contains no percentage cap on the amount of fees which may be awarded. Therefore, subsection (1), with its percentage caps, applies only in instances involving a joint stipulation for a lump-sum settlement, or a stipulation by the claimant to pay his own attorney a fee. It does not apply where the employer/carrier is ordered to pay the claimant's attorney a fee under the circumstances enumerated in §440.34(3).
(2) As Judge Ervin noted in his concurring opinion in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 542 (Fla. 1st DCA 2006), application of the percentage limitations to carrier-paid claimant's attorney's fees would produce results not intended by the legislature, such as mandating a percentage fee for attorneys who successfully defend a compensation award on appeal, or who obtain an order enforcing a previous compensation award, or who obtain an order modifying a previous compensation award, when a fee has already been paid for securing those benefits.
(3) In Makemson v. Martin Co., 491 So.2d 1109 (Fla. 1986), the Florida Supreme Court held that §925.036, Fla. Stat., which set maximum fee limitations for attorneys appointed by the court to represent indigent criminal defendants, was unconstitutional as applied and that the courts have the inherent power to allow fees in excess of the maximum allowed by the statute in "extraordinary and unusual" cases. [In Makemson, the court-appointed attorney had expended a total of 248.3 hours representing an indigent criminal defendant, yet his fees were capped by the statute at only $3,500.00, an effective hourly rate of $14.10]. The judges of compensation claims should have similar authority in workers' compensation cases.
- EQUAL PROTECTION
The 2003 amendment violates the equal protection clause of the state and federal constitutions because it treats claimants differently than employers or carriers. There is no "corresponding cap" on fees which may be paid to attorneys representing the latter group. And the constitutionality of the amendment should be considered under the "strict scrutiny" standard rather than under the "rational basis" standard because it affects a "fundamental right" of the claimant, i.e., his right under Art. I, §2, Fla. Const., to be "rewarded for industry." Under the "strict scrutiny" standard of review, the statute is presumptively unconstitutional unless it is justified by a "compelling state interest," and there is no such interest here.
In Horne v. New Mexico Educators Federal Credit Union, 889 P.2d 234 (N.M. App. 1994), the New Mexico Court of Appeals held that a similar cap on claimant's attorney's fees under the New Mexico Workers' Compensation Act violated the equal protection clause because there was no corresponding limitation on the amount of fees which the carrier could pay to its own attorney.
- DUE PROCESS
- Substantive due process
The 2003 amendment deprives the claimant of his substantive due process rights because it creates an "irrebuttable presumption" that the percentage fee is a "reasonable" fee. See Recchi America, Inc. v. Hall, 692 So.2d 153 (Fla. 1997)(holding that the drug-free workplace statute, which created an "irrebuttable presumption" that the post-accident presence of drugs or alcohol in the claimant's system was the cause of his accident, amounted to a deprivation of the claimant's right to due process).
2. Procedural due process
The 2003 amendment deprives the claimant of his procedural due process rights because by impairing, if not completely eliminating, the claimant's ability to retain competent counsel, the amendment deprives the claimant of any meaningful opportunity to be heard.
- ACCESS TO COURTS
Art. I, §21, Fla. Const., which guarantees citizens the right to "access to courts," is violated when a statute obstructs or infringes upon the right to any significant degree. By severely impairing, if not eliminating, the ability of claimants to retain competent counsel to represent them in workers' compensation proceedings, the 2003 amendment denies them access to the courts.
- SEPARATION OF POWERS
Art. II, §3, Fla. Const., divides the powers of the state government into the legislative, executive, and judicial branches and prohibits any person belonging to one branch from "exercis[ing] any powers appertaining to either of the other branches. . . ." Art. V, §1, Fla. Const., vests judicial power in the courts. And Art. V, §15, Fla. Const., grants to the Florida Supreme Court the exclusive jurisdiction to regulate attorneys.
In Makemson, the Florida Supreme Court invalidated the cap on fees paid to court-appointed lawyers representing indigent criminal defendants because it was an impermissible legislative intrusion upon an inherent judicial function, i.e., to ensure adequate representation of the criminally accused. Likewise, the 2003 amendment impinges upon the court's inherent power to oversee attorneys by depriving the courts of a final independent review of attorney's fees.
This "separation of powers" rationale has been employed by the courts in the states of Delaware and Minnesota to invalidate caps on attorney's fees in those states. See Joseph v. Oliphant Roofing Co., 711 A.2d 805 (Del. 1997); Irwin v. Surdyk's Liquor, 599 N.W.2d 132 (Minn. 1999).
