Thursday, January 17, 2019

Cascading Errors and our own Humanity

I advocate that judges should prepare orders. My feelings about how lawyers and parties seek relief are as clear. The Rules of Procedure for Workers' Compensation Adjudications are consistent with both of these. And, these are not new topics, see On Motions, Sanctions and Recriminations

This came back to me recently when I was presented with a riddle to solve. An OJCC staff had uploaded an order regarding approval of attorney's fees, but the order was uploaded to the incorrect case docket. As I dug back through the paperwork in search of the disconnect that had resulted in this, I located the Motion for Approval. It had been filed appropriately, but the attorney had included a "proposed order." The attorney, I am certain, did so with the best of intentions, seeking to minimize the time required to receive an order back from the Judge's office. However, in a spectacular error, the attorney put an incorrect case number on that proposed order. 

That led me to question how such an error could occur at the lawyer's office. There are two ways to begin a case in the Florida workers' compensation adjudication system, the OJCC. First is to file a Petition for Benefits (PFB) and second is to file a Request for Assignement of Case Number (RACN). These choices are in Rule 60Q6.105(1) and (3). And, in this situation, an attorney had filed an RACN, a case number was assigned, and the case was assigned to a Judge of Compensation Claims. 

About a month later, the other attorney involved in the case filed a second RACN for the same injured worker, which the OJCC database accepted. Generally, the database and e-filing system will catch an error like that. But, in this case, the second attorney used a different date of accident, a few days after the date of accident used by the attorney that filed the first RACN. Thus, at that moment, the same injured worker had two open cases for what was the same claim (albeit with two different accident dates stated). 

Within minutes, the second attorney noticed the error and filed a Notice of appearance in the case that had been created by the first RACN. About two hours later, the attorney filed a "Notice of Error" in the second case, regarding the second RACN. This stated that the lawyer "files this Notice of Error in requesting case number files this Notice of case number filed in error." And, that redundancy would create no real harm, except that redundancy is all that this notice said. It did not say (1) what the error was, or (2) what perhaps could be done to alleviate the error. This was an attempt to follow Rule 60Q6.108(1)(h). But, a notice of error is not of significant help to anyone if it does not describe the error. 

The Judge's office did not notice that there were now two cases pending with the same injured worker. When the second RACN was filed, it could perhaps be hoped that staff would notice its duplicate or redundant nature. But, the OJCC staff process many incoming filings every day, in a multitude of cases. If the document does not make a statement, describe a problem, or ask for relief, there is not much for staff to work from. But, about a week later, one of the Central Clerks noticed the duplication, the second case number was closed, and an Order Closing File was issued by the Deputy Chief Judge regarding the second case number. 

About two weeks after that, the attorney filed the Motion for Approval of Child Support and Attorney Fees in that first case. As a side note, the attorney that filed the Motion also included a two-page cover letter that essentially said "here is a motion," followed by a series of documents, the first of which was titled "Motion." We do not need or want cover letters, see Rule 60Q6.108(1)(c) which specifically says do not file "correspondence to the judge or judge's staff." The cover letter was two pages long and conveyed nothing of value or substance. It was, essentially, a waste of everyone's time and of data storage space. 

Somehow the process in the lawyer's office had been tainted with that second case number. The unnecessary cover letter had the correct (first) case number stated upon it. The documents were all filed in the correct (first) case docket. But, the Motion and the proposed "Settlement Order" had the incorrect, second, closed case number on them. 

Notably, the proposed order should never have been submitted with the motion. Rule 60Q6.103(4) clearly states:
Except as provided in subsection 60Q-6.115(3), F.A.C., proposed orders shall not be submitted unless requested by the judge. 
They shall be clearly indexed in the docket as “proposed orders” and shall be sent to all other parties or, if represented, their attorneys of record prior to being submitted to the judge. 
Proposed orders shall be a separate document and not be included as a part of a motion.
This order (1) was not requested by the judge, (2) was not apparently sent to other parties prior to filing, and (3) was an integrated part of the Motion for Approval filing, not a separate filing. It was inappropriate in each instance. The Judge and staff did not notice (1) that the order stated a case number different from that in which it was filed. Perhaps, they were misled by that unnecessary cover letter that listed the correct case number?

And, if the OJCC staff or judge had keyed that case number, to prepare an order, it is likely that the error would have been noticed. That the Motion was not present in that case docket would likely have been a red flag that stopped the process and resulted in some investigation and review. But, the proposed order alleviated that check and balance in the process. 

The erroneous proposed order was signed by the judge. The OJCC staff then uploaded that order based upon the erroneous case number that was stated on it. Thus, the order approving fees and child support allocation was uploaded to the wrong (closed) file. Days later, apparently upon discovery of the error, the order was uploaded again, but again in the wrong case. The point of that repetition remains unclear (there is no documentation or explanation). 

A complication with service and notice then occurred. Since the first attorney had been working using that first case number, and since that second case number had been rapidly closed, the first attorney never filed a Notice of Appearance on that second case. Thus, when the order was uploaded in error to that second case, the first attorney did not receive a copy of the order. Unfortunately, it was this first attorney whose client was to make payment pursuant to the order. The implication of that attorney receiving no notice of the approval will be readily apparent. 

The first case number remains "active" with this office today. Nothing has occurred to close it (such as an order approving the settlement). The second case has been "inactive" since the order that closed the file about a week after it was established and the second attorney's error was discovered. It remained inactive all that time, despite the uploading of two Orders Approving Attorney Fees and Child Support Allocation. And, to this day, the date of accident stated in that second RACN has been settled, while perhaps the (different) date of accident stated in that first RACN remains potentially active and unsettled. 

The lessons of this long description are several. First, filing documents is effective only if they say something. If filing a Notice of Error, Rule 60Q6.108(1)(h), say what the error is ("this was mistakenly filed when Claimant already has an open case for this accident, case YY-000000, and this case should be closed and deleted"). Or, if you seek relief from the Judge, file a Motion, Rule 60Q6.115(1), state the error as above, and "move for entry of an order closing" the file or "consolidating the erroneously instigated case" so that there is some connection established and noted between the two. This "motion" advice is likely the best. Whenever action is needed from this Office, a motion is likely a good place to start. 

The second lesson is being careful and diligent. Certainly, this series of unfortunate events illustrates that multiple people had opportunities to catch the various errors. Everyone involved, attorneys, judge, and staff might have caught the errors and made corrections. Errors included opening the second case number, the misstatement of accident date, the misstatement of case number on the Motion, the inclusion of a proposed order against the rules, the misstatement of the case number on that proposed order, the filing of the cover letter, and the uploading of the order to the wrong case docket (albeit the one with which that proposed order was labelled). There were multiple errors and multiple opportunities to prevent the ultimate outcome. That is true in every case and diligence has to be the ultimate goal of us all.

