Tuesday, January 26, 2016

To D or not to D? that it appears, is the Question

In 2013, the Florida legislature amended Fla. Stat. 90.792 to adopt the “Daubert" ("D") standard instead of the existing "Frye" ("F") standard. This affects the admissibility of expert evidence. A great article on what the change means for expert witnesses is here. The transition to Daubert seems straightforward at first glance, but it has become interesting lately. On January 1, 2016 the Florida Bar Board of Governors voted to endorse the Frye standard and recommend to the Supreme Court to ignore the Florida Evidence Code. 

America’s legal system has many similarities with England’s. The following may provide too much background for attorneys, but many non-lawyers also read these posts. Our foundation use of English law is a natural consequence of their prevailing presence on the continent and our colonial origins. Thus, we follow a system called the Common Law, which involves law being developed by courts over time, through interpretation and judicial opinions. 

Statutes may adopt or change the Common Law. Statutes are not developed by judges, but are enacted in this country by the people’s representatives in legislative bodies, like our Florida legislature. There is an advocated advantage to the statutory body of law, that it comes to us through those elected by us. It is perceived that a disgruntled populace may therefore change the law by electing different representation.

America is a Constitutional Republic, with the very definition of its governance imparted from the people to the government. The context of this grant of authority is the United States Constitution and those subordinate constitutions of the various states. Through these grants is government established and authorities are both defined and restricted. 

There are two major legal divisions that define divisions of power or authority in American government. The first separates state authority from federal authority and is called “federalism.” The second variation involves delineation and definition of authority between the various branches of either the federal or the state government and is called “separation of powers.” 

Through separation of powers, government branches, the Executive, Legislative and Judicial have respective specific powers. They are precluded from taking powers that are not granted to them, called "encroachment," and likewise are precluded in many instances from giving their respective powers to other branches, called "delegation."

The very existence of workers' compensation is an example of delegation. The legislative power over workplace injuries was delegated by the legislature to the Office of Judges of Compensation Claims, part of the Executive branch of government. Florida workers’ compensation has reasonably recently experienced debate of appropriate delegation. The history of the Supreme Court’s Rules of Workers’ Compensation Procedure is explained in its 2004 opinion In Re Amendments to the Florida Rules of Workers’ Compensation Procedure

Essentially, the Supreme Court promulgated workers' compensation procedural rules in 1973, directing how proceedings in this administrative (executive) agency would progress (this, it turns out was "encroachment"). The Court in 1973 explained that its authority was rooted in its inherent rule-making authority. Legislative action in 1974, endorsing the Court encroachment of procedural rules, was interpreted as delegating to the Court the legislative authority for rule-making, that is, rules to effectuate the statute. 

For thirty years, the Court periodically updated the Rules of Workers’ Compensation Procedure, until in 2004 it considered the question anew. Someone then did more than accept on faith that the Court had authority, and with this analysis it concluded “this Court lacks the authority to promulgate rules of workers’ compensation procedure.” The Court concluded that it neither had the inherent authority, and that the Legislature's grant of authority was inappropriate. In other words, the Court had been wrong all along, thirty years.

We return now to 2016 and the evidence code. The Common Law, that is judicial decisions, historically evolved in America generally and Florida specifically to provide standards that defined what evidence would be admissible in trials. There were decisions outlining and defining what demonstration or showing would be required to admit or exclude various kinds of evidence. In 1972, drawing from these court decisions, the Federal Rules of Evidence were adopted by the United States Supreme Court. 

In 1976, following the federal example somewhat, the Florida Legislature enacted Florida Statutes Ch. 90, the “Florida Evidence Code.” This statute purports to regulate the questions of evidence admissibility for disputes in Florida. The scope and applicability are defined in Fla. Stat. §90.103 “Unless otherwise provided by statute, this code applies to the same proceedings that the general law of evidence applied to before the effective date of this code.” The statute replaced then existing Common Law. 

