CALL THE NE XT CASE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES VERSUS FREEMAN. ,,GOVERNMENT WHO HAVE JUST ARRIVED , AND THEY ARE HERE AS PART OF THEIR AN NUAL LEGISLATIVE DAY PROGRAM AND ESCORTED BY KATHERINE HAL F. WELCOME TO ALL OF YOU AND WITH BY KA THERINE HUFF B E AND WEL COME TO ALL OF YOU AND WITH THAT , YOU MAYPROCEED.

THANK , MADAM CH IEF JUSTICE AND JUSTICES. MAY IT PLEASE THE COURT. MY NAME IS RI CHARD T DONE LAN J R.. I AM CHIEF JUSTICE I AM C HIEF COUNSE L FOR THEDEPARTMENT OF FINANCIAL SERVICES AND REPRESENT THE CHIEF FINANCIAL OF FICER , TOM GALLAGHER. OUR RESPONSIBILITY UNDER CHAPTER 4 IS RELATIVELY PRO S AKE AND PROZAIC ONE. THAT IS TO PAY THE CAPITAL COLLATERAL REPRESENTATIVES WHO PROVIDE COUNSEL TO DEATH-SENTENCED INMA TES.

HAVE YOU , S INCE THIS HAS BEEN GOING ON WITH THE $2500MAX , HOW MANY TIMES HAVE THEIR BEEN APPLICATIONS FOR AN AMOUNT IN EXCESS OF THAT $250?

IN CONNECTION WITH WITH THE $250?

IN CONNECTION WITH THE WITH THE $ 2 500?

IN CONNECTION WITH THE FILING BE FORE THE SUPREME COURT? THIS IS THE SE COND TIME IT HAS EVER COME UP.

SO THEY SUBMITTED THEIR BILLS WITHIN THE $2500 OR THEY HAVEN'T FI LED IT YE T?

THEY HAVE COME OUT, YOUR HONOR, WITHIN THE STATUTORY LIMITATION. UNDER ORDI NARY CIRCUMSTANCES , THE COUNSEL WHO HANDLE THE APPEAL OF THE 3. 850 PROCEEDING, USUALLY MOVES TO THE NEXT STAGE OF THE APPELLATE PRO CEEDING , AND A FACTUAL DIFFERENCE IN T HIS PARTICULAR SITUATION IS THEFACT THAT COUNSEL FOR THE DEFENDANT CAME IN FOR REHEARING , W HICH IS PROBABLY NOT THE MOST JU DICIAL TIME FOR AN APPELLATE PROC ESS.

WOULDN'T THAT BE ENOUGH FOR THE BILL IN EXCESS OF $2500?

THE QUESTION IS NOT SIMPLY IN THIS CASE, YOUR HONOR, IT IS A M A TTER OF THE BILL BEING REASONABLE.IT IS A QUESTION OF THE FACT THAT THE ORDER ON APPEAL D OES NOT ADDRESS, EITHER THE REASONABLENESS OR THE UNUSUALNESS OF THE CIRCUMSTANCES THAT WOULD WARRANT THAT . IF YOU LOOK AT THE BILL OBJECTIVELY , IT SEEKS PAYMENT OF NINE TIMES THE STATUTORY AM OUNT . WHE N YOU LOOK AT THE DETAILSOF THE BILL, A GREAT AMOUNT OF IT IS CONCER NED WITH RESEARCH AND OF COUR SE THEY T ALK ABOUT IT IN AN APPELLATE PROCEEDING. IT IS SORT OF LATE TO BE DOING.THAT NOW, OF COURSE, THERECORD IS COMPLETELY SILENT ON THE ISSUE AS TO WHY THAT COUNSEL WAS INSE RTED INTO THE PROCEE DING AT THAT LEVEL.

WAS THAT EVER QUESTIONEDAT THE TRIAL LE VEL? WAS THERE AN INQU IRY? DID YOU CROSS-EXAMINATION THE ATTORNEY?

THERE WAS NO TESTIMONY TAKEN.

I UNDERSTAND THAT , BUT DID YOU ASK FOR THE OPPORTUNITY?I ASSUME THAT THERE WAS A H EARING SCHEDULED , AND EITHER SI DE WOULD HAVE HAD THE OPPORTUNITY TO PRESENT S WORN TESTIMON Y. WERE THEY PRECLUDE , EACH SIDE , WITH SOME PROHIBSNITION.

NO , YOUR HONOR , TH EY WERE PROHIBITION?

NO, YOUR HONO R, THEY WERE NOT.

IT HAS BEEN MY UNDERSTANDING THAT ATTORNEYSFEES AS LONG AS I HAVE PRACTICED LAW AS AN ATTORNEY HERE IN FLOR IDA THAT YOU PROCEED TO ONE OF THOSEHEARINGS WITH SWORN TESTIMONY AND THE JUDGE MAKES A FAC TUAL DETERMINATION AS AN OTHER MATTER. WAS THAT FOLLOWED HERE ANDIF NOT, WHY WAS IT NOT FOLLOWED?

IT WAS NOT FOLLOWED AND I DON'T KNOW WHY IT WAS NOTFOLLOWED.

DID YOU ASK FOR AN EVIDENTIARY HEARING AND WAS REFUSED?

THERE WAS NO SPECIFIC REQUEST FOR AN EVIDENTIARY HEARING, BUT UNDER THE , UNDER MOS S, YOUR HONOR, THE REQUIREMENT IS PL ACED UPON THE COUNSEL WHO SEEKS FEES THAT EXCEED THE STATUTE, TO ESTABLISH THAT THERE ARE UNUSUAL CIRCUM STANCES , AND THAT THE CAP APPL IED IN STATUTE , WOULD B E UNCONSTITUTIONAL, IF APPLIED IN THE SITUATION OF THAT PARTICULAR REPRESENTATION . NOW , COUNSEL FOR MR . F REEMAN DID NOT DO THAT , A ND WE DIDNOT FEEL THAT IT IS THE DEPARTMENT'S RESPONSI BILITYTO MAKE THE CASE FOR THE OTHER SIDE , AND CERTAINLY IN THE ORDINARY COURSE OF BUSINESS, W E ARE NOT TR YING TO BE ADVERSARY , BUT THERE IS A FUNDAMENTAL SE PARATION OF P OWERS ISSUE, IN THAT THE DEPARTMENT, THE CHIEF FINANCIAL OFFICER , IS A CONSTITUTIONAL OFFICER OF THE EXECUTIVE BR ANCH, BUT HE C ANNOT SAY , OH, I THINK THAT STATUTORY CAP CAN'T APPLY. IT IS PURELY SEPARATION OF POWERS, SO UNLESS THE JUDICIARY INTERVENES ANDGIVES US AN ORDER THAT SAYS THIS CAP WOULD BE UNCONSTITUTIONAL, SO THEREFORE YOU HAVE TO EXCEED THE CAP , THAT WE ARE IN A DEFAULT STATE OF HAVING TO SAY THE CAP APPLIES , UN LESS TOLD OTHERWISE .