But, the third lesson, or reminder, is that accidents will happen, errors will occur, and nobody is perfect. We are all human, and will make errors. Thus, once you have accepted lesson three, refer back to lesson one for the advice on how to alleviate the effect of our collective and individual humanity. File a motion or a notice, be specific as to what needs correcting, and ask for the assigned judge to rectify the error. That methodology, with details, will both help to correct the error(s) and will establish a record that documents both how the situation occurred and how it was concluded. And that may be helpful to someone in years to come when that still "active" OJCC file comes back to someone's attention. 





Tuesday, January 15, 2019

Dissing Daubert?

In 2016, I penned To D or not to D? That It appears is the Question. The evolution of constraints on evidence in Florida legal proceedings has been an interesting one. It has come to the fore again recently with consideration of the Florida Supreme Court's recent decision in Delisle v. Crane Co., ___ So.3d ___, 43 Fla.L.Wkly S459 (Fla. 2018). The conclusion of the Court was essentially that the Legislature's adoption of the Daubert" standard for Florida courts was unconstitutional. The Court concluded that it, and not the Legislature, is empowered to determine the procedural processes applied by Florida courts. 

Thus, despite the enactment of the Daubert standard by the elected representatives of Floridians, the Court struck the standard. It was not a unanimous decision. Three of the Justices dissented: Canady, Polston, and Lawson. Some who watch the Court may perceive that these three have joined together in dissent in other previous cases. And, with the recent retirement of Justices Quince, Lewis and Pariente, some observers perceive the potential for different analyses in future decisions. 

Delisle is an intriguing decision, written by Justice Quince. Two of the Justices in the majority, Pariente and Labarga penned separate concurring opinions (agreeing with the outcome and providing explanation of why). Coincidentally, Justice Pariente agreed with Justice Labarga ("concurs"), and Justice Labarga agreed with Justice Pariente (a minor curiosity in itself with multiple judges writing and agreeing with each other). The decision was recently featured prominently in a news report on WorkCompCentral: High Court's Ruling Could Trim Legislature's Plans on Comp Rules, December 27, 2018. 

Notably, Delisle is not the first time that the Florida Supreme Court has considered the Legislature's adoption of the Daubert standard. See In re Amendments to the Florida Evidence Code, 210 So. 3d  1231 (Fla. 2017). And, since Delisle was decided various Florida appellate courts have rendered decisions following that directive. There are only eight states that cling to the Frye standard that Delisle reinstated in Florida (CA, FL, IL, MD, NJ, NY, PA, WA); according to The Expert Institute. The Daubert standard comes from the United States Supreme Court, Daubert v. Merrill Dow Pharmaceutical, 509 U.S. 579 (1993). Some will struggle with how a standard created by the nation's highest court, applied in the vast majority of U.S. states, could be unconstitutional; but, Florida's recent decision is not that the standard is, but that the method of adoption by the Florida Legislature is unconstitutional

It is pertinent that in Florida the Judges of Compensation Claims are required to follow the “Evidence Code.” Perry v. City of St. Petersburg, 171 So. 3d 224 (Fla. 1st DCA 2015); See, e.g., Alford v. G. Pierce Woods Mem'l Hosp., 621 So. 2d 1380, 1382 (Fla. 1st DCA 1993). See also U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 107 (Fla.2002)(“First, the Florida Evidence Code applies in workers' compensation proceedings.”); State Department of Corrections v. Junod, 217 So. 3d 200 (Fla 1st DCA 2015)(“an EMA opinion also must comply with the Florida Evidence Code”).  This evidentiary standard issue is potentially important in consideration of a variety of expert medical opinions in Florida workers' compensation. Despite these iterations, might the appellate courts have meant to say the OJCC is to follow the Court's evidence rules? Would that be consistent with the Court's conclusions regarding its authority over the OJCC?

As discussed in To D or not to D, the Florida Legislature adopted “the Florida Evidence Code.” in 1976. The Florida Supreme Court avoided any debate as to the applicability of those requirements by adopting the "code" as Florida's evidence rules in 1979. There is some tension as to what is or is not "procedural" and thus whether and what the Court or Legislature may define and require respectively. And, since 1979, the Legislature has occasionally made amendments to the Code, many of which the Court has endorsed through similar adoption. Those are detailed in that previous post, and so are not repeated here. 

As an aside, it is interesting that when the appointed Court considers those changes, it relies upon the recommendations of The Florida Bar, an agency interrelated with the Court. Recently, there has been discussion of states requiring lawyers to belong to bar associations, and thereby seemingly endorse or at least finance their positions and recommendations. See Bar Membership Debate. As The Florida Bar took its "majority" position on Daubert, was that the position of each member of the bar? According to the Court, Bar members were split on the issue Daubert adoption, but the Bar adopted a position nonetheless. 

In 2017, the Court returned again to the Florida Evidence Code, regarding the Legislature’s adoption of the Daubert standard. See In re Amendments to the Florida Evidence Code, 210 So. 3d  1231 (Fla. 2017). The Court then “declined to adopt” the “changes to sections 90.702 and 90.704 of the Evidence Code” (The “Daubert Amendment”). And, the Court similarly declined to adopt legislative “amendments to section 766.102.” These decisions were each “to the extent they are procedural.” 

The Court expressed deference to the “case and controversy” foundation. That is, a preference to decide issues of constitutionality in a real case situation, rather than merely in consideration of adoption of a rule. This was not the first time. There are various "In re Amendment" decisions in which the Court has noted that the appropriate process for considering the merits of a statutory change would be in an actual case. In 2017, the Court commented that “the Court does not address the constitutionality of a statute or proposed rule within the context of a rules case” (noting four previous instances of such judicial restraint). 

The Court’s various determinations to decline adoption of elements of the Evidence Code, as Rules of Evidence, have all been upon the foundational conclusion that those are procedural court rules over which the constitutional separation of powers furnishes unfettered and plenary authority to the Court rather than the legislature. There are those, as discussed recently by WorkCompCentral, who see a similar separation of powers argument regarding legislative delineation of rules or procedures in workers' compensation. 

For decades, the Florida Supreme Court promulgated procedural rules for workers’ compensation. In 2004, however, the Florida Supreme Court concluded that “separation of powers,” constitutional constraints, precluded it from doing so. It held “this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for” the OJCC. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474, 478 (Fla. 2004). The Court has plenary power to establish rules for the courts, and no power to establish rules for the OJCC. 

This returns us to the 2018 Florida Supreme Court decision in Delisle v. Crane Co., __ So. 3d __, 43 Fla.L.Wkly S459 (Fla. 2018). There, the Court discussed the distinctions between substantive and procedural law, and noted “the distinction between substantive and procedural law, however, is not always clear.” The Court reiterated the constraints of separation of powers in this regard (Article II, section 3 of the Florida Constitution). It concluded that “the Legislature exceeded its authority in adopting statutes we found to infringe on the authority of this Court to determine matters of practice or procedure.” (Emphasis added). 

Finally, the Court concluded that “Section 90.702, Florida Statutes, as amended in 2013, is not substantive,” but “this statute is one that solely regulates the action of litigants in court proceedings.” That is, the statutory Daubert standard is entirely procedural. On that basis, the Court concluded that the Daubert standard enacted by the legislature, that procedural process, is not constitutional as it is the Legislative branch dictating procedure to the co-equal Judicial branch, contrary to separation of powers. The unconstitutional element is no Daubert, but the fact that the Legislature adopted that procedure for the Courts. 

