Sunday, November 11, 2018

Hardwired Hacking

There is a great deal of concern and angst about our privacy. I have written about DNA testing in Science, the Right to Privacy and Big Brother. Our interest in constitutionally recognized privacy, and the ignorant among us that neither appreciate its importance or the breadth of its implications in The Rash to Repeal our Rights. Technology is invading our privacy, as noted in Assume Everyone is Watching, and The Evolving Issue of Body Cameras

There is a great deal that Americans do to undermine their own privacy. In exchange for a small discount on some items, they agree to have their local supermarket or pharmacy track their every purchase. In fulfillment of some unmet need for "connection," or in search of some Dopamine high, Americans voluntarily post the most personal of details on social media: the food they eat, the friends they see, the trips they take, the news they read, and more. Vast quantities of data surreptitiously taken and eagerly given traverse the computers that Al Gore first wired together back in the 1960s when he invented the Internet in his twenties (Sarcasm - is there anything more laughable than his pompous claims he "took the initiative in creating the Internet?"). 

But we are all outwardly concerned with our Internet security. We hear of identity theft and computer viruses. We adjust our use of the Internet, and according to some estimates we spend about eight billion dollars annually on antivirus software that may be unnecessary. I more recently hear many increasingly unwilling to share details on social media. Despite our personal concerns and our individual efforts, we may all remain exposed in ways that we are just beginning to understand. 

Bloomberg recently reported The Big Hack: How China Used a Tiny Chip to Infiltrate U.S. Companies. It is a disturbing tale in light of the significant effort we all devote to avoiding viruses, malware, and other computer challenges. What if we do everything right, avoid all the potentially harmful exposures, and have our data hijacked despite our best efforts?

It appears that some hardware manufacturers have been including hardware hacks on circuit boards. This has been known for about three years according to Bloomberg, after a consultant working for Amazon discovered "a tiny microchip" had been "nested on the server's motherboards." That discovery led to further investigation because the producer of these motherboards supplies circuitry for computer servers used by the Department of Defense, the Central Intelligence Agency, U.S. Navy ships and more. The manufacturer of those motherboards also makes components for devices "from MRI machines to weapons systems."

The purpose of these little (purportedly about the size of a grain of rice), chips was to allow "attackers to create a stealth doorway into any network that included the altered machines." Bloomberg notes that "hardware hacks are more difficult to pull off" than software hacks. But, the reward is "potentially more devastating." If successful, such hardware manipulation could provide "long-term, stealth access" to a variety of data that passes through such a server. Antivirus, and other protective software are of no use against hardware, functioning as intended, that invades privacy.

The story says that hardware could be manipulated in two ways. If altered in the manufacturing process, it is called "seeding changes." And if altered after manufacture and shipping, is is called "interdiction." Bloomberg notes that China has a significant involvement in the production of chips and circuitry. Because of that, there is some belief that China also presents a risk of hardware implementation. Some computer security experts are quoted as being incredulous that "seeded" hardware could be effectively placed to produce data, as was recently discovered. 

According to the investigating officials, this attack "affected almost 30 companies, including a major bank, government contractors, and the world's most valuable company, Apple Inc." However, some of those companies continue to deny discovering "malicious chips, hardware manipulations or vulnerabilities purposely planted in any server." And there are denials of awareness of even the U.S. investigation. While there is suggestion that "corporate secrets and sensitive government networks" were exposed, Bloomberg concluded "no consumer data is known to have been stolen."

This story purportedly began in 2006 with a company, Elemental, intent on leveraging the "demand for mobile video." It designed software distributed on its own "custom-built servers." Those sold for "as much as $100,000 each, at profit margins of as high as 70 percent." The company worked with the CIA, leading to its servers being used by various U.S. government institutions. The technology of these servers was allegedly employed by Apple in constructing server centers to facilitate the data search function that users know as Siri. 

The servers for Elemental were produced by Supermicro, a company "headquartered north of San Jose's airport." Its products are "engineered mostly in San Jose," but they "are nearly all manufactured by contractors in China." What else is manufactured in China? According to The Atlantic in 2013, China manufactured 90.6% of personal computers, 70.6% of cellular phones, and more. In the age of the "Internet of Things," all of our electronics have begun to "talk" to each other. They are collecting data, monitoring or even adjusting our lives, and are beyond ubiquitous. And we hear they will soon drive our cars, grow and prepare our food, and even more.

Today, Supermicro sells more server motherboards than almost anyone else. It also dominates the $1 billion market for boards used in special-purpose computers, from MRI machines to weapons systems. Its motherboards "can be found in made-to-order server setups at banks, hedge funds, cloud computing providers, and web-hosting services," among other places. Supermicro has assembly facilities in California, the Netherlands, and Taiwan, "but its motherboards-its core product-are nearly all manufactured by contractors in China." One "former U.S. intelligence official" refers to "Supermicro as the Microsoft of the hardware world." Thus, "attacking Supermicro motherboards is like attacking Windows. It's like attacking the whole world." 

So, these motherboards were apparently distributed with very small and undisclosed additional chips. Those chips' size enhanced their secrecy, but limited their function. It is believed that the purpose was essentially to override security protections like passwords, and to authorize the hardware-hacked computers to communicate with other malicious servers on the Internet, servers with more capability and therefore more threatening potential. 

China denies any state involvement in the hacking, and claims instead to be "a resolute defender of cybersecurity." It acknowledges that hardware hacking, or "seeding" has occurred, but claims to also be a victim of such efforts. Bloomberg reports that there is no reliable method for detecting a hardware hack like this. The conclusion is that the Supermicro motherboard discovery was due in part to luck.  

Across the World Wide Gore (sarcasm again, sorry Al), we send a multitude of facts, figures, preferences, purchases, and more. We bank, we buy, we share, and we communicate. Our communication may be mundane (how's the weather there?) or intensely private and privileged.  And we can now fear that, despite any efforts on our part, that data can all be harvested by individuals or states that are intentionally manipulating the purpose and function of the very brains of various devices. The spy can exist on hardware we will never see, over which we have no control, and in locations that we will never visit. 

Or, such hardware hacking, "seeding,"could occur right in our own home. It requires only that some microchip has access to a computer motherboard. That may mean the grain-of-rice sized chip is embedded in the motherboard of our laptop or personal computer, or that it is embedded in something we choose to connect to the motherboard: a mouse, a memory stick, a web cam, a keyboard, you name it, and peripheral. Could we discover such a chip? Would we even know what to look for? 

If a manufacturer could implant such a spy chip in a PC, there is no reason that the same could not be implanted in our cellular phone, our refrigerator, automobile, or anything with a circuit board, including perhaps even a charger we buy for the device. 

In the Empire Strikes Back, young Luke assures "I won't fail you, I'm not afraid." Yoda's response may be good advice to us all "you will be, you will be." 

Thursday, November 8, 2018

Honest Critics - Invaluable

I find honest critics refreshing and inspiring, and have yet to hear a convincing argument for discounting or muting honest critics. There is much to learn from those who provide counter-point and alternative perspective. I heard from an honest critic this week regarding some content of Pro Hac Vice in the Administrative Realm. I was told some of the criticism was the speaker's personally, but some was the speaker giving voice to others who elected not to contact me.

