Tuesday, July 25, 2017

Pot, Impairment and Car Crashes

I served on a panel at the Colorado workers' compensation conference this spring. IT was a tremendous program in an ideal setting at the base of Pikes Peak. Believe it or not, the subject of Marijuana came up (In Colorado, who'd have thought). Marijuana is a subject about which there have been multiple musings in this blog. A few of those are:

Medical Marijuana.
Marijuana May be a Problem, You Think?
So Federal Law Matters in Colorado.
What will the Next 30 Years Teach Us?

In another post, Measuring Marijuana Intoxication, I discussed some issues with the way marijuana affects people, and the distinctions it has from alcohol. Alcohol presence can be measured more readily, even if scientists tend to believe that the thresholds such as .08 BAC are convenient but not necessarily scientifically definitive of impairment. Despite the scientific questions, laws across the country have defined presumptions of impairment with that blood alcohol presence (.08) and others. 

This spring, national public radio (NPR) reported that "drug-impaired driving is a growing concern." Despite that, "its actual impact is still difficult to measure." There is evidence that drug-impaired driving is even more prevalent that alcohol-impaired. But, in determining causation of accidents, NPR reports that  "findings cannot show that drugs are responsible for more deaths on the roadways than alcohol," and the reason is tied to the difficulty with measuring drug impairment. 

A recent "insurance study" reported by Fox News, "links increased car crash claims to legalized recreational marijuana." Keep in mind that there is no such think as "legal marijuana." Marijuana remains illegal under federal law in this country, and no state can legalize it. The states can, and some have, elected not to criminalize possession or use under state law. The states can also elect not to enforce federal law. But states can no more legalize marijuana than they can legalize kidnapping or counterfeiting. Those are also against federal law. 

This insurance study cannot link accidents to drug use or impairment either. Perhaps for the same reasons cited by NPR regarding impairment generally. What the insurance study found, however, is that "it would appear, not to anyone's surprise, that the use of marijuana contributes to crashes." And, one highway safety industry spokesperson noted that "while we have proven countermeasures, proven strategies for reducing alcohol impaired driving, there are a lot of unanswered questions about marijuana and driving." 

Some claim impairment can be effectively measured. One University of Massachusetts professor reported by The Boston Globe has "created and self-funded DRUID," which stands for "driving under the influence of drugs." It is an app that asks "users to tap the screen in certain places when they see different shapes." There are also tests for stopping a stopwatch at 60 seconds and using the finger to follow a moving object on the tablet screen. Although there are no peer review studies to validate the relevance, Professor Milburn recommends the app for those who wish to avoid impaired driving. I wonder as I write this if the app could be adapted to have some kind of fruit or birds involved (gazing into space and pondering).  

A PhD candidate at the University of Akron has recently announces another tool, which operates from a sample of saliva. This device was reported on Cleveland.com (Ohio, a state that has not yet de-criminalized marijuana). It is called a Cannibuster, and it measures the "levels of THC," which the developer notes is "the active ingredient in marijuana." Of course, there is evidence that THC is one of "over 400 chemical entities of which more than 60 are cannabinoid compounds" in cannabis. See NCBI

There remains much to be done. There are perceptions that drug use is contributing to accidents. Police who are directed by law to ignore possession and distribution of federally controlled substances may nonetheless have to deal with those who drive under its influence and perhaps contribute to or cause accidents. An effective and reliable method for measuring impairment is perhaps needed in order for their to be consistency. Of course, it is possible that the other debate, whether such standards are scientifically efficacious, should be had instead. 

Much to ponder in the world of marijuana; a world that seems to become larger everyday.




Sunday, July 23, 2017

Writ Protection as Opposed to Appeal

In June, the Florida First District Court published its opinion in Lewis v. Dollar Rent a Car. The case is instructive and interesting. Though it is an appellate court decision, it is not technically an "appeal." Appellate courts have both appellate jurisdiction and "original jurisdiction," and in this instance it was original. 

