Searcy Denney Scarola Barnhart & Shipley, P.A. Mark Edwards and Mitzi Dee Roden, as parents and natural guardians of Aaron Edwards, a minor William S. Frates, II, P.A. Edna L. Caruso, P.A. Vaka Law Group, P.L. and Grossman & Roth, P.A. v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A.; MARK
EDWARDS and MITZI DEE RODEN, as parents and natural guardians
of AARON EDWARDS, a minor; WILLIAM S. FRATES, II, P.A.; EDNA L.
CARUSO, P.A.; VAKA LAW GROUP, P.L.; and GROSSMAN & ROTH,
P.A.,
Appellants,

v.

STATE OF FLORIDA,
Appellee.

No. 4D13-3497

[July 15, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Martin H. Colin, Judge; L.T. Case No.
502012GA000558XX.

Christian D. Searcy and Jack P. Hill of Searcy Denney Scarola Barnhart
& Shipley, P.A., West Palm Beach; George A. Vaka of Vaka, Larson &
Johnson, P.L., Tampa; and Edna L. Caruso of Edna L. Caruso, P.A., West
Palm Beach; for appellants.

Pamela Jo Bondi, Attorney General, Allen Winsor, Solicitor General,
and Rachel Nordby, Deputy Solicitor General, Tallahassee, for appellee.

FORST, J.

Appellants Searcy Denney Scarola Barnhart & Shipley, P.A. (“Searcy
Denney”), et al. appeal the refusal of the guardianship court to authorize
payment of $2.5 million in attorneys’ fees to the firms involved in the
litigation of a medical malpractice lawsuit, the appeal, and a subsequent
lobbying effort to secure a claims bill (also deemed a “private relief act”)
from the Legislature on behalf of Aaron Edwards and his parents. The
legislative claims bill placed a limitation on the use of funds to pay legal
fees and costs, and it is this limitation that is the subject of the instant
appeal. Although sympathetic to Appellants’ situation, we must disagree
with their legal arguments based on separation of powers principles,
supported by reasoning set forth from the Florida Supreme Court.
Accordingly, we affirm the order denying Appellants’ motion for attorneys’
fees above the $100,000 granted by the Legislature in Aaron’s claims bill.

I. Background

In September 1997, Aaron Edwards (“Aaron”) sustained a catastrophic
brain injury during his birth as a result of negligence on the part of
employees at Lee Memorial Health System. Searcy Denney, a law firm
based in West Palm Beach, began its representation of Aaron and his
parents in 1999. The law firm and the Edwards family entered into a
standard contingency fee agreement, providing for an attorneys’ fee of 40%
of any recovery if a lawsuit was filed, plus costs. The agreement also
provided that “[i]n the event that one of the parties to pay my claim for
damages is a governmental agency, I understand that Federal and Florida
Law may limit the amount of attorney fees charged by [Searcy Denney, and
i]n that event, I understand that the attorney fees owed to [Searcy Denney]
shall be the amount provided by law.”

Searcy Denney represented the family in a five-week jury trial in 2007.
The jury found that Lee Memorial Health System’s employees had been
negligent and that their negligence had resulted in damages to Aaron and
his parents. The jury awarded Aaron over $28.3 million. His mother was
awarded $1,340,000 in damages, and his father was awarded $1,000,000.
However, the trial court found that Lee Memorial was an independent
special district of the State of Florida and, pursuant to the sovereign
immunity damage limitations in section 768.28(5), Florida Statutes (2007),
entered a judgment against the hospital in the amount of $200,000.1 The
trial court rulings were affirmed by the Second District Court of Appeal.
Lee Mem’l Health Sys. v. Edwards, 22 So. 3d 81 (Fla. 2d DCA 2009).

In an effort to obtain additional funds for Aaron and his parents, Searcy
Denney submitted a claims bill to the Florida Legislature. In 2012, after
a public campaign in support of the bill, the Legislature passed Claims Bill
2012-249, directing Lee Memorial to appropriate $10 million, with an
additional $5 million payable in annual installments, “to the Guardianship
of Aaron Edwards, to be placed in a special needs trust for the exclusive
use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, § 2, Laws of
Fla. No monies were appropriated for the use and/or benefit of either
parent for their damages. The claims bill also included a stipulation
stating “[t]he total amount paid for attorney’s fees, lobbying fees, costs,
and other similar expenses relating to this claim may not exceed

1 The entire $200,000 was applied to partially reimburse Searcy Denney for
litigation costs.

2
$100,000.” Id. § 3. It is this provision that is the focus of the matter before
us.

After the first $10 million installment had been paid into Aaron’s special
needs trust,2 the various trial, appellate, and lobbyist firms that had
worked on Aaron’s case -- with support from the Edwards family --
petitioned the guardianship court to approve a closing account statement
transferring $2.5 million to them. The petition premised this request on a
25% fee cap provision in section 768.28(8) and on the argument that the
fees and costs limitation in the claims bill was unconstitutional. Evidence
presented at the hearing on the petition showed that the firms had devoted
more than 7000 hours to representing the Edwards family at trial, on
appeal, and during the claims bill process and had also incurred more
than $500,000 in costs during the representation. However, the
guardianship court, relying on precedent from this court and the Florida
Supreme Court, found that it lacked judicial authority to grant the
requested relief in contravention of the language of the claims bill
regarding fees and costs.

Appellants now appeal that denial and argue that the language in the
claims bill limiting their recovery of attorneys’ fees and costs is an
unconstitutional impairment of their contract with the Edwards family and
should be severed from the otherwise valid private relief act for Aaron.
Alternatively, Appellants contend the guardianship court had inherent
judicial discretion to depart from the limitation imposed by the Legislature
and grant them reasonable fees and costs up to the 25% limit provided by
section 768.28(8), Florida Statutes (2007).

II. A Brief History of Sovereign Immunity

The doctrine of sovereign immunity stretches back to the foundations
of Anglo-American common law. Espousing the maxim that “the King can
do no wrong,” Blackstone explained that “no suit or action can be brought
against the King, even in civil matters, because no court can have
jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *235.

2 “A special needs trust is a trust agreement, authorized by federal law, which
excludes certain assets and income from being counted against eligibility for
certain need-based government benefits.” Rebecca Berg, et al., Q & A:
Introduction to the State of Florida Public Guardianship Pooled Special Needs Trust,
81 Fla. B.J. 64 (May 2007). “The key purpose of the special needs trust is to
provide for the person with a disability without jeopardizing the receipt of public
benefits.” Fay Blix, The World of Special Needs Trusts, 50 Orange Cnty. Law. 10
(Nov. 2008).

3
However, should a subject of the Crown have “a just demand upon the
King, he must petition him in his court of chancery, where his chancellor
will administer right as a matter of grace, though not upon compulsion.”
Id. at *236.

When the common law was exported to the American continent,
sovereign immunity came with it. Although the United States Constitution
does not explicitly grant the federal government immunity from suit,
sovereign immunity seemingly always has applied. See U.S. v. Lee, 106
U.S. 196, 207 (1882) (“[W]hile the exemption of the United States and of
the several states from being subjected as defendants to ordinary actions
in the courts has . . . been repeatedly asserted here, the principle has never
been discussed or the reasons for it given, but it has always been treated
as an established doctrine.”).

Unlike the apparently axiomatic immunity of the federal government
from suits, the states initially were subjected to liability in federal courts.
In Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), the United States
Supreme Court held that state governments were amenable to suit in
federal courts under Article III, Section 2 of the Constitution. Soon
thereafter, however, the Eleventh Amendment expanded the doctrine of
sovereign immunity to protect state governments from suit by private
citizens in federal court. Amend. XI, U.S. Const. State sovereign
immunity, protecting the states from suit in their own courts, existed prior
to the ratification of and is not derived from the Eleventh Amendment, but

is a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution, and which
they retain today (either literally or by virtue of their
admission into the Union upon an equal footing with the other
States) except as altered by the plan of the Convention or
certain constitutional Amendments.