An issue was then raised by attorneys, questioning whether the Florida Legislature had the authority to enact this evidence code (note that Congress did not enact the Federal Rules of Evidencethose were adopted by the U.S. Supreme Court). The attorney's argument was essentially that some provisions of the Code affected procedure before the Courts, and thus was a legislative encroachment upon the inherent rule-making authority of the Florida Supreme Court. 

In what may seem to many a strange process, it is the Florida Supreme Court that decides whether that Court does or does not have authority. By the same doctrine the Court is likewise the arbiter of whether any other branch is guilty of encroachment or improper delegation. In this regard the Court gets the last word. The Court makes its own rules, and decides constitutional issues, including those of separation of powers, encroachment, delegation, etc. See In Re Amendments to the Florida Rules of Workers’ Compensation Procedure

Thus the question came before the court in 1979, in In Re Florida Evidence Code, 372 So.2d 1369 (1979); does Chapter 90 F.S. control the processes of admitting evidence in Florida disputes? 

It is noteworthy that this question was not brought to the Court in an adversarial proceeding. Adversarial proceedings are fundamental to the American judicial process as a whole. There is a core belief that legal questions will be best decided when they are presented in an adversarial setting, with all sides of the dispute being heard. In Constitutional law parlance, the people bringing such a dispute must have “standing,” which is a personal interest in the dispute and an actual harm or benefit resulting from the dispute. The belief is that such parties will be zealous in prosecuting and defending, and the full breadth of the dispute will be presented for impartial decision.

Instead, this consideration of the applicability of the new Evidence Code was an administrative proceeding. Objections and comment about the Code were reviewed but there was no adversarial process as such. The Court concluded that the Code did apply. However, the Court perceived that there was a potential for various questions to arise regarding the applicability of the Code, and the Court therefore “adopted” the legislatively enacted “code” in a general sense, while deferring for another day any specific questions that might address particular elements of the new Code. Thus, in the 1970s, an evolution brought Florida evidence from a Common Law process to a legislatively adopted statutory process, and the Florida Supreme Court accepted or adopted that evolution. 

Since that time, the Rules of Evidence have come before the Court periodically in similar administrative postures. This is a familiar process for attorneys, as the various procedural rules of court are likewise presented to the Court in a periodic cycle. The Florida Bar proposes and reviews changes, public comment is solicited, and the Court thus maintains various rules of procedure in civil, criminal, family, and other types of legal matters. The merits of those rules are generally accepted through this non-adversarial administrative process.  

In the first such periodic consideration In Re Florida Evidence Code, 372 So.2d 1369 (1979), the Court discussed the potential for conflict and sought “to avoid multiple appeals and confusion in the operation of the courts.” The Court therefore adopted “temporarily the provisions of the evidence code as enacted” as “rules of this Court.” Any question of separation of powers was thus avoided for another day. 

Months later, titled In Re Florida Evidence Code, 376 So.2d 1161 (1979), the Court reiterated its adoption and endorsement of the Code following input from the bar, and clarified the effective date of the Code, in so far as it was also procedural rules. There is again no discussion of separation of powers. The adoption process was repeated in 1981. In re Amendment of Florida Evidence Code, 404 So. 2d 743 (Fla. 1981). It was repeated again in 1986. In re Amendment of Florida Evidence Code, 497 So. 2d 239 (Fla.1986), and 1993. In Re Florida Evidence Code, 638 So.2d 920 (Fla. 1993). These appear to be fairly straightforward "adoptions" of of statutory amendments.

In 1996, the Court again considered evidence. Citing its authority under article V, section 2(a) of the state constitution (inherent authority), the Court rendered In Re Florida Evidence Code, 675 So.2d 584 (1996). It considered the recommendation of The Florida Bar to adopt multiple statutory changes to the Code, and “amend the Rules of Evidence to conform to statutory changes in the Evidence Code.” 

The Court thereupon, again, adopted “the amendments to the Evidence Code to the extent that they concern court procedure. These amended rules are effective on the dates the bills became law.” In this decision appears the term Rules of Evidence (in capitals as a proper noun) in conjunction with the “Evidence Code.” There is purportedly both a Code and Rules. 