Appeal generally follows the issuance of a final order either by some court or an administrative agency such as the Office of Judges of Compensation Claims (OJCC). As an aside, there is no doubt that the OJCC is no "court," though a great many still refer to us as "this court." Whether that is the product of ignorance or inadvertence is unclear and likely as unimportant. But, it is worth reiterating periodically. 

Trial courts and administrative agencies conduct hearings, and make decisions regarding disputes between parties. Those can be major disputes such as whether one side has proven entitlement to damages (or workers' compensation benefits) or not, whether a witness is telling the truth, whether one physician's conclusions are more credible than another, and more. 

Or, the disputes may be smaller conflicts that arise while the parties prepare the larger dispute for trial. When these smaller disputes arise, the parties often work them out through discussions and compromise. But, when they find they cannot, one of them will often file a motion seeking the tribunal's intervention. A motion is simply a formal request for the trial court or judge to settle the minor dispute. It is astounding how many motions are filed and how many orders a judge must enter resolving them all.

During this period when cases are prepared for trial, when these smaller disputes arise, it is possible that a variety of disputes might come to the trial judge for resolution in a particular case. The outcome of any of those disputes might have an effect on the ultimate outcome of the trial towards which the parties are moving. For example, the dispute might be over the production of certain documents one party has but does not want to provide to the other party. How the trial judge decides that dispute may affect what evidence is ultimately available and introduced at trial. 

The role of the appellate court, in most cases, is to review a trial judge's decisions on such issues after a trial is concluded. Dissatisfied with the outcome of trial, a party might appeal based upon the decision regarding a motion before trial, or upon an evidentiary ruling at trial, or upon an interpretation of the law made in the course of the ultimate decision from trial. These appeals can be limited to a single tribunal decision, or may focus on a number of decisions made both before and during trial. 

But, there are also instances in which it may be inappropriate for a decision to await the end of the trial process for review. In those instances, rather than appeal after the trial, a party may seek to have the appellate court intervene on a particular decision that the party believes should not await the conclusion of the trial case. The party in that instance files what is called an "extraordinary writ." There are various descriptions of these, but three common writs are for "prohibition" (asking the appellate court to tell the trial court to stop doing something), "mandamus" (instead telling the trial court to do something particular), and certiorari (correcting an error of the trial court). 

In Lewis, the employer/carrier asked the injured worker to attend a functional capacity evaluation (a test in which the physical capabilities of a patient are tested and measured). The injured worker did not wish to undergo the test, and he employer/carrier filed a motion asking the trial judge to order attendance, which the judge granted. The injured worker might have undergone the test and nonetheless appealed the ultimate outcome of the trial, then contending that order was wrong. But, in this instance the worker sought immediate review by certiorari. 

There are many cases in litigation at any moment in time, and a great many motions are decided in them. It would be impractical for any appellate court to review all such decisions. For example, in Florida there are over 1,000 trial judges at work each day making decisions, and there are only 72 appellate judges (including 7 Supreme Court Justices). The 65 judges of the intermediate appellate courts (the District Courts of Appeal) make their decisions collectively, usually in three judge panels (those 65 judges can collectively form about 22 panels at a time). It is mathematically impractical for appellate courts to review every decision by certiorari. 

Therefore, this type of review, an immediate review, is not available for every trial court decision. To be entitled to such relief, a party must demonstrate that the complained of decision causes "harm that cannot be corrected on appeal,"and that the order complained of results "material injury for the remainder of the case." In other words, the party must demonstrate to the court that there is a compelling reason for appellate intervention in the process before the conclusion of the ultimate trial. 

In Lewis, the Court noted that the motion to compel had been based on a prescription from the treating physician and that the employer/carrier asserted it was "medically necessary." But, the Court noted that no evidence to support those medical opinions was filed in support of the motion. But, on the morning before the motion was heard, documents were filed including the FCE prescription, medical records, and a physician note saying the test was “medically necessary.” 

