STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: )

)

CS/HB 3035 ) Case No. 98-2005

RELIEF/FREDDIE PITTS and )

WILBERT LEE. )

)

FINAL REPORT

This cause comes before the Division of Administrative Hearings and the undersigned Administrative Law Judge pursuant to mandate of the Florida Legislature by passage of Committee Substitute for House Bill 3035. The appearances were as follows:

For State of Florida: Gerald B. Curington, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

For Claimants: Ronald S. Lieberman, Esquire

Suite 300

780 Northwest 42nd Avenue Miami, Florida 33125-5597

Kendall Coffey, Esquire

Coffey, Diaz & O'Naghten, L.L.P. Suite 204

2665 South Bayshore Drive Miami, Florida 33133

In an immediate sense this cause arose upon the passage of Committee Substitute for House Bill 3035 (CS/HB 3035) whereby the 1998 Florida Legislature sought to provide an impartial forum for resolution of the issues relating to the fundamental fairness of the criminal proceedings involving

the above named claimants. Those proceedings resulted in the claimants' convictions many years ago and the above statute requires a determination as to whether they are entitled to equitable relief because of purported conduct denying fundamental fairness by officials of the State of Florida, resulting in their convictions. The Administrative Law Judge was directed, by Section Two of this Act, to review the trial and appellate records in the criminal cases against the claimants, the legislative proceeding records, and the pardon proceeding records before the Florida Cabinet and report on the fundamental fairness thereof. The Department of Legal Affairs was directed in Section Two of the Act to provide representation for the interests of the State of Florida in this matter. Section Three provides that if the Judge determines by a preponderance of the evidence that the State or officials thereof committed a wrongful act and that a basis for equitable relief exists, that an award should be made to Messrs.. Pitts and Lee in the amount of Five Hundred Thousand Dollars ($500,000), each. Additionally, if the claimants are determined to be prevailing parties then the Judge is authorized to award a reasonable attorney's fee, including all costs, to the claimants in an amount not to exceed twenty-five percent of the compensation or a maximum of Two Hundred Fifty Thousand Dollars ($250,000).

Upon referral of the case to the undersigned Administrative Law Judge a pre-hearing conference was conducted on May 11, 1998. Counsel for the Department of Legal Affairs was then directed to deliver to counsel for the claimants and the Judge the proceeding records referenced in Section Two of the above-cited Act. The parties were given until May 21, 1998 to review that record and, by that date, to file a pre-hearing stipulation setting forth any stipulations as to the record of the various proceedings referenced in the subject statute which the Judge should consider; to identify witnesses, and to include any factual or legal stipulations that the parties were able to formulate in order to more closely focus the scope of the proceeding and any hearing. Hearing dates were tentatively set for May 26 and May 27, 1998, in Dade County, Florida.

No hearing was actually conducted, because of the agreement of the parties concerning the compensation issue.

In an historical sense this case arose in Port St. Joe, in Gulf County, Florida, in the summer of 1963 when on one tragic evening the abduction and murders of Mr. Grover Floyd and Mr. Jesse Burkett occurred. Shortly after those murders were committed Freddie Pitts and Wilbert Lee, the claimants, were arrested, convicted and sentenced to death. For reasons delineated more fully in the voluminous record of the various proceedings which took place before this case

and indeed in the pleadings submitted in this proceeding, those convictions were ultimately overturned by the Circuit Judge involved and a new trial was conducted at the conclusion of which Pitts and Lee were again convicted and sentenced to death. In 1973, however, the United States Supreme Court determined that the death penalty as then constituted and applied was unconstitutional. The death sentences of Pitts and Lee were thus overturned, at which point they began serving a sentence of life imprisonment.

