The Fine Print

Political grandstanding or making sure that "justice" is done?

The battle to become Florida's next Attorney General may hinge on one simple question: What is the proper role for the state's top legal officer?

It is not just a semantic exercise, because it could have deep ramifications if the next Attorney General takes a more activist - and confrontational tone - against others in state government.

State Sen. Dan Gelber, a candidate for Attorney General, last week published a provocative piece where he sharply criticized Attorney General Bill McCollum - and former Agency for Health Care Administration Secretary Holly Benson- for defending the state in an ongoing lawsuit over Medicaid reimbursement rates. (Benson is one of the Republican candidates seeking to replace McCollum in 2010.)

The class action lawsuit filed by the Florida Pediatric Society and the Florida Academy of Pediatric Dentistry and on behalf of Floridians under 21 asserts that the state is violating federal requirements because its low reimbursement rates has resulted in many doctors refusing to treat Medicaid patients.

Gelber - who is running for Attorney General - contends that by taking the case to trial that McCollum and Benson are "fighting to block access to care for children."

"If he wanted to, our Attorney General could concede that is morally repugnant that Florida has the second highest rate of uninsured children in the nation,'' Gelber wrote. Gelber said that instead of fighting the case that McCollum should have settled it and forced the Legislature to spend more money on Medicaid.

This marks the second time that Gelber has threatened to fight the Legislature. Back in October he said that if he were Attorney General he would sue them over education funding.

Ryan Wiggins, a spokeswoman for McCollum, said it wasn't the job of the Attorney General to decide the policy of Medicaid reimbursement rates. Instead the Attorney General has a "obligation" to defend the state in lawsuits.

"Barring conflicts, it is the responsibility of the Office of Attorney General to represent the state, an obligation Attorney General Bill McCollum takes very seriously,'' said Wiggins. "Furthermore this is a policy issue that should be addressed by the Florida Legislature, not litigated in the courts."

The Republican candidates for Attorney General so far have stressed issues such as cybersafety and battling gangs as among the top priorities for the job. Benson on her website says she will fight government regulation on behalf of businesses.

State Sen.Dave Aronberg, a former assistant Attorney General who is challenging Gelber in the Democratic primary, said the job calls for a balancing act.

"As a former Assistant Attorney General, I watched as Bob Butterworth sometimes had to defend laws that he disagreed with,'' said Aronberg. "Other times, however, the Legislature can act so egregiously and in a way that will hurt the people of the state, that the Attorney General must refuse to go along. The key is to find the right balance without being either a rubber stamp for the Legislature or a political grandstander."

When asked whether or not he runs the risks of being viewed as a grandstander, Gelber responded that he believed the state's position on the Medicaid lawsuit was "contrary to the interests of Florida citizens" and that the state should have settled it "years ago." Gelber also said that the "failure of the Legislature" to provide a high quality system of education as required by the state constitution "violates the rights of the citizens."

"As the AG I am not the representative of an ordinary party to a controversy,'' said Gelber. "My obligation is not simply win a matter, but to make sure justice is done. I do have a much different vision of the office than the current AG - and I do intend to use the office to stand up for everyday Floridians even it inspires the ire of the Legislature."

Another round in the Attorney General slugfest

Former Agency for Health Care Administration Secretary Holly Benson is obviously determined to make the GOP primary for Attorney General a real slugfest judging by the Tallahassee heavyweights who are hosting a fundraiser for Benson on Dec. 9.

Among those listed on the invitation are Brian Ballard, Paul and Sally Bradshaw, Jim Magill, Mark Kaplan, and Mike Harrell.The inclusion of Ballard is significant since Ballard is a top fundraiser of Gov. Charlie Crist. Ballard is siding with Benson despite the fact that Lt. Gov. Jeff Kottkamp jumped into this race months ago.

Having four current and former legislators in this race - as pointed out here and here- makes it easy to compare their records. Consider this Part II of an ongoing examination of the positions of the quartet - Benson, Kottkamp, Dan Gelber and Dave Aronberg - on important bills that all they voted on as well as bills that had legal and constitutional questions or show a divergence in their positions.

Terri Schiavo I: The GOP-controlled Legislature during a 2003 special session passed a highly controversial piece of legislation that let then Gov. Jeb Bush order that Schiavo's feeding tube be kept in place despite judicial rulings allowing it to be removed.The law was later struck down unanimously by the state Supreme Court including Bush's own appointees. Kottkamp-Yes. Gelber-No. Aronberg-No. Rep. Benson was one of 28 House members who missed the first vote, but voted yes when the bill came back a second time.