The trial judge accepted the documents as evidence over the injured worker's objection. The injured worker argued that the documents from the doctor were not provided in a timely manner, and that they were "unauthenticated." Authentication is a legal requirement that is too often ignored or overlooked. Authentication of documents usually requires the testimony of a witness, someone with knowledge as to what the document is. Although some documents are "self-authenticating," because some statute or rule says that type of document is what it says it is (newspapers are an example), most documents require a witness to attest to what they are, where they came from, etc. 

Medical records are not "self-authenticating." In order to be admissible as evidence, medical records generally need to be authenticated by some witness who is competent to testify that these particular pages are what they say they are. Generally, medical records are authenticated by the physician that created them or by an office employee who is responsible for maintaining those records (often referred to as a records custodian). 

In Lewis, there was no such testimony to authenticate the medical records. And as such the genuineness of the documents was not established. One might see this as a technical point. But, it is important that trial judges make decisions based upon evidence that is appropriate, legally allowable, and genuine. 

In Lewis, the Court noted its previous  holdings that 
[i]n the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.
It then rejected the Employer/Carrier's argument that an FCE is not "invasive." The Court held that it had 
never interpreted the invasiveness of the examinations so narrowly, and our decisions have not turned on proof of the type of medical procedures that may be included as a part of the compelled exam.
Essentially, the Court concluded that any medical examination is per se "invasive," and therefore the ordering of any medical examination is potentially "irreparable harm." In support of its conclusion, the Court noted prior decisions in which it had determined that "the invasion of privacy alone may constitute irreparable harm."

The Court also reminded, that in workers' compensation, the rights of both the employer and the inured worker are generally controlled by the statute in effect on the workers' date of accident, which in Lewis was in 1988. That statute did not "expressly provide for FCEs." However, the Court concluded, that because the law "requires the E/C to provide Claimant with medically necessary remedial treatment," then "an FCE may be considered a medical benefit." Therefore, in a 1988 case, an injured worker could seek an FCE and the Judge would have authority to make an Employer/Carrier provide that. 

However, the Court concluded, that the JCC lacked statutory authority to order the injured worker to undergo an FCE, that is to "require a claimant to submit to medical treatment or testing." The Court held that there must be specific statutory authority for such testing, and that there was no such specific in the 1988 statute. Thus, there is statutory authority to give an injured worker the right to such a test if desired, but no authority to force such a test on the worker against her/his will. 

There is a potential that such a test might be seen as a medical benefit. In that regard, the Court noted that "the claimant always has the right to reject medical assistance," but conceded that there might be "consequences" from such refusal. 

The Court held that the absence of such statutory authority precludes ordering the FCE. Because there was no authority, the injured worker undergoing the examination would "cause Claimant irreparable harm." Returning to the distinction between an appeal and an extraordinary writ, the Court did not "reverse" the trial judge but "quashed" (reject or void) the judge's order requiring the FCE. 

The distinction is apparent. By demonstrating the requisite harm, and other facts, the injured worker did not have to undergo the testing. The trial judge's order is nullified. This case aptly demonstrates the effective use of the extraordinary writ. 

Thursday, July 20, 2017

Conferring Jurisdiction

"Jurisdiction" essentially means authority. In legal parlance, it may refer to a person, that is that a person is subject to the authority of a particular tribunal or court. It may be geographical, that is that a court has authority over some place. Or, it may be used to describe authority over certain cases or kinds of cases. Thus, one might discuss the "personal," or "geographical," or "subject matter" jurisdiction of a particular tribunal. 

This question of authority comes up in various contexts. One that is interesting, is who will decide whether a particular tribunal does or does not have jurisdiction. The Florida Supreme Court has held that this determination is always up to the individual tribunal. In Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958), the Court held “[A] tribunal always has jurisdiction to determine its own jurisdiction.” Thus, any challenges to a tribunal's authority would initially be made by that tribunal itself. 