Pitts and Lee thus were imprisoned for twelve (12) years after the first conviction for the murders. However, in 1975, after an eighteen-month review of the case by Governor Askew, the Governor concluded that "substantial doubt exists as to the guilt of Pitts and Lee." After an extensive personal review of the case by the Governor, his staff as well as an in-depth investigation by Attorney General Robert Shevin, including his investigation of the circumstances of Curtis "Bo" Adams', initial confession and his hearing of Adams' re-newed confession, Governor Askew and three other members of the Cabinet, Attorney General Robert Shevin, Treasurer Phil Ashler, and Education Secretary Ralph Turlington approved the Governor's exercise of his constitutional clemency power to grant Pitts and Lee a full pardon. This resulted in their release from prison and ended all judicial consideration of the case.

Because a Plenary Pardon renders the convictees, at law, to occupy the status of never having been convicted of the crime in question, the question of the guilt or innocence of Pitts and Lee cannot be and is not before this forum for consideration. That issue has already been decided by the pardon granted by Governor Askew.

Although the Pardon concluded all possible judicial consideration of the case the clemency granted did not end the controversy underlying that case. The essential facts surrounding the case with regard to whether officials of the State of Florida committed wrongful conduct, by acts or omission, which led to a denial of fundamental fairness to the claimants in the criminal investigation and proceedings has remained in dispute ever since their first arrest and conviction and remains so today.

In 1977, the first of twenty-two claims bills on behalf of Pitts and Lee was filed. Thus the legislature began confronting the issue of whether wrongful conduct had been committed by state officials at various levels of the criminal proceedings, resulting in a denial of fundamental fairness to the claimants and therefore whether they were entitled to equitable relief.

In 1979, the Honorable Hyatt Brown, speaker of the House of Representatives, appointed a select committee to examine a record consisting of some forty-three volumes and

thirteen thousand pages and involving many witnesses. That committee conducted hearings on the then-pending Pitts and Lee claims bill, but after five days of deliberation the select committee voted to deny the claim. Subsequent claims bills on the claimants' behalf have never resolved the

long-standing factual disputes involving conflicting and changed testimony and thus have not brought closure to the Pitts and Lee controversy. The facts of the case have become, with the passage of time, more difficult to resolve. The Special Master appointed by the Senate in 1981 for example, wrote that "The facts over the past eighteen years have, with the passage of time, become more complicated and conflicting." It was only with the passage of CS/HB 3035, enacted this year, that the Senate ever passed a Pitts and Lee claims bill. Likewise, the House of Representatives was told by its Special Master in 1984 that " . . it appears that every person in this case has told varying stories from time to time and it is not possible at this time to make completely accurate findings of fact in this case." The House too had never passed a Pitts and Lee claims bill until the subject legislation was enacted this year.

The Attorney General, through counsel for the Department of Legal Affairs is charged with representing the state's interests in this matter, as it were, to defend the state treasury against this claim. In its "Pre-Hearing

Statement" counsel for the Department has determined and stated that the majority of the Cabinet members, including Governor Askew, twenty-three years ago, decided that the evidence of Pitts and Lees' innocence was preponderant over the evidence of their guilt and that therefore, a Plenary Pardon should be granted in the interest of justice.

Counsel for the Department asserts that this determination by the executive branch of government is, in itself, enough to satisfy the provisions of CS/HB 3035, in entitling Mr.

Pitts and Mr. Lee to compensation. Moreover, the Department's counsel asserts that no significant new evidence has been uncovered in this case since the decision in the pardon proceeding.

Counsel for the Department contends, in its pre-hearing stipulation, that, in light of the decision to grant a full pardon in 1975, coupled with the passage of so much time since then, associated with the unavailability of witnesses, the fading memories of other witnesses, and a documentary record that lends support to one degree or another to both the proponents and opponents of compensating the claimants, that there would be nothing to be gained from having another fact-finding proceeding revisit the intransigent controversies surrounding this case:

Such an effort would likely bring pain to many persons, including Messrs..

Pitts and Lee, the next of kin of Messrs. Floyd and Burkett, and the many

dedicated law enforcement personnel who diligently strove for justice in this case - all without truly resolving a single factual conflict and, more importantly, without bringing closure to an issue that has divided the citizens of this state for more than a generation. Therefore, it is in the best interest of the State of Florida that the Administrative Law Judge adopt the conclusions of Governor Askew, as set forth in his September 10, 1975, statement at the Executive Clemency Meeting, in Tallahassee.