Alden v. Maine, 527 U.S. 706, 713 (1999).

After decades of immunity from liability, the federal government
abrogated its sovereign immunity by passing the Federal Tort Claims Act
in 1946. 28 U.S.C. § 1346(b); see also The Federal Tort Claims Act, 56 Yale
L.J. 534 (1947). In the years that followed, the states likewise rolled back
the protections of state sovereign immunity. In Florida, the state
constitution stated, “Provision may be made by general law for bringing
suit against the state as to all liabilities now existing or hereafter
originating.” Art. X, § 13, Fla. Const. (1968). The Florida Legislature
passed an experimental temporary waiver of sovereign immunity for a one

4
year period in 1969 before finally enacting a permanent, limited waiver in
1973. Gerald T. Wetherington & Donald I. Pollock, Tort Suits Against
Governmental Entities in Florida, 44 Fla. L. Rev. 1, 6 (1992). However,
although 1969 saw the first general waiver of the state’s sovereign
immunity, legislative relief by means of a claims bill has been available
since before statehood – the first claims bill was passed by the Legislative
Council of the Territory of Florida in 1833. D. Stephen Kahn, Legislative
Claim Bills: A Practical Guide to a Potent(ial) Remedy, 62 Fla. B.J. 23 (April
1988); see also Cauley v. City of Jacksonville, 403 So. 2d 379, 381 n.5 (Fla.
1981).

Section 768.28, Florida Statutes, is the codification of the state’s
limited waiver of sovereign immunity in tort actions. A plaintiff’s recovery
against the state and its agencies or subdivisions is limited to no more
than $200,000 per incident. § 768.28(5), Fla. Stat. (2007).3 Moreover, in
cases where a judgment exceeds $200,000, “that portion of the judgment
that exceeds these amounts may be reported to the Legislature, but may
be paid in part or in whole only by further act of the Legislature.” Id.
Subsection 768.28(8) of the same statute states that “[n]o attorney may
charge, demand, receive, or collect, for services rendered, fees in excess of
25 percent of any judgment or settlement.”

III. The Treatment of Section 768.28(8) by Florida Courts

Shortly after the enactment of section 768.28, the Florida Supreme
Court addressed the constitutionality of the attorneys’ fees cap in a case
involving the settlement of a damages claim filed against a school board.
In Ingraham v. Dade County School Board, 450 So. 2d 847, 849 (Fla. 1984),
the court held “that section 768.28(8) is constitutional and does not
constitute an impairment of contractual obligations and does not amount
to a legislative usurpation of the power of the judiciary to regulate the
practice of law.”

During the same time frame as Ingraham, the Florida Supreme Court
was faced with another situation involving the legislative claims process.
In Gamble v. Wells, 450 So. 2d 850 (Fla. 1984), a minor sustained severe
injury while in the custody of the State Department of Public Welfare. The
child’s parent retained a lawyer, who signed a standard contingency fee

3 The initial version of this statute set the waiver amount at $50,000 per person
and $100,000 per incident. § 768.28(5), Fla. Stat. (1969). Those limits were
increased to $100,000 per person and $200,000 per incident in 1981, section
768.28(5), Florida Statutes (1981), and raised again to the present levels of
$200,000 and $300,000 effective April 27, 2012. § 768.28(5), Fla. Stat. (2012).

5
contract to represent the child. Id. at 851-52. As the state had not passed
legislation waiving sovereign immunity at the time the injury occurred
(and, thus, section 768.28 was not applicable to this case), the attorney
petitioned the Legislature for a private relief act.4 The Legislature passed
the requested bill, appropriating $150,000 for the child, but limited the
payment of attorneys’ fees to $10,000. Id. at 852. When the lawyer
challenged the constitutionality of this provision as an impairment of his
contingency contract, the Florida Supreme Court reversed the Second
District Court of Appeal’s holding that declared that portion of the bill
which limited attorneys’ fees to be invalid because of an unconstitutional
impairment of contract. The Florida Supreme Court explicitly held that no
contract right was impaired. Id. Describing the claims bill as “an act of
grace,” the court held that the Legislature could “allow compensation,
decide the amount of compensation, and determine the conditions, if any,
to be placed on the appropriation.” Id. at 853 (emphasis added).

A somewhat similar situation was presented to this court in Noel v.
Sheldon J. Schlesinger, P.A., 984 So. 2d 1265 (Fla. 4th DCA 2008). A
victim, Jean Noel, and her parents sued a governmental entity for damages
arising out of medical negligence. Id. at 1266. The jury awarded a total of
$8.5 million, but the relief was reduced to $200,000 due to the
applicability of section 768.28(5). Id. The family then petitioned the
Legislature. As the culmination of an eight-year legal and legislative
process, the Legislature passed a claims bill providing $8.5 million for Ms.
Noel and her parents. Id. at 1266. The claims bill also provided for
payment of attorneys’ fees and costs up to $1,074,667, representing
approximately 13% of the clients’ relief and considerably less than the
percentage contracted for or the 25% cap set forth in section 768.28(8).
Id. When the attorney moved for a charging lien to recover the additional
sums provided by the contingency fee contract, this court echoed Gamble
and held the claims bill to be an act of “legislative grace.” Id. at 1267. We
also reasoned that the attorneys’ charging lien was inappropriate in that
case because, as enunciated by the Legislature, the property at issue was
voluntarily given by the Legislature, “separate and apart” from the recovery
in the lawsuit. Id. Our court in Noel found “a fair reading of the claims
bill indicates the legislative intent to limit [attorneys’] fees to $1,074,667”

4 Gamble concerns a private relief act, which is the functional equivalent of a
claims bill, as presented in our instant case. Section 768.28 codified the waiver
of sovereign immunity, but the method for obtaining relief above that section’s
limits is the same as it was prior to the passage of that law – a claimant must
petition the Legislature in hopes that it, in its grace, will provide funds for the
benefit of the claimant.

6
and that “[the] legislature has the power to limit attorney’s fees in a claims
bill, no matter what the underlying fee contract provides[.]” Id.

IV. Applicability of the Statute and Precedent to the Instant Case

Judicial determinations concerning the constitutionality of statutes (or
portions thereof) are pure questions of law subject to a plenary or de novo
standard of review. State v. Sigler, 967 So. 2d 835, 841 (Fla. 2007).
Because the challenged claims bill is a validly passed law, it is “clothed
with a presumption of constitutionality,” Crist v. Fla. Ass’n of Criminal
Defense Lawyers, Inc., 978 So. 2d 134, 139 (Fla. 2008), and all reasonable
presumptions must be drawn in favor of its constitutionality. See State v.
Bales, 343 So. 2d 9, 11 (Fla. 1977).

In the instant case, as in Gamble and Noel, the Legislature passed a
claims bill that provided a specific amount of attorneys’ fees that was
significantly less than the amount contracted for between the Edwards
family and their law firm, Searcy Denney. Indeed, the Legislature in
essence reduced Searcy Denney’s contingency fee to less than 1% of the
$15 million provided by the Legislature.