To put this in the context of Florida Judges of Compensation Claims (JCC), whether the JCC has authority over certain person or certain dispute would be a question that the JCC would determine. And, all determinations of JCCs are subject to review by the Florida First District Court, see section 440.271 F.S. ("Review of any order of a judge of compensation claims entered pursuant to this chapter shall be by appeal to the District Court of Appeal, First District.")

The Courts have consistently held that Florida JCCs are "quasi judicial" and exercise statutory power (or "authority" or "jurisdiction"). Courts in Florida have "inherent" powers, to do those things that "courts" do. Courts do not necessarily need a statute to convey authority, as the authority of courts is vested by the Florida Constitution, and this "inherent judicial power" that is the hall mark of "courts."

There has been clear analysis that JCCs are not "courts." Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (2004). And, the Courts have repeatedly reminded that JCCs are “vested only with certain limited quasi-judicial powers relating to the adjudication of claims for compensation and benefits.” Smith v. Piezo Tech. & Prof'l Adm'rs, 427 So.2d 182, 184 (Fla.1983).

JCCs do "not have inherent judicial power but only the power expressly conferred by chapter 440.” Pace v. Miami-Dade County Sch. Bd., 868 So.2d 1286, 1287 (Fla. 1st DCA 2004)(emphasis added). In fact, “[a] JCC has no authority or jurisdiction beyond what is specifically conferred by statute.” Pace (citing Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999)).

That is a reasonably clear statement, without "buts," "excepts" or other qualifiers. JCC authority is "specifically conferred by statute." However, the Florida First District Court has periodically referenced  broad language in section 440.33(1)("and do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office") as affording some foundation for actions not specifically designated by statute. But the scope of that statute has also been restricted by the Court in various settings, and rejected entirely in others. 

For example that seemingly broad language has been interpreted as authorizing JCCs to issue protective orders. Hancock v. Suwannee County School Bd., 149 So.3d 1188 (Fla. 1st DCA 2014). And, the authority to determine attorney's fees distributions. Hack v. Drywall, 46 So.3d 1137 (Fla. 1st DCA 2014). But the interpretations have left some doubt as to the extent of authority (or "jurisdiction") conveyed by it. See In Morgan Yacht Corp. v. Edwards, 386 So.2d 883, 884 (Fla. 1st DCA 1980) and Millinger v. Broward Cty Mental Health Div., 672 So.2d 24 (Fla. 1996). These two cases illustrate that the Florida Supreme Court and First District Court of Appeal may not always agree on statutory interpretation. 

Thus comes an interesting question about JCC authority regarding appellate attorney fees. Generally speaking, attorney fees are addressed in section 440.34, F.S. This statute has been the subject of significant litigation in recent years, leading to decisions in Miles v. City of Edgewater and Castellanos v. Next Door Company. There has also been significant discussion over recent months regarding proposed amendments to section 440.34, F.S. following those decisions. 

But, there is also a provision of section 440.34, F.S. that addresses attorney fees when there has been an appellate review of some JCC's order.  Section 440.34(5), F.S. provides authority for fees in that instance:
(5) If any proceedings are had for review of any claim, award, or compensation order before any court, the court may award the injured employee or dependent an attorney’s fee to be paid by the employer or carrier, in its discretion, which shall be paid as the court may direct.
This provision establishes a statutory foundation upon which the appellate court may "award" attorneys fees. It appears to be limited to prevailing injured workers, and subject to the court's "discretion." But, can a JCC award a fee following a "review" or appeal? Certainly, there have been many instances in which the Court has determined entitlement to a fee and instructed the JCC to both determine the amount and order a fee. Some argue this statute does not empower the Judge of Compensation Claims to award such a fee when "proceedings are had for review of any claim." And, clearly, the JCCs are not a "court," which is the clear focus ("before any court, the court may," emphasis added).