IN THIS CASE , WAS THE DEFENSE ATTORNEY PAID A CERTAIN AMOUNT AFTER HE FILED THE MOTION FOR REH EARING O F THE DE NIAL OF POSTCONVICTION, APPEAL?

YES , YOUR HO NOR.

HOW MUCH WAS THAT?

IF , I DON'T KNOW OFF THE TOP OF MY HEAD , BUT MY CO-COUNSEL

WAS IT THAT AMOU NT? DO YOU KNOW IF THAT AMOUNT WAS WITHIN THE STATUT ORY CAP?

I BE LIEVE IT EXCE EDED THE STATUTORY CAP.

AND WAS THERE A HEARINGON THAT , AND H E WAS ACTUALLY PAID MORE THAN THE STATUTORY CAP?

I HAVE COUNSEL THAT WASWITH ME . I WOULD HAVE TO CONSULT : I AM INFORMED THAT HE WASWITHIN THE CAP ON THE REHEARING.

HE WAS WITHIN THE CAP ON THE REHEARING. OKAY.

YES .

AND D O YOU HAVE IN YOU R FILE, I DON'T HAVE IN MINE , THE H O URS THAT WERE SP ENT ON THAT PARTICULAR AS PECT OF IT , SHOWING WHAT WAS AC TUALLY DONE TO E A RN THE FEE FOR THAT PORT ION OF IT ?

I DO NOT HAVE THAT WITH ME TO DAY.

I GUESS WHAT I AM INTERESTED IN IS, US UALLY ON A CERT PETITION , THE CERT PETITION GENE RALLY RAISES S OME CONSTITUTIONAL ISSUETHAT IS INVOLVED IN THE PRIOR PROCEEDING.

YES.

AND S O I AM TRYING TO GET AT WHETHER OR NOT THIS ATTORNEY ACTUALLY HAD TO GO THROUGH ANY FILE TO DO WHATKIND OF RESEARCH THAT ATTORNEY HAD TO DO , IN ORDER TO PREPARE FOR THE REHEARINGAND THE NEXT ST EP , OF COURSE , WOULD HAVE BEEN A CERT PETITION INVOLVED WITH BASICALLY , SOME OF THE SAME ISSUES.

YES . IT IS MY UNDERGO THAT THE ISSUES THAT WERE RA ISED IN THE MOTION FOR REHEARING , WERE THOSE INVOLVED, THE SO-CALLED RING ISSUES , AND SO THAT THOSE , THAT PARTICULAR LINE OF QUESTIONING , WAS BROUGHT IN THE MOTI ON FOR REHEARING , TO THIS COURT , W HICH THE COURT DID NOT GRANT , AND SUMMARILY DENIED . IT IS MY UNDERSTANDING THAT THE SAME ISSUES RAISED IN THE MOTION FOR REHEARING WERE IN E SSENCE RAISED INTHE PETITION FOR CERT IORARI.

W H ICH WERE RING AND

RING AND APPRENDI, YES.

NOT DIRECTED TO ANYTHING MORE ABOUT THIS CASE, ANY OTHER CONSTITUTIONAL ISSUESTHAT WOULD BE SPECIFIC TO THIS CASE?

YES. THAT'S CORR ECT, YOUR HONOR .

AND WE HAVE THE BILL IS ATTACHED TO SHOW THAT , IN F ACT , MOST OF THE TIME WASSPENT , AS YOU SAY , IN RESEARCHING THE LAW. NOW , THERE IS SOME THING, THERE IS AN E NTRY O F FOUR HOURS , RESE ARCH FOUR HOURS, EXECUTION METHOD AND COMPARATIVE C LIENT , LE THAL EXECUTION OR INJECTION RESEARCH . WAS THAT AN ISSUE RAISED, THE CONSTITUTIONALITY OF THE EXECUTION METHOD?

TO THE BE ST OF MY KNOWLEDGE , THA T WAS NOT RAISED. OF COURSE IN THE ANSWER BRIEF, THE INDICATION WAS THAT IT WAS THE RING AND APPRENDI ISSUES THAT WERE THE PR IMARY FO CUS.

WELL , ON E OF THE OTHER RAISED ISSUES WAS THAT HE HAD TO GO THROUGH THE B OX TOES RAISE THE CERT B O XES, TO RAISE THE CERT ISSUE. THERE WAS NO Q U ESTION ABOUTWHAT WAS IN THESE BOXES , ET CETERA , WAS THERE ANYT HING BEFOREHAND THAT INDICATED WHAT WAS IN THESE BOXES , OTHER THAN TRANSCRIPTS?

YOUR HONOR , THE QUESTION OF THE BOXES, WE WOULD HAVE TO RESPECTFULLY SAY THAT THAT DID NOT APPEAR TO BE AN ACCURATE DESC RIPTION OF WHAT WAS INVOLVED, BECAUSE IF YOU LOOK AT THE ACTUAL BILLINGS, AND IF YOU A S SUME THAT COUNSEL'S BILLINGS INCLUDED WHAT HE DID , AND THAT THE READING OF THE 40 BOXES WAS NOT SOMETHING THAT WAS DONE GRATIS, THERE WAS NO BILLINGFOR THE READING OF THE BOXES PER SE, AND, OF COURSE , I AM NOT TERRIBLY FAMILIAR WITH THE BILLIN GS THAT WERE SUBMITTED IN CONNECTION WITH THE MOTION FOR REHEARING, BUT FROM A LOGICAL STANDPOINT, IF THAT IS THECASE, THAT WOULD PROBABLY BETHE TIME THAT YOU WOULD BE REREADING YOUR BOXES , BUTHAVING SAID THAT , YOU WOULD BE INTRODUCED AT AN APPELLATE STAGE AFTER APPELLATE WORK HAS BEEN DONE, SO IT IS NOT THE QUESTION OF I AM GOING TO DO AN ORIGINAL INVESTIGATION FOR THE FIRSTTIME. YOU ARE DEAL ING WITH AN APPELLATE RECORD.

WAS THIS ARGUED TO THE T RIAL COURT JUDGE? IN OTHER WORD S WAS IT ASSERTED TO THE TR IAL COURT J UDGE , J UDGE , THIS IS OUT LANDISH THAT WE HAVE LI MITED REPRESENTATION HERE , AS FAR AS THE FUNCTION IS CONCERNED , AND THE IDEA THAT ALL OF THIS TIME WOULD BE SPENT IN THIS VERY NARROW FOCUS , IS JUST ALMOST PER SE UNREASONABLE. WAS THAT ARGUMENT ADVANCED TO THE TRIAL COURT?

IT WAS , YOUR HONOR. I ME AN, WE RESPONDED TO THE QUESTION OF THE BOXES, BY SAYING THAT THE BILLINGS DID NOT RE NEXT THIS AND THAT IT APPEARED TO ARE HE REFLECT THIS, AND THAT IT APPEARED TO US THAT THEAMOUNT OF TIME SPENT WAS UNREASONABLE.

