Parkland shows Florida’s archaic sovereign immunity law must change

It's thanks to federal law, not Florida's, that the Broward County School Board was able to approve and begin paying $26 million in settlements to the victims of the mass shooting at Marjory Stoneman Douglas High School in Parkland nearly four years ago.

The state's archaic sovereign immunity law would have limited the total payout to $300,000 — to be shared by 17 bereaved families, 17 injured survivors, and 19 students still suffering post-traumatic stress.

Sovereign immunity means that the government can't be sued without its consent. It's a legacy of the medieval concept of the divine rights of kings. Florida should have shed it long ago, as some other states have.

It results in an annual flood of claims bills asking the Legislature to approve damages resulting from lawsuits and settlements that exceed the state's antiquated limits.

The tragedy at Parkland is the strongest evidence yet why the Legislature should abolish sovereign immunity or at least reform it as proposed in Senate Bill 974 by Sen. Joe Gruters, R-Sarasota, and House Bill 799 by Rep. Mike Beltran, R-Lithia.

The Senate bill hasn't moved, although Gruters says he expects it to.

A House judiciary subcommittee approved Beltran's bill 16-1 this week (Jan. 19) despite opposition from the usual suspects: lobbyists for school boards, county and city governments and lawyers who specialize in defending them. It was particularly disappointing that lobbyists for Parkland and Broward County registered opposition (as did Orange County).

The two bills raise to $1 million the present $200,000 ceiling on payments to any one person and eliminate the $300,000 overall limit on a single incident. They provide for the $1 million to be adjusted annually for rises in inflation. They apply to all claims not yet settled when the bills become law. They waive any time limits on claims against government that relate to sexual battery on someone younger than 16, which has implications for the schools and the state departments of Juvenile Justice and Children and Families. Insurance companies would no longer be allowed to condition payouts on the passage of claims bills.

State Rep. Michael Gottlieb, D-Davie, cast the only "no" vote. He said Friday he thinks $1 million is too high, that an event like the high school shooting could bankrupt a city like Parkland, and that there should have been a workshop on the issues before voting on the bill. But he said he favors reforming sovereign immunity and suggested a $500,000 ceiling instead.

The opposing lobbyists raised particular objections to the $1 million; the retroactive application, which they said would find some without sufficient insurance; and the elimination of an overall ceiling. Some subcommittee members sounded sympathetic. Beltran said he would work with them as the bill moves to other committees.

But he refused, properly, to give an inch on the principle at stake.

"The government should be held to at least as high or a higher standard than private businesses," he said. He defended the cost to taxpayers as a necessary expense.

There would be fewer claims bills, Beltran said, and not so many cases going to federal courts, where state sovereign immunity laws don't apply but where the minimum payouts are higher.

Claims bills can take years to pass, if ever. A $25 million bill specific to the high school, pre-filed in October, wasn't going anywhere despite being sponsored by Gruters, who chairs the Florida Republican Party.

It was moot, however, because attorneys for the victims invoked a precedent for using a federal civil rights statute to recover damages for people suffering "the deprivation of any rights, privileges, or immunities secured by the Constitution and Laws…"

It is also a moot question, thankfully, whether that would have worked had the school board wanted to contest it.

But the federal statute would not apply to the majority of hardships that come to the Legislature as claims bills.

Among those pending now is a $10 million claim for Maury Hernandez, a former Broward Sheriff's Office deputy who spent three weeks in a coma and 82 days in the hospital after being shot in the head by a motorcyclist he had stopped for reckless driving. Hernandez tried to sue the Department of Corrections, arguing that the shooter would have been in prison had the department acted to revoke his probation when it had grounds to. A trial judge ruled that the prison system owed "no duty of care" to Hernandez or anyone else. He suffered the injury 14 years ago.

It took 13 years to get $2 million to the parents of a Florida State University football player who died, apparently of sickle cell anemia, during an intense practice. For nearly all that time, the university was willing to pay it. The Legislature couldn't be bothered.

Gruters isn't the first Republican leader to take on the sovereign immunity albatross. The Legislature suspended it entirely for the 1969-70 fiscal year, but in 1971, only the House voted to make the reform permanent. The Senate defeated it under pressure from school boards and their insurance companies. A resulting compromise doubled the per person limit of $100,000 and raised the overall cap to $300,000.

Rep. Donald Reed Jr. of Boca Raton, then the Republican House minority leader, was incensed. He wanted to be rid of claims bills entirely and let the courts take care of harm caused by government agencies.

"The claims procedure is a throwback to the Stone Age and it is absolutely inconceivable that any modern Legislature should have to sit there and do this," he said.

We haven't had a king since 1776. It's long past time to be rid of his legacy as well.

As Rep Anna Eskamani, D-Orlando, remarked during the subcommittee hearing this week, "The people deserve justice, right?

An editorial from the South Florida Sun Sentinel.