Then, in 2000, the Court departed from the legislature. In Re Amendments to the Florida Evidence Code, 782 So.2d 339 (Fla. 2000). The Court disagreed with the "admission of former testimony" from a witness, if that witness was at the time of trial "available as a witness." The Bar perceived the law passed by the legislature would broaden an exception to the hearsay prohibition (many out-of-court statements cannot be repeated in court except by those who uttered them out of court to begin with). 

In declining to adopt the 2000 legislation amending Chapter 90 of the Florida statutes, the Court noted that a similar change previously passed the legislature, and was vetoed by the then Governor. The Court seemed to place some stock in what the former Governor said about the amendment in his veto message. The Court did not adopt the amendment to Fla. Stat. 90.803. Conversely, and curiously, the opinion does not discuss the approval (or absence of veto) of the 2000 amendment by the then-serving Governor. Again, this was not an adversarial proceeding with multiple parties presenting opposing views. 

So, 2000 brings the first instance of rejection. The Florida Bar committee recommended rejection and the Court agreed.

In 2002, the Court returned to the pattern of adopting legislative changes. In Re Amendments to the Florida Evidence Code, 825 So.2d 339 (Fla. 2002). In the 2002 opinion, the Court noted a committee of The Florida Bar recommended against adopting one of the statutory changes. The recommendation was "unanimously approved by the Board of Governors of The Florida Bar." Nonetheless, the Court "after hearing oral argument, and carefully considering the committee's recommendation against," "decline(d) to follow this recommendation" and adopted all of the legislative amendments. It is notable that three of the justices dissented from the decision.  

As an aside, appellate courts, including the Florida Supreme Court generally decide cases in a consensus fashion, rather than as individual judges. When a single judge or minority group of judges disagrees with the majority conclusion(s), the minority group writes a separate opinion, called a "dissent" explaining why the minority would have made a different decision.

The 2002 opinion also provides some insight into the administrative process. The Court noted, in adopting the contested change, that "in the absence of a true 'case and controversy,' we express no opinion on the substance of the amendments or on the challenges" raised by the committee, the bar or the public in comments. This is a reference back to the belief in an adversarial justice system in which those with a real interest in the outcome (standing) are charged with presenting to a court the arguments for or against a law. About 20 years into the habit of administrative review and adoption, the Court voices some deference to the adversarial system.

The Court's approval process essentially continued in 2004, In Re Amendments to the Florida Evidence Code, 891 So.2d 1037 (Fla. 2004) with one provision deferred but then adopted the next year. Amendments to Evidence Code-Section 90.104, 914 So.2d 940 (Fla. 2005). Statutory amendments were again adopted in 2007. In Re Amendments, 960 So.2d 762 (Fla. 2007). 

In 2011, the Court again considered statutory amendments. In this opinion, the court again adopted statutory amendments. In Re Amendments to the Florida Evidence Code, 53 So.3d 1019 (Fla. 2011). The Court again in 2011, noting its caution in 2002, stated "we express no opinion on the substance of the amendment." Thus, another nod to the usual adversarial methodology of decision-making within the confines of cases and controversies. 

In December 2013, the Court rendered In Re: Amendments to The Florida Evidence Code, No. SC13-98 (Fla. Dec. 12, 2013). Leading up to this consideration, a committee of The Florida Bar recommended adoption of a variety of legislative amendments to the code. The Court declined that recommendation. The decision was based, regarding one provision, on the Court "question(ing) the need for the privilege (fiduciary)." In regards to another section ("statement offered against a party"), the rejection was based on "concerns about its constitutionality," and a third (regarding medical negligence) due to concerns regarding constitutionality and that it would be "prejudicial to the administration of justice."

Months later, in July 2014, the Court issued a "Revised Opinion" which withdrew the December 2013 opinion. In this, it reiterated its conclusion and rejection regarding the privilege provision, and the medical negligence provision. But, the Court adopted the legislative change regarding the "statement offered against a party." Two justices dissented regarding this decision, one who would have adopted all the changes, and one who would have rejected all three as the Court initially did in December the year before. 