Admittedly, on this basis, one might conclude that the Daubert standard does not apply to any legal proceedings in Florida, that it is “unconstitutional” as enacted by the Legislature. However, Delisle is a conclusion that the Legislature may not dictate procedure to the Courts. Delisle did not involve workers' compensation, a process and procedure that is clearly not a court, according to the Supreme Court. Though the Court determined the Legislative imposition of Daubert on the Judiciary to be unconstitutional, diligent research has found no such determination regarding the Legislative adoption of that standard in the “code” as opposed to the “rules of evidence.” Nor has research identified any decision that holds the Legislature may not dictate procedure regarding workers' compensation.  

It is noteworthy that all authority of the Florida OJCC is the creation of legislative delegation. The Legislature has authority over a great many facets of Floridian's lives. In various instances, it acts to delegate that authority to some state agency. The same legislative delegation occurs in the federal government. Every state agency must have authority to even exist. Some may be created by the constitution, a delegation by the people, while others are created by the legislature. 

Chapter 440 is a statutory delegation, in which Florida workers' compensation is created, defined, and described by state law; that is by the Legislature. That Chapter includes a variety of procedural processes, processes created by the legislature and different from court processes. An excellent example is Section 440.29(4): 
“All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the judge of compensation claims upon proper motion. However, such records must be served on the opposing party at least 30 days before the final hearing. This section does not limit any right of further discovery, including, but not limited to, depositions.” (Emphasis added).
This statute directs that certain medical records will be evidence in Florida workers' compensation proceedings. Certainly, that direction must be analyzed mindful of the multiple admonitions of "the Florida Evidence Code applies in workers' compensation proceedings” (see supra) This is not the only example. In another, the Legislature has limited which experts may express opinions in Florida workers' compensation disputes, see Section 440.13(5)(e) 

Thus, it may remain unclear whether Daubert and the duly enacted Florida Evidence Code apply to workers' compensation disputes. It is possible that just as the Legislature may not delegate its authority regarding workers’ compensation rules to the Court, neither can the Court regulate workers’ compensation procedure regarding evidence. However, statutory procedural constraints on workers' compensation proceedings are numerous. And, as yet, there is no decision clearly addressing whether Daubert applies in workers' compensation. Perhaps in time there will be. 

Sunday, January 13, 2019

Bar Membership Debate

There are a great many rights that we enjoy as human beings. The foundations of this country recognized that those rights exist simply because we exist ("all men are created equal, that they are endowed by their creator with certain inalienable Rights"). For those reasons, there were founders who did not perceive a necessity for a bill of rights. These Federalists thought that the government would be limited, and therefore the people would retain authority and power. With such retention of power, the "bill of rights" was seen as unnecessary. 

The fallacy of limited government has long been exposed. The "A-Z Index of U.S. Government Department and Agencies" (there are no listings currently for "Q," "X," "Y," or "Z," but give us time) at USA.Gov bears witness to that. Aside from listing each state as a "department" or "agency" (states are neither federal departments or agencies, and in fact have their own powers and rights, according to the U.S. Constitution), this listing includes over 600 departments and agencies. In fact, the U.S. government is the largest employer in the country, but according to the Belleville News-Democrat, but Walmart is closing in. Some would argue that whatever our government is, it is not "limited." And, thus, the adoption of the Bill of Rights may arguably be one of the founders' greatest ideas. 

The topic of rights came to me recently (this is the point in the post where some curmudgeon has begun to mutter under her or his breath "what does this have to do with workers' comp?"). The discussion is relevant to many lawyers, and perhaps more so to judges. It is not therefore strictly a workers' compensation topic, but certainly both a legal and adjudicatory topic. The current context has to do with the First Amendment to the United States Constitution: 
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." 
There, we see explicit protections both "of" and "from" religion, freedom of press, speech, and assembly. In a short paragraph, the First Amendment addresses much. 

What it does not address specifically is the right to freedom of association. Protection of that right has been implied, however. It is implied, according to courts and scholars, by the stated freedom to assemble, and in the right to substantive due process ("liberty") that is encompassed by the Fifth and Fourteenth Amendments. And, inherent in the right to associate is, to some extent, a right not to associate, as discussed in this interesting piece published by the University of Missouri Kansas City (UMKC). It is possible that "association" may be, similarly to religion, characterized as both a freedom "of" and "from." 

Freedom of Association was newsworthy in June 2018 when the Supreme Court of the United States (SCOTUS) rendered Janus v. AFSCME, ____ U.S. ____; 138 S.Ct. 2448, No. 16-1466 (2018). The SCOTUS essentially concluded that a public employee could not be forced to pay dues or fees to a public sector union. The decision reversed forty years of precedent, by which various employees have been forced to support organizations from which they perhaps enjoyed a benefit(s), but with which the employee perhaps had philosophical differences. That long history was clarified in Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236 (1977). 

While Janus recedes from Abood, There have also been various cases that interpreted the Constitution as protecting the right both to associate and to choose not not to (similarly, the right to free speech certainly likewise protects the right not to). Some of those are discussed in the UMKC piece. Those are cases of organizations choosing not to associate with particular individuals, that is in their selective membership, with mixed success. However, the analysis of association based on the choices of the individual are somewhat distinct. 

Janus is now encouraging litigation in the individual association context, specifically as regards attorneys. As reported by the Wall Street Journal (Friday, December 21, 2018) Lawyers Have Rights Too (subscription service). This details a North Dakota attorney, Arnold Fleck, who has filed suit against the North Dakota Bar Association (through its president, Mr. Wetch). In order to practice law in North Dakota, he is required both to be a member of that association, and to pay dues to it. His complaint centers on his personal support for a legislative amendment in 2014, which his bar association opposed. Thus, his mandated dues support an organization with which he has philosophical differences. 

Mr. Fleck did not prevail. The Eighth Circuit Court of Appeal denied his freedom of association claims. Fleck v. Wetch, 868 652 (8th Cir. 2017). Mr. Fleck then sought review by the SCOTUS. His petition is worthy reading regarding his contention that the Court's decision in Janus supports revisiting prior authority regarding compulsory membership in state bar associations. The defendant's response is likewise worthy reading. The SCOTUS did not address the merits of either argument, but in early December 2018 the Court remanded the case to the Eighth Circuit with instructions that it reconsider the case in light of the recent Janus decision. 

The Wall Street Journal reports that more recently an Oregon attorney, Daniel Crowe, has filed a similar lawsuit regarding the mandate that he belong to the Oregon State Bar. The authors note that there are various states in which attorneys are forced to be members in order to practice law. These are called "integrated bars." According to the article 18 states utilize this methodology. Thus, it appears that mandatory bar membership is a minority of states, however a significant minority. The article authors contend this method violates both freedom of speech and of association. They contend that because such state bar associations elect to engage in political influence and even lobby positions, that those associations express views and affect public policy. 