In modern America, some perceive a tendency in many contexts to ignore criticism. I think I remember a time when there was more civil debate and discussion of topics. I say "I think," because many times when I hear discussion of "America today," someone will assure me that "things" have not changed, but merely our perceptions have. Yesterday, I overheard that argument regarding the tenor of our recent election. One speaker lamented essentially the "depths to which discourse has sunk these days." A second speaker countered "it's always been that way, you just notice more now because of the Internet and 24 hour news." Whether civil discourse has diminished, or whether we have simply become more aware, I leave to the reader. 

Back to the point, however, I was assured that the critic(s) took no issue with the legal conclusion (administrative judges lack authority to grant permission for temporary practice). However, there was a feeling that content regarding the wearing of robes was demeaning, insulting, accusatory, and in all such contexts at least unnecessary and perhaps inappropriate. To be clear, it is never my intent to be insulting or demeaning to anyone in any context, here or elsewhere. However, when it comes to being either insulting or demeaning the point is rarely, if ever, the speaker's intent. In that context, it is what the listener hears or perceives that will be critical. 

The critic this week voiced a conclusion (the critic's or other's) that Pro Hac Vice in the Administrative Realm reference to the wearing of robes was unnecessary regarding the point of the legal conclusion and that the reference to robes on administrative judges was somehow a reference to "Black Robes Disease." That malady was not mentioned in the post, but was apparently inferred by a reader. One can control what one says, but cannot control what the listener hears or concludes. In the early days of this blog, Black Robes Disease was specifically addressed. That discussion was about empathy and professionalism, and about perceptions about judges' actions not appearance. 

Notably, that post is a discussion of behavior or perception of behavior and as notably has nothing to do with wearing a robe or not. Do people use that term, Black Robes Disease? Some do. Are there examples of behavior that evidence it? Whether there are or not, there are examples that are perceived as such. Remember, we can control our words or actions, but we cannot control the perceptions or conclusions of the listener or observer. There are those who perceive the existence of the condition, but that is a behavior issue not an appearance issue. 

Another recent post describes The Florida Bar and the Florida Supreme Court contemplation of a rule on maternity leave, see Maternity and Continuance. Some attorneys seek a rule because they perceive judges' current discretion insufficient. They perceive the continuance process as inequitable. This rule likewise has nothing to do with wearing or not wearing a robe, but might be perceived (we cannot control perceptions) as an issue of attempting to counteract judicial behavior. Perhaps Florida's courts will soon have a rule on maternity continuance; notably, such a rule will not apply in the administrative realm, as explained in that post. 

While I respect and accept that some might equate comments about robes with Black Robes Disease, assuredly that was neither the topic nor the intent (intent is not the critical point, but the perception of the listener). Though not intended as a reference to Black Robes Disease, I appreciate and respect the listener's perception and conclusions, and the opportunity to contemplate it. 

The critic conveyed perception(s) about the closure of Pro Hac Vice in the Administrative Realm, referencing that "a dime store robe" does not change authority. That was followed by the overall conclusion that "it is the court that makes the robe, not the robe that makes the court. Without the court, the robe is just a costume." The critic conveyed that this was perceived as troubling or hurtful by administrative judges who choose to wear robes. 

And, the critic conveyed multiple perceptions, motivations, justifications, and explanations for the wearing of robes. In my opinion, the explanations of why administrative judges wear robes are sincere, thoughtful, and well-intentioned. Those explanations are similarly subject not just to the intent of the speaker purporting them, but also to the perceptions of the listener. There are those who remain unpersuaded by the explanations suggested. I struggle to be conscious of those listener's perceptions also, recognizing that only the listener can form the listener's conclusion(s). 

There is no doubt that perceptions of appearance may be important. Almost two years ago, Challenges in Policing Appearance discussed the imposition of a dress code. There I concluded "If your appearance is professional and clean, it will demonstrate respect for the process, your clients, and the people (employees and employers) that it is meant to serve." Coincidentally, that was a post on which I received some negative feedback. In some ways, not dissimilar from the theme of the critic's expression of perceptions (personal or conveyed) regarding Pro Hac Vice in the Administrative Realm. One attorney, commenting on Challenges in Policing Appearance, essentially told me that any commentary on, or mention of, appearance was "insulting" (we cannot control perceptions of the listener). 

To be clear, I perceive appearance as important. Not in the quality, expense, style, or other contexts (the name on a label, the price of the clothes). But there is merit in a clean and professional appearance. I recognize that some disagree with me (lawyer mentioned above), and that I will not change their minds. I similarly understand some also have beliefs regarding their wearing of robes, and their perception that doing so enhances respect for or formality of or effectiveness of proceedings. 

Accepting that appearance is important, I return to the point. Whether it is a robe or some other accouterments, I am unconvinced that anything external makes or breaks. What makes a good judge will depend upon who you ask (and whose perceptions you cannot control). Despite the subjective nature, various adjectives readily jump to my mind that might be pertinent: patient, fair, studious, polite, kind, careful, unbiased, compassionate, honest, scholarly, adaptable, courteous, humble, diligent, impartial, attentive, practical, sincere, unassuming, sensible. These are examples of course, not an exhaustive listing. Anyone might form their own list. 

But, it is the judge that matters. A judge mentioned in Challenges in Policing Appearance, who consistently wore the same tie, is perhaps remembered for that habit. However, the individuals and system that depended upon that judge were hopefully more interested in the judge himself, the judge's actions or inactions, and the process afforded, than they were in that tie. It is the court that makes the robe. Or, perhaps differently stated it may be the judge that makes the robe. But this listener remains unpersuaded a robe makes the judge. 

There are critics of Florida workers' compensation, and workers' compensation generally. There are critics of various people who serve in those systems. Certainly, I have my share of critics. We are collectively fortunate that there are open critics, honest critics. I am thankful for them because they drive me to question, consider, and analyze the workers' compensation world in which I live. Honest critics make me think. I appreciate and value them. 

I conveyed those sentiments to the one critic that contacted me regarding Pro Hac Vice in the Administrative Realm. I also conveyed to the critic my apologies for any offense or insult perceived. First, because none was intended. But more importantly, because it is important that opinions are expressed, that discourse occurs, and that our own conclusions are re-examined as we listen. While troubled that feelings were hurt, it is perhaps productive that conversation has been stimulated. 

Finally, it bears noting that the world of workers' compensation generally, the Florida workers' compensation system, and the judges and staff of this Agency specifically have no greater fan. I strongly believe in recognizing achievement, documenting success, and focusing on goals oriented to the overall progress and improvement of this Agency and the world of workers' compensation. 

The Florida OJCC undoubtedly has some of the best administrative judges in workers' compensation today. And, some of them undoubtedly wear a robe from time to time, but that is not what makes them the best. I am proud to serve with so many of them, present and past; because of who and how they are, their dedication, their demeanor, their skills (and my perceptions of them in terms of the many adjectives noted above), their ethics, their strengths, and their inevitable human weaknesses. 

If any of the foregoing, or any post, leads you conclusions, thoughts or questions, contact me and share:

Tuesday, November 6, 2018

Pro Hac Vice in the Administrative Realm

A few times each year, I am asked about a legal process called "pro hac vice." The phrase is literally "for this occasion," according to Webster. It has come to refer to being granted permission to practice law somewhere that you are not licensed. Many do not notice it very often in daily life, but the United States is significantly territorial in licensing lawyers, with each state making its own decisions about who can practice law there.