Despite this, it is commonplace for the First District Court to "award" such an attorney fee, and instruct the JCC to determine the appropriate amount of such fee. The Court is making the "award" in terms of determining that an injured employee is entitled to such attorney's fees, but the Court is arguably not awarding such fees per se. The Court is instead ordering the JCC to determine the appropriate fee amount and to enter an order regarding the fee, arguably having the JCC "award" that attorney fee.

Some have argued that in this, the First District Court is not making an "award" at all in that setting, but is instead delegating its court authority to the JCC. The authority for this delegation is found in the Rules of Appellate Procedure, Rule 9.180(h)(3):
Entitlement and Amount of Fees and Costs. If the court determines that an appellate fee is due, the lower tribunal shall have jurisdiction to conduct hearings and consider evidence regarding the amount of the attorney fee and costs due at any time after the mandate is issued.
The "lower tribunal" is most likely always the JCC. Rule 9.180 is titled Appeal Proceedings to Review Workers' Compensation Cases. While it is possible that some other "tribunal" might decide some "workers' compensation case," perhaps as to the distribution of a third party lien or similar, the odds are that the vast majority of cases controlled by Rule 9.180 will definitionally be decisions of JCCs.

Thus, there is a Rule of Court, which essentially states that the JCC "shall have jurisdiction" to determine the amount of attorneys fees pursuant to section 440.34(5), F.S.. And, there are those who see a conflict in that construction. The statute empowers "the court," and clearly the JCC is not a court. The Rule purports to create jurisdiction in the lower tribunal, but the Florida First District has steadfastly held that “[a] JCC has no authority or jurisdiction beyond what is specifically conferred by statute.” 

The court has not mentioned rules as conveying jurisdiction or authority. The court has clearly held "no authority" except that "specifically conferred by statute." The Florida Supreme Court clearly has the inherent authority to create rules by which Florida's courts will operate, but cannot dictate procedure to the OJCC. The Court is clearly within its authority to adopt the Florida Rules of Appellate Procedure, but finds a separation of powers violation in creating rules for the OJCC. Some question whether the District Court delegating the responsibility of awarding appellate fees similarly violates the separation of powers issue.

Can the Supreme Court create jurisdiction over fee amount determinations by rule? Can the District Court delegate to the JCCs authority that the courts have been delegated by the legislature? 

Much may be learned about separation of powers from Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474, 478 (2004). The Court there concluded that the legislature once authorized it to "promulgate workers' compensation rules," but that "was an unconstitutional delegation of executive branch authority to the judicial branch." That delegation violated the "Separation of Powers Clause of the Florida Constitution. See art. II, § 3, Fla. Const." (“No person belonging to one branch [of government] shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”).

The Court, after decades of exercising authority and promulgating procedural rules in workers' compensation, awakened in 2004. It recognized that through those decades of promulgation the Court had been wrong. It had unconstitutionally assumed power, ignored the doctrine of separation of powers, and persisted for decades thereafter without any real critical analysis or justification. The legal world had accepted the Court's mistake as gospel, fallen in line behind the Emperor, and everyone assumed s/he was actually wearing clothes

Until one day, someone naively said "But he hasn't got anything on." Or, more precisely "But the Court doesn't have that authority." A great many learned experts decried that contention: "but of course the Court has authority to make procedural rules in workers' compensation" they said. And we "know that it does," they added, "because it always has." That, some argue is the greatest lesson of Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474, 478 (2004), that because the Court has always said something is so, does not necessarily mean that it is so. Courts make mistakes.

So, some question whether the Courts may delegate their statutory responsibilities to the Executive Branch JCCs. Jones v. Chiles, 638 So.2d 48, 51-52 (Fla.1994). The Legislature delegated to the "court" the authority to award an attorney fee. If it had not, arguably the Court would have such authority through its inherent judicial authority. But, does separation of powers preclude delegation by order or rule (Rule 9.180(h)(3)? Can these rules create jurisdiction when the court has persisted that JCC authority only includes that "specifically conferred by statute?” 