Notwithstanding Appellants’ (and the dissenting opinion’s) arguments
to the contrary, Gamble and Noel, and the reasoning therein, support the
guardianship court’s decision to recognize the Legislature’s prerogative of
limiting the payment of fees and costs to $100,000. A claims bill, both
before and after the enactment of section 768.28, is a “voluntary
recognition of its moral obligation by the legislature” and, as such, is firmly
entrenched in the sphere of legislative discretion. Noel, 984 So. 2d at 1267
(quoting Gamble, 450 So. 2d at 853). “Parties cannot enter into a contract
to bind the state in the exercise of its sovereign power. . . . The legislature
was in no way bound to pass legislation conforming with the provisions of
the prior contingent fee contract.” Gamble, 450 So. 2d at 853. “That the
claim[s] bill is separate and apart from the constraints of an earlier lawsuit
is demonstrated by the supreme court’s recognition that [the] legislature
has the power to limit attorney’s fees in a claims bill, no matter what the
underlying fee contract provides[.]” Noel, 984 So. 2d at 1267. “A claim[s]
bill is not obtainable by right upon the claimant’s proof of entitlement, but
rather is granted strictly as a matter of legislative grace.” Wagner v. Orange
Cnty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007); see also United Servs.
Auto Ass’n v. Phillips, 740 So.2d 1205, 1209 (Fla. 2d DCA 1999).

We are sympathetic to the fact that the legislatively enacted attorneys’
fees cap in this case failed to cover even the $500,000 in Appellants’ costs
advanced by Searcy Denney during their representation of the Edwards

7
family. But our responsibility in this matter is to ensure that the claims
bill passed by the legislative branch of government meets constitutional
muster. As noted above, the Florida Supreme Court, in no uncertain
terms, has held that the limitation of attorneys’ fees in a private relief
act/claims bill “is a constitutionally permissible exercise of legislative
authority and does not constitute an impairment of contractual obligations
proscribed by article I, section 10 of the Florida Constitution.” Gamble,
450 So. 2d at 851; see also Ingraham, 450 So. 2d at 849..

Appellants contend the Legislature’s claims bill’s fees and costs
limitation impermissibly runs contrary to preexisting statutory limitations.
They posit that the Supreme Court’s decision in Ingraham, decided the
same day as Gamble, supports the argument that “the 25% limitation on
attorney’s fees and costs provided by § 768.28(8) applied” to claims bills,
as well as settlements and judgments reached outside of the claims bill
process. Ingraham addressed an effort by the plaintiff’s attorney to receive
fees in excess of 25% of a structured settlement and the Supreme Court’s
application of section 768.28(8) to negate that effort. In the instant case,
by contrast, the law firms are seeking fees and costs representing 25% of
a special legislative appropriation.

Regardless of whether Aaron’s claims bill appropriation is categorized
as a “judgment or settlement,” section 768.28(8) does not mandate that
the fees collected or received cannot be less than 25%, only that the fees
cannot be “in excess of 25 percent.” The statute places a cap on the
recoverable attorneys’ fees, not a floor. Twenty five percent is not, by its
very terms in this statute, a mandatory minimum.

Appellants also argue that the courts’ respecting the Legislature’s
$100,000 limitation is a usurpation of judicial power and that this
limitation violated the separation of powers doctrine. To the contrary, the
course of action proposed by Appellants would violate the separation of
powers doctrine, rewriting two legislative enactments, both section
768.28(8) and Aaron’s claims bill, to dictate attorneys’ fees that are neither
mandated by the former (because it sets a ceiling, and not a floor) and are
expressly contrary to the latter (which limits fees and costs to $100,000).
Appellants’ alternative arguments, including that the legislative action
amounted to an unconstitutional taking, violated the due process clause,
or denied them equal protection, are likewise unpersuasive, particularly
where the Florida Supreme Court already has explicitly sanctioned the
action at issue. Gamble, 450 So. 2d at 851.

Conclusion

8
 Appellants’ (and the dissenting opinion’s) dissatisfaction with the
limitation on attorneys’ fees and costs imposed in Aaron’s claims bill is
understandable, and the possibility of such a restriction in a claims bill
posits an additional factor to be considered by counsel in deciding whether
to take on representation in a case in this state involving a sovereign entity
defendant. Appellants’ reply brief states, “If there is no reasonable
financial incentive for lawyers to take these type cases, the injured will go
unrepresented.” To what extent this is true is beyond our focus.5
Therefore, we affirm the guardianship court’s ruling.

Affirmed.

CONNER, J., specially concurs with opinion.
CIKLIN, C.J., dissents with opinion.

CONNER, J., concurring.

Anytime legal analysis traces back to Blackstone and the foundations
of Anglo-American law, one knows core legal values are being addressed.
I write to further explain why I cannot agree with the reasoning of the
dissent, although the dissent makes very cogent arguments as to why
Gamble and Noel should not control the outcome of this case.

The premise of the dissent is that by enacting section 768.28, Florida
Statutes, the legislature altered the “legislative grace” attribute of its
monetary awards by making a judicial or administrative award a
precondition for initiating the claims bill process. The argument is that
you can’t even try to pass through the doors of the legislature until you
successfully pass through the doors of the courthouse. Thus, the two
processes are welded; this means the “act of grace” analysis has been
“transcended” because the weld now raises the specter of “a chilling effect
upon the sacrosanct and fundamental constitutional right to access to our
courts.”

The fly in the ointment regarding the dissent’s argument is the failure
to recognize that seeking redress from the legislature is fundamentally
different from seeking redress from the court. Every citizen has a
fundamental right to seek redress from the court because that is a core
function of the judicial branch of government. There is no fundamental
right to seek redress from the legislature because such is not a core

5 Our sister courts have commented in cases involving section 768.28(8),
Appellants’ “remedy is in the legislature, not the courts.” City of Live Oak v.
Harris, 702 So. 2d 276, 277 (Fla. 1st DCA 1997) (quoting Hellman v. City of
Orlando, 634 So. 2d 245, 246 (Fla. 5th DCA 1994)).

9
function of that branch. Within the judicial branch, an injured party has
a legal right to an award of damages if procedural and substantive law
principles are successfully maneuvered. There is no similar right within
the legislative branch.6 The concept of “legislative grace” espoused by our
supreme court in Gamble implicitly recognized the difference in core
functions between the two branches of government. That recognition
resulted in the rather forceful statement by the court in Gamble, that
“[p]arties cannot enter into a contract to bind the state in the exercise of
its sovereign power.” Gamble, 450 So. 2d at 853. Out of respect for the
separation of powers between the two branches, even considering the
statutory and legislative rule changes since Gamble, it is unlikely the court
would rule that the legislature’s ability to limit attorney’s fees payable out
of a claims bill award is unconstitutional because such power impacts
access to the courts.

Therefore, I agree with the majority opinion that unless our supreme
court changes course in its legal analysis regarding separation of powers,
arguments regarding impairment of contract, unconstitutional taking,
denial of due process and equal protection and all variations on those
themes are unpersuasive.

Affirmed.

CIKLIN, C. J., dissenting.

I respectfully dissent and offer my overall assessment of the crucially
important issues involved in this case, the ultimate resolution of which
will have deep and profound ramifications for many Floridians—and for
many years to come.

The instant appeal involves a claim bill passed by the Florida
Legislature granting Aaron Edwards and, in essence, his parents a
substantial sum of money as compensation for damages occurring
because of the negligence of Lee Memorial Health System (“the hospital”),
an entity with sovereign immunity, but yet effectively prohibiting the
Edwards’ attorneys from collecting anything but nominal fees and costs
connected with their services throughout the twelve years leading up to
the enactment of the subject claim bill. In 1999, Aaron’s parents and
Searcy Denney, et al. (“the firm”), entered into a binding contract which

6 It is also significant that the successful outcome of redress through the courts
is a judgment for damages, with no guarantee that money will ever be paid to the
claimant. The successful outcome of redress through the legislature is a sum of
money received by the claimant.