Because of this territorialism, a competent and able attorney, licensed in Tennessee or New York or Alaska may not practice law in Florida's state courts. There are similarities between the laws of various states, but also distinctions. A great many states allow "reciprocity," by which an attorney licensed in one state may become licensed in another. Florida is not among those involved in that reciprocal process. However, Florida does have a process in place for practicing law "for this occasion," which allows an attorney licensed elsewhere to appear specially, for a particular case, under certain circumstances. 

In this regard, it is notable that the licensing of Florida attorneys is relegated to the Florida Supreme Court by the Florida Constitution. Section 15, Article V. of Florida's Constitution bestows exclusive jurisdiction: “The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.” Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010). That also is not necessarily consistent from state to state. In some states, attorneys are licensed by some agency of the executive branch, in the same way that doctors, engineers or others are licensed. 

Thus, in Florida, the regulation of attorneys is a power of the Court, and is delegated to The Florida Bar. The Bar has developed rules regarding the admission and behavior of lawyers, and those rules have been proposed to and adopted by the Florida Supreme Court: the Rules Regulating the Florida Bar. Those rules include a variety of topics including the keeping of trust accounts, the Rules of Professional Conduct for attorneys, and more. Among the Rules of Professional Conduct is Rule 4-5.5 regarding "Unlicensed Practice of Law; Multijurisdictional Practice of Law":
"(a) A lawyer may not practice law in a jurisdiction other than the lawyer's home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer's home state or assist another in doing so."
However, the rule provides authority for "temporary" practice (perhaps merely "for this occasion") in section (c):
"(c) A lawyer admitted and authorized to practice law in another United States jurisdiction who has been neither disbarred or suspended from practice in any jurisdiction, nor disciplined or held in contempt in Florida by reason of misconduct committed while engaged in the practice of law permitted pursuant to this rule, may provide legal services on a temporary basis in Florida . . . ."
Thus, the rules of The Florida Bar allow an attorney in good standing to practice on a "temporary basis" under certain circumstances. The Florida Rules of Judicial Administration (Fla. R. Jud. Admin.) are another set of rules adopted by The Florida Supreme Court. Those rules, by their own terms "apply to administrative matters in all courts to which the rules are applicable by their terms," Fla. R. Jud. Admin. Rule 2.110. (Emphasis added). This is all fairly logical and reasonably easy to follow. 

Fla. R. Jud. Admin. Rule 2.510 provides a process for "foreign attorneys.": 
(a) Eligibility. Upon filing a verified motion with the court, an attorney who is an active member in good standing of the bar of another state and currently eligible to practice law in a state other than Florida may be permitted to appear in particular cases in a Florida court upon such conditions as the court may deem appropriate, provided that a member of The Florida Bar in good standing is associated as an attorney of record. (Emphasis added). 
So, attorneys from other states routinely apply to practice law in  Florida on a temporary basis. They are granted that permission by some court (all courts in Florida are created and empowered by Article V. of the state constitution, discussed above, which provides the Supreme Court's exclusive jurisdiction to both license and regulate attorneys). Whatever court grants such a motion is, pursuant to Supreme Court Rules, exercising constitutional authority that is either inherent in that court, or more likely is appropriately delegated by the Florida Supreme Court through the Rules Regulating the Florida Bar and the Rules of Judicial Administration. 

But, here is the rub. The Florida Office of Judges of Compensation Claims is not a "court." See Conferring Jurisdiction. For decades, the Florida Supreme Court adopted procedural rules for the practice of workers' compensation in Florida. This was done with everyone's knowledge and acquiescence. But, very early in the twenty-first century, the Florida Division of Administrative Hearings and Office of Judges of Compensation Claims enacted procedural rules. Thereafter, The Florida Bar nonetheless continued proposing changes in those rules previously enacted by the Florida Supreme Court. When those proposals for amendment reached the Court in 2004, it addressed authority and jurisdiction. 

In Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004) , the Court acknowledged its long history of adopting rules for this administrative practice. It noted its reliance upon the Florida Constitution, Article V., and later reliance upon statutory delegation of rule-making authority conveyed by the Florida Legislature. It concluded "that this Court lacks the authority to promulgate rules of workers' compensation procedure." Accepting that it had authority to enact rules for practice in all "courts," the Court held "the Office of the Judges of Compensation Claims (OJCC) is not a court of this State." (Emphasis added).

There are a great many who struggle with this. There are even some who have attempted to act like a court to some degree. See Pace v. Miami-Dade County School Bd., 868 So. 1286 (Fla. 1st DCA 2004). There are some administrative judges who even wear robes for administrative proceedings, the same way constitutional judges wear robes in court proceedings. Despite this apparent desire to be a court, or to look like a court, or to act like a court, the Office of Judges of Compensation Claims is not a court. 

The Office of Judges of Compensation Claims (OJCC) has no "inherent judicial authority" as do the Courts under Article V. of the Florida Constitution. The OJCC can exercise only the authority that has "been specifically delegated to the JCCs by the Legislature." Alachua County Adult Detention Center v. Alford, 727 So. 2d 388 (Fla. 1st DCA 1999). This Office "exists and operates under grant of quasi-judicial power from Legislature." Thus, if the Legislature has delegated authority by statute, then the JCCs can exercise that authority. But, they cannot act like a court, or exercise the inherent authority of a court, because as the Supreme Court reminded "the Office of the Judges of Compensation Claims (OJCC) is not a court." 

And that returns us to Fla. R. Jud. Admin. Rule 2.510 quoted above. That rule allows the admission of foreign attorneys for the purpose of a specific case in Florida's courts. But the key word there is "court." The rule uses "court" three times. The rule adopted by the Supreme Court, pursuant to its authority under the Florida Constitution to regulate "courts," uses "court" three times. There is no mention of administrative agencies.

Furthermore, the Supreme Court itself has clearly decided and stated that this administrative office is not a "court." And, there appears no grant of authority in Chapter 440, Fla. Stat. that grants an individual Judge of Compensation Claims any authority to allow someone to practice law in the State of Florida. Could the agency adopt a rule that so allowed? Is there statutory authority to support such a rule? Those are valid questions. But, the question today is not might some authority be created to so empower the JCC, it is "does" that authority exists. The answer seems to be no. 

Can a Florida Judge of Compensation Claims temporarily allow a foreign attorney to practice law in Florida? The answer seems to depend on answering the following "where in Florida statutes has the legislature delegated that authority?" And, with the "exclusive" authority over the admission to practice law vested by the Florida Constitution in the Florida Supreme Court, one might also validly conclude that the legislature could not delegate such authority to the JCCs as it does not have that authority in the first instance. 

If this were a mathematical analysis, one might here conclude, the JCC has no authority to grant a motion for appearance "pro hac vice," for "this occasion," because that authority is exclusive to the courts, the OJCC is not a court, and there is no statutory authority to the contrary, quod erat demonstrandum (which is what was to be shown originally). And presumably the answer will not change if one puts on a dime store robe before making the decision. See, it is the court that makes the robe, not the robe that makes the court. Without the court, the robe is just a costume. 

