August 23, 2014

Election 2004

It's Not Over Till It's Over

The voters have spoken, but the lawyers have the last word.

Pat Dunnigan | 1/1/2005
Florida voters were clearly in a mood for change when it came to amending the state constitution last November. Issues affecting doctors, lawyers, employers, high-speed rail, pregnant teens, even the amendment-happy voters themselves made their way into the constitution.

But even before the polls had opened, it was clear that voters weren't going to have the last word.

Days before the election, the Florida Hospital Association quietly sued to derail the effects of two amendments pushed by the state's trial lawyers, and anti-gambling forces charged slot machine advocates with presenting forged and fraudulent petition signatures.

And even as trial lawyers were pushing hard to defeat the Florida Medical Association-sponsored amendment to cut their fees in medical malpractice cases, they were quietly discussing a backup plan: How to ask clients to waive their right to reduced fees.

By the time the election results were certified, three lawsuits and two investigations into allegations of improper signature gathering were under way and at least two groups on the losing side of issues were openly pondering a new effort to get back on the ballot for repeal.

Other groups have expressed confidence about moving their fight to the state Legislature, where they hoped to take back some of the ground they lost in the voting booth.

Here's how the battle lines are being drawn:

Gambling
A group led by state Rep. Randy Johnson is challenging in court the vote count that gives Broward and Miami-Dade voters the right to approve slot machine gambling at racetracks and jai-alai frontons. Voting went against Johnson's group only after the late discovery of 78,000 absentee ballots in Broward County, 74,000 of which contained pro-gambling votes.

"We think that's a one-in-a-million statistical anomaly," Johnson says.

Another anti-slot machine group has filed a complaint challenging the signatures gathered by the racing interests who proposed the amendment. And as a backup plan, Johnson says, his group will be dogged in trying to reshape the proposal when it comes before the Legislature, which Johnson says has to pass enabling legislation.

"There are many, many ways in which the Legislature could restrict" the amendment, Johnson notes.

High Speed Rail
Meanwhile, backers of the only thing on the ballot that voters actually rejected -- the bullet train -- continued to move forward.

C.C. "Doc" Dockery, the Lakeland businessman who financed much of the effort in 2000, says there is still legislation on the books that will keep high-speed rail on the table.

"The fact is the repeal of the amendment does not repeal the law," he says. "We lost our drafting car, but it doesn't mean we're not still in the race."

Minimum Wage
Other interest groups took heart in the bullet train's repeal, noting how quickly voters could be persuaded to reverse course. The Florida Restaurant Association -- which opposed raising the minimum wage -- has joined anti-gambling groups in floating the possibility of seeking a repeal.

Doctors/Lawyers
Doctors and lawyers who spent millions of dollars blaming each other for the medical malpractice crisis are taking their fight to the courtroom for now.

The Florida Hospital Association is arguing in two separate lawsuits that amendments to strip doctors of their licenses after three findings of malpractice and to release hospital records of medical errors are both vague and unconstitutional. The measures leave "literally dozens of questions" unanswered, says William Bell, the Tallahassee lawyer representing the Florida Hospital Association.

Steven Andrews, a Tallahassee lawyer representing the trial lawyers advocacy group on the three strikes provision, says the lawsuits are simply the doctors' efforts to force a "do-over."

Regardless of how the courts rule, Andrews says, there is little question that conservative legislators will do their best to take the force out of the amendments.

"The bottom line is the Legislature is going to water this down," he says. "God only knows how they are going to tweak it."

The trial lawyers on the other hand won't need anyone to water down amendment 3 for them. They can do it themselves by asking prospective clients to agree to waive the constitutional provision that limits lawyer fees in medical malpractice cases.

Fort Lauderdale appellate lawyer Bruce Rogow, one of the state's most experienced constitutional lawyers, says it is a relatively simple arrangement. "That one, oddly enough, may be the most Pyrrhic victory for the doctors," he says. "If you can waive your most fundamental rights regarding liberty, you can certainly waive your right to a contract. People with a serious malpractice problem, if they're smart, they'll release their lawyer."

Rogow sees the post-referendum battles as part of Florida's new political landscape. In the wake of the 2000 presidential election debacle, nobody can really accept that he or she has lost, he says. "It was a climate change."

State Sen. Rod Smith, D-Gainesville, says the situation has only reinforced his belief that the amendment process needs reform. Issues such as minimum wage law and legal contracts, he says, should be legislative matters. The reason people are upset, he says, is that they aren't fundamental enough to be included in the state's constitution. "I really believe if we were dealing with issues of constitutional dimension, everybody would be saying fine."

Tags: Politics & Law, Around Florida, Government/Politics & Law

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