In a sparsely written, four page order (the listing of the attorneys involved in the case seems longer than the actual opinion), the First DCA affirmed the JCC’s opinion, thereby rejecting the Claimant bar’s arguments that the 7/1/09 changes to the fee statute are unconstitutional.

You can read the entire opinion here. Analysis after the click.

First, the opinion, Kauffman v. Community Inclusions, has no legal analysis at all. The Court does reject the rather weak argument that 440.34 requires Judges to “award” fees, therefore the strict statutory fee scheme is unconstitutional since under the new law the Judges only now “approve” of fees. I was never impressed with this argument since the Judges still have the power to award fees. The problem for Claimant’s has never been the award but the amount.

Second, the Court rejects the constitutional arguments of equal protection, due process, and access to courts. But, it does this rather cursory. All the Court does is confirm that while Emma Murray rejected the First DCA’s previous rulings regarding statutory construction of 440.34, the Supreme Court never addressed the constitutional arguments in Murray. Therefore, the First DCA’s prior opinions–that 440.34 does not violate the US Constitution–stands.

Beyond that ruling, the First DCA does not re-address those specific rulings. I mean, I am all for brevity, but it is odd that the Court does not even describe its ruling. Granted, they expounded on this issue in prior rulings, but isn’t this issue important enough that it reiteration is appropriate.

Specifically, the Court never addresses the appropriateness of the Legislature completely deleting the word “reasonable” from the statute. Are they now saying the unreasonable fees are ok? This is an issue that should be explored.

The First DCA did not certify the case to the Florida Supreme Court. But, I wonder if the Claimant’s bar motion the First DCA for certification would the Court grant it? From the opinion it looks like they might.

If you want to view my previous entries on the Kauffman case check them out here and here.

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