Wednesday, October 1, 2014

Preservation of Error

Many look upon the appellate process as a search for justice. There are those in the appellate courts who view their role as providing justice, others see their role as correcting error. The multitudes of judicial perspective and judicial philosophy are beyond the scope of a simple blog. But people need to understand that how our American appellate courts work is dependent upon the people who serve on those courts, and their respective judicial philosophies.

Many watch the current Florida workers' compensation marketplace and wonder about the future. There are a variety of cases
pending in the Florida Supreme Court this year. And it is likely that the next few months will bring decisions. Floridians are not alone. I hear questions about Florida from leaders in others states. Lawyers in others states are blogging about Florida. Whether the pending Florida Supreme Court cases will be monumental or anticlimactic remains to be seen, and will likely depend in large part on perspective. 

The states are so different in their laws. The methodologies employed for payment of attorney's fees is a good example. Some states limit the hourly rate allowed. Some states allow injured worker's counsel fees to be paid only from certain benefit classes. Thus, whether the residents of another state find the current Florida fee statute challenge compelling may well depend on the extent to which they perceive similarity between their statute and Florida's. Thus, their interest may depend on perspective.

I remember back in the 2008/2009 court determination and legislative reaction to
 Murray v. Mariner, there was much discussion about "the other" cases. In short, Murray was about the provisions of the Florida workers' compensation fee statute. It was a constitutional challenge ("these fees are not sufficient") and a statutory interpretation challenge ("the formula portion of the statute conflicts with the language regarding 'reasonable' fees").

As aside note, there was an increase in Florida Petition filing back in the early part of fiscal 2008-09 (our year runs from July 1 through June 30). That increase was the first in years, and following 2008-09 Florida saw the Petition trend return downward. It remained downward in recent years, but when the 2013-14 report is issued, it will document an increase again last year. Whether that relates to current legal challenges or the recovering economy and greater employment will be debated.

The Supreme Court ultimately decided the Murray case on the statutory interpretation ground in
 October 2008The essential conclusion was that the word "reasonable" conflicted with the statutory formula in the statute. This reopened the field for hourly claimant attorney fees for the accidents in the period since the statutory amendment in 2003. The Florida legislature responded in 2009 by removing "reasonable" from the statute section. Thus, limiting the effect of Murray to the period 2003 through 2009. 


The fee statute constitutional challenge ("these fees are not sufficient") is back before the Court now in the
Castellanos appeal. Opinions about the subject are a vast and diverse. There are prognosticators who will tell you what they believe will happen. There are others who simply shrug their shoulders. Constitutionality is an interesting legal question, and it is a complex area of law that most attorneys just do not deal with daily.

With that background, it is important to remember that the appellate process, at least in this regard, is a process for correcting error. Regardless of judicial philosophy, appellate courts are reluctant to decide issues that are not before it. That is, they tend to see their job as correcting the error in this case, not necessarily in all cases. Thus, the question often arises, will the Court's decision fix my case also? The answer is likely "it depends." If someone's case is pending for future determination by a trial judge, then the Castellanos decision may affect them. If instead their case was decided two years ago, then likely it will not.

If an attorney prosecuted a fee motion in 2008, was awarded an amount, and allowed that order to become "final" (passage of 30 days), then the Court's
 Murray decision later in 2008 would not likely change the fact that the earlier fee order is final. This would be the same outcome if the earlier fee order was negotiated and a stipulation as opposed to adjudicated. Court decisions are unlikely to "fix" unappealed earlier decisions in other cases. 

A party wishing to challenge error should preserve error. That is, the order must be appealed in a timely manner so that the order does not become final. The
Rules of Workers' Compensation Procedure (Rule 6.122do not allow the filing of a Motion for Rehearing to keep an order from becoming final, though there are those who will argue this point also. The vehicle that prevents a Florida workers' compensation order from becoming final is the appeal. When an appeal is filed, an appellate court determination in that case will affect that particular case, it may affect later case decisions by the trial judges, but it is not likely to affect earlier, unappealed, orders in other cases. 

This is not inconsistent with other jurisprudence. There was a decision this year by the United States Supreme Court regarding some unions forcing private citizens to involuntarily join their ranks, and having union dues involuntarily withheld from people's Medicare and Medicaid. Picture a parent or child caring for a disabled family member who received such government payments. The parent or child was forced to be in the union and some of the disabled person's payments were reduced to pay that parent or child's union dues. The United States Supreme Court put a stop to that in an
 Illinois case

Two Michigan citizens had also sued to stop the dues deduction. Following the Court's ruling in the Illinois case, the Michigan union that had been the beneficiary of their involuntary dues repaid the dues to the two Michigan citizens. Thus, these two plaintiffs found themselves no longer "injured" by the forced dues payment process. They had their money back and thus had nothing to gain from their lawsuit. The Michigan union then moved to dismiss their case. At the same time, about 44,000 other union members left the union when they were no longer forced to belong. The news estimates that about $34 million in dues were collected before the practice was struck by the Court in the Illinois case.

The Michigan appellate court dismissed the case because these two had their dues returned. In doing so, the court essentially concluded that the other Michiganders who paid dues, but who did not sue, could not collect their money back. The news reports that the statute of limitations likely precludes those other dues payers from seeking their money from the union at this point.

In this context, there is a lesson. If there is error or wrong it has to be asserted. Rights are protected for Americans through various laws, but they have to be enforced by Americans. Those who had money involuntarily deducted to pay union dues, but who did not resist that in court, will likely not get their money back. Likewise, those whose Florida workers' compensation fees were settled or adjudicated in before the Castellanos decision, and which orders were not appealed, will likely not find their situation affected, in those prior cases, by the Castellanos decision.

Of course, this is all just prognostication. What the Florida Court decides is yet to be seen. How it will affect the practice of workers' compensation law and whether it will affect petition filing volumes will be seen in time. Whether it will somehow address prior cases or future cases will also be seen in time. For now, the Court works, the prognosticators predict, and watchers watch.

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