Under Florida law, a full pardon is an act of executive grace, it removes all disabilities and consequences of conviction. Sandler v. Criminal Justice Standards and Training Commission, 531 So. 2d 1344, 1345 (Fla. 1988);

Sullivan v. Askew, 348 So. 2d 312, 314 (Fla. 1977); Doe v.

State, 595 So. 2d 212, 213 (Fla. 5th DCA 1992). The power of the Executive of the State to grant pardons flows directly from the constitution and may not be infringed by either of the other branches of government. Sullivan supra; Advisory Opinion of the Governor, 334 So. 2d 561 (Fla.

1976). "An executive may grant a pardon for good reasons or bad, or for any reason at all, and his act is final and irrevocable." Sullivan supra, 315.

Although not required to do so, Governor Askew explained in 1975 that the decision to grant a Plenary Pardon to Pitts and Lee was based on the merits or lack thereof of the case against them. The Governor stated that

he was persuaded that "the ends of justice require me to seek freedom and a full pardon for these two men." He further explained that he made his pardon determination "in the context of the probability of the guilt or innocence of those concerned." The Governor thus, in effect, used a preponderance of the evidence standard to determine that the claimants had not committed the crimes for which they had been imprisoned.

According to the Department the record supporting the Governor's determination to grant the full pardon is sufficient, standing alone, to satisfy the provisions of CS/HB 3035 and entitle the claimants to compensation. The second section of this act states that the purpose of the hearing is to determine whether a basis for equitable relief exists for the claimants, to re-dress any wrongful act or omission of officials of the State of Florida. The third section states that if the Administrative Law Judge finds by a preponderance of the evidence that a wrongful act was committed then the Judge is authorized to award the

above-referenced compensation to the claimants. Counsel for the Department asserts that the factual findings required by the subject legislation were actually made more than twenty- two years ago by the Governor and the other Cabinet members voting with the Governor on the pardon issue when they concluded that the evidence showed, more likely than not,

that Pitts and Lee had been convicted, sentenced, and incarcerated for crimes they did not commit. By any standard, as the Department concedes, the incarceration of innocent men for a crime that they did not commit would constitute a wrongful act of government in itself, as would any unlawful acts, such as withholding evidence of a confession, underlying that ultimate wrongful act.

As stated by counsel for the Department, there are additional reasons to give great weight to the decision by the Governor and the three Cabinet members to grant the pardon. Each of those public officers conducted his own investigation and reached his own decision based upon evidence, testimony, and interviews that were far fresher then than the evidence available today. Governor Askew personally reviewed every aspect of the case over a period of eighteen months and had members of the staff interview the major witnesses at a time when memories were fresher. Similarly Attorney General Shevin twice traveled to the Florida state prison at Raiford to personally interview Curtis "Bo" Adams, who on the second visit repeated a confession that he had made some nine years earlier, admitting that he, not Messrs. Pitts and Lee, had murdered Messrs. Floyd and Burkett.

Counsel for the Department contends that nothing has changed in the years since the four named constitutional

officers made the pardon determination to indicate that it was a wrong decision. Department's counsel thus contends that the best and most sensible solution is for the Judge, in effect, to adopt Governor Askew's conclusions, and award compensation to Pitts and Lee in accordance with CS/HB 3035. Effectively then, the agency charged with representing the interests of the state and defending the state's funds against this claim has stipulated that the claim should be paid.

Turning now to the issue of entitlement to attorney's fees and costs, it should be stated, preliminarily, that there is no dispute as to the $250.00 hourly rate advanced by claimant's counsel, Mr. Lieberman, as appropriate for his services. The Department does dispute the total amount of hours contended by Mr. Lieberman to have been expended in advancing the cause of Pitts and Lee. It disputes whether certain activities claimed to be in furtherance of their cause were in fact necessary and appropriate for attorney's fee compensation, as well as whether all of the claims efforts made in past years, prior to the activities engaged in by counsel for passage of the subject legislation, should be the subject of attorney's fee compensation since the claimants did not prevail in those claims bill efforts of prior years. There is no dispute as to the total number of

hours expended by attorney Kendall Coffey in preparing for litigation of this claim before the undersigned.

