Monday, December 2, 2013

Constitutional Challenges New and Old, From Florida to Oklahoma

There is a value to consistency and predictability in the law. Attorneys rely upon the decisions of courts to form opinions about their cases. Attorneys with a clear understanding of their state's statutes, and the interpretations which appellate courts will apply to them, are in an admirable position to provide their clients with predictions and advice regarding their specific case and its issues. 

In Florida, this can take time. Sometimes such specifics can take many years. In 1993, the Florida Legislature made significant changes to the Florida Workers' Compensation law. Among these was a marked reduction in the quantum of temporary total disability benefits available, from 260 weeks to to 104 weeks. A panel of the Florida First District Court of Appeal ("First DCA") concluded on February 28, 2013 that this statutory change was Unconstitutional. Westphal v. St. Petersburg(1D12-3563)

On September 23, 2013, the Court granted en banc review. This means that the entire First DCA reconsidered the case and issued a new opinion. In this second iteration, a majority of the Court concluded that the 104 week limitation on temporary total disability (TTD) did apply to the claimant, Mr. Westphal. The en banc decision did not find Constitutional infirmity in the statute, as the panel had months earlier. The Claimant has sought review of The Florida Supreme Court (case SC13-1930), as has the Employer/Carrier (SC13-1376). In 2014 the Court may (the Court could address the First DCA decision or could potentially affirm without comment) provide further clarity regarding TTD. That decision could address the Constitutional question raised by the Westphal panel last February. Twenty-one years after the 1993 legislation, the Supreme Court could address the Constitutionality of this issue. 

On June 5, 2013, the First DCA decided Jacobsen v. Southeast Personnel Leasing (Case 1D12-1193). The Court concluded that 440.34 F.S. as applied in this case is Unconstitutional. The facts were specific, involving the ability of an injured worker to retain an attorney when his/her employer/carrier seeks an award of costs in a Florida workers' compensation claim. This could arguably be directed at the 2003 or 2009 constraints on Claimant's attorney fees, and thus addresses a ten or four year old law.

On October 23, 2013, the First DCA decided Castellanos v. Next Door Company (case 1D12-3639). This is the latest in a line of cases addressing the Constitutionality of Florida's attorney fee statute, 440.34 F.S. The legal challenges in this instance began with a statutory amendment in 2003. Thereafter the First DCA concluded this statute was Constitutional through a series of challenges, which the Florida Supreme Court eventually took up in Murray v. Mariner Health, in 2008. There the Court avoided the Constitutional challenge in their decision. Following the Court's decision in Murray, the Florida Legislature amended this statute again in 2009. Thereafter the Constitutional challenges began anew. Castellanos certifies the Constitutional questions to the Florida Supreme Court. It is therefore possible that in 2014 the Court will address this question (Supreme Court Case SC13-2082)

Consider these 2013 decisions. One addresses a 20 year old statutory amendment on temporary benefits, another a ten year old amendment on fees, and yet another both ten and four year old amendments to the same fee statute. In the meantime, a great many attorneys have provided their clients with the best analysis and advice they could, based upon the trial and appellate level decisions that they had. Again, precedent is a valuable tool for an attorney. Predictability has a certain value. 

Similarly, the Oklahoma Supreme Court will address workers' compensation in 2014. It will review Senate Bill 1062, which was passed last May, and which will otherwise be effective in February 2014. That statute makes numerous fundamental changes in both the substance and procedure for Oklahoma workers' compensation. The adjudicatory process is removed from the state's courts, and an administrative process is substituted. There are benefit changes, and an opt-out that could lead to fundamental changes in workers' compensation across the continent if found Constitutional in Oklahoma. This law could be fairly characterized as a "sweeping change."

The distinction with the Supreme Court processes we may see in the two states in 2014 is the timing and process in Oklahoma. The Oklahoma Constitution allows their Supreme Court to address a Constitutional challenge preemptively, without the delays inherent in the trial and normal appellate processes to which we are accustomed in Florida. The Oklahoma Court will be reviewing 2013 amendments, and could render a decision before those reforms even take full effect in February. The Florida Court, if they undertake review of the cases above, will review amendments from 1993, 2003, and 2009. The Oklahoma review will occur instead of trial and intermediate appellate interpretation, while the Florida review comes after years, and yes decades, of trial and intermediate appellate interpretation and review. 

Is predictability of sufficient value that an expedited Constitutional challenge such as Oklahoma's is desirable here? Would Floridians be well-served by such a provision that would empower review of statutory provisions by the state's highest Court more rapidly, even before trial court application? Many eyes will remain focused on the two high courts in 2014. There are intellectually interesting questions in each instance, and the outcomes will provide that predictability upon which all attorneys rely. 

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