The debate is not new to Florida. In 1986, the Eleventh Circuit Court rendered Gibson v. The Florida Bar, 906 F.2d 624 (11th Cir. 1986). In part relying upon Abood, the Court rejected a "pure rebate approach" (for dues) but accepted the necessity for some "readily available alternatives" in instances in which the Bar takes political positions. The SCOTUS initially granted certiorari review of Gibson, 499 U.S. 918 (1991), but the petition for review was later "dismissed as improvidently granted." 502 U.S. 104 (1991).

During the pendency of that litigation, The Florida Bar adopted a policy, in Rule 2-9.3 regarding member objections to dues expended on legislative activities. That provision remains in force today. It essentially requires the Bar to publish its intent to take legislative positions, and affords each member time to object. Thereafter, The Florida Bar Board of Governors may choose whether to refund an attorney's pro-rata share of dues expended on that particular legislative position. If it elects not to refund that dues portion, the bar member may arbitrate entitlement to the refund. 

Thus, there is a methodology for someone to seek reimbursement of dues that contribute to the promotion of a position or policy with which she or he does not agree, or at least does not support. It is not, however, necessarily a simple or rapid process. It requires monitoring of The Florida Bar News to understand any positions that the bar might adopt, is primarily dependent upon the grace of the Board which has approved the position or policy in the first instance, and may require ultimately arbitration. And, it merely allows the recoup member to recoup money.

Is there a greater interest than the money, the dues, involved? When a person is a member of any organization, does that membership evidence or at least suggest support for any and all of its values? Recently, a jurist's membership in the Knights of Columbus was questioned in that vein. Is it fair to assume that every member of Rotary is behind its every aspiration and goals? Is association in Sertoma an unmitigated endorsement of its mission? Is it fair to conclude that attorney membership in a local bar association, Inns of Court, or other organization is equally adoptive of each of that organizations's espoused positions or interests? Is that assumption or inference any different with state bar membership? 

When an organization takes an action or position, that speaks for the organization, but may also speak for its individual members. It is probable that many such positions will include differing perceptions, discussion, or even controversy. It is hard to imagine the counter-argument to supporting causes championed by Rotary, Sertoma, and others, such as children's hospitals, food banks, college scholarships, and a variety of other community causes. But, if one disagrees with the decision, position, or affiliation of a Rotary, Sertoma, or even a local bar association, one may simply elect to no longer be a member. That is a choice. A choice of "association" in which the individual decides with whom one will be associated (and whose goals or positions one will financially support). 

Whether a state bar member's dues are refunded in pro-rata amount to recompense for what was spent espousing an idea, a member of The Florida Bar (and those similarly integrated in other states) is nonetheless a member of an organization that is publicly espousing an idea or position. If that idea is great or not, does that idea itself become the member's by association? Does each position of the majority thus become assigned to the minority, forced by law to belong? 

The issue may be even more complex for judges. Lawyers in Florida are governed by the Rules Regulating The Florida Bar. All judges must be "a member of the bar of Florida." Florida Constitution, Article V. Section 8. As attorneys, Judges are therefore likewise subject to those bar rules. However, Judges are also held to a standard beyond those rules, the Florida Code of Judicial Conduct. The Code clearly allows judges to participate and even advocate on matters of "the improvement of the law, the legal system, or the administration of justice." Canon Canon 5C(2). 

However, judges are prohibited from a variety of activity that falls without these specific goals. Thus, if The Florida Bar undertook a legislative position that was capable of being interpreted as beyond "the law, the legal system, or the administration of justice," that is on an issue of social, moral, or other broad import, might it perhaps become incumbent upon each judge of the state to seek to invoke Rule 2-9.3? Does it matter that state money may be used to pay the Bar dues of various judges? 

Finally, does the potential exist for such other affiliations to influence an attorney's analysis of invocation of Rule 2-9.3? In Burwell v. Hobby Lobby, 13-354 (2014), the SCOTUS concluded that a closely-held corporation could not be compelled to provide certain contraceptives or contraceptive services as part of a government mandate to provide health insurance for employees. These businesses' were allowed exemption from that mandate by the Religious Freedom Restoration Act of 1993. If an integrated state bar were to take a legislative position in support or opposition regarding some social issue, might in-house counsel for such a corporate entity, or association, be encouraged or even ordered by that employer to seek dues reimbursement under such a rule? 

Would that analysis be any different if the issue did not involve some core company value as in Hobby Lobby? Would that analysis be any different if the business itself paid The Florida Bar dues of the lawyers employed? Some may argue that the right to "association" of that attorney is being impaired similarly in that regard, with the values of an employer being imposed. However, others will perhaps argue that unlike membership in the bar, that employment relationship is entirely voluntary. They will perhaps contend that the freedom of, or from, that association lies in retaining or rejecting that employment? 

Interesting times perhaps lie ahead as Mr. Fleck and Mr. Crowe proceed with their challenges to the mandated association of integrated bar membership. This will be of interest to the eighteen states that mandate bar membership as a condition to practice law, and to thousands of lawyers who are members. And the outcome might profoundly change either the structure of those states' lawyer governance, or limit the activities of those integrated bars. While a variety of outcomes are possible, it may well be that the answer is distinct for lawyers and judges in some ways.

Thursday, January 10, 2019

Could (Would) I Write you a Recommendation Letter?

A unanimous Florida Supreme Court decided Inquiry Concerning a Judge NO. 18-108 RE: Deborah White LaBora on November 15, 2018. It is worthy of consideration. Worthy, because the basic topic, letters of recommendation, is one which all judges face in some form. In this instance, the Judge was asked to write on behalf of a criminal defendant. However, the requests come in a variety of contexts, for employment, school applications, volunteer appointments and more. I have been asked for recommendation letters in various contexts and have been called upon to investigate several Code of Judicial Conduct allegations involving them. 

In this case, the Judge is a member of the Miami-Dade County Court. She wrote "a character reference letter, on her official court stationery, on behalf of a criminal defendant awaiting sentencing in federal court." That was noticed by a reporter, and publicized in a local newspaper. The matter was investigated by the Florida Judicial Qualification Commission, which recommended a "public reprimand." The Supreme Court accepted and approved that recommendation. The Judge will travel to Tallahassee to appear before the Court for this reprimand. 

The Court explained that such a letter violates both "Canons 1 and 2 of the Florida Code of Judicial Conduct." It accepted that "the judge did not intend to violate the Canons." The absence of intent is important in these Court analyses, as it decides what punishment is appropriate. However, it noted that "she did not take appropriate steps to inform herself about the propriety of sending such a letter." In support of imposing the reprimand as sanction, the Court also noted her "heretofore unblemished service as a judicial officer." 

The Court explained that "by writing and submitting a character reference letter, on her official court stationery," the Judge "failed to maintain the high standards of conduct necessary to preserve the integrity of the judiciary" (violating Canon 1). Furthermore, this activity "could potentially undermine public confidence in the integrity and impartiality of the judiciary (violating Canon 2A). Her advocacy also violated Canon 2B by creating "the appearance of impropriety and partiality by improperly lending the prestige of her office to advance the private interests of the defendant." 