NOW, HELP ME WITH, IN OUR CASE LAW, YOU KNOW, WHI CHNOT ONLY INCLUDES REFERENCES TO FEE CAPS WHICH HAVE BEEN IMPOSED BE FORE, WE HAVE SAID THAT THE REPRESENTATION OF COUNSEL IS, REALLY, UN IQUE , AND, OF COURSE, IT IS CONSTITUTIONALLY GUARANTEED IN THAT, IF YOU PUT AN ARBITRARY CAP , WHICH DOESN'T A LLOW FOR COMP ETENT COUNSEL, THEN, UNDER THE CIRCUMSTANCES OF A PARTICULAR CASE , AN EXTRAORDINARY OR WHATEVERTHE SITUATION MAY BE , ANDSOME OF OUR CASE S, WE HAVE ACTUALLY SUGGESTED THAT DEATH PENALTY CASES THEMSELVES, ARE THOSE EXTRAORDINARY CIRCUM STANCES SO CAN WE RECONCILE HERE, IF THE LAWYER HAS ACTUALLY , NOW , TESTIFIED TO THE TRIAL COURT JUDGE, HE HAS SUBMITTED THE DETAILED BILL , HE WAS THE O NLY LAWYER, IF I UNDERSTAND IT, THAT THE DEFENDANT HAD , AT THE PARTICULAR TIME , AND SO WHY , WITHOUT ANY FA CTUAL CHALLENGE TO WHAT OCC URRED HERE , AND THIS BEING ADEATH-PENALTY CASE , WHICH IS IN A CATEGORY OF EXTRAORDINARY CIRCUMSTANCES , ALL BY IT SELF , WITH NOTHING TO REF UTE THIS A T THE HEARING THAT WAS PRESENTED , HOW , WHERE DID THE TRIAL COURT GO WRONG?

WELL , THE , WE SUGGEST , YOUR HONOR, THAT THE OR DE R DOES NOT INVO KE THE DOCTRINE OF MACOMSON, AS EX -BLY INDICATED BY THIS COURT AS EXPLICATED BY THIS COURT.THERE WAS NOTHING THAT WOULD INDICATE ANYTHING OTHER THAN THAT $2500 WOULD BE SUFFICIENT, AND F ROM THE STANDPOINT AFTER EXECUTIVEOFFICER, THAT IS NOT CL OSE ENOUGH.

YOUR ARGUMENT AS I UNDERSTAND IT , IS BASICALLY THAT YOU ARE IN A ADMINISTERIAL POSITION , AND UNLESS THERE IS SOMETHING IN THE ORDER THAT WOULD BE A BASIS FOR YOU TO READ THIS AS EXTRAORDINARY, THE N YOU HAVE TO FOLL OW THE LEGISLATION, WHICH SAYS $2500.

THAT IS ABSOLU TELY CORRECT.

YOUR POSITION I S A TOTALLY LE GAL POSITION.

YES. WE DO NOT HAVE THE LUXURY TO PICK AND CH OOSE OURSELVES, AND THAT IS WHERE WE ARE HERE , IN SOMEWHAT OF AN ODD POSITION, BE CAUSE WE WANT TO M AKE SU RE THAT LAWYERS GETPAID, AND INDEE D WE PAY OUT MILLIONS OF DOLLARS OUT TO REGISTRY COUNSEL , INCLUDING ON RELATIVELY FREQUENT OCCASIONS, PURS UANT TO ORDERS FR OM TRIAL COURTS THAT SAY THAT THERE ARE EXTRAORDINARY CIRCUMSTANCESHERE, WE THINK THE CAP IS UNCONSTITUTIONAL IF IT IS APPLIED , SO THEREFORE PAYMORE MONEY.

LANG UAGE IN THE ORDE R, IF THIS ORDER HAD SAID I A WARD THIS AMOUNT TO COUNSEL AND FIND THAT , UNDER O LIVE VERSUS MOSS , THAT DEFENSE COUNSEL HAS MET THAT BU RDEN , THAT YOU WOULD NOT BE HERE.

YES , THAT IS CO RRECT .

LE T ME MAKE SUR E THAT I KNOW ABOUT THIS , BECAUSE THIS IS RE GISTRY COUNSEL ANDWHETHER THE AMOUNT THAT THE LEGISLATURE HAS SAID, HAS BEEN A MATTER OF SOME DE BATE , AND THE LEGISLATURE, THAT IS WHY , IF IN SE TTING THE $2500WHICH YOU TOLD ME IS THAT ALL OF THE OTHER TIMES THAT PETITIONS FOR CERT HAVE BEEN FILED, THAT THEY HAVE BEEN A BLE TO HAVE DONE IT WITHIN THE CAP AND NOT EXCEED THECAP , IS THAT CORRECT?

THAT'S CORRECT.

SO I F IN THIS SITUATION YOU HAD THE SAME CIRCUMSTANCE BUT THE JUDGE SIMPLY SAID , WELL , THIS IS $ 2500 ISN'T GOING TO DO IT , SO FILE A PE TITION FOR CERT , WOULD THAT , YOU WOULD , AT THAT POINT , BE IN A SITUATION OF , IT WOULDN'T BE THE MA GIC WOR DS. IN OTHER WORD S YOU LO OK QUALITATIVE LY AT WHAT THE JUDGE HAS SAID AS TO WHY THIS IS AN EXTRAORDINARY CIRCUMSTANCE.

YES. YES.

SO THAT IS NOT MINISTERIAL.THAT IS REALLY EXERCISING DISCRETION THEN, IN DE CIDING WHEN SOMETHING IS TR ULY EXTRAORDINARY , THAT IS REQUIRING SOMEBO DY TO SPEND MORE HOURS THAN THE LEGISLATURE HAS DEEMED TO BE REASONABLE . IN OTHER WORDS , IF YOU ARE EVALUATING, NOT ONLY , IT IS NOT JUST THAT THE ORDER HAS TO SAY THAT IT IS EXTRAORDINARY, BUT YOU HAVE TO, IN LOOKING AT IT , AND IN LOOKING AT THE CASE , MAKE A CERTAIN DISCRETIONARY DECISION .

I DON'T THINK IT IS A TERRIBLY DISCRETIONARY DECISION, BECAUSE WE, REALLY, ARE NOT IN A POSITION , I M EAN, THE STATUTE IN SE CTION 27.2711 , PLACES UPON THE TRIAL JUDGE THE OBLI GATIONTO DETERMINE THE REASONABLENESS OF THE FEES AND TO DETERMINE ULTIMATELY WHETHER THEY ARE EXTRAORDINARY CIRCUMSTANCES. SEVERAL PLACES, PARTICULARLY WITH EXPENSES , THAT IS EXPLICIT.

THAT IS WHY I ASKED YOU THIS QUESTION BE FORE, AND I WANT TO BE CAREFUL THAT WE ARE NOT P U TTING WORDS INTO YOUR MO UTH.

YES.