This second dissent is interesting. The justice writing it concluded with a concern "that we are neither promoting the administration of justice nor furthering the goals of the Florida Evidence Code" with this adoption. The justice notes the Code is "designed to ensure and increase the reliability and quality of evidence admitted in Florida Courts." The conclusion: "because of the nuances connected with this issue, I would await a case or controversy to consider this statute, determine its constitutionality, and if constitutional, ensure that the procedures for the predicate for admissibility are clearly set forth." In dissenting, a reference to the generally accepted judicial process of adversarial proceedings.

Thus, in 2013, the Court again rejects legislative enactments. The "Rules" depart from the "Code." This instance is notable because, unlike the 2000 rejection of legislative change this one disagrees with the recommendation from The Florida Bar. 

And today, the Court has for consideration the recommendation of The Florida Bar to reject the 2013 statutory amendment to Fla. Stat. 90.792 adopting the “Daubert" standard instead of the existing "Frye" standard for admissibility of expert evidence. 

What has this long (very long) history of the Florida Evidence Code taught us? First, is that the legislature's role in the evidentiary process seems to be generally accepted. The Court has repeatedly adopted those changes (to the extent they are procedural). The bar has been involved in this process since the beginning. On occasions the Court has adopted bar recommendations as presented, and has also rejected bar recommendations. It has relied curiously upon the veto messages of former Governors in justifying decisions. It has changed its mind on questions of adoption. And the justices have not always been unanimous on their conclusions and views. 

From these lessons, we can conclude that the Court may well adopt  (as a procedural rule) Daubert for Florida courts. This would bring Florida in line with the American trend (Fourteen states still use Fryethat is if Florida continues to do so). The Court may likewise reject Daubert for Florida courts. 

But, from its 2004 opinion In Re Amendments to the Florida Rules of Workers’ Compensation Procedure, it seems likely that the Florida Supreme Court decision regarding Daubert, if it rejects Daubert as recommended by The Florida Bar, will not affect the Florida Office of Judges of Compensation Claims (OJCC).

The Court authority cited, in adopting or rejecting various statutory amendments historically, has been its inherent rule-making authority. The Court has concluded that it has no such rule-making authority for the OJCC. Therefore it is probable that the statutory Evidence Code will control the questions of evidence before this executive agency. 

In one potential outcome, from which many find no solace, it is possible that the Court could reject Daubert, rendering the Frye standard applicable in Florida state courts, and the legislative adoption of Daubert could be relegated solely to applicability in workers' compensation and other administrative, executive branch, disputes and cases.  

Critics of the Daubert standard have repeatedly voiced their contention that in this administrative (OJCC) process, devoid of juries, the concerns addressed by Daubert are of less concern than in the Circuit and County court systems. In other words, they contend that Daubert has no place in a system in which all decisions are made by a judge (JCC) rather than jury. They find it ironic that ultimately this standard could become the norm in the dispute system in which it is (perceived) least needed. 

Others question the entire administrative review process of the Court regarding laws passed by the Florida Legislature. They cite separation of powers and contend that the Court action regarding the Evidence Code is effectively either making law (a power constitutionally given exclusively to the legislature) or vetoing law (a power constitutionally given exclusively to the Governor). They contend that the Court's authority regarding such laws is limited to considering the law and effect in a true "case and controversy," that is an adversary proceeding, just as all other laws are considered or challenged in the courts. 

Some suggestion of this conclusion comes from the Court's own opinions mentioning "case and controversy." Some suggestion of this comes from dissenting justices in various decisions. Some suggestion of this comes from attorneys who conjecture regarding how the Court will address this latest statutory amendment. One asked me recently if it is not possible that the Court has been mistaken about its administrative method of considering amendments to the Evidence Code for the last thirty years, just as it was mistaken regarding its authority to enact procedural rules for workers' compensation. My reply was that anything is possible.

These are some interesting issues and questions. Time will tell how this debate resolves. For now, the question is up to the Court and we all wonder for now "to D or not to D? that is the question."

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