10
provided that the firm was to receive a defined percentage of any recovery
it obtained on Aaron’s behalf. The agreement included a reduced fee
provision in accordance with the limit on attorneys’ fees imposed by the
statute governing waiver of sovereign immunity in tort actions, section
768.28, Florida Statutes (1997). Pursuant to the contract, if the firm
obtained zero for Aaron, the firm would be compensated zero, without
regard to firm time expended or monies advanced. The Edwards and the
firm appeal the guardianship court’s denial of the firm’s petition seeking
approval of a closing statement which was in conformity with section
768.28 and a declaratory judgment relating to attorneys’ fees and costs
owed to the firm.

Because the claim bill’s limitation on attorneys’ fees and costs is an
unconstitutional impairment on the Edwards family and firm’s right to
contract, I would reverse. I have taken the liberty to also write to remind
the readers of this dissent and all Florida lawyers, that contingency fee
agreements are directly connected to every citizen’s right to access to our
courts. I cite to the Florida Code of Professional Responsibility which
contemplates the ethical and moral obligation of “us lawyers” licensed to
practice in this state, to always consider the contingency fee agreement as
the “poor man’s key to the courthouse.” Because of the enactment of
section 768.28, which now requires that aggrieved individuals first invoke
the civil process of law before even approaching the Legislature for
sovereign immunity relief, the “key” should be easily accessible. The right
to this key is rich and deeply rooted in American history and it is a judicial
time-honored duty and responsibility to protect the inalienable rights of
our people in this regard.

Legal Background

Pursuant to Article X, section 13 of the Florida Constitution, section
768.28, Florida Statutes was enacted as the first codification of the state’s
limited waiver of sovereign immunity in tort actions. Stated another way,
section 768.28 is the state’s consent to be sued. Pertinent to the issues at
hand, section 768.28 provided, and continues to provide: a limited waiver
of sovereign immunity for actions against the state and its agencies, the
possibility of additional compensation for injuries through legislative claim
bills, and a twenty-five percent maximum limit on fees for lawyers who
offer legal assistance.

In 1997, the year the subject cause of action accrued, the statute
permitted recovery of up to $100,000 per person and $200,000 per
incident or occurrence:

11
 Neither the state nor its agencies or subdivisions shall be
liable to pay a claim or a judgment by any one person which
exceeds the sum of $100,000 or any claim or judgment, or
portions thereof, which, when totaled with all other claims or
judgments paid by the state or its agencies or subdivisions
arising out of the same incident or occurrence, exceeds the
sum of $200,000.

§ 768.28(5), Fla. Stat. (1997).7

Most notable from a statutory analysis standpoint, however, was this
legislative enactment’s first-time-ever-authorization and consent to be
sued by a private party. The statute was specific and empowering for
legitimately injured individuals:

[A] judgment or judgments may be claimed and rendered in
excess of these amounts and may be settled and paid
pursuant to this act up to $100,000 or $200,000, as the case
may be; and that portion of the judgment that exceeds these
amounts may be reported to the Legislature, but may be paid
in part or in whole only by further act of the Legislature.

Id. In giving its consent to be sued, the Legislature—also for the first
time—required that all aggrieved parties seeking just compensation
beyond the maximum amounts permitted by section 768.28, first obtain
an award of a civil judgment under the processes supervised by the courts.
The Legislature also contemplated the very real possibility that the newly
required “judgment or judgments” might exceed the statutory caps and
therefore authorized the aggrieved party to “report” and make a “claim” to
the Legislature as to the excess amount.

As a matter of fact, through its internal rule making process, the Florida
Senate went so far as to expand upon section 768.28, and while
consenting to be sued, created an unequivocal threshold. Pursuant to the
Rules of Senate, a claim bill may not be heard or considered by the Senate
“until all available administrative and judicial remedies have been
exhausted.” Senate Rule 4.81(6). In other words, while the Senate Rule
has acknowledged the new rights afforded by section 768.28 by permitting
a person to report a claim and seek just compensation, the Senate went
one step further and decided to shut out all aggrieved persons from the

7The statute was subsequently amended to allow liability of up to $200,000 per
person and $300,000 per occurrence. § 768.28(5), Fla. Stat. (2012).

12
Senate claim bill process until the person suffering damages first obtains
a judgment or other administrative final order. With that final document
in hand, the aggrieved individual is then permitted to navigate through the
claim bill process.

Finally, and perhaps most significant of anything, subsection 768.28(8)
implicitly (and presumably) recognized, for the first time, that an aggrieved
party might very well be foolhardy to enter into the complex legal world of
the now required civil negligence litigation (and subsequent claim bill)
process without full access to the courts through a lawyer/client
contingency fee agreement:

No attorney may charge, demand, receive, or collect, for
services rendered, fees in excess of 25 percent of any judgment
or settlement.

§ 768.28(8), Fla. Stat. (1997). The subsection, incidentally, which puts a
cap or “ceiling” on contingency fee contract compensation, has been held
by the Florida Supreme Court to be a constitutionally permissible limit on
attorneys’ fees. Ingraham v. Dade Cnty Sch. Bd., 450 So. 2d 847, 849 (Fla.
1984).

Factual Background

The firm represented the parents of Aaron Edwards, a child born with
catastrophic brain injuries in 1997 due to the overt negligence of the
hospital and its employees, in a medical malpractice claim against the
hospital. The firm entered into a standard contingency fee agreement with
the Edwards family, providing for an attorney’s fee of forty percent of any
recovery if a lawsuit was filed, plus costs. The contract appropriately
reduced the fee to the amount provided by law—the twenty-five percent
cap contained in section 768.28(8)—in the event the hospital was declared
a sovereign immune defendant.

After a trial lasting approximately five grueling weeks, the jury awarded
Aaron $28,310,544 in damages. Aaron’s mother was awarded $1,340,000
and his father was awarded $1,000,000. The trial court found that the
hospital was an “independent special district” of the state, and therefore
had sovereign immunity. Consistent with the damages limitation provided
for in section 768.28(5), the court entered a judgment against the hospital
in the amount of $200,000. On appeal, the judgment was affirmed and
the hospital did not challenge the amount of damages awarded by the jury.

13
 At the behest of the firm and Aaron’s parents, a member of the Florida
Senate and a member of the Florida House of Representatives requested
that the Florida Legislature enact a claim bill to further compensate Aaron
and his family. After a highly protracted legislative process spanning a
two-year period, the Legislature passed Claim Bill 2012-249. The bill
directed the hospital to pay $15,000,000 “to the Guardianship of Aaron
Edwards, to be placed in a special needs trust created for the exclusive
use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, Laws of Fla.
The claim bill provided for an initial payment of $10,000,000 on or before
December 31, 2012, and for subsequent periodic payments of $1,000,000
each year through 2017. It also included the following provision, which is
the focal point of the issues raised in this appeal: “The total amount paid
for attorney’s fees, lobbying fees, costs, and other similar expenses relating
to this claim may not exceed $100,000.”

After a guardianship proceeding was instituted by Aaron’s parents, the
firm filed a petition requesting that the guardianship judge approve a
proposed closing statement that would have authorized an award of
$2,500,000 to the firm, which represented twenty-five percent in attorneys’
fees (and which would have included all costs and lobbying fees). These
payments, it was proposed by the Edwards family and the firm, would be
deducted from the initial claim bill payment of $10,000,000 to Aaron. The
petition before the guardianship court also sought a declaratory judgment
upholding the constitutionality of Aaron’s claim bill, but striking the
$100,000 attorneys’ fees and costs limitation as unconstitutional on its
face or as applied. The guardianship judge denied the petition, accepting
the attorney general’s argument that the claim bill was an “act of grace,”
thus entitling the Legislature to limit attorneys’ fees and costs payable to
the firm. In a conspicuously reluctant order, the guardianship court
recognized that the firm had provided “exemplary” legal services and that
fees of $100,000 were unreasonable where the firm had advanced
$500,000 in costs alone, but the court determined it was bound by two
cases, Gamble v. Wells, 450 So. 2d 850 (Fla. 1984), and Noel v. Sheldon J.
Schlesinger, P.A., 984 So. 2d 1265 (Fla. 4th DCA 2008).