Sunday, November 4, 2018

Grievous Bodily Harm

The Florida Division of Workers' Compensation is working on a new regulation. If requested, a hearing on this will be held in November 2018. In the 2018 Legislative session, Section 112.1815 was amended to provide some psychiatric benefits for post traumatic stress disorder (PTSD) to firefighters, paramedics and police officers who witness various events. The law became effective October 1, 2018. Two sub-paragraphs, Section 112.1815(5)(a)2(f) and (g), are dependent on witnessing death that "involved grievous bodily harm of a nature that shocks the conscience." So, what does "grievous bodily harm" mean? The Legislature did not define it, and the Division now proposes to do so.

Words convey meaning. That seems axiomatic, but it bears noting. Periodically, there are disputes and litigation as to the meaning of words. Tribunals, are confronted with varying perceptions and purported word definitions or understandings when deciding cases. The meaning of words in statutory or regulatory construct can be critical to determination of both rights and responsibilities under the law, and so rules of statutory construction have evolved to assist the judge. 

The Florida Supreme Court has noted that 
One of the most fundamental tenets of statutory construction requires that the courts give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the Legislature. When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary. Reform Party of Fla. v. Black, 885 So.2d 303, 312 (Fla.2004). 
The Florida First District Court has followed that guidance, see City of Venice v. Van Dyke, 46 So.3d 115 (Fla. 1st DCA 2010). Coincidentally, that decision interpreted Section 112, Florida Statutes. Note that the "definition" in this context is "in the statute" or "clear intent of the legislature." In Florida, administrative agencies are "afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer." However, nothing requires the judge to "defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency.” Sullivan v. Florida Dept. of Environmental Protection, 890 So.2d 417, 420 (Fla. 1st DC 2004). And the day may come when administrative agency interpretations and rules are afforded even less deference, but that is a subject for another day. 

Another tenet of construction that may be implicated when listing things is referred to in latin, inclusio unius est exclusio alterius. When there is a particular item included in a list, this tenet holds that not listing other items excludes them from consideration. for example 
In 2003, the Florida Legislature amended section 57.105 to include, specifically, an award of reasonable attorney's fees for baseless claims and defenses raised in administrative proceedings under chapter 120. See § 57.105(5), Fla. Stat. (2003). No similar amendment was made which would expressly include workers' compensation cases. Under the doctrine inclusio unius est exclusio alterius, an inference must be drawn that the Legislature did not intend to include workers' compensation trial proceedings within section 57.105. Lane v. Workforce Business Services, Inc., 151 So.3d 537, 540 (Fla. 1st DCA 2014). 
The Florida Division of Workers's Compensation has published notice that it will consider Rule 69L-3.009 to define what is, and perhaps therefore by exclusion what is not, "grievous" and "shock(ing to) the conscience." The provision of the statute renders these conditions pertinent in the event of death. The witnessing of these "grievous" injuries to someone who thereafter survives is perhaps disturbing, but perhaps not the basis for benefits under the newly enacted law because death did not result. 

To define "grievous," the proposed rule lists eight (8) specific injuries or appearances, the fifth on the list including six sub-parts providing more specificity as to particular organs that are "grievous," perhaps by implication concluding other organs are less disturbing. The specific instances deemed by the regulators to be "grievous" are: 
(1) Decapitation (full or partial),(2) Degloving,(3) Enucleation,(4) Evisceration.(5) Exposure of one or more internal organs,(a) Brain,(b) Heart,(c) Intestines,(d) Kidneys,(e) Liver, or(f) Lungs.(6) Impalement,(7) Severance (full or partial), and(8) Third degree burn on 9% or more of the body.
It is possible that some may not even know what all of these words mean. There is also curiosity as to why "(full or partial)" is used to modify "Decapitation" and "Severance," but not added to "Degloving," "Enucleation," "Evisceration," or "Impalement," inclusio unius? And some have raised interesting questions about the rational for the specific six particular organs (5). 

So, as to those that are not "exposure," that is (5), perhaps it helps to know what they mean. Dictionary definitions from Mirriam Webster provide some assistance with "decapitation," evisceration, and "third degree burn." But the absence of a Webster's definition, or the lack of illumination provided by a definition there may needs drive the student elsewhere. I have selected on medical dictionary, but there are many. For the sake of one regular reader, I have deferred referencing the epitome of knowledge, Wikipedia, sometimes preferred by the more educated and erudite. 

(1) Decapitation (full or partial), "to cut off the head of," Merriam Webster's. The term "partial decapitation" returned no results from Webster's. The act of cutting off a head would seemingly begin with an incision or cut. If that cut were throughout the neck, then there would logically be a "full" decapitation. Perhaps most would agree that some other extent of cut is undoubtedly "partial," perhaps at 75% of the neck severed? But where is the line drawn between 1% and 100%? Is a neck laceration of any description sufficient to be "partial decapitation?" And, does the compensability under the statute and proposed regulation depend upon the medical definition, a medical opinion, or the claimant's own perception of what was perceived ("looked to me as if she/he was 'partially' decapitated")? 

As an aside, there is an injury called "internal decapitation," perhaps that is what is meant by "partial?" That injury may not be visible though, which may suggest it is not intended for inclusion. Some may remember An Indomitable Spirit that suffered an internal decapitation, and more, and returned to dancing. 

(2) Degloving, No definition in Webster's, Merriam Webster's. According to the Free Medical Dictionary, this may refer to "intra-oral surgical exposure of the bony mandibular chin;" or to "an injury to an extremity-finger, hand, arm, leg, or foot-in which the soft tissue down to the bone, including neurovascular bundles and sometimes tendons, is traumatically peeled off." Though surgery is a part of the dictionary definition, that potential will be ignored here. Notably, comparing to "decapitation," there is no "full or partial" qualifier proposed for this word. Thus, it seems that any injury that "peels off" tissue to the bone qualifies. Thus, some might argue that (2) might be similar to the ability to see other anatomy as is expressed in (5)? Others might suggest that (2) is a particular method or exposing bone, and thus aptly distinct from (5)? 

(3) Enucleation, "to remove without cutting into," Merriam Webster's. According to the Free Medical Dictionary, this may refer to "removal of an entire structure (such as an eyeball or tumor), without rupture, as one shells the kernel of a nut," or "removal or destruction of the nucleus of a cell." It can also mean "surgical removal of the eyeball" specifically. The inclusion of "Enucleation" may be intended to refer specifically to the traumatic removal of an eyeball. But, the medical definition suggests that this refers in some context specifically to "surgical removal." The dictionary definition seems broader, referring to the "removal of an(y) entire structure," which some might argue could refer to any organ or even anatomy being removed, traumatically or otherwise. 

(4) Evisceration. "to take out the entrails of" Merriam Webster's. The Free Medical Dictionary says this can mean "extrusion of viscera outside the body, especially through a surgical incision" (suggesting that the mere appearance of either "the soft internal organs of the body, especially those contained within the abdominal and thoracic cavities" or "the intestines" as opposed to the removal or to "take out" may suffice). These definitions may create questions. The regulation's "Evisceration" mention, unlike "decapitation," is likewise not modified with "full or partial." Some may therefore argue that any injury in which a scintilla of "viscera" or "internal organs" is "outside the body" qualifies. Others might argue that the absence of the "partial" qualifier might mean that the totality of either "viscera" or some "organ" is required to qualify. Still others may question the need of "Evisceration" in light of the presence of (5), particularly (c). Does "Evisceration" merely repeat the section (5), or does it broaden them to more than intestines? 