In addressing whether attorney services for prior phases of the claims process should be included in determining compensation for attorney Lieberman, the explicit premise of the claims bill itself, CS/HB 3035, as well as relevant principals of Florida law must be considered. The Bill itself shows that the legislature clearly treated prior claims efforts of prior years on behalf of the claimants as an integral component of the ultimate claims resolution. Indeed the preamble portion of the statute itself speaks of unresolved issues regarding past claims efforts. Clearly the legislature viewed the claims efforts on Messrs. Pitts and Lees' behalf as one uncompleted process culminating in the passage of the subject legislation and reference of the matter to the Division of Administrative Hearings.

In fact, the legislation specified that previous hearings and transcripts of various legislative proceedings would be a part of the current proceeding. Further confirmation of the intended inclusion of past history came when the state assembled four boxes of materials consisting of the record of the prior proceedings in preparation for the subject administrative hearing, as the subject statute directed. This, coupled with review of the Senate Judiciary

Committee tapes and the tapes of the floor debate on the Bill show that the legislature obviously intended that the final resolution of the claim would encompass consideration of the many years of efforts and unresolved issues concerning Pitts and Lee.

Inclusion of consideration of prior proceedings and efforts in advancement of the subject claims comports with Florida law. The necessity of including previous phases of the case is a recognized rule in determining attorneys' fee awards. While the state objects to Mr. Lieberman's 557 proposed hours "expended on non-prevailing efforts," that objection ignores the reality that success is never determined until the final outcome of the claim. The law in Florida is that interim phases of an ongoing litigation process do not define prevailing parties' status for purposes of fee awards and it is the final resolution which all the prior phases and efforts culminate in that is dispositive of the question of a fee award. Mainlands Construction Company v. Wen-Dic Construction Company, Inc.,

482 So. 2d 1369, 1370 (Fla. 1986). The fact that attorney Lieberman's efforts were unsuccessful in earlier years does not mean that those services were unavailing because it was only at the conclusion of the matter that the result could be ascertained. Magner v. Merrill Lynch Realty, MCK, Inc., 585 So. 2d 1040, 1043, (Fla. 4th DCA 1991). See also

Lakeside Manor Condominium Association, Inc., v. Forhand,

513 So. 2d 1104, 1107 (Fla. 5th DCA 1987) wherein the Court opined that even when a party is unsuccessful in the earlier phase of a case the party will be deemed a prevailing party for attorney's fee purposes if ultimately the party is successful on appeal. Therefore, by analogy even if success eluded these claimants during the earlier years of their efforts, claimants and their counsel were nonetheless building a record and advancing a process which was ultimately vindicated. Thus, just like a party who might lose at trial but ultimately prevail upon appeal, counsel is entitled to compensation for the entire proceeding because "they made the record which established the plaintiff's right to recover." Champlain Towers North Associates v. Cohen, 481 So. 2d 1259, 1260 (Fla. 3d DCA 1986).

In summary, the prior record was expressly adopted and directed to be used in resolution of the issues in this proceeding by the specific operative language of the subject legislation. The preamble portion of that statute shows that the legislature itself took into consideration the unresolved issues dating back through past claims efforts.

The legislature specifically recognized the necessary and integral role of those earlier proceedings in formulating the questions to be resolved in this proceeding. Moreover, in recognition moreover of the general principals of Florida

law that apply, it is clear that the prior years of attorney Lieberman's struggle should not be excluded from the calculus of his compensable time, now that he and his clients have prevailed.

