Florida Supreme Court: Courts May Award Attorney's Fees in Excess of Statutory Caps
In what could be a foreshadowing of the court's eventual holding in Murray v. Mariners Health [Fla. S. C. Case No. SC07-244], the Supreme Court of Florida has held 4-3 that a statute which purported to place a cap on fees for attorneys representing death row inmates must be construed in a manner that ensures adequate representation of those inmates. See Maas v. Olive, decided on 9/25/2008.
Section 27.710, Fla. Stat., first enacted in 1998, authorizes the state to expend funds for private attorneys to represent death row inmates in postconviction proceedings. Section 27.711, Fla. Stat., however, caps the amount of fees that can be paid to such attorneys at various stages of the proceedings. For example, §27.711(4)(a) caps the fees at $100 per hour, up to a maximum of $2,500, for time expended "after accepting appointment and filing a notice of appearance." And §27.711(3) says that "[t]he fee and payment schedule in this section is the exclusive means of compensating a court appointed attorney who represents a capital defendant."
In 1999, Attorney Mark Olive filed a declaratory judgment action in which he challenged the fee caps, contending that he would have to work in excess of the statutory limit in order to represent his death row client effectively. The case eventually made its way to the Supreme Court of Florida, where the court held that notwithstanding the wording of the statute the "trial courts are authorized to grant fees in excess of the statutory schedule where extraordinary or unusual circumstances exist in capital collateral cases" (emphasis added). Olive v. Maas, 811 So.2d 644, 654 (Fla. 2002)("Olive I").
In response to the court's decision in Olive I, weeks later the Florida legislature enacted §27.7002, Fla. Stat. That section provided that "[t]he use of state funds for compensation of counsel appointed pursuant to s. 27.710 above the amounts set forth in 27.711 is not authorized." See §27.7002(5), Fla. Stat. Further, §27.7002(6) and (7) penalize an attorney who seeks compensation for services above the fee caps by permanently removing that attorney's name from the list of attorneys approved to represent such capital defendants.
In 2003, Attorney Olive filed a new complaint for declaratory judgment, this time contending: (1) that the newly enacted §27.7002 violated the courts' inherent authority under Art. V, Fla. Const.; (2) that §27.7002 violates the separation of powers provision in Art. II, Fla. Const; and (3) that death row inmates have a constitutional right to postconviction counsel. The case eventually made its way once again to the supreme court.
In its 9/25/2008 decision, the court noted:
In a long line of cases, we have consistently held that statutory limits for compensation of counsel may not constitutionally be applied in a manner that would curtail the trial court's inherent authority to ensure adequate representation.
The court also quoted its decision in Olive I:
As we explained in Olive I, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates an[ ] economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court.
It also made clear that to construe the attorney's fee statute in the manner argued by the state would render it unconstitutional under the separation of powers clause because it would interfere with the courts' ability to carry out its functions:
Maas argues that the rationale of Olive I is no longer valid because the Legislature enacted section 27.7002 to clarify its intent that the fee caps cannot be exceeded in any circumstances. While this may have been the Legislature's intent, such an interpretation of the statute would render it unconstitutional.
Of course, many of these are the same arguments raised by Emma Murray in her argument that the attorney's fee caps imposed by the 2003 amendment to §440.34 are unconstitutional. In fact, the separation of powers argument and Olive I were specifically raised in Murray's Initial Brief on the merits. Will the court use its 9/25/2008 decision in Olive to hold that a JCC may award attorney's fees to a successful claimant's attorney in cases involving "extraordinary circumstances"? Certainly there are differences in the two situations. Judges of Compensation Claims are not part of the judiciary, but are employees of the executive branch. And by any measure, a death penalty case, where a man's life literally hangs in the balance, is a more serious situation than is involved in a typical workers' compensation case. In addition, criminal cases present Sixth Amendment right to counsel issues that are not present in workers' compensation proceedings. On the other hand, Olive specifically noted that its reasoning had previously been used in cases involving only a statutory right to counsel. See Remata v. State, 559 So.2d 1132 (Fla. 1990). Stay tuned.
