Sunday, January 4, 2015

Brock is gone, is Hector next, in the Florida Court, or the U.S. Supreme?

There is a fair amount of discussion in the news about Florida and "insurance fraud" or "workers' compensation fraud."  Some of the discussion comes from the misclassification issue that is involved with independent contractors and employees alike. It has also been brought to the fore by the dismissal the Brock appeal by the Florida Supreme Court last year. 


The defendant in Brock was charged under Fla. Stat. §440.105(4)(b)9, specifically, the provision which states it shall be unlawful for any person " . . . [t]o knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits." 

Brock allegedly used a false social security number in obtaining his employment. The Fourth District Court concluded that use of a false social security number to obtain employment is criminal, regardless of whether any claim for workers' compensation is ever made. There was an interesting and detailed analysis of Fla. Stat. §440.105(4)(b)9 published by James Kidd and Rick Blystone in the Florida Bar Journal in 2007.  It is worth the read.

Brock sought review by the Supreme Court, alleging that the Fourth DCA conclusions regarding Fla. Stat. §440.105(4)(b)9 conflict with the conclusions of the First DCA in Matrix Employee Leasing v. Hernandez.  In Hernandez, the court concluded it was "clear that claimant violated section 440.105(4)(b)(9) by procuring work with a false social security card." However, the court concluded that this violation did not preclude Hernandez' entitlement to workers' compensation benefits.

The Supreme Court did not describe its logic in dismissing Brock. Appellate courts do not necessarily have to explain why cases are or are not accepted, but when they do not there will be conjecture. 

The contention in the Supreme Court appeal in Brock, is that the conclusions of the First and Fourth DCAs are in conflict and that the appropriate solution to such conflict is for the Supreme Court to clarify the interpretation and application of Fla. Stat. §440.105(4)(b)9. The Court concluded that there is no true conflict and dismissed Brock. Essentially, it appears that the statute outlaws misrepresentation in obtaining employment (Brock), but that does not preclude collection of workers' compensation benefits (Hernandez).

There is a second case pending before the Supreme Court, on similar facts as found in Brock. It is Jordan Hector v. State of Florida, SC14-1207. Some believe that the Court will yet take up the alleged conflict between Brock/Hector and Hernandez. They contend that is the reason that Hector remains pending following the dismissal of Brock. Others argue that the Court simply has not gotten around to dismissing Hector. Time will tell. Sometimes delay means a tough issue is being pondered. Sometimes it just means there is a delay. 

I have heard that if the Florida Supreme Court does not address the issue in Hector, then there will be a petition for writ of certiorari filed with the U.S. Supreme Court in Brock and/or Hector. This  contention is that the provisions of 440.105 are contrary to federal law. Proponents of this thought believe that §440.105 is an immigration and naturalization statute. They contend that as such, it violates the Supremacy Clause of the U.S. Constitution in that the authority to regulate immigration is a power expressly granted by the people to the federal government. 


They argue that United States v. Arizona controls this determination. In that case, the state of Arizona passed a law "that (1) created a state-law crime for being unlawfully present in the United States, (2) created a state-law crime for working or seeking work while not authorized to do so, (3) required state and local officers to verify the citizenship or alien status of anyone who was lawfully arrested or detained, and (4) authorized warrantless arrests of aliens believed to be removable from the United States."


Some may have trouble seeing how Fla. Stat. §440.105(4)(b)9, a ban on any person presenting "false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment" is similar to the Arizona laws enacted to address and criminalize immigration into the United States. It is not necessarily a conspicuous comparison. One is a state law obviously seeking to regulate immigration, the other is a provision regulating obtention of employment or workers' compensation by anyone, regardless of their immigration status.

There are two main avenues for proving that a statute or regulation is unconstitutional. The first is dependent upon proof that there is no way the statute or regulation can apply to any set of facts in a constitutional manner. That is the argument being pursued in Castellanos, the currently pending Florida Supreme Court challenge to Fla. Stat. §440.34 (attorney fees) and this type of allegation is called "facial unconstitutionality." 


The second argument would show that the statute or regulation is unconstitionally applied in a particular set of facts. This is an "as applied" constitutional challenge. Most scholars agree that the "as applied" challenge is the more difficult of the two to prove. The argument would apparently be that the provisions of Fla. Stat. §440.105(4)(b)9 are unconstitutional in a particular case because the false statements or documents were provided by someone whose legal status is otherwise determinable under federal immigration law. 

There would be various interesting perspectives on this issue. One side of the argument would argue that because some lack valid social security numbers due to their immigration status, the provisions of Fla. Stat. §440.105(4)(b)9 result in a "disparate impact" on those people and is thus unconstitutional. In other words, based upon immigration status, some cannot obtain employment without use of a false social security number. Others would argue that the prohibition on lying to obtain employment affects all job applicants, regardless of their motivation for using a number that is not his or hers. 


Sometimes, the courts avoid addressing constitutional questions. They instead resort to statutory interpretation to resolve some issue without reaching the constitutional question. Remember Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008)? This was the first Florida Supreme Court challenge to the 2003 attorney fee restriction of Fla. Stat. §440.34. In Murray, the Court noted that it is "obligated to construe statutes in a manner that avoids a holding that a statute may be unconstitutional." 

So, can Fla. Stat. §440.105(4)(b)9 be interpreted in a manner that is constitutional? Is the application of this statute as to those who lack social security numbers unconstitutional in the same way that the United States Supreme Court concluded the Arizona statute to be? Is there a conflict between the Hernandez and Brock/Hector decisions, and if so will the Florida court address this or will it dismiss Hector?

If Hector is dismissed, will the United States Supreme Court accept the analysis for review among the approximately 100 cases it reviews annually? Interesting questions all. These are interesting times in the world of Florida workers' compensation. 

Updated January 7, 2015. According to Fox News, a federal judge has enjoined enforcement of an identity theft law in Arizona. These laws reportedly were passed in 2007 and 2008 "as part of a package of legislation that sought to confront employers that hire immigrants who are in the country illegally." 

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