Time Documentation

The state's complaint concerning adequate detail in attorney Lieberman's time records is not a sufficient basis to deny compensation or fair compensation to him. While Mr. Lieberman's time records, set forth by affidavit, are very general and lacking in detail, consisting essentially of a paragraph of narrative for entire years of his claim efforts, the paucity of detail in those records is understandable under the circumstances. Attorney Lieberman undertook, in commendable fashion, the representation of Pitts and Lee for these many years essentially as an act of charity, as a public service, pro bono effort concerning which he had little expectation of pecuniary reward. Thus, it is understandable that during the course of his long effort, financed to a great degree out of his own pocket, that he did not keep detailed time records.

In fact, although courts prefer that contemporaneous, detailed, itemized time records support attorney fee submissions, it is equally clear from relevant court decisions that omission of such detailed records is not fatal or even necessarily detrimental to an attorney's fee

claim. See City of Miami v. Harris, 497 So. 2d 69, 73 (Fla. 3rd DCA 1986). As emphasized in the Harris case, the analysis of Florida Patient's Compensation Fund v. Rowe,

472 So. 2d 1145 (Fla. 1985), does not require a reduction in fee based on inadequate documentation. Id. As stated in another decision:

That we do not agree with the contention on plaintiff's appeal that Rowe requires that those hours must necessarily have been specifically reflected in written time records. Id. We agree with the Third District Court of Appeal in the City of Miami v. Harris, 497 So. 2d 69,

73 (Fla. 3rd DCA 1986), and its conclusion that there is no such requirement in Rowe.

The Glades, Inc., v. The Glades County Club Apartments Association, Inc., 534 So. 2d 723, 734 (Fla. 2nd DCA 1988). Thus, in addressing the issues of attorney's fees, the court in Executive Square Limited v. Delray Executive Square, 553 So. 2d 883 (Fla. 4th DCA 1989), reversed on other grounds, held that Rowe does not require that "the number of hours expended by counsel must be documented by written time records." Id. 804. See also Brevard Community College v.

Barber, 488 So. 2d 93, 98 (Fla. 1st DCA 1986)(". . . we decline to hold that the lack of detailed documentation is fatal to the award of fees in this case."); City Laundry and Linen Supply v. Coster, 465 So. 2d 641, 643 (Fla. 1st DCA 1985)(Claimants failure to keep time records did not preclude a $5,000 attorney fee for procuring $12,380 in

workmen's compensation benefits); Tinsley v. City of St. Petersburg, 373 So. 2d 675 (Fla. 1979. Clearly then, despite their lack of detail, the itemization of hours and services provided by attorney Lieberman representing the many years of his extraordinary representation of these claimants is sufficient in terms of clarity and detail to support an attorney's fee award under relevant Florida law.

The undersigned has reviewed the time records for representation of the claimants in the various claims efforts before the Florida Legislature and this forum submitted by affidavit by Mr. Lieberman. In a large part it is determined that the activities represented by the hours Mr. Lieberman claims to have expended on behalf of Messrs.

Pitts and Lee are logically and reasonably within the course and scope of the types of efforts one would expect to expend in persuading legislators to vote in favor of the various claims bills in the history of this case.

Some hours advanced in Mr. Lieberman's affidavit, however, while no doubt truthfully represented, are not deemed to be sufficiently connected and material to the cause of effecting the persuasion of legislators to vote in favor of the various claims bills introduced since 1976.

Because of the ultimate result reached herein, the Judge will not describe in great detail the hours he determines should be deleted from those claimed by Mr. Lieberman.

Suffice it to say that the following activities or types of activities should be excluded from the attorney's fee calculation: (1) attendance and speaking at various meetings and rallies of political action groups, including but not limited to the Pitts/Lee Compensation Committee;

1. appearances on various radio and television "talk shows" such as that of Larry King, Neal Rogers, Bill Smith,

   Alan Burke, and Chuck Harder; (3) meetings and discussions with Dade County School Board representatives about including Pitts and Lee case materials in the curriculum of a legal class or legal workshop; (4) speaking before high school classes and civic organizations; (5) conferring with authors or writers; (6) reading or re-reading Gene Miller's book about the history of the case and (7) organizing a campaign for Freddie Pitts to represent an area of Dade County on the Democratic Executive Committee. These are activities too indirectly related and remote to the advancement of the cause of the various claims bills to be compensable for attorney's fee purposes.