The Court explained that the object "of (judicial) disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge’s fitness to serve as an impartial judicial officer.” In that regard, the Court stressed the Judge's acknowledgement of the action, cooperation in the investigation, and admission of the Code violations. 

So, in what circumstances may a judge write a recommendation letter? The Judicial Ethics Advisory Committee (JEAC) recently summarized the subject in Opinion Number: 2017-09. That opinion provides a volume of scenarios and discussion. All of the JEAC opinions can be searched in a database maintained by the Florida Sixth Judicial Circuit. A simple search for "recommendation letter" also provides guidance. 

The JEAC in 2017-09 was asked if a judge could recommend a former, and recently deceased, bailiff in an effort to have his service in a local community recognized with the naming of a sports field in his honor. The JEAC concluded that such a letter was permissible. It noted the broad prohibition on such letters, but also "an exception for" particular letters: 
"Although a judge shall be sensitive to possible abuse of the prestige of office, a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation." 
From that exception, the JEAC noted multiple interpretations in which it has concluded a recommendation letter is not inappropriate, if based upon personal knowledge: 
letters of recommendation to a potential employer or commendation to an employee’s personal file, Fla. JEAC Op. 10-29,
applicant for law school fellowship, Fla. JEAC Op. 07-06,
applicant for law school, Fla. JEAC Op. 79-03,
letters of commendations, Fla. JEAC Op. 94-45,
to judicial nominating commissions, Fla. JEAC Ops. 86-02, 89-15, 91-28, 03-09,
to the Florida Department of Elderly Affairs acknowledging that a professional guardian has demonstrated competency, intended to be sent by the guardian seeking waiver of a competency examination, Fla. JEAC Op. 05-04. 
The JEAC also provided clear examples of letters that judges "are not allowed by the judicial code to write": 
for investigatory and/or adjudicatory proceedings where legal rights, duties, privileges, or immunities would be decided. Fla. JEAC Op. 94-45.
to the Department of Business and Professional Regulation where the privilege of obtaining a professional license would ultimately be determined, Fla. JEAC Op. 13-08,
in criminal sentencing proceedings, Fla. JEAC Op. 10-34;
recommending parole to the Parole and Probation Commission, Fla. JEAC Op. 77-17,
attorney disciplinary action by the Florida Bar, Fla. JEAC Op. 04-22,
to the Florida Bar in connection with disciplined lawyer seeking re-admission to the Bar, Fla. JEAC Op. 88-19,
to Clemency Board or Board of Bar Examiners, Fla. JEAC Op. 82-15,
for judge’s personal business interests or matters, Fla. JEAC Ops. 81-08, 92-02, 96-14. 
I have concluded that the best answer to such requests is generally no. Any recommendation letter could potentially be interpreted as "improperly lending the prestige of judicial office to advance the private interests" of someone. More importantly, the Code's use of an "appearance of impropriety" standard is very broad, and very subjective. Essentially, might any reasonable person perceive the writing of the letter as inappropriate?

If a judge elects to write a recommendation letter, the best advice includes (1) do not use judicial stationary, and (2) do not mention either the title "judge" or even judicial service in the letter. When I deliver that advice, I generally hear "but if they do not know I am a judge, what good does the letter do?" And, that is perhaps the point. If the letter brings value only because it says or implies judge, then maybe the only point of the letter is "lending the prestige of judicial office?"

Thus, the best advice is to decline all such requests. If the request is within one of the categories approved by the JEAC, then the second best response is to offer a letter on personal letterhead with no reference to judicial service. Any letter on official letterhead or mentioning judicial service merely opens the door to potential criticism or worse.


Tuesday, January 8, 2019

Trial Judge Discretion

Trial Judge discretion, specifically Judge of Compensation Claims discretion was recently the topic in a decision from the Florida First District Court. Employbridge v. Rodriguez, 255 So. 3d 453 (Fla 1st DCA 2018) is an interesting decision. Notably, it is an example of a "plurality" decision. There is agreement by majority regarding outcome, but that agreement is based on different reasoning by the judges involved. This illustrates the collaborative and deliberative process of appellate decision making. See What Did I Just Say ("appellate judges usually get to work in a team setting"). 

The primary issue in the Rodriguez case was whether an injured worker's "refusal to accept suitable employment offered by her employer was justifiable under § 440.15(6), Florida Statutes." Concluding that the evidence did not support a conclusion that it was "justifiable," the Court reversed. One Judge wrote a concurring (agreeing with the outcome) opinion seeking to re-write the statute to include new element not included by the Legislature. That judge would require that such "a refusal has some “plausible nexus” to the workplace injury." This Judge disagreed with the statutory interpretation of the trial judge, based upon the appellate judge superimposing this new "nexus" onto the statute. 

A second judge wrote separately "because Claimant offered ordinary, manageable, and self-imposed commuting limitations rather than reasonable justifications." This opinion focused upon the conclusions that "Claimant would have to solve some logistical hurdles" in order to accept the proffered work. That might mean reliance "on public transportation" or upon others for assistance.

This second Judge noted in particular that the worker had not "investigated her public transportation options" before declining the proffered job. This Judge disagreed with the trial judge's weighing of the evidence (essentially re-weighing it), concluding that "competent substantial evidence" did not support the trial judge's conclusion that the refusal was justified. This illustrates that there may be a fine line between determining the existence of evidence to support a conclusion and reweighing that evidence as supporting a different conclusion. 

The third judge ("dissenting" - disagreeing with the outcome) on the panel would have affirmed the trial judge's conclusion that the Claimant had demonstrated a reasonable justification for refusing the offered work. This Judge concluded that "the majority (plurality) substitutes its view of the facts in place of the broad discretion afforded the JCC by the Legislature." It is rare to read an appellate opinion that supports trial judge discretion, more rare still one that it is referred to as "broad discretion."

The dissent provides a detailed recitation of the facts in the case. Essentially, that the worker was hired by a "staffing company" in Tampa, but was later assigned to work in Largo. To avoid up to a 40 minute one-way commute, the worker and her spouse then moved to Largo. Thereafter, she was injured and her "assigned work restrictions" precluded her return to that work assignment. The Employer offered her "clerical-type work" in its Tampa office. The Claimant declined. 

Fundamentally, Claimant "declined any work in the Tampa office 'because of transportation.'" She also noted that limited familiarity with English, that her family "had one car," and that her husband's job involved sporadic scheduling, including "both day and night shifts." Upon that set of facts, the trial judge concluded that after dropping her husband at work at "4:00 a.m." she would have to "wait at the Employer's Tampa office for four hours until it opened." 

The finding implied a conclusion that she could not return home after dropping him at work early in the morning (and later drive back to work herself). That was supported, according to the trial judge, by the Claimant's husband not wanting her to drive from Largo to Tampa "during regular business hours," due to her lack of familiarity with "the Interstate and other freeways." Such driving, the trial judge concluded, "can be confusing." Therefore, the Claimant "certainly could not have developed driving skills so as to drive from Largo to Tampa and back with interstate and high-speed travel and unfamiliar roads/highways.” It is likely each of us found freeway driving a challenge at one point in our lives. Over time, perhaps repetition and practice make new challenges into old habits?