OKAY.MY QUESTION TO YOU BEF ORE, WAS , IF THIS ORDER HAD PROVIDED IN A SENTENCE OR SEVERAL SENTENCES, THAT THE TRIAL COURT FINDS THAT COUNSEL HAS MET THE BURDEN IMPOSED IN THE MOSS CASE , THAT YOU WOULD NOT BE H ERE.

YES.

THAT IS A CORRECT ANSWER , YOUR HONO R.

THANK YOU.

I JUST , IN THE SENSE THAT I THINK CHIEF JUST ICE IS SUGGESTING THAT THERE M A Y BE MORE OF A , DO WE BE LIEVE THE JUDGE , AND I DON'T THINK THAT ENTERS INTO IT. THERE IS NOT THAT KIND OF MINIREVIEW SITUATION THAT GOES ON.IF AN ORDER WERE TO COME TO US FROM A JUDGE THAT WOULD BE COMP LETELY UNREASONABLE , UNEXPECTED, WE MIGHT FEEL THE NEED TO PU RSUE A N APPELLATE HEARING .

IT IS APPARENT HERE THAT THE JUDGE DI DN'T GO THROUGH THE EXERCISE THAT WE REQUIRED IN THE MOSS CASE. THAT HAS LED YOU TO THIS .

THAT'S CORRECT, MR . JUSTICE ANSTEAD. BECAUSE THERE IS A T E LLING EXCHANGE IN THE TRANSCRIPT , WHERE COUNSEL , OUR COUNSEL , SAYS TO THE JUDGE, WELL , JUDGE, WHERE DO YOU WANT US TO GET THIS MONEY FROM , UNDER WHICH HEADING OF THE STATUTE , AND THIS IS PARTIALLY AN ARTIFACTS OF THE WAY THE STATUTE IS SET U P, BECAUSE FOR THE VARIOUS STAGES, THE PERFORMANCE B ASED STAGES , THERE IS $20,000 FOR PRIOR TO THE FILING OF THE 3.850 AND $25,000 BEFORE THE COURT RENDERS ITS ORDER BEFORE BEFORE THE APPE AL IS FI LE. YOU HAD A S MALL PIECE AT THE INTRODUCTION AND SMALL PI ECE AT THE END OF THE PROCEEDING FOR THE PE TITION FOR CERT AND WE ASKED, JUDGE, WHERE DOES THIS GO , AND THE JUDGE S AID I DON'T CA RE. WE HAVE MORE CONCERNS WITH TRYING TO FIT THE S QUARE PEGINTO THE R OUND HO LE, SO T O SPEAK THAT, THE COURTS DON'T HAVE, AND ONE OF THE THINGTHAT IS WE WOULD SINCERELY WISH THAT THE COURT COULDPROVIDE US AND TO PRO VIDE THE TRIAL JUDGES WHO HAVE TO PASS ON THESE THINGS , IS , A DIRECTION THAT WOULD SAY, P LEASE PAY ATTENTION TO THIS , BECAUSE OTHERWISE , IT CAUSESTHE PEOPLE WHO HAVE TO PAYTHE BILLS , AN IN ORDINATE AMOUNT OF PROBLEM , BECA USE IT IS MONEY THAT HAS TO BE SENT OUT , BUT WE ARE CERTAINLY NOT TRYING TO SECOND-GUESS THE TRIALCOURTS. WE ARE NOT T R YING TO SECOND-GUESS THIS COURT.ALL WE ARE SAYING , IS IF WE HAVE TO EXCEED THE CAP , WE NEED HAVE AN ORDER WHICH IS REGULAR ON ITS FACE AND WHICH COMPLIES W ITH THE TEST THAT THIS COURT HAS SET IN O LIVE V MOSS , BECAUSE OTHERWISE THEN WE ARE ESSENTIALLY IN A STANDOFF POSITION .

LE T ME POSE THIS QUESTION , BECAUSE IN ALL OF THESE CASES, ARE YOU SUGGESTING THAT NO NE OF THEM CONTEMPLATE ANY TYPE OF ADVERSARIAL TESTING OR TESTING OF EVIDENCE THAT IS PRESENTED, TO JUSTIFY K NEES AWARDS ? IS THAT WHAT

NOT TO

WHO IS GO ING TO PRESEN T THE OTHER SIDE OF THE COIN TO THE TRIAL JUDGE, THEN , YOU ARE ADMINISTERIAL , SO YOU DON'T CARE WHAT THEY SAY. JUST TELL ME IN AN ORDERWHAT YOU HAVE FOUND. WHO IS GOING TO TEST?

WE HAVE PARTICIPATED IN THOSE SORTS OF PROCEEDINGS. AND THEY HAVE

THEN YOU ARE MORE THAN ADMINISTRATIVE THEN .

SORRY?

YOU ARE MORE THAN AN ADMINISTERIAL OFFICER, IFYOU HAVE PARTICIPATED AS AN ADVOCATE.

IT IS DIFFICULT TO SAY . IT IS NOT THAT WE ARE ADVOCATING PEOP LE NOT BE PAID. IT IS AN ARGU MENT OF PUTTING IT TO THE PROOF.

SO THE QUESTION IS DO YOU DO THAT OR DO YOU NOT DO THAT?

WE DO THAT FROM TIME TO TIME, YOUR HONOR.

WAS IT DONE HE RE? WAS IT TESTED HERE?

IT WAS NOT TESTED IN ANY KIND OF MEANINGFUL WAY , OTHER THAN BY COUNSEL ASKING QUESTIONS , I N THE TRADITIONAL FACT THAT WE DID NOT STAG E A FULL-BLO WN PROCEEDING WITH EXPERT WITNESSES AND A KIND O F ATTACK.

ATTORNEY GENERAL DOES PARTICIPATE.

THE ATTO RNEY GENERAL DOES PARTICIPATE , AND THEY DO OR NOT , PLAY MUCH OF A SIGNIFICANT ROLE.

A GAIN , GETTING BACK TO WHERE THIS MIGHT HAPPEN THAT , IS WHY I WONDERED, IF IN EVERY OTHER CASE, COUNSEL ARE ABLE TO FILE THEIR PETITION, AND KE EP IT WITHIN THE $2500, WOULD THAT B E SOMETHING THAT YOU WOULD, THEN, PRESENT , IF THE ISSUECAME UP , TO THE TRIAL COURT? SO THAT YOU DON'T HAVE SOMETHING THAT JUST IN A REGULAR AMOUNT THAT THERE IS ONE TRIAL JUDGE THAT IS DECIDING, WELL, I A M JUST GOING TO G IV E WHAT EVER THE LAWYER ASKS AND SAY THIS I S EXTRAORDINARY.YOU WOULD PRESENT THAT AND SAY, WELL , JUDGE , TIME AFTER TIME , WE HAVE HAD RE GISTRY COUNSEL THAT CAN DO IT FOR WIT HIN THIS AMOUNT.