   Thus, the Judge has deducted the hours represented by these unrelated activities based upon the Judge's view of a logical, reasonable estimate of the amount of time such unrelated activities should represent in the absence of any detailed affidavit, evidence or argument concerning their value in hours. Consequently, it is determined that Mr.

   Lieberman is entitled to compensation for 610 1/2 hours for the various claims proceedings including the one culminating in the 1998 claims bill at issue and including the proceeding before the Division of Administrative Hearings, instead of the 757 hours which he claimed.

   There is no dispute that Mr. Coffey expended 84.90 hours on this case. He claims an hourly rate of $325.00 per hour. He apparently bases that rate on his services being accepted as worth that by a bankruptcy court several years ago. The undersigned determines that that is not sufficient evidence or argument in justification of the $325.00 hourly rate, however. Although the affidavits and curriculum vitae filed by both counsel show that they are eminently qualified to perform the services they performed in these and prior proceedings, as the case may be, there is no persuasive evidence or argument to justify Mr. Coffey's rate being any higher than the liberal, agreed-upon rate for Mr. Lieberman of $250.00 per hour. Consequently, Mr. Coffey should be awarded a fee commensurate with a rate of $250.00 per hour multiplied by the 84.90 hours he expended, or $21,225.00 for his services in advancing the claim before the Division of Administrative Hearings.

   Mr. Lieberman's base fee calculated on the number of hours the Judge considers allowable, times his agreed-upon

   $250.00 per hour rate results in a base attorney's fee of

   $152,625.00. That amount, however, is subject to the discussion and findings next below.

   Enhancements and Multipliers

   
   

   Florida Law supports the premise that, by analogy, fee shifting statutes have as their major purpose providing an incentive for the private enforcement by citizens of statutory policy declared by the legislature. See Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828, 832 (Fla. 1990). The Supreme Court of Florida explained in that

   decision, in discussing analogous federal policies:

   
   

   The statutory award of attorneys fees allows parties bringing actions to act both on their own behalf and the public's behalf in promoting congressional policy. However, private enforcement of statutes is unlikely if aggrieved citizens lack financial resources to pay lawyers for their services. Fee awards are an integral part of the remedies available to ensure compliance with various congressional statutes.

   Id. at 833. As a result, the Supreme Court of Florida adopted three factors to determine when multipliers should be applied:

   1. Whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of non-payment in any way; (3) whether any of the facts set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

555 So. 2d at 834. These Quanstrom factors have become the test in Florida for determining the use of multipliers. Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752, 754 (Fla. 3rd DCA 19990). In the present case, it is clear that the many years of pursuing the claims bills are precisely the sort of difficult, discouraging and unusual matters which require access to a multiplier in order to encourage competent counsel to pursue such a representation. Secondly, it is plain that attorney Lieberman was not able

to mitigate the risk of non-payment in any way and instead, endured many years of expending time and even his own

out-of-pocket dollars without any other prospect of compensation for this effort. The third Quanstrom factor, the relevance of Rowe, criteria, underscores the extraordinary result of obtaining a million dollars in a claims bill recovery. The may well be the largest such recovery of its kind for wrongly incarcerated persons in Florida. This is precisely the sort of unusually favorable result that warrants an upward adjustment.

In determining the scope of the appropriate multiplier to apply, the Quanstrom analysis sets the following range:

1. 1 to 1.5 multiplier if success was likely at the outset.

2. 1.5 to 2.0 multiplier if initial prospects of success were 50/50.

3. 2 to 2.5 multiplier where success was unlikely at the outset of an engagement.