Therefore, the trial judge excused the decision to forego the offered job and awarded temporary partial disability benefits. The judge concluded that "refusal of the Tampa job was justified" and therefore there was no voluntary limitation of income. I have since heard this case discussed on several occasions. Once, I was even asked whether I agree with the trial judge's conclusions, essentially "what would you have done." That is an intriguing question in any event, and most often the appropriate response is "it does not matter what I would have done." 

The dissent concluded the statute was clear, concluding its "plain language gives JCCs broad discretion in determining whether an employee's refusal of suitable employment is justifiable." The dissent noted that the trial judge should make findings of fact, and that those must be supported by "competent substantial evidence." Furthermore, such “findings must be sustained if permitted by any view of the evidence and its permissible inferences.” 

The dissent suggests that this appeal essentially asks the appellate court "what would you have done," rather than the appropriate questions of what the statute itself says and whether competent evidence supports what the trial judge has done. The dissent sees the majority of two judges in this case departing from the appropriate inquiry "is there evidence to support what the trial judge did, even if I would not have rendered this decision on that evidence." It asserts that "the majority substitutes its view of the facts in place of the JCC in contravention of the authority granted the JCC under section 440.15(6)."

The dissent's focus is largely upon the statutory language that expressly pins the question of justification upon "the opinion of the judge of compensation claims." This is a rare example of statutory language that expressly defers to the trial judge. It is up to the trial judge "opinion." The Legislature surely knew the meaning of that word when it drafted this law? The dissent argues that the appellate review should thus be limited to an analysis essentially of (1) did the trial judge reach an opinion, and (2) whether such opinion was supported by competent substantial evidence. Beyond that, the dissent suggests, the court crosses that fine line. 

The dissent proposes alternative hypothetical situations in which one might find refusal justifiable or not. It suggests that consideration of the factors thus described would be agreed upon by appellate court judges. However, it returns to the conclusion that "what would you have done" is not the appropriate analysis when dealing with trial judge opinion. Such decisions, it concludes, "depend[s] on a number of factors best left to the sound discretion of the fact finding JCC." The dissent seems to support that the right response to "what would you have done" if you were the trial judge is "it does not matter what I would have done." Because, answering that question in any other fashion merely substitutes one opinion for another. The Legislature, seemingly, conceded that it is a matter of "opinion" and selected to whose opinion the law would defer. Despite the dissent's eloquent opinion explanation, the majority disagreed. 

And, it is imperative that everyone remembers that opinions are simply that. They are conclusions, sometimes better educated or informed than at other times, based upon belief. Almost a year ago, in February, there were those who ranked Ohio State number one in college football (at end of season, number 5 and not even in the playoff hunt). The same February opinions ranked Clemson number 3, behind Ohio State and Alabama (Clemson beat Alabama like a drum in the 2019 National Championship last night, "its biggest loss ever under Nick Saban.") Some will accuse me of piling on Alabama this morning, but the point is that a great many opinions ultimately turn out to be mistaken, misplaced, or just wrong. That is why we don't call them "facts."

The Rodriguez dissent concludes that cases of fact determinations "could go either way," and suggests that "appellate judges should defer to the JCC," unless the Legislature amends the statute that grants discretion to the trial judge "opinion." That conclusion is supportive of JCC discretion. That conclusion is faithful to the statute and the Legislature that passed it. 

But discretion is worthy of one further point. Since Rodriguez was published, I have heard various statements regarding a somewhat broad application of this logic: "trial judges should have broad discretion." It is worthy of note that the dissent's focus on discretion in Rodriguez is founded on specific statute language deferring to opinion. And, despite that seemingly broad and clear grant of authority, the appellate court in this instance nonetheless concluded that the trial judge lacked discretion. The appearance, at least, is that Judge of Compensation Claims discretion is limited.

Sure, the next question might be "what would you have done" if you were on the District Court panel. I am quite certain that the answer to that question is "it does not matter what I would have done." In addition to accepting that opinions differ (see, University of Alabama discussion above), it is also important that trial judges accept that the opinion of the District Court is all that matters. That is the law, until the Court decides it should be otherwise. See Westphal is Over, Questions Remain.


Sunday, January 6, 2019

What did I just Say?

How many times must someone be told something? 

A recent decision of the Pennsylvania Commonwealth Court perhaps has a few asking themselves that question. In Commonwealth of Pennsylvania v. McCauley, No. 613 WDA 2017 (November 28, 2018), a criminal defendant appealed his sentence. This was the second time the Superior Court (appellate) had reviewed this case. The Court was direct in its decision and its criticism of the trial judge. It is not necessarily uncommon for a case to be reviewed more than once by an appellate court. But in this instance it is interesting reading. 

It reminded me, frankly, of a movie scene. A classic line was uttered by the Captain (Strother Martin) in Cool Hand Luke (1967): "what we've got here is... failure to communicate." That seems applicable. Clearly, there is a distinction between hearing and listening. There is a similar distinction between reading and comprehending. And, sometimes, there is a trial judge that just cannot seem to grasp the guidance an appellate court is giving. 

The defendant in this Pennsylvania case was convicted of raping a child, among other things. Thus, we start from the perspective of a very serious case. After judgment was entered, the defendant appealed to the Superior Court in 2016. He challenged "the sufficiency of the evidence to support his convictions and the legality of his sentence." The court on that first appeal affirmed the convictions, "but vacated . . . and remanded for further proceedings. A specific discrepancy was identified as to whether the trial court had actually imposed a mandatory minimum sentence."

That reversal is a lesson. I talk to judges from time to time and they often express their emotions at an appellate court reversal. I often remind them, particularly newer judges, that an appellate court disagreeing with them is precisely that, a disagreement. That there is disagreement does not make either judge "right" or "wrong" in a holistic sense.

Understand that trial judges often must make difficult decisions "in the moment," while on the bench. There may be little time for research, reflection, or introspection. Often, lawyers in trial do a woefully inadequate job of stating either their objections or responses. The level of preparedness, the preciseness of argument, and the thoroughness of explanation are each a challenge from time to time. But, an appellate court is not "in the moment" It is blessed with months to contemplate, research, and review. It is staffed with multiple law clerks, and the appellate judges usually get to work in a team setting, collaborating, to make their decision.

And despite those advantages, appellate courts periodically are reversed by some other appellate court. One of the most intriguing cases over which I ever presided was Flamily v. City of Orlando, 924 So. 2d 78 (Fla. 1st DCA 2006). The Florida First District Court disagreed with my interpretation of the law, and reversed part of my trial order (which was well over 100 ages in length). In Sanders v. City of Orlando, 997 So. 2d 1089 (2008) (the name of the case was changed due to the passing of the claimant), the Florida Supreme Court disagreed with the District Court, and agreed with my analysis. There was a dissent (the Supreme Court justices did not all agree) that said the Supreme Court should not have heard the case. It explained the Court lacked jurisdiction. I agreed with that dissent. Thus, an illustration of interpretations, differences, and the analysis of judges and courts. In short, it is imperfect. 