On appeal, the appellants argue the fee-limiting provision of the subject
claim bill is in contravention of the Contract Clause of the United States
Constitution and that the cases the guardianship court relied upon,
Gamble and Noel, are not controlling. They seek severance of the fee-
limiting provision from the claim bill. The state responds by asserting that
the provision passes constitutional muster because claim bills are “acts of
legislative grace” and further that the fee provision is not severable.

Discussion and Judicial Review

14
 I believe the primary issue for our review centers around the
constitutionality, vel non, of the subject claim bill provision limiting
attorneys’ fees and costs to $100,000, juxtaposed against the twenty-five
percent fee agreed upon in the contingency fee contract entered into
between the Edwards family and the firm.

This court’s constitutional responsibility to review the subject claim bill
at issue stems from and is deeply embedded in the doctrine of separation
of powers, under which the legislative branch of government creates laws
and the judicial branch reviews laws, including for purposes of
determining that the laws are constitutionally permissible. The role of the
judiciary in this process is known as judicial review, which is defined as
“[a] court’s power to review the actions of other branches or levels of
government; esp., the courts’ power to invalidate legislative and executive
actions as being unconstitutional.” BLACK’S LAW DICTIONARY 864 (8th ed.
2004).

The original idea of judicial review seems to have been
conceived primarily to preserve the integrity and uphold the
independence of the courts as against the other departments,
and to preserve and protect certain personal and private
rights, such as the right of trial by jury, which were thought
to be natural and inalienable.

Charles Grove Haines, Judicial Review of Legislation in the United States
and the Doctrines of Vested Rights and of Implied Limitations on
Legislatures, 2 TEX. L. REV. 257, 270 (1924) (footnote omitted). Describing
judicial review, commentators have explained that “because of its status
as a coordinate branch of government, the judiciary must refuse to enforce
unconstitutional laws in the course of performing its unique function of
deciding cases or controversies.” Saikrishna B. Prakash & John C. Yoo,
Questions for the Critics of Judicial Review, 72 GEO. WASH. L. REV. 354, 356
(2003).

Turning to the matter at hand, “judicial interpretation of statutes and
determinations concerning the constitutionality of statutes are pure
questions of law subject to the de novo standard of review.” State v. Sigler,
967 So. 2d 835, 841 (Fla. 2007).

Contract Clause

Pursuant to Article I, Section 10 of the federal Constitution, states may
not pass “any law that impairs ‘the Obligation of Contracts.’” Columbia

15
Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236, 243 (Fla. 4th DCA 2009).
Similarly, Article I, section 10 of the Florida Constitution provides that “No
. . . law impairing the obligation of contracts shall be passed.”

The Florida Supreme Court “has generally prohibited all forms of
contract impairment.” State, Dep’t of Transp. v. Edward M. Chadbourne,
Inc., 382 So. 2d 293, 297 (Fla. 1980). It has described the constitutional
bar on such impairments as a “wall of absolute prohibition.” Id. The court
has explained, “The fact that a law is just and equitable does not authorize
its enactment in the face of a constitutional prohibition.” Id.

The right to contract for legal services is a fundamental constitutional
right implicating strict scrutiny. Jacobson v. Se. Pers. Leasing, Inc., 113
So. 3d 1042, 1050 (Fla. 1st DCA 2013). “[W]hen a right to recover . . .
attorney’s fees (as damages or as costs) is provided by contract, such
contractual right cannot be constitutionally impaired by subsequent
legislation which attempts to restrict, expand, or eliminate that
contractual right.” Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518,
519 (Fla. 5th DCA 1987).

“In order for a statute to offend the constitutional prohibition against
enactment of laws impairing the obligation of contracts, the statute must
have the effect of rewriting antecedent contracts, that is, of changing the
substantive rights of the parties to existing contracts.” Manning v.
Travelers Ins. Co., 250 So. 2d 872, 874 (Fla. 1971) (citations omitted).
Where subsequent legislation impairs an existing contractual right,
“[c]ourts employ a balancing test which measures the level of impairment
against the public service to be served.” Fain, 16 So. 3d at 243. And, to
be sure, ‘“[a]n impairment may be constitutional if it is reasonable and
necessary to serve an important public purpose.’” Id. (quoting Pomponio
v. Claridge of Pompano Condo., Inc., 378 So. 2d 774 (Fla. 1979)).

This required balancing test has been described by the United States
Supreme Court as follows:

[T]he first inquiry must be whether the state law has, in fact,
operated as a substantial impairment of a contractual
relationship. The severity of the impairment measures the
height of the hurdle the state legislation must clear. Minimal
alteration of contractual obligations may end the inquiry at its
first stage. Severe impairment, on the other hand, will push
the inquiry to a careful examination of the nature and purpose
of the state legislation.

16
Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244-45 (1978)
(footnotes omitted).

[A] finding of a significant and legitimate public purpose is not,
by itself, enough to justify the impairment of contractual
obligations. A court must also satisfy itself that the
Legislature’s adjustment of the rights and responsibilities of
contracting parties [is based] upon reasonable conditions and
[is] of a character appropriate to the public purpose justifying
[the Legislature’s] adoption.

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 505 (1987)
(alterations in original) (internal quotation marks omitted).

Because Aaron’s claim bill substantially, if not entirely, impaired the
Edwards’ ability to perform their contractual obligation to pay attorneys’
fees amounting to twenty-five percent of their recovery, the balancing test
must clearly and obviously be applied. At the time Aaron’s parents and
the firm entered into their contract, the law provided for a maximum
contingency fee of twenty-five percent pursuant to subsection 768.28(8).
In accordance with the $15,000,000 appropriation to Aaron under the
claim bill, the bargained-for attorneys’ fees totaled $3,750,000 plus costs
which the record reveals to be approximately $500,000. The record further
reveals that, over a twelve-year period, the firm laboriously committed
thousands of pretrial, trial, and post-trial hours, culminating in
compensation for a severely brain damaged child caused by the outright
negligence of a medical provider. Yet, the claim bill proviso restricted and
limited attorneys’ fees and costs to $100,000—less than one percent of the
recovery achieved for Aaron. Certainly, an alarming, inexplicable, and far
cry from the 25% contractual fee and cost provision agreed to by the firm
and Aaron’s parents. The attorneys’ fee provision of the subject claim bill
delivers a substantial impairment of the contract between the firm and the
Edwards family, requiring this court to examine the nature and purpose
of the statute.

I believe the state has not shown that its draconian limitation on
attorneys’ fees and costs was necessary to accomplish some type of
“important public purpose.” It cannot be reasoned that the provision was
inserted to accomplish preservation of the State’s treasury, since the claim
bill provided that the attorney’s fees and costs would be deducted from the
total appropriation which total sum would ultimately be paid by the
hospital with its own funds.

17
 Therefore, without a logical, practical, or otherwise discernable public
purpose, the fee limitation imposed in Aaron’s claim bill does not pass
muster under strict scrutiny. Simply put, the Aaron Edwards claim bill
contravenes the constitutional prohibition on the impairment of existing
contracts.

Gamble, Noel, and Legislative Grace

The state argues that the Legislature was within its rights to limit the
attorneys’ fees to the extent it did because the claim bill was an act of
“legislative grace.” It relies on two cases for support, Gamble and Noel, the
same two cases by which the trial court felt bound to deny both the petition
and declaratory judgment. For several reasons, Gamble is decidedly
distinguishable.