(6) Impalement, "to pierce with or as if with something pointed." Merriam Webster's. The Free Medical Dictionary essentially echoes this definition: "To pierce with a sharp stake or point." Thus, an injury once suffered with a pesky office stapler might be argued to qualify (not apparently limited as to what is pierced). By both the Webster's and Medical Dictionary definitions the intrusion (pierce) into the body to any degree or extent might well be arguably an "impalement." This might be argued to include any part or portion of an automobile, a knife, a shard of glass, or otherwise entering any portion of the body, finger, hand, or earlobe. I knew a kid once that ran with a pencil; his fall resulted in an "Impalement" of his hand per this definition. 

(7) Severance (full or partial), "the act or process of severing" Merriam Webster's. The Free Medical Dictionary is also similar on this point: "the act or process of severing or separating." The first question to come to mind in this regard is "severance of what?" If an event results in the removal of a victim's ear lobe, has a "Severance" occurred? If the "distal phalanx" of the little finger or toe is traumatically removed, has "severance" occurred? Is losing the earlobe "grievous?" As with other questions herein, does it matter whether the "severance" is medically determined or is this dependent upon the perception of the observer ("It looked like the ear lobe had been removed" fully or partially"). Notably, with the addition of the "full or partial" qualifier, one might argue that the ear lobe need not even completely removed in order for that condition to be "grievous." 

(8) Third degree burn on 9% or more of the body "a severe burn characterized by destruction of the skin through its deeper layers and possibly into underlying tissues, loss of fluid, and sometimes shock." Of the conditions listed, this is perhaps among the clearest. But, what if the observer is not qualified to determine third degree versus second degree? What if the observer is not capable of determining "9% . . . of the body?" Does the observer qualify for benefits because she/he believed the coverage was 9% or more, though some later medical testimony establishes it was actually only 8.5%? Does the observer qualify because she/he believed that the burns were "third degree" although a later medical opinion determines they were "more likely very serious second degree." Does the observer suffer less because it turns out not to be as extensive as the observer thought? 

Returning then to (5), and the exposure of particular organs. The reader may question what is necessarily "grievous" about these six: (a) Brain, (b) Heart, (c) Intestines, (d) Kidneys, (e) Liver, or (f) Lungs?" Some may ask whether seeing the pancreas, diaphragm, gall bladder, stomach, spleen, or bladder is somehow less shocking or traumatic? Others may, as mentioned above, wonder if this exposure can is distinct from "Evisceration?" Perhaps in that the (5) listing requires merely "exposure" but not necessarily "extrusion?" 

Others may ask more specifically what is the distinction between stomach (the center of the digestive tract) and the intestines (the next step in the same digestive process)? Is there some basis to conclude that visualizing the stomach is tough, but the intestines is "grievous?" What if the observer thinks she/he saw the "Kidney," but admits on cross-examination it might well have been the pancreas? What if the observer thinks she/he saw a kidney, but admits on cross-examination it might have been only one kidney? Is it necessary, as the proposed rule states, to see both "Kidneys," or would seeing one Kidney be as "grievous?" Does the same "one or both" analysis logically apply to "Lung" and "Lungs?" 

In a broad sense, there are those who question why a First Responder who perceives these things would be entitled to compensation for psychiatric injury, or PTSD, when a school teacher, construction worker, or waiter/waitress (or others) who see the identical event or injury would not. But, that decision has been made by the Legislature. 

There are also those who perceive the potential for significant litigation over how this list of "grievous" is applied to the experiences and perceptions of First Responders. The extent of exposure, the words compatible with differing interpretations, the singular and plurals, and the lack of clarity are seen by some as leaving much discretion and interpretation to the trial judge. And it leads me to one of my tenets, gained from a few years in this business: "where there is room for debate, people will litigate."(Langham, copyright 2018). That is a proven maxim.

Thursday, November 1, 2018

Maternity and Continuance

The Florida Supreme Court is soliciting comments regarding the proposed addition of a Parental Leave Continuance provision. It would be Rule 2.570, Rules of Judicial Administration. Essentially this would provide
Unless substantial prejudice is demonstrated by another party, a motion for continuance based on the parental leave of a lead attorney in a case must be granted if made within a reasonable time (after specifics such as notice of trial or learning of leave)
The rule would include requirement of making a timely motion, set a presumptive maximum for reasonable delay secondary to parental leave, and delineate the parties' respective burdens for either seeking or opposing such a motion. It is worth reminding that the Rules of Judicial Administration (RJA) do not apply to the Office of Judges of Compensation Claims (OJCC), because that is executive branch, not a "court." See Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). That does not mean the OJCC could not adopt a specific RJA as it has done with recusal process.

The Florida Bar has voiced support for the rule, more on that below. The issue is seen as one of equity for female attorneys, and there has been both some significant press coverage and some repercussion from the maternity continuance topic. But, the Supreme Court is as yet not ready to impose a rule. Some question whether a rule is necessary, or at least whether a rule is the best course. Until November 15, 2018 the public may submit comments on the proposed rule. 

Long ago, I learned a little about child birth. No, I have never given birth, and I am not trying to steal the valor of those who have. I do have some peripheral experience with the subject however. I am familiar with some of the excitement, the worries, the challenges, the emotions, and more. The experience is incredible for parents generally, and I know from what women have told me that their experience is unique for a variety of reasons. I claim no expertise about pregnancy or maternity. But, I know a few things about the law and the litigation process. I have presided over thousands of cases, and conducted more than 800 trials over the years.

I vividly recall years ago a judge denying an attorney's request for a continuance in a case. The trial was scheduled on her "due date." We would all like to think those predictions are accurate. And I have met few who spontaneously delivered on their "due date." It happens. But, as often the due date comes and goes without delivery. The unpredictability of when contributes to the emotions. Faced with no real choice, that attorney elected to proceed to trial that day before a sad, inflexible, and misogynistic judge. After a long, exhausting day on her feet, that attorney won an acquittal. Fortunately, the baby cooperated and waited. 

There are waves of emotion in trial. On that, I have some personal experience. Trial for me was always stressful. I worried about the facts, the law, the witnesses, the documents, and more. I fixated on how I had organized, what I had done, what I had not had time to do, and what if, what if, what if. It is a pleasure to see an exceptional lawyer try a case. Those who can make it look easy, flawless, and smooth awe me. I know many of us have tried a case while our focus was not 100%. But, I hear from some women that pregnancy, impending delivery, and maternity bring a particular set of challenges that complicate the effort and focus that trial requires. The lady who won that acquittal on her due date was rightfully proud, even exuberant. But, should that have been her choice or the bully judge's?

I was troubled recently when an attorney forwarded me some unsolicited documents. Our communication began as so many of mine do, with a phone message weeks ago. The attorney had called to ask, essentially, "I have a problem with scheduling, what do I do." The answer to most questions that start "I have a problem" usually lead to a similar answer that begins "file a motion," or "look at Rule 60Q6.115(1)." As I have written repeatedly, the motion is the appropriate tool when a party or counsel needs "relief" or judicial involvement. Faced with a problem, the motion is a great first guess. Problems are the trial judge's responsibility.