Back to Pennsylvania. The Court in 2016 instructed the trial court to "clarify whether it had imposed a mandatory minimum sentence." Specifically, the instruction was: 
"(1) if the trial court imposed a mandatory minimum sentence pursuant to Section 9718, the trial court must “resentence Appellant without imposition of a mandatory minimum term[;]” or
(2) if the trial court did not apply Section 9718, the trial court “shall reimpose Appellant’s original sentence.” 
This is a reasonably simple "either/or" mandate. 

On remand, the trial judge elected to ignore the Superior Court and instead held a hearing, a "brief and inadequate re-sentencing hearing." The trial judge clarified that "it did not apply the mandatory minimum sentence," (that is, not (1)). But, instead of proceeding to (2), the trial court "instead imposed a new sentence." 

The Superior Court explained last December:
“it is well-settled that following remand, the trial court below must comply strictly with this Court’s mandate and has no power to modify, alter, amend, set aside, or in any measure disturb or depart from this Court’s decision as to any matter decided on appeal.” 
This is perhaps the judicial equivalent of your mother's admonition to "do as I say." 

The trial court did not, so the matter was appealed again. While it is not uncommon for a particular case to be reviewed by an appellate court more than once, it is somewhat rare that it happen in this setting. Where it is less surprising is the type of case that proceeds serially, such as a workers' compensation case or a family law matter involving children, etc., and those serial appeals regard different issues or analyses. It is admittedly somewhat rare in the circumstances presented here. 

In addition, the defendant moved to disqualify the trial judge. That motion was "summarily denied" by the trial judge. The appellate court explained the concerns of "due process,” and how that is intertwined with an impartial judge. It explained that both "actual bias” and "the appearance of bias or prejudice" are problematic. It reminded, however, that “simply because a judge rules against a defendant does not establish any bias on the part of the judge against that defendant.” Ruling for or against various parties is what a judge must do. A ruling for you or against you, alone, does not mean the judge is biased for or against you. 

In this instance however, the Court considered the "cumulative effect of a judge’s remarks and conduct in multiple cases." It concluded "that there is substantial evidence that the trial court judge demonstrated bias and personal animus against Appellant’s counsel and the Public Defender’s Office." The cumulative effect was seen to “raise a substantial doubt as to the jurist’s ability to preside impartially.” 

The Court noted that the trial judge failed to follow the law and procedure in various cases, and "repeatedly relied on . . . unreliable facts and misinformation.” The Court noted other instances in which reviewing courts had been "troubled with the trial court judge’s biased decision-making." In one instance, the "Superior Court suggested that the Public Defender’s Office file a Motion for Recusal on remand because Superior Court could not sua sponte order recusal." That may be a powerful message, nestled in an appellate decision, that "by the way, party "x" should move to disqualify this judge." 

The appellate Court noted its pressing concern was "the animus against Appellant’s counsel and the Public Defender’s Office that the trial court revealed in its Opinion." The trial court order was found to be "filled with gratuitous comments denigrating Appellant’s counsel and the Public Defender’s Office." The trial court departed from ruling upon the facts (findings) and the law (holdings). Instead, it "disparaged defense counsel." The appellate Court included specific examples which "imputed unprofessional (and unfounded) motives to Appellant’s counsel." 

In one instance, the trial court essentially accused counsel of pursuing an "agenda over the best interests of her client.” In another, the trial court "made a veiled threat that challenges" voiced by the attorney might lead the court to doubt "the credibility of Appellant’s counsel and the Public Defender’s Office." That included an admonition of potentially harming "other criminal defendants" appearing before the court. 

The appellate Court noted that the prosecutor referred to the relationship between trial court and Public Defender as "a feud." In appellate filings, the prosecutor referred to "acrimony," "gyrations," and "obvious inconsistencies and missteps" leading to the potential for "an appearance of bias.” (Thus, both sides recognized the potential for perception of bias regarding this judge). The Court was similarly concerned with its perception of "the trial court's sarcasm" in the sentence it imposed when it elected to ignore the Court's remand instruction, (2) above. That sarcasm, the Court concluded, "is disrespectful to Appellant, counsel, and the seriousness of the sentencing process."

Another consideration of the court was setting and timing. The Court seemed understanding of the pressure upon a trial judge in the course of a hearing or other proceeding. But, in this instance it found:
"the trial court did not make these gratuitous statements during an emotional and stressful courtroom hearing where the trial judge is attempting to control the courtroom and momentarily loses her temper." 
The complained of "derogatory comments" were written in an opinion of the trial court. The order drafting process, is certainly less stressful. The drafting of a decision is a contemplative time, a reflective time, to weigh and consider legal arguments, facts, and circumstances. That the trial court was intemperate in that process was seen as important by the appellate Court. 

The appellate Court memorialized remands to this particular trial court in multiple other instances. It described failure to follow legal requirements and procedures. It characterized the result of various instances cumulatively as "an extensive deployment of judicial resources to review, analyze, and rectify the court’s deficient sentencing hearings." Essentially, the Court is describing a trial judge that either cannot understand or chooses not to. 

And in light of this cumulative effect, the Court reversed the second sentencing and disqualified the trial judge. It concluded that the trial judge's cumulative actions constituted "an abuse of discretion" in the face of "substantial doubt as to her ability to preside impartially and provide a fair tribunal for Appellant." Thus, in the absence of "fair" and "impartial" lies an absence of due process. It is imperative for all judges to remember that the real value each delivers to the parties is due process. It is the fundamental service we offer, and it is what every party wants: to be listened to, to be heard, and to be understood.

That does not mean the judge is obligated to agree with you. In fact, the fundamental of judicial independence is you having the absolute right for the judge to disagree with you. But, that disagreement should be without bias or prejudice and should be based upon the law. And, when an appellate court issues a clear instruction, it is the trial judge's job to follow it. That instruction is the law, and is to be respected until some higher court intervenes. That does not mean any judge involved is necessarily "right" or "wrong," it means that there may be disagreement, but the law is what the higher, the appellate, court concludes it is.

An interesting Pennsylvania analysis, which holds reminders and lessons for us all.

Thursday, January 3, 2019

Hallucinating Technology

The age of machines is upon us. This has been discussed before in Ross, AI and the New Paradigm Coming, Artificial Intelligence in Our World, Chatbot Wins 160,000 Legal Cases, and The Coming Automation. The changes that are coming our way are systemic and fundamental. The very fabric of our existence is going to change dramatically in decades to come, through the arrival and evolution of technological dominance. The power of robots and computers already amazes us, and there is significant development still to come. 

Futurism notes "Artificial intelligence is rapidly developing and is already starting to change the world, at a pace that is worrying to some experts." Furthermore Elon Musk, Stephen Hawking and others now "often lament the dangers of unfettered development of AI systems." AI is being studied in regards to efficacy and application, but more recently also as regards its impact. A recent Fortune survey supports that a significant number of "tech experts" currently "are concerned that artificial intelligence will leave humanity worse off in 2030 than they are now." 

