Judge Ervin Co-Authors Amicus Brief in Support of Petitioner in Murray
The Honorable Richard W. Ervin, III, recently retired from his long tenure as a member of the First District Court of Appeal, has co-authored this amicus brief which has been filed in support of the petitioner in Murray v. Mariners Health and on behalf of Voices, Inc. According to the Statement of Interest contained in the brief, Voices, Inc., is "a nonprofit organization made up of injured workers and their supporters" whose purpose is "to guide injured workers and their families through the workers' compensation system and educate them to their rights under Florida law." Judge Ervin authored a concurring opinion in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006), another case where the First DCA considered, then rejected, a challenge to the 2003 amendment to §440.34. I thought it would be interesting to compare and contrast the arguments raised in the amicus brief with those expressed in his earlier concurrence while sitting as a member of the Court.
In his concurring opinion in Lundy, Judge Ervin argued that the 2003 amendment is probably constitutional on its face, noting that many states require the claimant to pay his own attorney's fees even in cases where he prevails:
I strongly doubt that the Florida worker's compensation attorney-fee statute, section 440.34(1), Florida Statutes (2003), could be subjected to a successful facial constitutional challenge,which requires the challenger to establish that no set of circumstances exists under which the statute could be determined valid in that such 'challenge considers only the text of the statute, not its application to a particular set of circumstances.' 932 So.2d at 510-11 (Ervin, J., concurring).
He also went on to note that the amendment could probably withstand an attack based on equal protection grounds:
Indeed, the attorney-fee statute challenged in the case at bar appears to be rationally related to further the goal of reducing the cost of workers' compensation premiums, which was one of the goals motivating the enactment of section 440.15(3)(b), Florida Statutes (1979), making employees ineligible for wage-loss benefits if they were eligible for Social Security retirement benefits. See Sasso v. Ram Prop. Mgmt., 452 So.2d 932 (Fla.1984). 932 So.2d at 511 (Ervin, J., concurring).
Judge Ervin also doubted whether a successful challenge could be mounted to the facial validity of the amendment on "access to courts" grounds:
I strongly question whether a challenger to the constitutional validity of section 440.34(1), as applied to any set of facts, could satisfy the Kluger test, because the legislature still provides the employee the right to pursue a workers' compensation claim against his or her employer, despite the modification of the employee's right to recover fees from the employer.
"More interesting," said Judge Ervin, "is whether the statute could be considered unconstitutional in its application to a given set of facts on the theory that it violates Florida's constitutional prohibition denying access to courts. Art. I, § 21, Fla. Const." 932 So.2d at 511 (Ervin, J., concurring)(emphasis added). Nevertheless, he doubted whether even this type of challenge would be successful:
In my judgment, it is possible, but highly unlikely, that such challenge might be successful, depending upon the evidence presented.
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Therefore, unless that right were rendered illusory by evidence disclosing that (1) in certain types of claims the worker could not realistically expect to obtain the assistance of counsel, and (2), if not, the worker could not plausibly be expected to prevail in the prosecution of his or her own claim, due to the complexity of the proceeding, I doubt very much that a sufficient showing could be made that the statute, as applied, violates the access to courts provision.
(Despite Judge Ervin's reservations, it is this precise argument which the Florida Justice Association has raised in its amicus brief filed in this case).
In his amicus brief for Voices, Inc., Judge Ervin steers clear of any "access to courts" argument, arguing instead that as a matter of statutory construction the 2003 amendment "should be understood as only limiting fees payable by a claimant to his or her lawyer" but that "when a fee is payable by the E/C. . . the amount of the fee must be 'reasonable' and not a strict percentage calculation." Voices brief, p. 8 (Emphasis added). This argument is slightly different than the one Judge Ervin raised in his concurring opinion in Lundy. There, he made no distinction between claimant-paid fees versus employer/carrier paid fees. Rather, he urged:
Because it is the judiciary's responsibility, whenever possible, to construe a statute so that it does not conflict with the constitution, I would ordinarily consider that any possible constitutional challenge could be obviated by simply interpreting the statute as ambiguous, thereby allowing a judge of compensation claims (JCC) the discretion to award a fee as reasonable, notwithstanding that such amount might exceed that permitted by the fee schedule provided in section 440.34(1). 932 So.2d at 511-12 (Ervin, J., concurring).
Alternatively, despite the skepticism he expressed in Lundy about constitutional attacks on the validity of the amendment, Judge Ervin suggests in his amicus brief that if the First District's construction of the statute is correct, the statute violates the claimant's right to due process and equal protection:
If this Court upholds the First District's statutory construction, the rational for such limitations [maximizing the amount of benefits available to a claimant versus sharing those benefits with his attorney] no longer exists and the statutory percentage law merely impede an injured worker from obtaining legal counsel. No defensible state interest can exist in unilaterally proscribing and restricting the right of claimants to negotiate and obtain legal services while leaving the employer/carriers free to contract with attorneys of their choice without restriction or limitation.
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In a system that restricts a claimant's ability to contract for attorney's fees but allows an E/C unlimited expenditure in defense of a claim with no right to exceed the fee cap in extraordinary cases, claimant's right to due process and equal protection have been denied. Voices brief, p. 13, 15.
Judge Ervin also suggests, as did Murray in her initial brief, that consistent with the Court's holding in Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986), the JCC should have the authority to award a reasonable attorney's fee to a successful claimant's attorney no matter what the legislature says in order to ensure that an attorney is not compensated in a manner which is "confiscatory of his time, energy, and talents." Makemson at 1115.