Any JCC's decision that s/he lacks jurisdiction to either determine fee amount or "award" appellate attorney fees would be subject to review by the First District Court. So in any given case, the same Court that has both ordered fee entitlement and ordered the JCC to determine fee amount would have to decide such an argument. It is possible that the District Court, faced with such an analysis, would analyze and explain as the Supreme Court did in Amendments. It is also possible that the court would eschew the nuance and once again merely order the JCC to do its bidding. 

As I pointed out recently in Another Look at Castellanos, sometimes the U.S. Supreme Court is right in its decision because it is the last court to hear a case. And, in Florida workers' compensation, the last court is most usually the Florida First District Court. It is therefore possible that whatever the District Court decided in such a case would be the "last word."

It is an intriguing discussion. Separation of powers, delegation of authority, and creation of jurisdiction are of interest. But, the an interesting question may be whether the status quo is accepted merely because that is the way it has always been, and whether anyone will ever assume the role of Hans Christian Andersen's protagonist "little child" and say "But the Court doesn't have that authority."




Tuesday, July 18, 2017

Another Look at Castellanos

A great deal has been said about Castellanos v. Next Door Company in the last year. I have written about it on a few occasions including A Potential Procedural Progeny Potential of Castellanos, Constitutional Law in Florida 2016, and Castellanos is Decided by Supreme Court. But for students of the law, the topic does not lose interest.

The decision is an intriguing one that departs from the mainstream of constitutional analysis. That mainstream generally categorizes constitutional analysis into two main groups, "facial" and "as applied." A determination that a statute is "facially" unconstitutional is a conclusion that it cannot render an appropriate outcome no matter the facts involved. That is, as regards Castellanos, that the formula in Fla. Stat. 440.34 would not render an acceptable fee in any case under any circumstances. Even before this case was decided, there were few, if any, that believed this statute was facially unconstitutional. 

There were those who vehemently believed that the statute was unconstitutional "as applied" in that case, because the resulting effective hourly rate at which attorney fees were awarded was so low. The "statutory fee" that resulted in Castellanos (because of the combination of the moderate or low dollar value of the claimed benefits and the significant investment of attorney hours obtaining them) was $1.53 per hour. In another case, now decades ago, the significant dollar value of benefits and relatively moderate volume of hours invested by counsel yielded an effective hourly rate of "of over $4,000.00 per hour." What an Idea Inc. v. Sitko, 505 So.2d 497, 503 (Fla. 1st DCA 1987). The statute was not unconstitutional as applied in that case because of the high effective hourly rate. 

There have been those over the recent years who have suggested that perhaps some cases yield low (effective hourly rate) fees and other yield higher fees. They suggest that perhaps there is an overall average affected by all of these various cases, and that such a macro analysis is more indicative of fee sufficiency than selecting any one case for the analysis. 

There have been others over the last year that have explained to me that the statutory fee should be viewed as a "floor," providing a measure of predictability for attorneys. They argue that the departure from that fee should be considered in situations analogous to Castellanos but not considered in situations analogous to Sitko. This apparently advocates a micro analysis when effective hourly rates are deemed insufficient, but a more macro view whenever the fees are not deemed insufficient. Some will find fault with an analysis so focused. Others argue that the fee analysis might as readily lead to a decrease or increase. 

I have heard these two, and other interesting analysis and justifications for various positions and postures over the last year. I find them all interesting. The point is that various people have different perceptions of how the Florida workers' compensation fee statute should work and what would be "fair." The 2017 legislative session certainly stimulated a fair volume of discussion regarding that topic, with many conflicting, but nonetheless seemingly sincere, views expressed. 

But, Castellanos was not decided on the analysis of "facial" or "as applied" constitutionality. Some might even argue that Castellanos was decided on an analysis of what would provide expediency. The Court noted, in response to one Justice's opinion, that a case by case determination of "as applied" would be a procedural challenge. 