YES . THE WAY THE STATUTE IS SETUP , WE CAN NOT PAY WITH OUT A N AFFIRMATIVE COURT ORDER , IF COUNSEL HAS E X CEED, S O WHEN COUNSEL IS UNDER THE STATUTE TO FILE A PETITION TO BE PAID WITH THE COURT AND WE RESPOND. IT IS V ERY DIFFICULT, JUSTICE LEWIS, FOR U S TO COME IN COLD , INTO A CAPITAL CASE AND TAKE A FU LLY ADVERSARY ROLE , ATTACKINGWHAT WAS DONE . I MEAN , IT I S SOME WHAT UNSEEMLY BURKES , ALSO , THIS IS NOT OUR PRI MARY D UTY IN LIFE. ULTIMATELY THIS IS WHAT I POINT TO THE TRIAL COURT. NOW , IF THE TRIAL COURT IS JUST GOIN G TO SAY , YEAH, THAT IS FINE , WELL PAY WHATEVER THE ATTORNEY DESIRES , UNLESS IT IS SO UNREASONABLE , THEN WE AREVERY MUCH , YOU KN OW, IN A POSITION WHERE WE CANNOT PREVAIL.

WAS A P ETITION FOR REHEARING OR MOTION FOR REHEARING FILED, CALLING TO THE TRIAL JUDGE'S ATTE NTION, YOU NEED THIS MAGIC LANGUAGE IN THIS ORDER ?

IN THIS PARTIC ULAR CASE?

YES .

NO , TH ERE WAS NOT. BECAUSE WE FILED A NOT ICE OF APPEAL. BECAUSE

WHO PREPARED THE ORDER?

EXCUSE ME?

WHO PREP ARED THE ORDER?

I BELIEVE THAT OPPOSING COUNSEL PREPARED THE ORDER. WE DID NOT EVEN SEE THE ORDER. ACCORDING TO THE TRANSCRIPT , THE ORDER WAS SIGNED ON THE BENCH IMMEDIATELY. SO IT WAS NOT A SITUATION WHERE

WITH OUR HELP , YOU HAVE USED UP YOUR TIME.

O'CLOCK ON.

CHIEF JUSTICE: THANK YOU VER - - USED UP YOUR TIME.

OKAY.

THANK YOU VERY MUCH.

O KAY .

GOOD MORNING. MAY IT PLEASE THE CO URT. MY NAME IS FR ANK TASSONE , AND I REPRESENT MR. FREEMAN. I THINK THIS CASE BEFORE THE COURT TODAY , I S A DECISION AS TO WHAT LEVEL OF EFFORT IS NECESSARY BY COUNSEL FOR A DEATH-SENTENCED INDIVIDUAL , TO EFFE CTIVE LY REPRESENT THAT INDIVIDUAL , WHAT LEVEL OF REVI EW OF THAT ATTORN EY'S W ORK IS NEC ESSARY AND SHOULD BE DONE BY THE TRIAL COURT, TO MAKE A DETERMIN ATION THAT THE FEE SH OULD OR SHOULD NOT BE, SHOULD NOT EXCEED THE CAP.

HAVEN'T WE MANDATED IN MOSS, THA T THERE B E THESHOWING OF EXTRAORDINARY CIRCUMSTANCES AND THE MOTION HERE DOE SN'T EVE NAL LEW D TO THAT . DOESN'T EVEN ALLUDE TO THAT, SO DOESN'T THE REQUIREMENT THAT UN DER THE MOSS H O LDING , THAT THE CAP CAN BE EXCEEDED IN PARTICULAR CASES, AND THAT THIS IS ONE O F T H OSE CASES AND THAT YOU MAKE THAT ALLEGATION IN THE MOTION ANDTHEN YOU MAKE A DEMONSTRATION OF THAT T O THE TRIAL COURT JUDGE, IN ORDER FOR THIS AGENCY TO , THEN , PAY YOU?

I DON'T KNOW IF THERE IS A REQU IREMENT THAT IT SHOULD BE INCL UDED IN THE MOTI ON.

THAT IS THE OP INION , IN E SSENCE, SAY THAT, THAT ORDINARILY WE HOLD THAT THE CAP IS CONSTITUTIONAL, BUTWE HOLD THAT IT IS CONSTITUTIONAL, BECAUSE WE RECOGNIZE , AS W E INDI CATED THE LEGISLATURE DID , IN POSING THE CA PS , THAT THEREWOULD BE EXTRAORDINARY CIRCUMSTANCES IN SOME INSTANCES , WHERE THE CAP WOULD HAVE TO BE EXC EEDED, SO ISN'T IT NOT IMPLICIT BUT EXPLICIT IN OUR DEC ISION UPHOLDING THE CONSTITUTIONALITY OF THE SCHEME , THAT COUNSEL HAS THEBURDEN OF MA KING SOME SHOWING , AND THE TRIAL JUDGE, THEN , HAS THE RESPONSIBILITY OF MAKING A FINDING OR DETERMINATION IN THOSE CASES WHERE A FEE IS ASKED FOR IN KPEFS THE CAP IN EXCESS OF THE CAP ? WHAT IS THE BIG DEAL?

IN MY OPI NION , THE ORDERCOULD HAVE BEEN MORE TIGHTLYDRAWN.

WHAT ABOUT THE MOTION?

AND I THINK THE MOTION COULD HAVE BEEN MORE TIGHTLY AND MORE EXPLICITLY D RAWN.

LET ME GO B ACK TO THIS PARTICULAR CASE. YOU WERE APPOINTED AFTER THE REPLY BRI EF HAD BEEN FILED , CORRECT?

WE WERE APPOINTED AFTER THIS COURT AFFIRMED THE TRIAL COURT'S DE NIAL OF THEMOTION FOR POST-CONVICTION RELIEF .

OKAY. SO HE HAVE EASTBOUND SO E VEN BE YOND THAT.

YES YES, MA 'AM .

TO UNDERSTAND THIS , WHO WAS REPRES ENTING THE DEFENDANT , UP TO THAT TIME?

I BELIEVE THAT C CR WAS REPRESENTING THE DEFENDANTUP UNTIL THAT TIME.

AND DO YOU KNOW, FOR WHAT REASON, THAT IS , THIS WAS CCR NORTH.

YES, MA'AM.

AND WAS THE , WHO WAS THE LAWYER?

I THINK IT WAS MR . D O SS.

AND WAS THERE A REASON THAT YOU WERE APPOINTED INSTEAD OF JUST HAVING MR. D OSS CONTINUE AS THE POSTCONVICTION COUNSEL? DO YOU KNOW THAT?

I, IF THERE WAS A REAS ON, IT WAS NOT EXPLAINED TO ME.

AND YOU WERE , AT THIS TIME, HOW MANY OTHER , WERE YOU APPOINTED T O SE VERAL OTHER OF THESE NORTHERN DISTRICT OF FLORIDA CASES?

I THINK THIS WAS THE FIRST APPOINTMENT.

BUT YOU HAD HOW MANY OTHER POINTS?

SINCE THEN? I THINK A TO TAL OF FOUR OTHER POINTS SINCE THEN.