These documents were sent to me weeks after that first exchange. The attorney had followed-through and filed a motion for continuance of a workers' compensation hearing, citing pregnancy, an impending due date, and the need for maternity leave. The assigned judge had denied the continuance and a subsequent motion for rehearing. The judge noted that this attorney is part of a large law firm and that some other attorney in the firm could simply step in and try the case instead. That raises the question, are lawyers fungible? 

Reading the documents, I was reminded of another pregnancy situation years ago. An attorney was summoned to a distant city for a procedural hearing. At the time, the OJCC had a fully-functional videoteleconference system that could facilitate remote appearance. But, the Judge of Compensation Claims insisted on "live" appearance. One attorney submitted a doctor's excuse that literally said "Ms. ______ cannot travel until after ________ secondary to pregnancy complications." The assigned judge was neither accommodating or even polite in her response. Essentially, the judge said "I don't care what your doctor says." The lawyer called me in tears. I was left with telling her that such decisions were in the assigned judge's discretion, no matter how unnecessary or unfair they might seem to us. 

In short, there are occasions in which judges may seem less than sympathetic regarding the issue of maternity leave. Other times, they may appear quite simply tone deaf. The best advice I have is that decisions should be by written order, with detail, with recognition of the competing arguments and their merits. Being denied relief may sting less with explanation and thoughtfulness.

There has been recent publicity regarding maternity leave, and this proposed rule. I noticed it last summer when the Daily Business Review published Female Attorneys Fuming After Miami Lawyer Opposed Continuance. A female attorney filed a continuance motion, and cited her physician's instructions not to travel more than an hour from Jacksonville during the "final five weeks of her pregnancy," which implicated the scheduled trial date. The opposing male attorney was "accused of comparing" the female attorney's "pregnancy to an illness," which is admittedly a poor comparison. 

But, he also alleged "she became pregnant as a ploy to delay the litigation." Similarly to the order discussed above, he contended that the female attorney could simply "pass" the case "on to another attorney at her firm." But others noted that such a hand-off could be "a disadvantage to the client." There is a perception expressed that trial tactics are intended to frustrate women or impede their professional participation. There is a perception expressed that the current atmosphere is discriminatory and unfair. Whether it is or is not, that perception itself bears careful consideration and discussion.

The male attorney's firm suspended him "pending further review by management." His biography was soon removed from the firm's website. The attorney, an experienced litigator, claimed his words were "taken out of context," and that the situation was being "overblown" by critics.

A Florida Bar News article provided some other insight last summer. In Florida Attorneys Could Soon Get New Parental Leave Rule, the presumptive nature of the rule was reiterated. In addition, the "prejudice" factor was noted. A law firm partner and member of The Florida Bar Board of Governors noted 
“Obviously, if there are speedy trial concerns or there’s children involved or elderly people and there’s a reason that the trial has to go forward, then somebody else has to try the case. But 99 out of 100 times, that’s not the case.” 
That article also cited an anecdotal example of a mother who traveled "to trial over 200 miles away from her seven-week-old newborn daughter." This worked a hardship on mother and daughter, but this attorney (1) "worked for a small firm," (2) "had been working on the case since its inception," and (3) had no one to fill in for her at trial that had "the intimate knowledge of the facts." The "effective" choice she faced was to "tell her client to get a new lawyer or go to trial.”

A subsequent Florida Bar News article, Board Supports Parental Leave, explained The Florida Bar Board of Governors has endorsed the proposed new rule. The Judicial Administration Rules Committee has not, voting to oppose it. The committee majority concluded that continuances should be granted for pregnancy (on that there seems general agreement), "but a rule is not necessary for these specific circumstances" because judges already have the discretion for such instances. But, one of the committee members in favor of the rule noted “This should not be dependent on the sensitivities of a judge or opposing counsel.” 

Other critics of the proposed rule fear that such a rule would "divest the trial court of its discretion." Furthermore, there is concern this may "elevate the needs of an attorney over those of witnesses or parties to litigation.” For those reasons, some contend the issue should remain within the trial judge's discretion. 

Some might reply to the discretion argument noting that some judges have proven that discretion is misplaced. Trying to force a lawyer to travel against doctor's orders is simply wrong (adjectives omitted for the sake of the reader's ears). This is true in pregnancy, illness, or otherwise. Doctor's orders need to be respected and accommodation needs to be afforded. Risking health for litigation is simply silly.

Some will conclude that any judge denying any maternity continuance is both sad and misogynistic. That is possible. Or, perhaps that judge is concerned about the delay such a continuance might cause. As noted above, if speedy trial is an issue in criminal proceedings that is a consideration. What if the issue is an injured worker with no income, falling behind on payments, at risk of financial calamity? What if it is an issue of an injured worker that may or may not be awarded a medical treatment that might alleviate or ameliorate pain and discomfort? The duty of a trial judge is to balance these competing concerns. The proponents of this proposed rule would likely say the rule does not change that balancing, but merely defines a procedure and standards for that balancing? Others see it simply and unnecessarily limiting discretion.

Some might see lawyers as commodities, easily substituted one for another. Some might see lawyers as fungible. They are not. I have seen many lawyers try many cases. I have seen some that are phenomenal and exceptional. I have watched a few that frankly were not. I have seen particular skills, specialized insight, and as importantly I have seen the focus that comes from an intimate and long-term familiarization with the particular facts and history of a specific case. Skills matter. Experience and familiarity may in fact matter. Clients become invested in an attorney through the course of a case. There may well develop relationship, experience, and trust. Is it appropriate for a client to be divested of that and foist unceremoniously upon some other attorney for trial?

What does such an attitude do to the diversity of this profession? There is some recognition recently that people are leaving the practice of law. That is seen as particularly problematic with women departing. At least some have contended that professional opportunities for women are more constrained. One recently noted the Horrible Conflict Between Biology and Women Attorneys. How is a woman's career affected if she must tell a client "sorry" and pass on a trial (or trials)? Some may ask conversely how is the woman's career affected if she must delay (continue) the client's trial? For whatever reason, many clients become perturbed with delay. But, should that decision be for the client (pick a different lawyer) or for the judge (hand it off, "continuance denied")?

The decision before us is should there be a rule that removes the discretion for trial judges? To the judges and lawyers that say no, perhaps it is worth considering some of the poor discretion that has been historically displayed. To those who say yes, perhaps it is worth noting that those anecdotal examples of poor behavior are seemingly rare, that it appears most judges are already cognizant and compassionate. 

For me, I appreciate the challenge faced by trial judges. I understand the burdens of work injury on workers and their families. I understand the need for a diverse bar. I respect the women who practice law and strive to balance work and life. I know that there are never any pat, simple, and unassailable solutions to the complex issues of competing rights and needs. That all said, if this were left to me the proposed rule would be adopted. Balancing the various concerns and issues, I think the right outcome is to better define the issue, better educate the adjudicator (well drafted motion and argument), and thus bring better consideration to the conflicting interests.

I do not envy the Supreme Court its burden in this debate. If you want to tell them how you see this issue, the instructions for comment are here.

Tuesday, October 30, 2018

Fund Raising and Politics by Judges

The Code of Judicial Conduct has come to mind again recently. Driven by some news stories that have received little attention, but nonetheless which are nonetheless worthy of note. There are some things judges are not supposed to do, and recent stories have highlighted two of those quite well, one in Texas and the other in Pakistan. 