Id. at 834. In the case at hand it is apparent that the prospects of success were not too favorable for many years. Year after year the various claims bills failed in the legislature. For example, in 1979 after extensive committee hearings, and the appointment of a select committee by speaker Hyatt Brown to study the matter in depth, the bill failed to emerge from the select House Committee assigned to investigate the claim. In other years, the claims bill received no consideration and made no progress at all. Few

attorneys would have continued the mission after some years of such disappointing outcomes.

Under these circumstances, given the difficult struggle engaged in by attorney Lieberman through approximately 21 years, it is clear that a 2.5 multiplier is appropriate under the Quanstrom analysis. This would indicate that even if Mr. Lieberman's time is reduced from that claimed, as indeed has been done as explained above, it is obvious that the entirety of the $250,000.00 authorized by the legislature should be awarded under the Quanstrom analysis. Some cases have awarded even greater multipliers. See Pendley v. Shands Teaching Hospital and Clinics, Inc., 577 So. 2d 642, 643 n.1 (Fla. 1st DCA 1991), where a multiplier of three was awarded in a successful medical malpractice action pursuant to Section 768.56, Florida Statutes.

In addition to applying a multiplier factor, a court is authorized " . . to increase or decrease the lodestar fee by a specific dollar amount reflecting the attorney's unusual success or failure in the case." Lee County v. Tohari,

582 So. 2d 104, 105 (Fla. 2d DCA 1991) citing Glades Inc. v. Glades County Club Apartments Association, 534 So. 2d 723 (Fla. 2d DCA 1988), rev. Dismissed, 571 So. 2d 1308

(Fla. 1991). Here attorney Lieberman faced formidable odds in the legislative process in attempting to get his various claims bills passed over approximately two decades with no

success for most of that period. Attorney Lieberman's efforts never were rewarded until approximately 21 years elapsed and the subject bill passed the 1998 legislature ultimately, by the parties' agreement, resulting in compensation being awarded his clients. Moreover, it was somewhat unique in legislative history because it is reputedly the largest award ever paid to victims of wrongful incarceration. Thus, attorney Lieberman's two decades of effort achieved exceptional results. This factor should be an enhancement to the fee to be awarded as well, in light of the above decisional authority and is an additional justification for the full statutory amount for attorneys fees being awarded.

Moreover, in addition to the multiplier principals of Quanstrom and the authorization to increase the lodestar factor based on the unusual success in the instant circumstance, Florida Law also allows a court to consider the passage of years in the course of litigation in making a favorable adjustment to a successful attorneys fee award.

See Aetna Insurance Company v. Settembrino, 369 So. 2d 954 (Fla. 3rd DCA 1978). In that decision a favorable adjustment was authorized, based on six years of litigation. In the case at hand the claims process has proceeded for more than two decades, ultimately being successful. This underscores the fairness of enhancing the fee in this case

for this additional reason such that, when considered with the multiplier circumstances discussed above, the entire fee amount set aside by the subject statute should be awarded.

Costs and Expenses

The claimants' costs and expenses include two asserted components. First attorney Lieberman has, over many years, expended, according to his own assertion, in excess of

$10,000.00 in travel, lodging and other costs during the course of his advocacy of the various claims bills on behalf of Pitts and Lee. There is no basis in the record or argument in this case to indicate that his expenses were any less. That amount should be awarded to him as a part of the

$250,000.00 fees and costs increment provided for in the subject statute.

The claimants also claim the expense of engaging a lobbyist at a cost of $100,000.00, as a proper expense for advancement of the subject claims bill. They are claiming

$100,000.00 as a result of the engagement of the services of Rick Rodriguez Piña, asserting that he successfully advocated passage of the claims bill CS/HB 3035 in the 1998 Legislative session. It is asserted by the claimants, by affidavit of Mr. Lieberman, that Mr. Piña's firm expended approximately 613 hours, of which 488 hours were Mr. Piña's own, and 125 hours were his assistant's, Kim McCraes'.

There is claimed associated, out-of-pocket expenses of at

least $6,000.00, for travel, lodging, video-taping and other costs. The claimants assert in their brief in response to Department's response to the application for attorneys fees and costs, that decisional law, cited by the claimants, supports the award of such expenses along with reasonable attorneys fees.