The Castellanos decision is founded upon the concept of an "irrebutable presumption." The Court concluded that an irrebutable presumption cannot stand in the face of due process guarantees of the constitution. As support, the Court cited Recchi America Inc. v. Hall, 692 So.2d 153 (Fla. 1st DCA 1997). Recchi involved Section 440.09(3):
No [workers'] compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee.... If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee's blood, or if the employee has a positive confirmation of a drug as defined in this act, it shall be presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. (Emphasis added). 
This, the Court concluded, "creates an irrebutable (or conclusive) presumption that violates the constitutional right to due process." The District then applied a three-part test regarding the constitutionality of "irrebutable presumptions," from the Supreme Court's analysis in  Markham v. Fogg, 458 So.2d 1122, 1125 (Fla.1984)Bass v. General Dev. Corp., 374 So.2d 479, 484 (Fla.1979).

Markham v. Fogg, 458 So.2d 1122 (Fla.1984) interpreted "agricultural classification" under Section 193.461, Fla. Stat. The Court concluded that " section 193.461(4)(a)3.(1973) is in the form of a mandatory presumption." That section provided:
(4)(a) The assessor shall reclassify the following lands as nonargicultural:

3. Land that has been zoned to a nonagricultural use at the request of the owner subsequent to the enactment of this law, or
The Court found persuasive that this section did not allow a landowner to "present evidence in opposition to the appraiser's reclassification," which another section of the same statute, Section 193.461(4)(c), did:
(c) Sale of land for purchase price which is three or more times the agricultural assessment place on the land shall create a presumption that such land is not used primarily for agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted."
The Court concluded that the "clear legislative directive to the property appraiser" of Section 193.461(4)(a)3. is therefore "in the form of a mandatory presumption." This conclusions despite the absence from that section of the word "presumption" or "presume" or any similar indicia of presumption. Markham, 458 So.2d 1122, 1125 (Fla.1984)

Bass v. General Dev. Corp., 374 So.2d 479, 484 (Fla.1979) follows a similar analysis of the same statutory provision, concluding, without citation of any authority, that Section 193.461(4)(a)4(1975) "creates a conclusive presumption." That Section states:
(4)(a) The assessor shall reclassify the following lands as nonagricultural:4. Land for which the owner has recorded a subdivision plat subsequent to the enactment of this law. 
Again, no mention of "presume" or "presumption" in the statute. The Court then engages in an analysis of the Due Process Clause and the same three element test engaged by the Court regarding Due Process in Markham and Castellanos:
(1) whether the concern of the legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid; (2) whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and (3) whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption. See Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)Gallie v. Wainwright, 362 So.2d 936 (Fla.1978).
Thus, one might argue, that the three point analysis employed by the Court is dependent upon the conclusion that a statute is an "irrebutable presumption." That conclusion might be reached based upon statutory language that states there is a presumption. Recchi America Inc. v. Hall, 692 So.2d 153 (Fla. 1st DCA 1997). Or, as in Bass, Markham, and Castellanos, that conclusion might be reached about a statute section that makes no mention of presumption in any context, tense or form. 

And, from this, one might conclude that any statute which affords no judicial discretion is an irrebutable presumption, potentially unconstitutional under the three-step process described by the Court in Weinberger and Wainright. As noted in Wainright, there is also a "more stringent" test of the Due Process analysis. It is used when "a constitutionally preferred right or privilege is in issue," see Vlandis v. Kline, 412 U.S. 441, 452 (1973). 

It is worth remembering that the Supreme Court of the United States is always right. This is because it is the last court to which one may apply for relief. As there is no further court in which one could pursue one's case. the outcome at the U.S. Supreme Court is always right. Associate Justice Robert Jackson is credited with saying "we are not final because we are infallible, but we are infallible only because we are final." An interesting interpretation of the role of courts in America. There are those who find Justice Jackson interesting reading. For those with an interest in constitutional analysis, Jackson's dissenting opinion in Korematsu v. United States, 323 U.S. 214, 242-245 (1944) is interesting reading.

