Florida common law jurisprudence.

• Author: Cavendish, Michael

Not far from the bank of the Thames, up a gentle slope from the Blackfriars tube station, stands the United Kingdom's High Court of Justice. An austere stone-grey edifice, it exudes legal tradition. Close by are Lincoln's Inn and Grey's Inn, and further afield the Inner Temple and Middle Temple; the four Inns of Court with their cloistered, windowed chambers that admit filtered sunlight into space that has long hosted the world's most celebrated tradition of legal advocacy.

These institutions are remarkable for their longevity. They continue to function today as they ever have. Yet they are not museums of a dead time. Although their roots are deep in the past, at present they undertake the heavy work of finding justice. The barristers and judges peopling them today grasp an unbroken cord of tradition and precedent spanning many centuries; a record of proceeding, argument, and opinion revealing both accreted wisdom and discarded errancy--The common law.

Overview

In the autumn of 1829, the territory (1) of Florida adopted the general common and statute laws of England existing on July 4, 1776, as its own. (2) Florida's territorial legislature had in one stroke given the future state a complete legal system that would soon grow into a new, never-before-seen system of jurisprudence. This system, under which Florida citizens live today, consists of all of the judge-made law ever written in Florida and all of the judge-made law ever written in England until July 4, 1776. We call this Florida common law.

This article asks the existential question, "What is Florida common law?" It also asks the doctrinal question, "How is the English half of Florida common law identified, understood, and applied or rejected in Florida courts?" In answer to both questions, we will find a jurisprudence that marries the ancient forms with Florida's modern statutes and the Florida Supreme Court's evolving discernment of its own role.

Florida's Receiving Statute: The Rise of Florida Common Law Jurisprudence

For ease of reference, this article refers to that part of the English common law made until July 4, 1776, as the "English half" or "English common law." In practical terms, the key to the application of English common law in Florida is F.S. [section] 2.01, which provides:

The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the [l]egislature of this state.

In 1973, the Florida Supreme Court issued two watershed opinions that would affect the vitality of the English law annexed to Florida and the position of the Florida Supreme Court as the interpreter, arbiter, and protector of Florida common law, both the Florida and English halves. One restrained the Florida Legislature's authority over Florida common law. The second asserted the Supreme Court's own ultimate authority over established aspects of Florida common law.

Kluger v. White: The Stewardship of Judicial Review

The first of these key opinions was Kluger v. White, 281 So. 2d 1 (Fla. 1973). In Kluger, the Florida Supreme Court tackled the broad, yet novel question of "whether or not the constitutional guarantee of a 'redress of any injury' bars the statutory abolition of an existing remedy." (3) Kluger involved a challenge to the constitutionality of a legislative act, F.S. [section] 627.738, that set a minimum claim threshold for civil lawsuits seeking to recover for property damage. This statute effectively barred claims for property damage from automobile accidents unless plaintiffs had declined property damage coverage with their auto insurer and the plaintiffs' damages exceeded $550. (4)

The Kluger court struck down the statute as inconsistent with the "access to the courts" clause at Fla. Const. art. I, [section] 21. In the process, the court transformed the adopted rights and remedies of the English common law from something that was not to conflict with acts of the Florida Legislature into something that was to be left intact by the Florida Legislature, absent the creation of an equivalent remedy or a demonstration of great public necessity. (5) The Kluger court struck the statute and held:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such a right has become part of the common law of the [s]tate pursuant to Fla. Stat. [section] 2.01, the [l]egislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the [s]tate to redress for injuries, unless the [l]egislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown. (6)

With this statement, the Florida Supreme Court formally reannounced (7) and re-reserved for itself one-half of a power of judicial review, (8) the power to strike legislation contradicting the Florida Constitution or Florida common law. The Kluger majority infuses its opinion with a tone of institutional superiority when it justifies the majority holding by refusing to "allow the [l]egislature to destroy a traditional and long-standing cause of action upon mere legislative whim." (9)

Kluger conceived of a separation of powers in Florida wherein the legislature may alter and even abolish common law rights, but only under the aegis of the Florida Supreme Court. Kluger does this by imposing on the legislature a burden to demonstrate, before abolishing common law rights, that legislation striking such rights either meets a great public need or provides a reasonable alternative. Within the worldview ushered in by Kluger, it is the Florida Supreme Court's role to determine when and whether this new legislative burden is met. Thus, under Kluger, English common law rights are formally protected, and the Florida Supreme Court is their protector.

Kluger also raises the profile of the English half of Florida common law. After Kluger, the English part is affirmed as not merely a symbolic nod to Florida's heritage, or quaint cyclopedia of principles that lawmakers only recall from school books. Kluger makes clear that those centuries-old common law rights and causes of action from England incorporated into Florida common law by the receiving statute are on equal footing with rights and actions found in Florida writ opinions. (10)

Kluger Refined and Applied

In 1987, the Florida Supreme Court revisited the Kluger holding in Smith v. Dept. of Insurance, 507 So. 2d 1080 (Fla. 1987). Smith involved a constitutional challenge to the Tort Reform and Insurance Act of 1986, legislation that placed a cap of $450,000 on noneconomic damages in tort claims. (11)

Following Kluger, the Smith court weighed the effect of the new statute against the right of access to the courts provided by the Florida Constitution. In affirming the holding in Kluger and describing it as "seminal," (12) the Smith court, en route to striking down the damages cap, further refined the Kluger holding into a two-part alternative test.

Under the Smith court's reading of Kluger, individual rights and remedies (13) expressed as causes of action in court, including causes...