There is no question that expenses, if reasonable, can be awarded along with attorneys fees, as the legislature recognized in the language of the statute. There is, however, no persuasive evidence or argument before the Judge as to why Mr. Piña or his firm is entitled to the sum of

$100,000.00 merely for their effort involving the subject claims bill. Primarily it has not been shown that Mr.

Piña's services were necessary, in light of the years of preparation, building of associations, relationships and persuasive efforts of by Mr. Lieberman and others over approximately two decades. Moreover, even if Mr. Piña and his firm's services were necessary, there is no persuasive proof or argument offered to show that those services were actually worth the large sum of $100,000.00 merely for his lobbying effort for this one legislative session on behalf of this claims bill, when that effort is viewed in juxtaposition with the time and fees determined appropriate for Mr. Lieberman for his two decades of effort. The undersigned simply has not seen persuasive proof or argument

to justify awarding any costs for the lobbyist or lobbying firm engaged for the purpose of passage of this bill in the 1998 Legislative session. That cost is thus disallowed.

In summary, because of the above factors and circumstances, the $250,000.00 limit for fees and costs prescribed by CS/HB 3035, is far exceeded by the amount of attorney's fees alone that can be justified in this case. In fact, a normal lodestar fee value for Mr. Lieberman and Mr. Coffey of $173,850.00 is applicable in light of the above-found circumstances and consideration and, the Quanstrom analysis would dictate that a 2.5 multiplier should be applied to attorney Lieberman's services due to the long odds he struggled with for so many years. Even if one were to reduce that to a "blended" multiplier of 2 as asserted by the claimants, because in the litigation phase before the Administrative Law Judge, following passage of CS/HB 3035, services being performed at that point in the

proceeding entailed a markedly greater prospect for success, the calculation still establishes a justified fee for

Mr. Lieberman of $305,250.00. Mr. Coffey's fee would be

$21,225.00, for a total of $326,475.00. If one then adds the allowable costs sum of $10,000.00, then a total sum for fees and costs of $336,475.00 results. Thus the total sum established as justifiable for attorney's fees and costs is far in excess of the $250,000.00 allowed by the legislature

in the passage of CS/HB 3035. The entire $250,000.00 sum set aside by the legislature for attorney's fees and costs should therefore be awarded. Accordingly it is therefore,

ORDERED: that in light of the parties' agreements, stipulations, and the above findings and considerations, that claimants Freddie Pitts and Wilbert Lee be each awarded the sum of $500,000.00 as compensation for wrongful incarceration and that attorneys Lieberman and Coffey be awarded jointly the sum of $250,000.00 for attorney's fees and costs, to be apportioned between them in accordance with the above findings, discussions and conclusions, so that

$228,775.00 of the costs and attorney's fees allowed by the statute shall be paid to Mr. Lieberman, and $21,225.00 of that amount shall be paid to Mr. Coffey.

DONE AND ORDERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with Clerk of the

Division of Administrative Hearings this 30th day of June, 1998.

COPIES FURNISHED:

Ronald S. Lieberman, Esquire Suite 300

780 Northwest 42nd Avenue Miami, Florida 33125-5597

Kendall Coffey, Esquire

Coffey, Diaz & O'Naghten, L.L.P. Suite 204 Grand Bay Plaza

2665 South Bayshore Drive Miami, Florida 33133

Gerald Curington, Esquire Department of Legal Affairs Collins Building, Room 428

107 West Gaines Street Tallahassee, Florida 32399

Honorable Sandra Mortham Secretary of State

State of Florida The Capitol

Tallahassee, Florida 32399-0001

Governor Lawton Chiles The Capitol

Tallahassee, Florida 32399-0001

Honorable Toni Jennings Senate President

409 The Capitol

Tallahassee, Florida 32399-1300

Honorable Daniel Webster Speaker of the House

420 The Capitol

Tallahassee, Florida 32399-1100

Docket for Case No: 98-002005

Orders for Case No: 98-002005