Regular readers will know that the world of adjudication has rules. Various states have a Code of Judicial Conduct. Those may be based upon the American Bar Association Model Code, but they are not necessarily identical, see The Code of Judicial Conduct and Scouting. The Codes limit judicial activity in a variety of ways, for examples, see The Sleuthing Judge, Sleuthing Addressed Again, Judge Reprimanded for Ex Parte Communication, and Judicial Ethics and "The Great Pumpkin."

And today's is a discussion of two that seem pretty obvious: Judges should not participate in political activities, and should neither lend the prestige of judicial office to causes nor engage in fundraising. It is fair to say that one gives up some significant rights and freedoms when she/he takes on the role of judge. 

The ABA Model Code of Judicial Conduct is a baseline from which a state might work in crafting a Code. And the Code with which I am most familiar is the Florida Code, in large part because the Legislature decided that code applies to Judges of Compensation Claims. See Section 440.442, Florida Statutes. But, more relevant today, both Texas and Pakistan have adopted a Code of Judicial Conduct.

In the first story, the recent confirmation hearings regarding Brett Kavanaugh had an apparent impact several miles south of our nation's capitol. There are, of course, differing opinions regarding Justice Kavanaugh; some love him, others hate him, and in between there are a multitude of opinions, feelings, and conclusions. But, a judge in Texas was apparently deeply upset about the confirmation of Justice Kavanaugh.

Judge John Lipscombe of Travis County allegedly "draped black funeral bunting over the double doors to his courtroom" according to a story in the Statesman. He was apparently not pleased with the Justice's confirmation. Judge Lipscombe also "closed his courtroom and refused to handle cases for one day to protest." The Statesman says that some believe "103 defendants" did not have their day in court that day, secondary to his protest. But, apparently anyone willing to just plead guilty could do so before one of the other judges. Perhaps a difficult decision for a defendant with limited time and resources, driven to "guilty" by exigencies beyond their control?

One Judge was quoted saying that the Judge Lipscombe protest "cost taxpayers $58,000 — the cost to run a courtroom for a day." That judge noted that "we are public servants, and I believe the best way to protest for public service at the federal level is to provide exemplary public service at the local level,” The Statesman concluded that the Texas Code of Judicial Conduct "does not cover courtroom protests." 

In a British Broadcasting Company (BBC) story from oversees, the Chief Justice of Pakistan's highest court has begun a "crowd-funding" campaign to raise money for dams. The subject of crowdfunding has been here before, see The Lienholding Concept and Questions. The price tag for the dams is about seventeen billion U.S. dollars, and the nation finds itself unable to either raise or borrow that money conventionally. So, the Chief Justice "set up a fund to raise" money to build two dams. The Judge is apparently a true believer, as he made the first donation of "roughly $8,000." 

Believe it or not, several others have contributed to the fund since the Chief Justice made his commitment public. This includes the nation's military, business, and students. The BBC notes that "almost every day there's a press release from the Supreme Court with news of different individuals and institutions meeting the chief justice and donating to the fund." 

Not only has the Chief Justice put his own money where his mouth is, he is personally meeting with potential donors to raise funds for the two dams. But, the BBC reports that of those meeting with the Justice, "many have cases pending in court, which has raised suspicions they may be trying to influence the judiciary." Donating to the Chief Justice's pet project as a path to litigation success? Intriguing indeed. Even if there is no influence peddling or pursuing, there is admittedly the potential for some observer of these activities to believe there is such influence in play. 

One might consider some Code provisions of interest:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Model Code Rule 1.2. 
A judge . . . should personally observe those standards so that the integrity and independence of the judiciary is preserved. Texas Code Canon 1.
A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Texas Code Canon 2.
To be above reproach, and for this purpose to keep his conduct in all things, 'official and private, free from impropriety is expected of a Judge. Pakistan Code, Article III. 
The conduct of either the Texas or Pakistan judge might be seen as not instilling the public confidence. Either might be viewed as demonstrating impropriety in their duties, or at least risking that their performance would have "an appearance" or be perceived as impropriety. 

The Pakistan Judge might note that "in particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law." Pakistan Code, Article V. Furthermore, in dealing with those who have litigation pending before the Pakistan Court, one might be concerned that "a Judge must rigidly refrain from entering into or continuing any business dealing, howsoever unimportant it may be, with any party to a case before him." Pakistan Code, Article IV. These are consistent with the ABA Model: "a judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so." Model Code Rule 1.2. 

The Texas judge might particularly note that "A judge shall perform the duties of judicial office impartially, competently, and diligently." Model Code, Canon 2. It is critical that "the duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and extrajudicial activities." Model Code Rule 2.1. These ideals are either explicit or implicit in the Texas Code, Canon 3. 

The Texas judge might also note that "A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office." Model Code, Canon 3. This is echoed in Texas Code, Canon 4. Those who had business scheduled before the court, whose business was deferred, ignored, and disrespected might well conclude that the judge preferred his "extrajudicial activities" to the "obligations of judicial office." 

In the broadest context, the "appearance of impropriety" may be the most challenging standard for any judge. Regardless of the sincerity of a belief, or the (self) perceived righteousness of a cause or statement, it may be most appropriate for a judge to merely defer either speech or behavior. Both of the situations described could be seen as inappropriate in either spirit of effect. 

More importantly, the potential for an appearance of impropriety is easily discerned. The actions of these judges are in spite of that potential. But, each is faced with specific ethical obligations that should caution against the behavior of which they are accused. Judges have obligations, and society as a whole is dependent upon the courts operating consistently, persistently, without fault or failure. Courts are comprised of people, and people are imperfect. That means failures will occur. The Codes do not forbid failure, but they should drive us to aspire to our best. The behavior illustrated in these allegations is no one's best. 

Every judge should remember that the public perception of a judiciary is perhaps more influenced by the few inappropriate and improper behaviors that are reported in the news than by the daily, diligent, and meritorious efforts of so many adjudicators. A momentary lapse of judgment by one or a systemic fund-raising campaign by another can seriously diminish the trust which the public so very much needs to have in the adjudication process. The concept of independence and effectiveness of that process is dependent upon people believing in judges, their humanity, consistency, and morality. Examples like these allegations do not instill that faith or confidence.

Sunday, October 28, 2018

An Intriguing and Powerful Dissent

Many years ago, in one of my first legal jobs, I was paid to peruse a weekly stack of various-colored papers ("slip opinions") issued by the Mississippi Supreme Court. These decisions encompassed all of the Court's decisions for a particular week. The pages' coloring had a significance, the details of which elude me today. But essentially,  certain categories of decisions were printed on yellow paper, others on blue, green, etc. The benefit being that a busy lawyer might nonetheless remain current on her or his specialty by perusing only those decisions on a particular paper color. 

For whatever reason, the firm that employed me wanted a written synopsis of each of the cases, a "Cliff notes" version created each week and distributed the following Monday. At the time, the Mississippi Supreme Court was the only appellate court in Mississippi, so there were often numerous and diverse topics. Summarizing its decisions was a difficult burden some weeks when the Court was busy, but other weeks not so much.