In Gamble, the plaintiff was in the custody of the State Department of
Public Welfare8 for a number of years and was injured due to the
department’s negligence. The plaintiff’s guardian entered into a
contingency fee agreement with an attorney. Because the defendant was
a sovereign entity and section 768.28 was not yet in effect,9 the plaintiff’s
only avenue for recovery from the welfare department was a direct appeal
to the Legislature through a claim bill. Because the arduous undertaking
of malpractice litigation was not contemplated, or for that matter even
permitted by the statute in effect when Gamble was decided, no lawsuit
was ever filed. Nonetheless, as a result of a legislative act of grace, no
doubt undergirded by a commendable sense of moral obligation, the
Legislature enacted a claim bill to compensate the plaintiff, and limited
any attorneys’ fees to $10,000. The attorney sought fees in the probate
court pursuant to the terms of the contingency fee agreement and was
awarded $50,000. On appeal, the district court reversed, finding that the

8 The State Department of Public Welfare was administered, along with twelve
district boards, by the State Welfare Board, which was created in 1937. These
agencies administered state and federal funding for social welfare services and
relief aid. The State Department of Public Welfare became the Division of Family
Services in 1969. Presently, family services are administered by the Department
of Children and Families. Fla. Dept. of State, State Archives of Fla.,
http://archivescatalog.info.florida.gov/default.asp?IDCFile=/fsa/detailsg.idc,SP
ECIFIC=1635,DATABASE=GROUP, last visited Apr. 1, 2015.
9 As a reminder, 768.28 now contemplates the plaintiff’s procurement of a

“judgment” and Senate Rule 4.81(6) requires it . . . or at least that “all available
administrative and judicial remedies” shall have been “exhausted” before a
plaintiff will even be permitted to enter into the uphill battle that is the claim bill
process.

18
attorneys’ fees limitation in the claim bill “amounted to an
unconstitutional impairment of a contractual obligation but that this
limitation was severable from the remainder of the private relief act.”
Gamble, 450 So. 2d at 852.

The Florida Supreme Court reversed, explaining that passage of the
claim bill was an “act of grace” by the Legislature and that as a “matter of
grace,” the Legislature could place limitations on any compensation it
allowed therein:

We disagree and hold that no contract rights were impaired
by section 3 of chapter 80-448 [the private relief act]. By
enacting chapter 80-448, the legislature found that a moral
obligation existed on its part to redress the physical and
emotional injuries of Cynthia Gamble sustained as a result of
the negligence of a state agency. This voluntary recognition
of its moral obligation by the legislature in this instance was
based on its view of justice and fair treatment of one who had
suffered at the hands of the state but who was legally
remediless to seek damages. Chapter 80-448 is an act of
grace to redress a wrong suffered by Cynthia at the hands of
the state which is not otherwise legally compensable. In
seeking to obtain relief for Cynthia by means of a private relief
act, [claimant’s attorney] was not in a position to demand that
the legislature grant compensation to Cynthia. He could only
request that the legislature grant the compensation sought.
The legislature then, as a matter of grace, could allow
compensation, decide the amount of compensation, and
determine the conditions, if any, to be placed on the
appropriation.

Parties cannot enter into a contract to bind the state in the
exercise of its sovereign power. The legislature had the power
to place the attorney’s fee limitation in chapter 80-448.
[Gamble’s attorney], by the terms of his contingent fee
contract with Gamble, could not deprive the legislature of this
power. The legislature was in no way bound to pass legislation
conforming with the provisions of the prior contingent fee
contract.

Id. at 852-53.

However, changes in the law and legislative procedure have rendered
Gamble distinguishable and inapplicable to the facts at hand. After the

19
cause of action accrued in Gamble and before Aaron’s family formally
entered into the subject contingency fee agreement, the Legislature
enacted section 768.28, which, for the first time, (1) afforded a limited
monetary waiver of immunity for tort actions; (2) required finality in an
official judicial or administrative proceeding as a condition precedent to
invoking the claim bill process; (3) recognized the possibility of a
contingency fee agreement in procuring the official judicial or
administrative final order by imposing a twenty-five percent cap as to any
attorneys’ fees payable under a contingency fee agreement; and (4)
provided for ultimate presentation to the Legislature for its consideration
when the newly required official administrative or judicial action exceeded
the limits of liability.

With the enactment of section 768.28, the Legislature’s exercise of its
prerogative to choreograph rights pertaining to sovereign immunity went
from a blank page with no codified rights, save for some undefined
historical doctrine, to a multi-step process for those who suffered damages
because of the negligence of a sovereign entity. It was in reliance on this
legislative action that the Edwards family and the firm came to a rock solid
agreement.

Unlike the instant case, where the Edwards family was permitted and
required to file a lawsuit and obtain a bona fide judgment pursuant to
section 768.28(5), the plaintiff in Gamble was not entitled—and thus had
no need—to seek relief and exhaust any remedies before going directly to
the Legislature. Because no statutory mechanism for sovereign immunity
relief existed for Cynthia Gamble, she could only recover through an
amorphous act of legislative grace as part of a private relief act. It was
against this backdrop that the supreme court held the claim bill in Gamble
was solely an act of legislative “grace to redress a wrong . . . at the hands
of the state which is not otherwise legally compensable.” Gamble, 450 So.
2d at 853. And that once an injured party requested relief, the Legislature
could, “as a matter of grace,” bestow compensation for damages suffered
by the victim and determine any conditions to place on the appropriation
made under the private claim bill. Id.

Interestingly and notably, since Gamble, the Florida Senate has gone
so far as to adopt its Rule 4.81(6), which provides in pertinent part, “The
hearing and consideration of a claim bill shall be held in abeyance until
all available administrative and judicial remedies have been exhausted . .
. .” As recognized by the trial court below, “[i]t is undisputed that under
the rules of the Florida Legislature, in force throughout the representation
of Aaron Edwards by [the firm], Aaron Edwards and his family were

20
required to exhaust all legal remedies before pursuing legislative relief to
recover damages in excess of the sovereign immunity limits of $200,000.”

Aaron’s road to a fair recovery was completely different from Cynthia
Gamble’s. Before making his pitch to the Legislature, Aaron was required
to first invoke all judicial and administrative processes perhaps because,
presumptively, policy makers recognized the efficient, fair, orderly and in
some cases, quite civic process involved in presenting a case to an
independent fact finding person or cross-section of the community. In the
case of a jury trial, the Legislature has called upon the citizens of our
communities to judge the claims of our peers through the civil jury
system—free of politics and in accordance with America’s sacrosanct jury
system. Or if a non-jury or other administrative matter is to be conducted,
one can only assume that the Legislature designed that process to likewise
give a fair and just hearing, leading to a final disposition based ideally on
the strict merits (or lack thereof) of any given claim.

Because of the sea change that occurred as a result of the Legislature’s
enactment of 768.25, Gamble’s “act of grace” reasoning is significantly and
necessarily altered. A would-be claimant is now required to undertake
formal judicial (or administrative) action before bringing his or her plea to
the Legislature.

Here, subsection 768.28(5) and Senate Rule 4.81(6) compelled the
Edwards family to seek a judgment before seeking a claim bill. That is,
colloquially speaking, the Edwards family was required to “lawyer up.” The
Edwards family complied with these requirements, and wisely obtained
counsel to assist them in doing so. See, e.g., Lawline v. Am. Bar Ass’n,
956 F.2d 1378, 1387 (7th Cir. 1992) (“[L]aypersons have a right to obtain
meaningful access to the courts, and to enter into associations with
lawyers to effectuate that end.”). Clearly, Aaron was able to procure the
necessary representation because of the exact wording of the Legislature’s
enactment of subsection 768.28(8). The Legislature advised the firm and
all lawyers similarly situated that contingency fee agreements between the
aggrieved party and legal counsel would be recognized and permitted albeit
with a 25% maximum legal fee.

