Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1458
                                Barcode 683180                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Governmental Oversight and Accountability
       (Bogdanoff) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete lines 1094 - 1209
    4  and insert:
    5         resolution judge, as the case requires.
    6         (3) A trial resolution judge must be a member of The
    7  Florida Bar in good standing for 5 years or more who has agreed
    8  to serve.
    9         (4)(3) The arbitrators or trial resolution judge shall be
   10  compensated by the parties according to their agreement with the
   11  trial resolution judge.
   12         (5)(4) Within 10 days after the submission of the request
   13  for binding arbitration, or voluntary trial resolution, the
   14  court shall provide for the appointment of the arbitrator or
   15  arbitrators, or trial resolution judge, as the case requires.
   16  Once appointed, the arbitrators or trial resolution judge shall
   17  notify the parties of the time and place for the hearing.
   18         (6)(5) Application for voluntary binding arbitration or
   19  voluntary trial resolution shall be filed and fees paid to the
   20  clerk of court as if for complaints initiating civil actions.
   21  The clerk of the court shall handle and account for these
   22  matters in all respects as if they were civil actions, except
   23  that the clerk of court shall keep separate the records of the
   24  applications for voluntary binding arbitration and the records
   25  of the applications for voluntary trial resolution from all
   26  other civil actions.
   27         (7)(6) Filing of the application for binding arbitration or
   28  voluntary trial resolution tolls will toll the running of the
   29  applicable statutes of limitation.
   30         (8)(7) The chief arbitrator or trial resolution judge may
   31  administer oaths or affirmations and conduct the proceedings as
   32  the rules of court shall provide. At the request of any party,
   33  the chief arbitrator or trial resolution judge shall issue
   34  subpoenas for the attendance of witnesses and for the production
   35  of books, records, documents, and other evidence and may apply
   36  to the court for orders compelling attendance and production.
   37  Subpoenas shall be served and shall be enforceable in the manner
   38  provided by law. The trial resolution judge may order temporary
   39  relief in the same manner, and to the same extent, as in civil
   40  actions generally. Any party may enforce such an order by filing
   41  a petition in the court. Orders entered by the court are
   42  reviewable by the appellate court in the same manner, and to the
   43  same extent, as orders in civil actions generally.
   44         (9)(8)A voluntary binding arbitration hearing shall be
   45  conducted by all of the arbitrators, but a majority may
   46  determine any question and render a final decision. A trial
   47  resolution judge shall conduct a voluntary trial resolution
   48  hearing. The trial resolution judge may determine any question
   49  and render a final decision.
   50         (10)(9) The Florida Evidence Code and Florida Rules of
   51  Civil Procedure shall apply to all proceedings under this
   52  section, except that voluntary trial resolution is not governed
   53  by procedural rules regulating general and special magistrates,
   54  and rulings of the trial resolution judge are not reviewable by
   55  filing exceptions with the court.
   56         (10) An appeal of a voluntary binding arbitration decision
   57  shall be taken to the circuit court and shall be limited to
   58  review on the record and not de novo, of:
   59         (a) Any alleged failure of the arbitrators to comply with
   60  the applicable rules of procedure or evidence.
   61         (b) Any alleged partiality or misconduct by an arbitrator
   62  prejudicing the rights of any party.
   63         (c) Whether the decision reaches a result contrary to the
   64  Constitution of the United States or of the State of Florida.
   65         (11) Any party may enforce a final decision rendered in a
   66  voluntary trial by filing a petition for final judgment in the
   67  circuit court in the circuit in which the voluntary trial took
   68  place. Upon entry of final judgment by the circuit court, any
   69  party may appeal to the appropriate appellate court. The
   70  judgment is reviewable by the appellate court in the same
   71  manner, and to the same extent, as a judgment in a civil action.
   72  Factual findings determined in the voluntary trial are not
   73  subject to appeal.
   74         (12) The harmless error doctrine shall apply in all
   75  appeals. No further review shall be permitted unless a
   76  constitutional issue is raised.
   77         (12)(13) If no appeal is taken within the time provided by
   78  rules promulgated by the Supreme Court, then the decision shall
   79  be referred to the presiding judge in the case, or if one has
   80  not been assigned, then to the chief judge of the circuit for
   81  assignment to a circuit judge, who shall enter such orders and
   82  judgments as are required to carry out the terms of the
   83  decision. Equitable remedies are, which orders shall be
   84  enforceable by the contempt powers of the court to the same
   85  extent as in civil actions generally. When a judgment provides
   86  for execution, and for which judgments execution shall issue on
   87  request of a party.
   88         (13)(14) This section does shall not apply to any dispute
   89  involving child custody, visitation, or child support, or to any
   90  dispute that which involves the rights of a third party not a
   91  party to the arbitration or voluntary trial resolution when the
   92  third party would be an indispensable party if the dispute were
   93  resolved in court or when the third party notifies the chief
   94  arbitrator or the trial resolution judge that the third party
   95  would be a proper party if the dispute were resolved in court,
   96  that the third party intends to intervene in the action in
   97  court, and that the third party does not agree to proceed under
   98  this section.
   99         (14) A trial resolution judge does not have jurisdiction to
  100  declare unconstitutional a statute, ordinance, or provision of a
  101  constitution. If any such claim is made in the voluntary trial
  102  resolution proceeding, that claim shall be severed and
  103  adjudicated by a judge of the court.
  104         (15) The parties may agree to a trial by a privately
  105  selected jury. The court’s jury pool may not be used for this
  106  purpose. In all other cases, the trial resolution judge shall
  107  conduct a bench trial.
  108         Section 38. Section 44.107, Florida Statutes, is amended to
  109  read:
  110         44.107 Immunity for arbitrators, voluntary trial resolution
  111  judges, mediators, and mediator trainees.—
  112         (1) Arbitrators serving under s. 44.103, voluntary trial
  113  resolution judges serving under or s. 44.104, mediators serving
  114  under s. 44.102, and trainees fulfilling the mentorship
  115  requirements for certification by the Supreme Court as a
  116  mediator shall have judicial immunity in the same manner and to
  117  the same extent as a judge.
  118         (2) A person serving as a mediator in any noncourt-ordered
  119  mediation shall have immunity from liability arising from the
  120  performance of that person’s duties while acting within the
  121  scope of the mediation function if such mediation is:
  122         (a) Required by statute or agency rule or order;
  123         (b) Conducted under ss. 44.401-44.406 by express agreement
  124  of the mediation parties; or
  125         (c) Facilitated by a mediator certified by the Supreme
  126  Court, unless the mediation parties expressly agree not to be
  127  bound by ss. 44.401-44.406.
  129  The mediator does not have immunity if he or she acts in bad
  130  faith, with malicious purpose, or in a manner exhibiting wanton
  131  and willful disregard of human rights, safety, or property.
  132         (3) A person serving under s. 44.106 to assist the Supreme
  133  Court in performing its disciplinary function shall have
  134  absolute immunity from liability arising from the performance of
  135  that person’s duties while acting within the scope of that
  136  person’s appointed function.
  138  ================= T I T L E  A M E N D M E N T ================
  139         And the title is amended as follows:
  140         Delete lines 156 - 157
  141  and insert:
  142         amending s. 44.107,