Thursday, August 28, 2014

A Motion for Rehearing in Florida Workers' Advocates v. State of Florida

UPDATE 090114. At the time the post below was written, the Circuit Court had already denied the Motion for Rehearing filed by the Florida Attorney General (AG). The AG has since filed a notice of appeal to the Third District Court of Appeal. Whether that court will hear the case or send it to the Supreme Court is not known. See, Florida Court Holds Exclusive Remedy Facially Unconstitutional.

Original Post:

This week finds me off of my regular Monday/Wednesday schedule again. Whether you call it "Padgett," or "that 11th Circuit case," you are all talking about Judge Cueto's August 13, 2014 determination that the Florida Workers' Compensation law is unconstitutional.  It is now styled as Florida Workers' Advocates v. State of Florida, case no 11-13661 CA 25. 

Last week in Orlando (at the WCI conference where thousands discussed all that is Florida workers' compensation), I heard a great deal about this decision. People agree with it, disagree with it, think it is important, think it is of minimal relevance, claim they understand it and deny that they do. People have thoughts, opinions, questions, and more. The opinions, interpretations, thoughts and discussion are all over the board. Many people told me how thorough and concise they thought Judge Cueto's 27 page order is. Substance is one thing, but I consistently heard compliments on the drafting.

One major question raised repeatedly was "what will happen with this next."

Well, I take to the blogosphere this Thursday morning, outside my Monday/Wednesday habit, to tell you that shoe has dropped. The "next" is a Motion for Rehearing filed by the Florida Attorney General. The Motion was filed August 22, 2014 and is not complimentary, referring to the case as being in a "procedural morass." 

The Attorney General complains that the intervenors brought this case against the State of Florida, but did not "present a pleading stating so, or at a minimum, serving process." The Motion states that the end result is "a final judgement with no legal effect, but one which nonetheless creates substantial confusion and uncertainty throughout the state." I do not have the ability to post the Motion and cannot find a posting to which I could link. For that I apologize.

The Motion is filed pursuant to Florida Rule of Civil Procedure 1.530. These rules are not what control the procedure before a Judge of Compensation Claims. Our OJCC proceedings are controlled by the Florida Administrative Code, Chapter 60Q.  That is something that workers' compensation practitioners understand, but which is sometimes confusing to the public. 

The Office of Judges of Compensation Claims (OJCC) is not a "court" and is not governed by Florida's Court rules. The OJCC is part of the Executive Branch. Unfortunately, the confusion of the public on this point is sometimes encouraged by lawyers and even judges who continue to refer to the OJCC as "the court." They could all aid the public's understanding and perception of who we are and what we do if they would quit referring to this administrative office as a "court," but I digress. 

Under the 60Q rules, the filing of a motion for rehearing does not change the deadline for filing an appeal. See, Rule 60Q6.122(3). Thus, many who are involved in the workers' compensation system will be used to this process, and the fact that the deadline for seeking appellate review looms in workers' compensation cases despite a motion for rehearing. In other words, you can seek rehearing in a case before a JCC, but doing so does not delay your deadline for appeal.

The rehearing rule in the civil court context is not the same. Under Civil Rule 1.530, "the court may open the judgement if one has been entered, take additional testimony, and enter a new judgement." This applies to matters "heard without a jury" and includes "summary judgments." Thus, the inherent authority and rules applicable to Florida's civil courts is broader than that exercised by the JCCs. 

Attorney Dineen Wasylik has a thorough explanation of the process on her blog, discussing a decision of rehearing from the Florida First District Court of Appeal. The Florida Bar Journal also has an interesting article published in 2009 on the subject. Anyone struggling to understand motions for rehearing in any context would benefit from these two explanations. 

Under Rule of Appellate Procedure Rule 9.020(i)(formerly (h), as cited in the Bar Journal article noted above), a motion for rehearing in a civil matter changes the date "an order is rendered." When there is a motion for rehearing, the "final order shall not be deemed rendered" until the court files "a signed, written order disposing of all such motions between the parties." Under many provisions of the Appellate Rules, it is the date of "rendition" of the trial order that defines/begins the thirty day period in which an appeal can be filed. 

When the August 13, 2014 decision in Florida Workers' Advocates v. State of Florida first came to my attention, I published an explanation of the potential appellate processes. I am no expert in appellate law, but a decision like this, because of the subject of constitutionality and because of geographic location of the trial court, has some predictable potential paths in the appellate process. The rehearing motion filed by the Attorney General, to my understanding, does not change those potential paths, but it may delay them. 

It may be that Judge Cueto will deny the Motion for Rehearing quickly and the appellate considerations will return to the fore. It may be that he will reopen the case in an exercise of discretion and rehear the case before ruling on the Motion. It appears, however, that the appellate process will not begin until he rules on the Motion in one manner or the other. 

Time will tell how this case will continue its life. There will continue to be much discussion and inquiry and curiosity. I have had inquiries from across the continent. The subject is encouraging conversations about workers' compensation. As someone that has lived, eaten and breathed this subject for many years, I find these discussions very interesting.

A sidenote may be worthy. There is a letter included as an attachment to the Motion for Rehearing that suggests that the praises for the thoroughness of Judge Cueto's order may belong to others, at least in part. It may be that Judge Cueto had a proposed order provided to him to aid his drafting. I do not know to what extent the published order of August 13, 2014 was his work product or a proposed order or a combination of the two. Regardless, I do compliment the drafting however. I know how judges struggle with judicial writing. We have instructors annually at the Judicial College, with the goal of becoming more effective writers. Writing is not an inborn gift in most instances, it has to be worked at, it is the result of effort. Whether you agree with Judge Cueto's order or not, I have heard many compliment the organization and drafting of that order.

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