AND THEY WERE ALL FROM THE NORTHERN, FROM THE , AFTER THE DISSOLUTION OF THE NORTHERN DISTRICT.

YES, MA'AM .

MY HERE IS THAT YOU HAVE R AISED MY CONCERN HERE IS THAT YOU HAVE RA ISED EXTRAORDINARY CIRCUMSTANCES, THAT YOU WERE HAVING TO TAKE OVER A CASE THAT YOU WERE NOT FAMILIAR WITH , BUT IS IT YOUR POSITION THAT , IF YOU HAD BEEN ABLE T O BE COUNSELFROM THE BEGINNING , THAT THE $2500 THAT IS ALL OTED TO FILE A PE TITION FOR C ERT IN THE SUPREME COURT , IS A , THAT THAT IS NORMALLY A REA SONABLE AMOUNT, OR DO YOU , AS AN EXPERIENCED DEFE NSE LAWYER , DO YOU THINK THAT, BECAUSE I SEE L OTS OF HOURS FOR RESE ARCH ON LEGAL ISSUES,THAT THAT I S JUST PER SE UNREASONABLE?

I DON'T KNOW WHETHER THE $2500 IS REASONABLE OR NOT. I WOULD THINK THAT CERTAINLY, IF WE HANDLED THE MOTION FOR POST-CONVICTION RELIEF , IF WE ATT ENDED THE HEARING, IF WE PRESENTED EVIDENCE AND INTRODUCED TESTIMONY , IF WE HEARD THE STAT E'S CASE , FILED THE B RIEFS , DID THE FINAL ARGU MENTS , HAD PRE PARED THE BRIEFS ON APPEAL TO THIS COURT , ATTENDED ORAL ARGUMENTS , READ THE OP POSING B R IEFS ANDHAD ALL THAT KNOWLEDGE THAT CLEARLY WE WOULD HAVE HAD A M UCH BE TTER CHANCE OF STAYING UNDER THAT $2500 CAP , B UT OUR POSITION AT THAT TIME , JUSTICE PARIENTE , WASTO DETERMINE WHAT LEVEL OF EFFORT WAS NECESS ARY IN ORDER FOR US TO REPRESENT MR . FREEMAN EFFECTIVELY.

BUT WOULDN'T THAT HAVE HAPPENED, AND THIS I S WHAT GETS BACK TO WHAT JUSTICE QUINCE WAS ASKING , FOR DISPERSE COUNSEL ARGUMENT , WOU LDN'T THAT HAVE OCCURRED AT THE TIME OF THE MOTION FOR REHEARING , IN FRONT OF O UR COURT , NOT IN THE P ETITION FOR CER T TO THESUPREME COURT , WHERE YOU ARE G OING TO BE , REALLY , HAVE VERY LIMITED ABILITY TO RAISE ISSUES THAT THESUPREME COURT IS GOING T O EVER ACCEPT?

ABSOLUTELY . WHAT WE DID , IN OUR MOTION FOR REHEARING , WAS RAISE SOME RING V E RSUS A R IZONA ISSUES . AT THAT TIME , THERE WERE ANUMBER OF CASES PENDINGBEFORE THE UN ITED STATES SUPREME COURT AND BEFORE THIS COURT, AND THERE WERE OPINIONS THAT WERE COMING OUT BY UNITED STATES CIRCUITCOURTS OF APPEALS THROUGHOUT THE COUNTRY BY DIFFERENTSTATE COURTS AFTER RING , THAT WE WANTED TO EVALUATE .

WHAT CONCERNS ME , IN THIS SITUATION , IS T HAT THE , THE LEGISLATURE HAS SET UP WHAT IT IS S AYING IS GOING TO BE PAID FOR REGISTRY COUNSEL IN THESE POSTCONV ICTION CASES . AND I RECOGNIZE THAT O LIVE VERSUS MOSS , SAID THAT MACOMBSON APPLIES, BUT THERE IS A LI TTLE DIFFERENCE, I N THAT POSTCONVICTION COUNSELIS PROVIDED BY THE LEGISLATURE , AND NOT AS A CONSTITUTION , IT DOESN'THAVE A CONSTITUTIONAL BASIS , AND THEY PROVIDE THAT THEREIS A FEE SCHEDULE. THIS COURT HAS COME ALONG AND SAID THERE CAN BE UNUSUAL CIRCUMSTANCES TO GO ABOVE WHAT THE LEGISLATUREHAS SET OUT . NOW , WHAT HAS TO B E DEMONSTRATED B Y COUNSEL , THEN , AND HOW DOES COUNSELHAVE TO DEMONSTRATE IT , IN ORDER FOR THERE TO BE THE UNUSUAL CIRCUMSTANCES TO OVERRIDE WHAT THE LEGISLATURE HAS SAID ISGOING TO BE PAID , IN THE COUNSEL THAT IT HAS MAN DATED BE PROVIDEED?

I DON'T KNOW SPECIFICALLY WHAT COUNSEL SHOULD DO. I MEAN, I CERT AINLY WASHOPING FOR A LONGER HEARING TO PRESENT INFORMATION IN THAT REG ARD AT THE TRIAL LEVEL, BUT THE HEARING ONLY LASTED A VERY SHORT P E RIOD OF TIME.

IT WAS A TELEPHONE HEARING, CORRECT?

I ATTE NDED PER SONALLY. MR . THERBER ON BEHALF OF THE DEPARTMENT, APPE ARED ELECTRONCIALLY.

DID YOU RE QUEST TO PRESENT ANOTHER LAWYER OR

I THINK THERE WAS A TOTAL OF E ITHER 30 OR 45 MINUTES REQUESTED FOR THE HEARING. THE HEARING PROBABLY LA STED LESS THAN TEN MINUTES. THAT IS MY RECOLLECTION .

DID YOU HAVE ANY WITNESSES THAT YOU WANTED T O PRESENT AT THE HEAR ING THATU XD NOT PRESENT?

NO, SIR.

THAT YOU COULD NOTPRESENT?

NO, SIR.

DID YOU PRESENT ANY AFFIDAVITS OF OTHERATTORNEYS?

NO, SIR.

HOW IS THIS TESTED ? IS IT JUST SITUATION. YOU CAN COME IN AND SAY THESE ARE MY HO URS, AND THAT IS THE FACTUAL BASIS, OR ISTHERE ANY TESTING? I G UESS THAT IS THE Q UESTION.

I THINK THERE SHOULD BE TESTING.

WHO OR WHAT E NTITY DOES THIS OR SHOULD DO THIS?

WELL , I THINK RIGHT NO W THAT RESPONSIBILITY IS ON THE COURT. NOTICE FOR THE HEARING WAS THE ATTORNEY GENERALS OFFICE AND THE STATE ATTORNEYSOFFICE.

THE COURT TO TEST - -

I AM SO RRY.

TO ACT AS AN ADVERSARIAL POSITION? THAT IS WHAT I AM TRYING TO UNDERSTAND. HOW DO YOU, IF YOU COME IN AND SUBMIT A BILL OR THIS IS WHAT MY TIME IS , TH IS IS WHAT IS EXTRAORDINARY , HOWIS THAT TESTED ? BY, IS THERE ANYONE ALLOWEDTO CONTEST THAT?