Over the years, I have managed to forget virtually all of those cases. Many were interesting in the moment, and my job was to analyze them. But time fades memories. One I have never forgotten stuck with me for several reasons. I learned of it reading and summarizing Lambert v. State, 574 So.2d 573 (Miss. 1990). In Lambert, Justice Hawkins concurred (agreed) with a separate opinion. He agreed with the decision, and argued for the reversal of Hall v. State, 539 So.2d 1338 (Miss. 1989), rendered almost two years previously, in which he colorfully and eloquently dissented. 

Following that thread, I read Hall, and it has stuck with me for these many years. First, the topic of constitutional powers was central to the analysis, and the Constitution is a personal favorite. Second, the decision included a masterfully written dissent and at the time I was only beginning to appreciate the power of civil disagreement. Third, the Hawkins dissent in Hall referenced Florida, which was where I then intended to soon move. And, finally, the opinion gave prose to a Mississippi legend, memorializing what was perhaps a Hollywood-worthy moment in the course of oral argument. 

Justice Hawkins' Hall dissent came rushing back to me early this century as the Florida Supreme Court contemplated its role in Florida workers' compensation rule promulgation. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). His thoughts crossed my mind again when the Florida Supreme Court declined to adopt the legislative imposition of a stricter evidentiary standard (the Daubert standard) for opinion testimony in Florida court cases. In re Amendments to the Florida Evidence Code, 210 So.3d 1231 (Fla. 2017). See Daubert, We Hardly Knew Ye, or Do We?

Justice Hawkins' dissent in Hall was enlightening. The case focused on elements of the Mississippi Rules of Evidence, and the admissibility of information in court. The State sought to introduce evidence precluded by those court rules, under the authority of a statute passed by the Mississippi legislature. The Hall majority conceded that the statute "appear(ed) to suggest admissibility," but explained that rule-making power for courts was the exclusive province of the courts. It noted its evolution to Court-enacted rules stating that in 1981 "we crossed the Rubicon as the Court entered its Order Adopting the Mississippi Rules of Civil Procedure." Such judicial prose seems increasingly rare. The symbolism of both the Rubicon and crossing are noteworthy. 

Upon the conclusion that constitutional structure both created government and defined roles, the Hall majority focused upon separation of powers. From that separation of powers, the Court concluded that it and it alone had province to make rules for litigation. It perceived the legislative action as encroaching upon that power, and as such unconstitutional. Therefore, the trial court's admission of evidence under that statutory provision, in seeming violation of the Court's hearsay rules, mandated reversal for a new trial. Having "crossed the Rubicon," the Court remained colorful in declining to address other points raised on appeal, noting:
"What we have said above is adequate to adjudge this appeal. The bite is quite as much as we this day ought chew."
Justice Hawkins alone dissented. In an opinion that is both courteous and direct, the foundations of the majority analysis are questioned. And in that text, he recounts the legend of Mississippi attorney Weaver Gore. His was a story recounted in lawyer gatherings in Mississippi; though perhaps few remembered his name, most knew of the story, to which REO Speedwagon's lyrics might aptly apply ("And the tales grow taller on down the line"). 

You see, it seems that Weaver Gore found himself in an argument in court. As the legend is recounted by Justice Hawkins, "he is reputed to have been reading from his law book in making an argument," only to be interrupted by the judge, who told him, “that's not the law, Mr. Gore.” Justice Hawkins recounts that "whereupon, Mr. Gore tore the pages from his book and replied, 'If this is not the law, I don't want these pages in my book.'" I have heard the story told many times, and a fair few who also have will likely agree that Justice Hawkins' version is not necessarily one of the most embellished or fanciful they have heard. That alone makes this dissent interesting reading. 

But, Justice Hawkins proceeds. Perhaps answering the invitation of literary prose proffered by the majority ("Rubicon"), he too waxes a bit eloquent, noting that the 
"majority is stingy with its citations. Other states' experiences with this question are ignored. The citations the majority does give, as examination reveals, are no support." 
In the proverbial nutshell version, when I was a child on the playground, we regularly encapsulated such lofty espousal with a simple "oh huh." Justice Hawkins' language, with its courteous criticism impressed me in 1990, and its allure remains today.

See, Justice Hawkins believed that the "Legislature acted well within its sphere of Constitutional authority" in passing the statute in question. He perceived "no Constitutional authority in strike it." and accused instead the Court of "trespassing into forbidden territory, and not the Legislature in passing an Act." And he explained the lack of judicial authority quoting a poem by Samuel Coleridge, Xanadu:
"In Xanadu did Kubla Khan, A stately pleasure dome decree, Where Alph, the sacred river, ran Through caverns measureless to man, Down to a sunless sea."
Justice Hawkins explained that "Kubla Khan, being a dream king, did not need to build a palace; he simply 'decreed' it out of thin air," and he accused the majority of essentially doing the same with its assumption of power to strike the legislative enactment. 

Justice Hawkins reminds of the essential nature of our constitutional republic, that power comes to government not through some divine right or presumption, but from the people themselves. The people grant the government its right to exist, and the people, he reminds us, speak through their elected representatives, not through appointed judges. He reminds us that
"it is strange reasoning for the majority to say that the people, speaking through the Legislature, the only manner in which they can speak, can enact no such law under our Constitution." 
Truly a point to ponder. He drives the point home noting in conclusion "the majority is not picking a fight with the Legislature, but with the people. Guess who is going to win?" That may be the most intriguing phrase of the dissent, despite the lofty reference to Xanadu and the entertaining Weaver Gore story.

Justice Hawkins notes that "generally throughout the United States it has been accepted that the Legislature was exercising a Constitutional prerogative in passing procedural or evidentiary statutes." He describes legal encyclopedic support for his contention, and that "several hundred decisions are cited under each." Justice Hawkins cautions of “inherent power,” noting that it "can get risky. It can get especially so when there is no one to dispute the claim" (a rephrasing perhaps of the old saw "absolute power corrupts absolutely"). 

And, Justice Hawkins bolstered his rebuttal with "other states," naming in particular Florida. He noted that "in most states their Supreme Courts either have been given specific constitutional or statutory authority to promulgate rules of practice." He noted that Florida differs from Mississippi in that the Florida Supreme Court's authority comes from "The Florida Constitution," which "expressly directs that its Supreme Court 'shall adopt rules for practice and procedure in all courts.'” And despite that grant of power, he argued that Florida legislative adjustments to the admissibility of evidence had nonetheless occurred; accepted in Florida to some extent, but deemed unconstitutional by the majority in Mississippi. 

Justice Hawkins accused the majority of embracing "a quixotic idea that the umpire of a game should be vested with the exclusive authority to prescribe the rules." He explained that "this ignores the players, the ones who ultimately win, as well as the one who must suffer the misery following losing." His is an indictment of judicial activism in the strongest terms. He cautioned that in limiting or delineating which rules should be stricken, through any "attempt to clearly separate rules into 'substantive' and 'procedural' is a quagmire." He reminded that "a court is created to administer justice, to decide cases, to administer the law in court on a case-by-case basis, not to legislate." He lamented the majority action, and predicted repercussion. Justice Hawkins closed quoting Thomas Hobbes “Hell is learning the truth too late.”

Across the country, hundreds of legal decisions are rendered each day. It is hoped that the vast majority of them are decided by umpires who enforce, but who do not attempt to create, the rules of the game. On a dreary afternoon decades ago, I stumbled across Justice Hawkins' wisdom and wit. It resonated with me. Writing about it today, I lament that we never met. I would have enjoyed a conversation with him.