Friday, January 19, 2018
Business

Can't win in court? Try the Legislature

TALLAHASSEE — Two years ago, a powerful business trade group filed a lawsuit against the state's largest county, Miami-Dade, arguing that its program to help workers recover unpaid wages was unconstitutional.

But with the case still being fought in court, the Florida Retail Federation also launched a campaign to pass HB 609, which would change state law to outlaw the county's program.

"We think the Dade County ordinance violates Article 5, Section 1 of the Florida Constitution, where it says 'No municipality, no county can establish a court or a tribunal,' " the FRF's senior vice president, John Rogers, told lawmakers during a recent hearing in this year's legislative session.

It's an argument the FRF has tried to make before a Miami-Dade judge for the last two years, so far without success.

The Legislature appears to be friendlier than the courts. The House of Representatives passed HB 609 last week, and the bill could effectively quash the court battle and kill Miami-Dade's program.

The FRF's strategy is not isolated. Some well-connected litigants struggling to make their case before a Florida judge are choosing what they see as a far better option: Hire high-priced lobbyists and change the law before the judge can rule.

During this year's legislative session in Tallahassee, litigants from large corporations to local governments are pushing changes to state laws that would give them an automatic trump card in pending lawsuits.

Florida's Constitution, which mandates a separation of powers between the judicial and legislative branches, frowns upon using the lawmaking process to pre-empt active legal cases. But lawmakers have ignored several warnings from state analysts pointing out unconstitutional proposals, and the litigation-tinged measures have sailed through the chambers with little debate.

Consider the FRF's experience. During a crucial committee vote on the wage theft bill, the FRF's Rogers made several nonverbal cues to a representative on the committee and pulled him to the side in the middle of the meeting.

In hushed voices, Rogers and the representative, Michael Weinstein, R-Jacksonville, conferred. Weinstein then returned to the committee table, whispered in the ear of another representative, and then both cast votes in favor of HB 609.

"The First Amendment says you can petition the government for redress of grievances," said Rogers, who has built up relationships with lawmakers over three decades in Tallahassee. "We're just pushing every option we have."

As Rogers was getting an unusual one-on-one meeting in the middle of a committee vote, the wage workers who traveled from across the state to testify against HB 609 were given only 60 seconds to speak.

Companies, trade groups and local governments spend millions of dollars in lobbying fees and campaign contributions, and often enjoy up-close access to influential lawmakers at private fundraisers and in the halls of the Capitol. The FRF and its affiliates have spent more than $1 million in campaign contributions and lobbying fees since 2010.

Last year was a record year for lobbying across the state of Florida, with lobbyists raking in $127 million. For litigants ensnared in lengthy and expensive legal fights, bypassing the courts by backing legislative changes could pay off financially.

Consider a bill sponsored by Rep. Frank Artiles, R-Miami, that could save a troubled developer more than $600,000 by trumping a court case currently before Florida's Supreme Court.

Maronda Homes, a developer accused of building defective roads and drainage systems in an Orange County subdivision, is arguing in court that the state's "implied warranty" law applies only to a building structure itself, and nothing else. Homeowners believe they should be compensated for the poorly built roads and drainage pipes in their sinkhole-riddled neighborhood.

In a 2010 case before the 5th District Court of Appeal, a judge sided with the homeowners.

Artiles is backing a bill (HB 1013) that would change state law to overrule that decision, clarifying that the state's implied warranty provision does not extend beyond the physical structure of a home.

With the case before the Supreme Court, House analysts have warned that changing the law to pre-empt a pending legal case is likely a violation of the Constitution's due process clause. The measure passed the House by a 106-10 vote. A similar bill in the Senate appears to have stalled.

"It's not the appropriate venue for the Legislature to be sticking its hand in," said Patrick Howell, a lawyer representing 159 home­owners in the case. "It's unconstitutional … and it's a totally unfair bill on its face."

Artiles defended his bill, stating that lawmakers needed to clamp down on activist judges.

"We're codifying, because the 5th DCA, in its infinite wisdom, decided to bypass the Legislature and, through judicial activism, has basically put it up to the Supreme Court," he said. "We are preventing judicial activism."

Local governments are turning to state lawmakers for judicial relief as well.

The city of Miami could benefit from a change in state law that would shield it from paying $1.2 million in property taxes for parking garages near the new Miami Marlins stadium. County Property Appraiser Pedro Garcia surprised Miami commissioners last year by informing them that, under current law, they were responsible for property taxes on the garages.

While that case has not yet made it to court, South Florida lawmakers are attempting to pre-empt a legal showdown by changing the law in Miami's favor. A late-filed amendment makes the change retroactive, meaning Miami would be off the hook for this year's taxes as well.

Despite warnings from House analysts that the measure is likely unconstitutional, it has sailed through the Legislature with little debate.

The practice extends to the governor's office as well. Gov. Rick Scott was sued last year after issuing an executive order to require random drug tests for some state employees. With that case still pending, state lawmakers are advancing HB 1205, which would authorize random drug testing at state agencies.

In February, a federal judge raised questions about the constitutionality of random drug tests for state workers, stating she had "trouble understanding the circumstances under which the executive order would be valid."

The next day, lawmakers voted in favor of HB 1205, sending it to the floor for a full vote. The bill has not yet made it out of the Senate.

A lawyer representing Scott provided bill sponsor Rep. Jimmie Smith, R-Lecanto, with a packet of information to help answer questions about constitutionality and move the bill through. Court cases have found that similar random drug testing programs violate the Fourth Amendment of the Constitution, which covers illegal searches and seizures.

When the question came up over whether or not lawmakers should be required to participate in the same random drug testing program as state workers, Smith used a constitutional argument.

"It was found to be unconstitutional to drug-test elected officials," said Smith, "because it prevents us, as citizens, from having that First Amendment right."

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