I THINK THE ATTORNEY GENERALS OFFICE IS ALLOWED. I THINK THE STATE ATTORNEYS OFFICE IS ALLOWED. IN THIS PARTICULAR CASE , THE DEPARTMENT ACTED AS FAR MORP THAN A MINISTERIAL FAR MORE THAN A MINISTERIAL DEPARTMENT IN THIS PARTICULAR CASE. THEY QUESTIONED WH Y A REPLY B RIEF WAS NECESSARY. THEY QUESTIONED WHY THENUMBER OF HOURS WERE NECESSARY TO BE SPENT ON RESEARCH. THERE WERE A NUMBER OF QUESTIONS THAT THEY ASK ED IN THIS PARTIC ULAR CASE.

I GUESS THE PROBLEM, THE PROBLEM , AS I SEE IT, READING THIS TRANSCRIPT, YOU CAME INTO THE HEARING , AND YOU SAID TO THE JUDGE , BASICALLY , JUDGE , THIS IS ADEATH-PENALTY CASE. I CAME IN AT THE MOTION FOR REHEARING STAGE AT MOST POSE THE CONVICTION. AT POSTCONVICTION.I HAD THESE BO XE S TO GO THROUGH. THAT IS IT. THERE IS NOTH ING IN THE RECORD THAT DEMONSTRATES THAT WE COULD EVEN READ FRO M THIS RECORD , WHAT WAS IT ABOUT THIS CASE, THAT MADE IT NECESS ARY TO DO ALL OF THIS RES EARCH? WHAT ABOUT , THERE IS JUST NOT HING THAT INDICATES TO US WHAT THESE EXTR AORDINARY CIRCUMSTANCES ARE , AND IT WOULD BE THE BURDEN OF THE DEFENSE ATTORNEY , TO PRESENTTHAT TO THE COURT, IN ORDER TO GET BE YOND THE STATUTORYCAP.THAT IS WHERE THE PROBLEM, I THI NK, REALLY , IS , IN THIS CASE.

JUSTICE QUINCE , IN THIS PARTICULAR CASE , I THINK THEFACT THAT WE WERE APPOINTED SHO RTLY BEFORE THE PE TITION FOR REHEARING , A PETITION FOR REHEARING WAS TIMELY FILED BEFORE THE FLORIDASUPREME COURT, AND THEN PROCEEDED TO FILE A PETITION FOR WRIT O F CERTIORARI TO THE UNITED STATES SUPREME COURT, ALL WITHIN A PERIO D OF 210 DAYS , WAS IN A ND OF ITSELF EXTRAORDINARY.

BUT TO SAY THAT AT ONE END YOU GET PAID FOR THEMOTION FOR REHEARING, CORRECT?YOU GOT , DID YOU GET

JUSTICE Q U INCE , WE HAVE NOT BEEN PAID A PEN FOY COST A PENNY, FOR COS TS OR FEES IN THIS PARTICULAR CASE.

YOU MAY NOT HAVE GOTTEN THE MONEY YET BUT YOU FILEDA SEPARATE BILL, I WOULD ASSUME, FOR THE MOTION FOR POSTCONVICTION PROCEEDING , IS THAT CORRECT?

WE FILED TWO BILLS, ONE C LEAR WHAT WORK WAS DONE FOR THE PETITION FOR REHEARING AND WHAT WORK WAS DONE FORTHE PETITION FOR CERT.

BUT THAT IS NOT , THE $20,000 THAT YOU REQUESTEDFOR THE CERT PETITION , THAT WAS JUST FOR THE CERT PETITION, AND THEN YOU , A LSO , REQ UESTED ANOTHER $ 7,000 , ALMOST $8,000 FOR THE REPLY BRIEF IN THE CERT PETITION, CORRECT?

NO, MA'AM .

OKAY.

THERE WERE APPROXIMATELY $4500 IN COSTS EXPENDED FOR THE BIND ING OF THE BRIEFS TO THE UNITED STATES SUPREME COURT , SO THERE ARE COSTSAND THERE ARE APPROXIMATELY $4500 TO $ 5,000 , AL SO , FORWHICH WE HAVE NOT BEEN PAID FOR TO DATE .

RIGHT, BUT DIDN'T YOU HAVE A SE PARATE AMOUNT FOR THE COSTS AND THE ATTORNEYS FEES? AS I LOOKED AT THIS , THERE WERE TWO DIFFERENT COST ITEMS.

I THINK THAT T HERE WERE , THE COST S WERE SPELLED OUT SEPARATELY FROM THE ATTORNEYS FEES, YES .

SO STILL, I GU ESS I AM CONCERNED HERE, BECA USE YOU START OUT WITH YOUR MOTION FOR REHEARING, AND THERE IS A CERTAIN AMOUNT OF PREPARATION AND EVERYTHING THAT YOU HAVE TO DO , IN ORDER TO FILE THE MOTION TO REHEARING.

YES, MA'AM.

AND THEN YOU FILED A MOTION FOR REHEARING , THAT REALLY JUST WENT TO THE RING ISSUE , NOT ANY OF THE ISSUES THAT WERE ACTUALLY RAISED IN THE POSTCONVICTION MOTION , IS THAT CORR ECT?

WELL , WE IDENTIFIED ALL THE ISSUES THAT WE COULD IN THAT SHORT PERI OD OF TIME , AS TO THE ISSUES THAT THIS COURT DECIDED IN ITS OP INION , AND THEN ADDED THE RING ISSUE TO OUR MOTION FOR REHEARING , IN ANTICIPATION OF FIL ING THE PETITION FOR CERT TO THE UNITED STATES SUPREME COURT.

SO AT THAT POINT , YOU WERE SURE THAT THAT WAS WHAT YOU WERE GOING T O FILE IN THE UNITED STATES S UPREME COURT, THE RING ISSUE.

I THINK THAT WAS , YES, MA'AM . YES .

WOULD YOU AGREE THAT , UNDER THE O LIVE VERSUS MOSS CASE, AND IN V IEW OF THE SCHEDULE THAT IS SET OUT BY THE LEGISL ATURE , THAT, IN ORDER FOR THERE TO BE A PAYMENT IN EX CESS O F THE LEGISLATIVE AMOUNT , THAT THERE HAS TO BE A FI NDING BY THE TRIAL JUDGE , OF EXTRAORDINARY OR UN USUAL CIRCUMSTANCES .

I THINK THERE HAS TO B E A FINDING BY THE TRIAL JUDGE. I A M NOT TOO SURE WH ETHER O LIVE VERSUS MOSS OR MacONLY SON RE QUIRE THAT TH OSE OR MACOMBSON REQUIRE THAT THOSE BE USED , BUT CLEARLY IN THE TOTALITY OF THE ORDE R, I THINK THAT IS W HAT THE COURT SHOULD FIND, BEFORE IT CANAUTHORIZE A FEE IN EXCESS OF THE STATUTORY MAXIMUM.