The state urges us to consider the fact that this court echoed Gamble’s
reasoning in Noel, 984 So. 2d at 1267, well after the enactment of section
768.28. There, the plaintiff and her parents obtained a $6.5 million jury
award against the State Department of Health and Rehabilitative Services
arising out of a botched medical treatment. The Noels received $200,000,
consistent with section 768.28(5)’s damages cap. Subsequently, the
Legislature passed a claim bill appropriating $6.5 million for the plaintiff

21
and $2 million for her parents. The bill limited attorneys’ fees and costs
to $1,074,677. Against the parents’ wishes, their attorney sought to obtain
a charging lien against the appropriation for the balance of attorneys’ fees
owed under the contingency fee agreement. This court held the charging
lien could not be imposed against the claim bill:

A charging lien “is an equitable right to have costs and fees
due an attorney for services in the suit secured to him in the
judgment or recovery in that particular suit.” Rudd v. Rudd,
960 So. 2d 885, 887 (Fla. 4th DCA 2007) (internal citations
omitted). “[T]he lien will attach only to the tangible fruits of
the services.” Id. (citation omitted). “By definition, an
attorney’s charging lien cannot attach to property not involved
in the suit and not before the court.” Id. (quoting Cole v.
Kehoe, 710 So. 2d 705, 706 (Fla. 4th DCA 1998)).

Noel, 984 So. 2d at 1266-67. Our determination that the trial court erred
was largely, if not entirely, based on the fact that the trial court permitted
the attorneys for Noel to re-open the case to impose an attorneys’ fee
charging lien when the funds from the claim bill were never a part of the
stand-alone charging lien action before the trial court. And unlike the
instant case where the Edwards family protested the impairment of their
contract with the law firm, the Noel family did not object to the
Legislature’s limitation on fees. Noel’s reasoning remains sound because
the facts relating to the issue in that case—the improper charging lien—
were dispositive.10

In the final analysis, approval of a claim bill that impermissibly includes
an impairment of a constitutional right to secure counsel through a legally
binding contract now, for many reasons, transcends previous “act of grace”
analyses.

In sum, I would find that the attorneys’ fee provision as to Aaron’s claim
bill was unconstitutional as it acted as a substantial impairment on the
vested contract rights that the Edwards family enjoyed with the firm. And
equally as determinative, there was no significant, legitimate or otherwise
discernable public purpose for imposing the impairment. Instead, the
unconstitutional impairment of the fees and arbitrary cap on costs

10 While the single issue in Noel was the Noel lawyer’s attempt to attach an
attorney lien against the claim bill proceeds, the Noel opinion, in pure dicta, goes
on to discuss the legislatively-imposed limit being permissible due to the nature
of the claim bill as an “act of grace.” Id. at 1267.

22
advanced on Aaron’s behalf renders it a near certainty that the Edwards
family would not have been able to secure representation of their
abundantly meritorious—and their now legislatively required—claim had
they and the firm known at the time that their duly executed contingency
fee contract could be subsequently nullified by a legislative claim bill. The
impairment and actual evisceration of the subject contract is not permitted
under the United States Constitution or the Florida Constitution.

The Power of a Contingency Fee Agreement

Though often unfairly reduced to nothing more than a product of
barristerial greed, contingency fee contracts can and do serve a pivotal
function in our justice system. When put to their strongest and most
ethical purposes, contingency fee agreements are an essential part of
Florida’s legal assistance delivery system. In many circles, they are
considered sacrosanct vehicles through which injured persons of limited
means are given a key to the courthouse. In enacting section 768.28, the
Legislature, when considering waivers of sovereign immunity, demurred to
the judicial system’s legal process as a necessary first step before seeking
a sovereign immunity waiver from the Legislature. Automatically
therefore, that triggers the constitutional mandate that all citizens—rich
or poor—have the same “all access pass” to our system of justice.

Access to courts is a fundamental bedrock principle of our legal system
recognized by the Florida Constitution: “The courts shall be open to every
person for redress of any injury, and justice shall be administered without
sale, denial or delay.” Art. I, § 21, Fla. Const. This is as originally
constructed as it gets, with its roots in Florida’s constitution of 1838. See
Art. I, § 9 Fla. Const. of 1838 (“[A]ll courts shall be open, and every person,
for an injury done him, . . . shall have remedy by due course of law; and
right and justice administered without sale, denial, or delay.”).

The right of access to courts is deeply rooted in American history. As
was notably recognized in chapter 40 of the Magna Carta:

To no one will we sell, to no one will we refuse or delay, right
or justice.

See Henderson v. Crosby, 883 So. 2d 847, 851-52 (Fla. 1st DCA 2004)
(discussing the origin of the access-to-courts provision of the Florida
Constitution). And in Justice Bradley’s dissent in the Slaughter-House
Cases:

23
 But even if the Constitution were silent, the fundamental
privileges and immunities of citizens, as such, would be no
less real and no less inviolable than they now are. It was not
necessary to say in words that the citizens of the United States
should have and exercise all the privileges of citizens; the
privilege of buying, selling, and enjoying property; the privilege
of engaging in any lawful employment for a livelihood; the
privilege of resorting to the laws for redress of injuries, and
the like. Their very citizenship conferred these privileges, if
they did not possess them before.

83 U.S. (16 Wall.) 36, 119 (1872) (Bradley, J., dissenting).

And in 1907, when the United States Supreme Court recognized the
right to seek redress as one of the most essential privileges of citizenship
in our country:

The right to sue and defend in the courts is the alternative of
force. In an organized society it is the right conservative of all
other rights, and lies at the foundation of orderly government.
It is one of the highest and most essential privileges of
citizenship. . . .

Chambers v. Balt. & Ohio R.R. Co., 207 U.S. 142, 148 (1907) (citations
omitted).

Indeed, Chief Justice Marshall, in delivering a unanimous opinion for
the Court, addressed the fundamental right to claim the protection of laws:

The very essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws,
whenever he receives an injury. One of the first duties of
government is to afford that protection. . . .

....

“[I]t is a general and indisputable rule, that where there is a
legal right, there is also a legal remedy by suit or action at law,
whenever that right is invaded.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 WILLIAM
BLACKSTONE, COMMENTARIES *23).

24
 Courts have long recognized the ability to employ legal counsel as an
important part of the right of access to courts. Lawline, 956 F.2d at 1387
(interpreting United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n,
389 U.S. 217, 221–22 (1967) (holding “the freedom of speech, assembly,
and petition guaranteed by the First and Fourteenth Amendments gives
petitioner the right to hire attorneys on a salary basis to assist its members
in the assertion of their legal rights.”)). Additionally, the right of access to
courts has been interpreted to include a prohibition on the imposition of
unreasonable financial burdens that serve to obstruct individual access to
our courts. See generally Achord v. Osceola Farms Co., 52 So. 3d 699, 702-
04 (Fla. 4th DCA 2010).

Unfortunately, competent legal representation, effectively now
legislatively mandated for individuals like Aaron, necessarily comes at a
high cost. Clearly, there are people, such as the Edwards family, who
simply cannot afford to hire a counselor-at-law on an hourly rate, nor pay
the out-of-pocket costs of malpractice litigation.11 Thus, for those
economically disadvantaged individuals who have been quantifiably
injured at the hands of a clearly negligent party, an attorney who agrees
to enter into a contingency fee agreement may be a victim’s only option.12

11A recent essay published by Duke Law Magazine, cited alarming access to court
statistics:

It’s a sobering statistic: About 80 percent of the serious civil legal
needs of low-income Americans go unmet. Millions of people with
claims to assert, claims to defend, or both, simply never connect
with lawyers or obtain the legal help they need. Perhaps it is
because they don’t know their rights, because they don’t know how,
or because they can’t afford to pay an attorney and can’t find one
to work for free. Whatever the reasons, the results can be dire for
people in or on the edge of poverty . . . .

