Wednesday, April 20, 2016

Another Constitutional Decision

Much is being said about the Oklahoma Supreme Court's decision in Robinson v. Fairview Fellowship Home for Senior Citizens, ____ P.3d _____, 2016 OK 42 (OK 2016)(Case Number: 113735; 04/19/2016). This is a case that will be discussed from a variety of perspectives in days to come. Much of the focus will be upon the Oklahoma Opt Out, and whether this has implications for the Oklahoma Commission's decision in Vazquez v. Dillards Inc. Does the Robinson analysis spell the end of Opt Out?

Some of the discussion, however, will be about the legal foundations for the Court's decision. One lawyer has already commented on one of the social media platforms that it is "scary that an judiciary is willing to succeed its powers to 'judges' within the executive branch." He goes on to conclude "the people of Oklahoma are the losers as the result of this silliness."

People feel as they do about Opt-Out. The topic brings forth a good measure of emotion in some people, whether they are lovers or haters. I am not sure there is room for reconciliation between them, as there is a fair degree of ingrained perception and belief at this stage, and not a great deal of listening is apparent sometimes. 

The first thing to remember about Robinson is that it was published on the web yesterday. It is not a final decision, and is subject to a motion for rehearing, and potentially changes. The opinion states (as most do) "this opinion has not been released for publication. Until released, it is subject to revision or withdrawal." I am not prognosticating, but reminding everyone that opinions have been withdrawn and re-drafted before. 

In Robinson, the injured worker "was denied workers' compensation benefits after an administrative law judge of the Workers' Compensation Commission found that her injury was not in the course and scope of employment." So, she had her due process before an administrative law judge in Oklahoma. Of note, there are those who believe that the Oklahoma statute revision, creating the administrative hearing process for workers' compensation claims, is unconstitutional in itself. One implication of Robinson is that the state's Supreme Court seems inclined to accept that new administrative process. 

The injured worker asserted that the application of workers' compensation law "unconstitutionally denied her a remedy for her injury." The administrative judge concluded she/he could not address the constitutional arguments, the Workers' Compensation Commission (WCC) affirmed, as did the Court of Civil Appeals. So there was a consensus that constitutionality issues were appropriately handled elsewhere in the system. It is curious to some that the WCC reached that conclusion in Robinson and later concluded it did have authority over constitutional questions in Vazquez. Did something happen to change the WCC's mind?

The Robinson Court noted that the ALJ concluded the WCC is not a court and "is without power to decide the Claimant's Constitutional arguments" regarding adequate remedy. The WCC affirmed stating that "claims that legislation is unconstitutional cannot be determined by law or this Commission en Banc. Those claims can only be decided by a court of competent jurisdiction." 

The Oklahoma Attorney General (AG) then entered the fray, filing a February 10, 2016 brief in Robinson. There, the AG argued "that the Workers' Compensation Commission has the authority to address the constitutionality of a statute as it is being applied in an individual proceeding, subject to judicial review by this Court." On February 26, 2016, the WCC rendered the Vazquez decision, in which it concluded it did in fact possess such authority regarding constitutional issues. Did the AG thoughts on the subject bear on that analysis?

It is critical that readers remember the distinctions between two bases of constitutional challenge. A statute or other state action can be unconstitutional on its face (there is no way the statute could be interpreted to reach a constitutional result in any set of facts) or can be unconstitutional as applied to a particular case. This has been discussed repeatedly in the context of Florida's long-pending constitutional challenges

We must note again that Robinson does not hold that the WCC has the authority to determine facial constitutional questions. It holds "the Workers' Compensation Commission has the Power to Determine Whether a Provision of Title 85A is being unconstitutionally applied to a particular party in a Commission proceeding." The WCC has authority, according to Robinson, to determine "as applied" constitutional questions. 

The Court reasoned that this is so for several reasons. First, considering "separation of powers," the Court noted that the constitution provides that "the judicial power of this State shall be vested in  . . . such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings." This constitutional grant of authority is specific to agencies such as the WCC. Thus, notwithstanding the social media commentary to the contrary, the Oklahoma judiciary did not "succeed its powers to 'judges'" in the executive branch. The Oklahoma judiciary followed precedent (this is important, see Stare Decisis), and obeyed the state constitution, which is ultimately the will of the state's people, who adopted or ratified that foundational legal structure for the state. Following the state constitution is a positive result in most perspectives.

The Court also noted that the language empowering the WCC was consistent with "statutory language contained in Oklahoma's first 'Workmens Compensation Law' enacted in 1915." Thus, the authority is not new to the state, though it is new to the agency which has recently undertaken adjudicatory responsibilities there. 

Another reason cited by the Court is more practical than legal. It concluded that there are "financial burdens" associated with appellate review. To expend such resources, "only to have this Court remand the case to the Commission to decide a question it could have decided in the first instance" was criticized by the Court. It concluded such a process was "not the 'prompt, certain, and inexpensive' remedy envisioned by the adoption of the workers' compensation system as a result of the industrial bargain." In other words, not allowing the WCC to make such interpretations would be inefficient. And that language is similar to the oft-cited "self-executing" nature of many workers' compensation statutes. 

The Court also found support for its conclusions from neighboring states (don't email me on this, I know where OK is, this is just colloquialism), New Jersey and New York. Citing Dep't of Envtl. Prot. v. Huber, 63 A.3d 197, 218 (N.J. 2013), the Oklahoma Court adopted the logic that "the benefit from having the administrative process initially address a constitutional issue among other issues within the agency's purview is that the process may result in fact-finding or interpretation and application of statutory processes that may obviate the need to adjudicate a constitutional question." In other words, the WCC determination process could be more efficient and timely.

In keeping with the broad statutory grant of authority, within the constitutional construct of what is a "court" there, the Court concluded that either the WCC or its administrative law judges may "properly refuse to apply a statute to a particular party before it," in the event that "such application would be repugnant to the Constitution." This is specific to Oklahoma, and based on its constitution.

The Oklahoma Court was careful to be clear, however, that this authority is limited to "as applied" claims. The Court said "of course, the power of the Commission and its ALJs to determine the constitutionality of a provision of Title 85A is limited." Though it is quasi-judicial, the WCC "is an executive branch agency lacking the full power of the judiciary." As such, the WCC "only has the power to resolve, on a case-by-case basis, questions regarding the constitutional or unconstitutional application of a statute to a particular party in a proceeding before it. Therefore, the WCC's "decision is binding only on the parties in that case." 

The Court concluded "the Legislature may not confer upon the Commission the power to determine the facial constitutionality of a statute, and the Commission may not assume that power--such power resides in the judiciary alone." That could not be much clearer. As mom used to say, "no means no, period."

So, this is an interesting decision. It sets forth parameters within which the Oklahoma WCC and administrative judges may act in any particular case. Those actions, however, are binding only on that case, and those parties. 

Any determination of facial constitutionality must be made by the courts. This is not because judicial authority was usurped or succeeded, but because the state's constitution says so; because prior precedent says so (and that is important, see Stare Decisis). And now the debate will begin about whether this means that the WCC acted appropriately in Vasquez or whether that declaration is beyond the scope defined and described in Robinson

For those who see a parallel for Florida, it would be well advised to read the Florida Constitution, and its definition of "court." The Florida Supreme Court has already analyzed that language in In Re Amendments to the Rules of Workers' Compensation Procedure. The Court concluded that the Office of Judges of Compensation Claims is not a "court." So, any assertion that this Office has similar authority as Robinson describes might face an uphill battle. 

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