WELL , DID THIS TRIAL JUDGE ENTER AN ORDER THAT SAYS THAT HE IS FINDING THAT THERE WERE UNUSUAL AND EXTRAORDINARY CIRCUMSTANCES, AND ON THAT B ASIS , THERE SHOULD BE PAID , THE $20-WHATEVER THOUSAND?

JUSTICE WEL LS AS I INDICATED BEFORE , IN MY OPINION THIS ORDER COULD HAVE BEEN MORE TIGHTLY DRAWN AND THE MOTION MORE TIGHTLYPRESENTED TO THE COURT.

AND THE ORDER DOESN'T REALLY SAY THAT.

NO, SIR, NO, AND WE THINK IT SAYS WORDS THAT INDI CATE EXTRAORDINARY AND UNUSUAL CIRCUMSTANCES , BUT CERTAINLY IT DOESN'T HAVE THE WORD EXTRAORDINARY AND UNUSUAL CIRCUMSTANCES IN T HERE.

IF WE FIND THE MO TION AND THE ORDER INSUFFICIENT , WHAT SHOULD WE DO?

I WOULD ASK THE COURT TO REMAND IT B ACK TO THE TRIAL COURT FOR F URTHER HEARING , CONSISTENT WITH THIS COURT'S OPINION.

TRIAL COURT AT THEHEARING , ALSO , DID NOT ORALLY FIND THAT THERE WERE EXTRAORDINARY CIRCUMSTANCESHERE, DID HE?

THAT IS M Y RECOLLECTION .

IN FACT, FROM MY RECOLLECTION, HE SAID , WELL , I KNOW MR . TASSONE IS A GOOD LAWYER, AND IF HE SAID IT I S $27,000, THEN I B E LIEVE HIM , SOMETHING TO THAT EFFECT?

YE S, SIR.

AND, A GAIN , I WANT TO MAKE SURE, I N TERMS OF WHETHER YOU ARE SAYING WE SHOULD RE MAND IT FOR HIM TO MAKE FU RTHER FINDINGS, BUT THE TRUTH OF THE MATTER IS THAT THERE IS NOTHING IN THIS RECORD , B ASED ON , OR ANY PRO FFER OF TESTIMONY , THAT YOU WERE PREPARED T O GIVE. YOU SAID IT SHOULD , THEHEARING SHOULD HAVE LA STED 45 MINUTES, BUT YOU HAD N O WITNESSES TO , REALLY , T ALK ABOUT WHY THIS CASE PRESENTED UNUSUAL CIRCUMSTANCES BEYOND THE FACT THAT YOU SAID, WELL , I CAME IN, WHAT YOU HAVE BEEN SAYING THIS MORNING, WHICH IS THAT YOU CAME IN AT THE END O F A CASE. IS THAT CORRECT?

I WAS PREP ARED TO PRESENT, TO BE QUESTIONED , MYSELF TO BE QUESTI ONED UNDER OATH , A S TO WHAT EFFORTS WERE NECESSARY ON THIS PARTICULAR CASE.

DID YOU ASK THAT , TO , TO PUT YOURSELF UNDER OA TH AND THE JUDGE DENIED THAT?

I HAD NOT AS K AND THE COURT DID NOT DENY IT. AS I THINK THE RECORD WOULD REFLECT, THIS HEARING WAS VERY , VERY QUICK.

WE UNDERSTAND THAT, BUT ITHINK THAT THE DIFFERENCE BETWEEN THIS AND ANOTHER TYPE OF ATTORNEYS FEES HEARING , IS THAT THERE , FIRST , HAS T O BE , Y OU HAVE GOT THE BURDEN OF SHOWING EXTRAORDINARY OR UNUSUAL CIRCUMSTANCES. I DON'T THINK WE CAN PUT IT ON THE DEPARTMENT OF FINANCIAL SERVICES , TO SAY, WELL, THEY ARE COMING IN IN A FULL-BLOWN HEARING, TO CHALLENGE IT , THEY EXPECT THERE TO BE TESTIMONY , THAT, THEN , IS USE D BY THE JUDGE OR IS CHALLENGED BY THEM FOR , IN ORDER TO COME UP WITH THIS ORDER , S O I DON'T SEE HOW REMANDING IT JUST TO HAVE THE JUDGE E NTER MAGICWORDS , THAT WOULD JUST MAKE THIS A SH AM, UNLESS YOU HAVE GIVEN US , T ODAY , SOMETHING THAT SAYS WHERE THE , WHY THE T RIAL COURT'S ORDER SHOULD BE SUSTAINED , EVEN THOUGH ALL IT NEEDED WAS JUST THESE MAGIC WORDS. DO YOU SEE , IT J UST SEEMS THAT THERE IS A LACK OF PRO OF ON YOUR PART.

I THINK I UNDERSTAND WHATTHE COURT IS SAYI NG OR WHAT JUSTICE , YOU ARE SAYING, BUT WHAT I AM SUGGESTING TO THE COURT I S THAT A LOT O F THIS INFORMATION WAS KNOWN BOTH TO THE TRIAL COURT AND TO APPELLANT , AT THE TIME THAT THIS MOTION WAS HEARD. I THINK IT I S VERY, VERY RARE, AND I DON'T KNOW HOW MANY MOTIONS OR WRIT OF PETITIONS FOR CERTIORARI CAME IN UND ER THE CA P, BUT I WOULD SUSPECT THAT, IF NO MOTION WAS MADE TO EXCE EDTHE CAP, THAT ALL OF THOSE INDIVIDUALS PAID UNDER THAT SCHEME WERE PAID AND HAD HANDLED PRIOR ISSUES . WHAT THE DEPARTMENT KNEW AT THAT TIME AND WHAT THE COURT KNEW AT THAT TIME , WAS THAT THERE WERE VERY SHORT TIME PERIODS IN ORDER TO PREPARE THIS MOTION.

BUT I THINK THAT THE PRO BLEM THAT AT L E AST I AM STRUGGLING WITH, IS THAT IN MY EXPERIENCE , WHEN THERE IS AN ATTORNEYS FEE ISSUE , IN AN INSURANCE CASE , AND TRYING TO GET THE COURT TO A WARD A REASONABLE FEE , THEN YOU L INEUP L A WYERS TO TESTIFY AS TO WHAT WOULD BE A REASON ABLE FEE UNDER THE CIRCUMSTANCES OF THAT CASE , AND THAT I S PRESENTED TO THE TRIAL JUDGE IN AN ATTORNEY FEE HEARING . NOW, HERE , YOU DON'T HAVE JUST REASONABLE FEE STANDARD. YOU HAVE GOT AN UNUSUAL CIRCUMSTANCE STAN DARD, WHICH WOULD SEEM TO ME, TO REQUIRE THERE TO BE SOME RECORD THAT, U PON WH ICH A TRIAL JUDGE COULD, THEN , MAKE A DETERMINATION