Frances Presma, Can We Close the Justice Gap?, 34 DUKE L. MAG. 20, 21 (2015).
12 Chief Justice Jorge Labarga recently launched the Florida Commission on

Access to Civil Justice to study “unmet civil legal needs of disadvantaged, low
income, and moderate income Floridians.” In re Florida Commission on Access
to Civil Justice, Fla. Admin. Order No. 14-65 (Nov. 24, 2014) (on file with Clerk,
Fla. Sup. Ct.). One of the tasks ascribed to the Commission is to, “[i]dentify and
build partnerships among the courts, members of the private bar, providers of
legal services, and other stakeholders who are engaged or interested in expanding
access to civil justice for disadvantaged, low income, and moderate income
Floridians.” Id. Presumably, this group of practitioners includes those attorneys
willing to take on low income clients pursuant to a contingency fee agreement
even though sometimes at a considerable, certifiable, and potentially huge
financial risk.

25
 To that end, one would expect that contingency fee contracts are
directly related to the constitutional right of access to courts together with
ethical and moral obligations of lawyers. And in fact, they are. The Florida
Code of Professional Responsibility “expressly sanctions the contingent fee
arrangement” based on the rationale that it is the “poor man’s key to the
courthouse.” Fla. Bar in re Amendment to Code of Prof’l Resp., 349 So. 2d
630, 633 (Fla. 1977) (citing Ethical Consideration 2-20, Code Prof. Resp.).

“It is irrefutable that the poor and least fortunate in our society enjoy
access to our courts, in part, because of the existence of the contingent
fee.” Id. The costs associated with representing legitimately injured
plaintiffs in medical malpractice cases such as Aaron’s catastrophic brain
injury are exceptionally steep. This is obviously due largely to the unique
expertise required to prove causation and injuries in complex fact and law
situations.

Empowered by the contingency fee contract, individuals such as Aaron
and his family who are without economic means to pay attorneys’ fees and
advance the costs of litigation are able to bring their legislatively-mandated
claims without the concern of reimbursement for these fees and costs in
the event they do not prevail. Already facing substantial medical bills, had
the Edwards family been unable to find an attorney willing to enter into a
contingency fee arrangement, the hundreds of thousands of dollars
required to pursue this legislatively-required cause of action and thereby
access justice, would have been improbable at best.

Accordingly, I would also reverse the guardianship court on the basis
that the subject claim bill’s attorney’s fee limitation—and the majority’s
affirmation of this legislative proviso—has now invaded and will continue
to wreak a chilling effect upon the sacrosanct and fundamental
constitutional right to access to our courts—particularly for those
suffering damages at the hands of government. To require individuals to
first access our courts before availing themselves of the claim bill process
but then likewise creating an impediment toward that access is the
antithesis of our very essence of civil liberty. Certainly the Legislature did
not intend to amputate a person’s fundamental right of redress.

Severability of the Attorneys’ Fee Provision of the Claim Bill

Finally, this court must determine whether the constitutionally invalid
attorneys’ fee provision—as I believe it to be—may be severed from the
claim bill or whether it is essential to the bill’s operation. See Fla. Dep’t of
State, Div. of Elections v. Martin, 916 So. 2d 763, 773 (Fla. 2005).

26
 “Severability is a judicial doctrine recognizing the obligation of
the judiciary to uphold the constitutionality of legislative
enactments where it is possible to strike only the
unconstitutional portions.” Ray v. Mortham, 742 So. 2d 1276,
1280 (Fla. 1999). The doctrine of severability is “derived from
the respect of the judiciary for the separation of powers, and
is ‘designed to show great deference to the legislative
prerogative to enact laws.’” Id. (quoting Schmitt v. State, 590
So. 2d 404, 415 (Fla. 1991)).

Id. “The severability analysis answers the question of whether ‘the taint
of an illegal provision has infected the entire enactment, requiring the
whole unit to fail.’” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999)
(quoting Schmitt, 590 So. 2d at 415), holding modified by Cook v. City of
Jacksonville, 823 So. 2d 86 (Fla. 2002). Courts must be mindful of
legislative intent in determining whether a provision may be severed, and
“[i]f the legislative intent . . . cannot be fulfilled absent the unconstitutional
provision, the statute as a whole must be declared invalid.” Martin, 916
So. 2d at 773.

The claim bill provides in pertinent part:

An act for the relief of Aaron Edwards, a minor, by Lee
Memorial Health System of Lee County; providing for an
appropriation to compensate Aaron Edwards for damages
sustained as a result of medical negligence by employees of
Lee Memorial Health System of Lee County; providing a
limitation on the payment of fees and costs . . . .

....

The amount paid . . . [is] intended to provide the sole
compensation for all present and future claims arising out of
the factual situation described in this act which resulted in
the injuries suffered by Aaron Edwards. The total amount
paid for attorney’s fees, lobbying fees, costs, and other similar
expenses . . . may not exceed $100,000.

Ch. 2012-249, Laws of Fla.

The language of the claim bill clearly conveys that its sole purpose is to
adequately compensate Aaron. Thus, taking into account the intent to
redress the wrong committed upon Aaron and his parents’

27
acknowledgement that their attorneys can be paid without adversely
affecting the required rest of life care for Aaron, I would find that the
unconstitutional attorneys’ fee provision is severable. The remainder of
the claim bill which, after the contractual fee deduction, amounts to
$11,250,000 does not prevent fulfillment of the remaining (constitutionally
sound) provisions including the stated legislative purposes of the bill.

Conclusion

The attorneys’ fee provision of the claim bill unconstitutionally impairs
the pre-existing contract between the Edwards family and the firm. The
Edwards family and the firm justifiably relied upon the enactment of
section 768.28 when engaging in the solemn right to contract. Although
the guardianship court relied on Gamble and Noel in denying the firm’s
petition for an award of attorneys’ fees, I strongly believe that both Gamble
and Noel are either clearly distinguishable, clearly not applicable, or both.
Finally, I would find that the attorneys’ fee provision may be severed from
the claim bill without frustrating the Legislature’s intent to generously
compensate Aaron. As a final reminder, I feel compelled to once again
state that Aaron’s parents—perhaps the two individuals who love him
most—have steadfastly insisted that the firm (their firm) be compensated
for over a decade’s worth of legal services and pursuant to a valid, arm’s
length, and Florida Supreme Court-approved contingency fee agreement
where the result, the risk of which the firm was contractually obligated to
assume, could have been zero.

Bedrock constitutional principles command all of us to closely
safeguard the basic right to contract but admittedly provide that a rare
exception may exist to permit government to impair a duly executed
agreement. If “reasonable and necessary to serve an important public
service,” an impairment of a contract can withstand the constitutional test
we are required to employ.

Here though, no apparent public service was served by obliterating the
contract between the Edwards family and their lawyers. The impairment
does not pass muster and is, I believe, therefore unconstitutional.

Finally, the attorneys’ fee provision of the claim bill unconstitutionally
sideswipes an individual’s fundamental right to Access to Courts. The
Legislature was clearly within its unquestionable prerogative to defer to
the courts to render judgment as a condition precedent to invoking the full
legislative claim bill process. That, one can argue, makes total sense on
many different levels. But the Legislature may not—in the same breath—
then restrict, delay, or deny access to the people’s judicial process, a

28
concept firmly rooted in the basics of our beloved democracy. To do so is
unconstitutional.

I would reverse and remand for proceedings consistent with this
opinion.

* * *

Not final until disposition of timely filed motion for rehearing.

29