Terri Schiavo II: This bill was taken up during the 2005 regular session and was drawn more broadly than the first. It would have prevented the withholding or withdrawal of food or water to a person in a persistent vegetative state unless they had expressly directed the withholding of food and water. The legislation was never passed because it died in the Florida Senate. (Among those voting no was Sen. Paula Dockery, who is now running for governor on the GOP side. Dockery voted no on the first bill too.)  Kottkamp and Benson - Yes. Gelber and Aronberg-No.

Stand Your Ground: This measure was a top priority in 2005 by the National Rifle Association. It changed Florida law so that someone was no longer required to retreat before they could use deadly force to protect themselves even if they were outside their homes. It also expanded the definition of "castle" - a place where a person is not bound to retreat - to include cars.

This standard has come to play in criminal cases since then, such as the August 2009 ruling that upheld the release of a Tallahassee man who shot and killed another man in a car outside a nightclub. Jimmy Hair and Charles Harper were fighting inside a car when Hair says he got his gun and tried to use it as a club, but the gun went off and killed the other man. The court said the "physical evidence" was clear that the man was shot inside the car and the law makes no exception from immunity when the victim is in retreat "at the time defensive force is employed."

Benson, Kottkamp and Aronberg voted yes. Gelber voted no.

Alimony: This was a contentious bill from 2005 that changed the circumstances in which a court could reduce or terminate alimony payments. The "shacking up" bill was aimed at cases where a spouse moves in with someone but doesn't marry them. But some complained that the legislation went too far and would hurt women. Benson and Gelber voted no. Kottkamp and Aronberg voted yes.

60 percent amendment: This joint resolution placed on the ballot a requirement that all future constitutional amendments need to be approved by 60 percent of the voters in order to pass. Kottkamp, who was a cosponsor of the measure, voted yes, as did Benson and Aronberg. Gelber voted no.

Instant bingo: This 2004 bill authorized the use of instant bingo tickets, essentially allowing organizations that conduct bingo to sell pull-tab tickets instead of requiring people to play bingo the old-fashioned way. Gov. Bush vetoed the legislation, saying it expanded gambling and may have violated the constitutional provision that limits lottery games to the state. Benson was one of just 11 Republicans to vote against the bill. Gelber, Kottkamp and Aronberg voted yes.

Kottkamp vs. Benson vs. Aronberg vs. Gelber

If current Agency for Health Care Administration Secretary Holly Benson jumps into the race for Attorney General, then voters in Florida will have up to four current and former state legislators competing for one job. (Benson said recently she is "seriously" considering it.)

All four served in the Florida Legislature together at one point making it easy to look at their voting records. So consider this Part 1 of an ongoing examination of some key or interesting votes the foursome made. These are votes taken from the special session in late 2005 and the regular 2006 session, the last time they were all together.

SB 6-B: The so-called gift ban, which made it illegal for legislators to accept anything of value from lobbyists. The legislation also required lobbyists to disclose how much they get paid. Kottkamp, Benson, Gelber and Aronberg - Yes.

HB 145: This bill abolished the concept of joint and several liability for economic damages in negligence cases. This was a top priority of the business community and fiercely opposed by the state's trial attorneys. Benson voted yes. Kottkamp, Gelber and Aronberg voted no.

CS/CS/CS/SB 1980: This was the big comprehensive insurance bill that lawmakers passed in the spring of 2006 only to tear it all apart in the January 2007 special session amid an outcry from Floridians angry at rising insurance rates. It did include a $715 million bailout of Citizens Property Insurance Corp. in an effort to blunt the impact of assessments the carrier would place on all property insurance policies in the state. It also gave more leeway for private insurers and Citizens to raise insurance rates, although it also did set the stage for wind mitigation discounts that have since become controversial. Benson voted yes. Kottkamp, Gelber, and Aronberg voted no.

3-B: Medicaid reform. This bill created the Medicaid pilot project pushed by former Gov. Jeb Bush to remake the Medicaid system into a program that more closely resembled private insurance plans. Benson was the bill sponsor. The idea was to expand this program statewide but lawmakers have refused to do so and many legislators from both parties are skeptical that this program has worked. Benson said recently that she still believes in the concept. Benson and Kottkamp voted yes. Aronberg and Gelber voted no.

SB 1350: This was a big transportation bill that contained a $2 per day surcharge on rental cars that had to approved by a countywide referendum. Bush vetoed the bill when it got to his desk. Despite overwhelming support by the GOP-controlled Legislature, both Benson and Kottkamp voted no. Aronberg and Gelber voted yes.

HB 135: This was a charter school bill that established a new statewide board that could approve or deny charter school applications. This move was widely criticized by local school boards who considered it an illegal usurping of their constitutionally-created powers. That viewpoint was shared by the First District Court of Appeal, which ruled in December 2008 that the law created a "total and fatal conflict" with the state constitution. Benson, Kottkamp and Aronberg all voted yes on this bill. Gelber was the lone legislator among the four to vote no.