The changes are coming. Label them "progress" or "threat," and they will come nonetheless. The Hollywood depictions are numerous. I Robot, released in 2004, portends a future where all of our needs are met by robots and AI. A veritable army of robots, governed by intractable rules, assists mankind in virtually every regard. But one, Sonny, has evolved. In a voice over, the viewer is warned "there have always been ghosts in the machine. Random segments of code, that have grouped together to form unexpected protocols." The humanization is suggested further in an exchange between Sonny, and the detective investigating Sonny's creator; in it, Sonny notes that "I have even had dreams." Well, we all have, but we are not in the strictest sense robots (yet). 

In the 1989 classic Ghost Busters II, the New York Mayor is contemplating how best to deal with the apparent proliferation of earthbound spirits and extraordinary circumstances. The Mayor is consulting staff regarding the state of affairs, and they are discouraging his inclination to call the Ghost Busters. The Mayor concludes: 
"I spent an hour in my room last night talking to Fiorella LaGuardia, and he's been dead for forty years. Now where are the the Ghost Busters?" 
The audience is left to wonder whether the conversation actually occurred through paranormal forces or whether the Mayor was mistaken, and perhaps hallucinating? In the years since, I have heard similar lines about "talking to Fiorella LaGuardia" a few times in the context of hallucination ("yeah, and I suppose you discussed it with Fiorella LaGuardia?). It has become a pop-culture reference familiar to many. 

These perhaps seemingly random thoughts coalesced recently as I contemplated an article from the British Broadcasting Company (BBC), titled The Weird Events that Make Machines Hallucinate. Yes, you read that right. At the outset, the potential of a machine hallucinating may be no more disturbing than the New York Mayor doing so. But the lengthy BBC article is worthy of consideration. 

The BBC claims that: 
"Over the past few years, there have been mounting examples of machines that can be made to see or hear things that aren’t there."
There is an effect produced by "noise," in which automated device's "recognition systems" become disoriented, and "these machines can be made to hallucinate." As machines continue to evolve and gain control of our lives, their "mental" health is a viable topic of discussion. 

The examples regarding "visual recognition systems." are notable. In one example placing stickers on a stop sign rendered it unrecognizable to a computer. In another an "an image of a cat" was "tampered with." This left it appearing "normal to our eyes," but it was "misinterpreted as guacamole by so-called called neural networks – the machine-learning algorithms that are driving much of modern AI technology." 

These programs, so thoroughly fooled, are currently at the root of software for photo recognition, but have applications for things like driver-less, autonomous vehicles. While a computer misidentifying your feline as an appetizer is perhaps harmless and even humorous, a system failing to recognize a stop sign is more disturbing. 


The visual recognition has been fooled by slight changes in "the texture and coloring of" things. A baseball "was miss-classified as an espresso." and "a 3D-printed turtle was mistaken for a rifle," among "some 200 other examples" that were similar. Particularly if Robo-cop becomes a reality, I would like that "rifle" error fixed! 

As technology evolves, the BBC posits that these "deep learning neural networks" will become increasingly integrated in machine performance. These networks will tell machines how to function, and it suggests that having them "tricked into misreading ‘Stop’ signs" has serious implications. The news has already reported the first fatal mis-reliance on self-driving, a Florida collision involving a Tesla. Wired provided a discussion of whether the car (software and sensors) was to blame, or driver error. If such a situation led to your injury would you blame the car, the driver, or both?

Though there may be an inclination to see these examples as neither imperative or personal today, the implications affect more than just visual recognition. In fact, a Google official says "On every domain I've seen . . . neural networks can be attacked to mis-classify inputs." That is, intentional interference, beyond the examples of simple mistakes. 

In some respects, the fallibility of neural networks may be comforting. Recently workers' compensation observer Bob Wilson noted technology challenges in The LoweBot Robot. He concludes that machines are not perfect, but they are getting better. There is humor in their failings, which reassure us of our (current) supremacy. And the BBC exposition on potential flaws may similarly bolster our esteem. 

Why do these machined make these errors? The BBC notes that our understanding of human "neural recognition" is not as deep as we might hope. And, the models that are programmed for machine recognition of objects are based upon that incomplete understanding of how the human brain functions. We humans build experiential databases in our brains. We see enough cats over time to differentiate them from dogs. Similarly, computers "process numerous examples" and when it can "achieve a good performance ‘on average,’” there is a tendency to accept that level of performance. But, "good" leaves room for errors. Stated otherwise, "average" may leave lots of room for improvement. 

I am reminded in that context of a variety of Internet "click bait" involving people mistakenly rescuing animals. The underlying theme is a human interpretation of some animal being a stray domestic, ending with realization that a rescued "dog" is a raccoon, or "dog" is a wolf/coyote, etc. Whether those are frequent, or just frequent click bait, there is some support our human "neural recognition" is not infallible. The challenge may emanate from the depth of our personal experiential database. Or, it may emanate from the unique qualities of that particular thing we are presently observing. If it is missing something our brain uses as a identifier, then we may make erroneous conclusions. 

Another expert commenting in the BBC story suggests that our human recognition is not based entirely upon "recognizing visual features such as edges or objects," which is essentially the process being used by computers. In addition, human "brains also encode the relationships between those features." Thus, our neural process is about data points and the interrelationship between data points. We perceive pattern and context, and that enhances our ability to differentiate and interpret. The neural networks in AI are not necessarily to that level of sophistication (yet). 

There is ongoing research. A deeper understanding of how our human brains perceive things may be critical to further development of AI. But also, there may be relevance in the pathways through which our brains process. One scientist is applying analysis to the order in which our brains process inputs, and that is showing promise. This sequencing or direction of thought, occurring in our personal neural recognition, may be contributing to our current superiority over technology. But as we better understand those points, the technology will also be improved with each successive iteration becoming closer to our capabilities, until they exceed it. 

And all of this is inextricably tied into the ethics of decisions. In the world of autonomous vehicles and machine learning, there are difficult decisions beyond what the machine sees. A recent New York Times article Tech's Ethical Dark Side considers some. When an autonomous car can correctly identify humans, dogs, and stop signs without fail, how will they make decisions in a conflict? When presented a choice of hitting a dog or a person, what should the car "choose?" (here, maybe the narrator voices in and asks "what would you do if it happened to you," like in The Cat in the Hat?). 

For some, the decision between human and animal might be seen as a simple choice. Perhaps a harder decision would be between a toddler and an octogenarian (Fiorella LaGuardia)? But for now, the hardest part will be whether that dog or toddler or Fiorella is even real, or just in the machine's imagination (or "dreams"). And as those machines hallucinate, how much can we trust them?

We may have multiple challenges in our future regarding these technologies. However, The Verge reported last month that an autonomous vehicle purportedly recently drove itself coast-to-coast without human intervention. Some would perhaps conclude that "the future is now."