Do Judges Fact Check the Legislature? Absolutely.

Do Judges “Fact Check” the Legislature?  Absolutely.

escambia1-resized-600“Fact checking” claims made by political figures and their opponents is certainly not new. In the last few decades, entire websites have been dedicated to the practice (e.g.—, TV commentators have punctuated their political reporting with “truth-O-meters” and descriptions depicting degrees of accuracy (or not). In law, the Journal of Empirical Legal Studies is one example of a highly respected publication providing empirically-oriented articles on diverse law and law-related topics—sometimes offering factual analysis helpful in evaluating assumptions we make in the practice of law.

The Florida Supreme Court’s recent opinion in Estate of McCall v. United States, 2014 WL 959180, 2014 Fla. LEXIS 933 (Fla. March 13, 2014), exemplifies the judiciary’s fundamental role as a cross-checker of the purported facts and data the Florida Legislature uses to justify legislation.  In McCall, the Florida Supreme Court struck down Florida’s statutory caps on noneconomic damages in wrongful death cases based on medical malpractice claims. See § 766.118(2), Fla. Stat. (2005). In reaching its decision, the Court scrutinized the Legislature’s reference to the “Medical Malpractice Crisis” used to justify the cap on noneconomic damages and its claim that “Florida [wa]s in the midst of a medical malpractice insurance crisis of unprecedented magnitude” evidenced by an “increase in medical malpractice liability insurance premiums” in turn resulting “in physicians leaving Florida, retiring early from the practice of medicine, or refusing to perform high-risk procedures, thereby limiting the availability of health care.” (citing Ch.2003–416, § 1, Laws of Fla., at 4035).  Relying on countervailing data and facts, the Court scrutinized the conclusions and data of the Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003), and floor debate that the Legislature used to justify the statutory caps, eventually concluding that “the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best.”  The Court reaffirmed that it was “not required to accept the findings of the Legislature or the Task Force at face value” and “[w]hile courts may defer to legislative statements of policy and fact, courts may do so only when those statements are based on actual findings of fact, and even then courts must conduct their own inquiry…” citing N. Fla. Women’s Health & Counseling Serv., Inc. v. State, 866 So.2d 612, 627 (Fla.2003) (quoting Moore v. Thompson, 126 So.2d 543, 549 (Fla.1960)) (emphasis supplied).

Mark S. Fistos, Esq.