Monday, May 4, 2015

Court Watching

There are many in Florida, and elsewhere, eagerly watching the Florida Supreme Court this spring. When will it rule on Westphal and Castelanos? I made some half-hearted, unscientific, predictions last November in Morales, Where for Art Thou Morales?

In the matter of temporary benefits, Westphal, will the Court agree with the First District (en banc in Matrix), the First District (in Westphal "one," the panel decision), or the First District (in Westphal en banc, or "two")? In Castellanos, will the Court find the statutory fee restraints constitutional, facially unconstitutional, or unconstitutional as applied? 

If the Court takes the unconstitutional "as applied" route, what remedy will it fashion, or can it fashion, that will result in a workable process for future fee determinations? Because Judges of Compensation Claims cannot make constitutionality determinations, being limited authority statutory officers, will all fee future fee cases in that potential scenario have to be heard by the First District Court? 

If the Court determines that the statute is facially unconstitutional will it be on the narrow (relatively) basis of the right to contract, or would it be on broader grounds? The prognosticators are prognosticating, the questioners are questioning, the waiters are waiting, and many of us just continue to wonder.

To add to Court watcher agendas, members of the Florida Senate last week filed a suit against the Florida House of Representatives. They were frustrated when the House adjourned last Tuesday and the Senators sought to have the Supreme Court order the House members back to Tallahassee. The Court denied that petition on Friday

At least Florida's Supreme Court is not the only one being watched. The appellate litigation in Oklahoma over their "opt out" has begun. That will draw focus for months to come. 

The Washington Post reports on a strange constitutional issue in Wisconsin. It is interesting because underlying the dispute is a recent change that is somewhat parallel to changes some Florida courts have made in the last decade. It used to be that the chief judge of a Florida appellate court was a matter greatly influenced or controlled by seniority. In essence it often came down to whose turn it was to be Chief.

Wisconsin used to have a similar outcome, but there it was defined that way in the state constitution. Voters recently approved a constitutional amendment, according to the Post, and now the justices are to elect a Chief Justice every two years.

According to the Post, the Wisconsin Supreme Court is perhaps not as collegial as some. It says that controversy is nothing new there and "disputes among the justices have even turned physical." It characterizes current "chief Justice Shirley Abramson" as a "regular participant in the Court's internal squabbles."

The Post says that Justice Abramson immediately after passage fof the amendment resisted a vote that some predict would result in her loss of the Chief position. She filed a federal lawsuit challenging the amendment to the state constitution. Her contention is that the amendment should not "take immediate effect" but should be applied only "when the Chief Justice position becomes vacant." It notes that this would perhaps be "when her current term on the Court expires in 2019."

Justice Abramson contends that an election at the present time would be "disruptive" to her current term, and would truncate and or "impair" her "constitutionally protected interest in the office of chief justice." This she argues would dilute "the votes of her supporters" and "the results of the 2009 election (would be) undone long after-the-fact." The complaint also asserts that if there is any election before the end of her term the "court system's leadership will become unsettled." There is also a property right challenge founded on the fact that she earns more money as the Chief Justice, and that pay would change if she were no longer in that role. 

The foundation of her argument is upon the "Due Process and Equal Protection under the Fourteenth Amendment to the Constitution of the United States." 

The Green Bay Press Gazette reported in early April that the Federal Judge had denied the Justice's request for a temporary restraining order. That story notes that Abramson has served on the Court since 1976, and that she ran for election to her current term as "Chief Justice" and was elected as such. That is the allegation in support of her contention that her replacement would dilute votes. 

The Milwaukee Journal Sentinal reported on April 29, 2015 that the Court had ousted Abramson as Chief Justice in a vote held that week. This article explains that part of Abramson's argument is based on a difference in pay for the Chief Justice. It appears that the matter will now proceed on the merits in federal court.

For now, it would appear to some that the court has two Chief Justices for now. Would it be interesting to be a fly on the wall of that court right now?

An update, the New Yorker on May 5, 2013 provides additional information about allegations regarding the Wisconsin Court. 

So, pick a state, pick a court, pick a topic. There is plenty to keep us watching at least through 2015? We will watch and wait for Westphal and Castellanos. We may all wonder what the Court is considering, what it is thinking, and when it will rule. But we will at least not have to watch the Florida Justices suing each other.

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