As regards interpretation of state law, the same "final" analysis might be undertaken. Many have stated that there is little to no chance of the United States Supreme Court reviewing workers' compensation decisions. The time has passed for such review of Castellanos in any event. It is interesting to listen to various opinions regarding the appropriateness of the decision. There are those who continue to criticize the Court's insinuation of "presumption" into a statute with no mention of that word. They predict a future in which other statutes might be similarly evaluated without due consideration of their actual words. 

However, the decision in Castellanos is "final," and as it is final, it is in fact infallible according to Justice Jackson. It is possible that future analysis may find fault with its logic or interpretation, but it is today the law of Florida; despite the enjoyment some seem to glean from continuing to discuss it?

Sunday, July 16, 2017

Smart Phones and Kids in the Mile High State

We are struggling with technology, perceptions, and parenting. The world is changing around us and as individuals I think we are each struggling with change at some level and in some context. 

I recently read about a bit of a backlash against technology, particularly for kids. CNN reports on an effort by a Colorado physician to ban the sale of smartphones for children under 13 years of age. The motivation is Dr. Timothy Farnum's perceptions of his own son's "addictive behaviors toward the technology." Denial of the technology to his son resulted in "a pretty dramatic, very violent outburst." Dr. Farnum is also disturbed by "his 10- and 11-year-olds' loss of interest in activities such as playing outside."

I was reminded, as I read that, of the recent legislative debate in Florida regarding "addiction" and "compulsion." I  wonder if Dr. Farnum's son is actually "addicted" to technology as he asserts, or whether he is a "compulsive" user? However, I have heard the lament about how little time young people spend outside these days. And, video game pervasiveness is perhaps empirical. NBC news recently reporting young millennials are working less, and the young men are gaming more. Whether "addiction" or "compulsion," are gaming habits a product of early introduction to our youth?

An organization has been founded in Colorado, "Parents Against Underage Smartphones." The collective goal is to control parenting and thereby enforce the common good (good government, good parents, good kids). They are seeking "150,000 signatures in order to get Initiative 29 on Colorado's ballot." If passed, the law "would require retailers to ask a customer their age or the age of the intended primary owner of the smartphone before the sale." The stores would "have to file a monthly report" documenting who bought smartphones and "how old the owner was at the time of the purchase."

Selling a smartphone to be owned or primarily used by someone under 13 would "result in a written warning, the second violation would carry a $500 fine, and the fine would double for each subsequent violation." The import of this is that smartphones are allegedly seriously bad for children under 13. For comparison, the Colorado Department of Revenue website outlines retailer fines for selling cigarettes to minors, and those fines are $250.00 to $15,000.00, after the retailer has been issued a warning. The penalties for cell phone (with the doubling) might well exceed fines for cigarettes. 

Colorado has elected to decriminalize marijuana, allowing anyone over 21 years old to purchase and consume it at will. According to Colorado.gov, adults that provide marijuana to kids "may face civil or criminal penalties" and retailers "can lose their license for selling marijuana to anyone underage." According to Norml.org, the sale or transfer of "not more than 1 ounce" to a minor can be penalized by 6 to 24 months in jail and fine of $1,000 to $100,000.00 ("transfer" is broad, a parent might be imprisoned or fined for providing marijuana to a child; but no penalty for the parent that provides a smartphone?). So, distribution of marijuana to minors remains criminal, and potentially more expensive than the proposed cell phone penalties.

As an aside, I have wondered about second hand smoke from marijuana. But in a recent Florida court filing, it has been asserted that "there have been no reported medical cases of lung cancer" attributed to marijuana." Perhaps there is no risk from "second hand" smoke as regards marijuana. I have found no prohibitions on smoking weed around minors. 

I have also seen a trick where one shields the combustion portion of a pipe and blows air, causing a stream of smoke to emit from the mouthpiece of a marijuana pipe. The context of this action, sometimes referred to as "shotgunning" is to propel smoke into a second person's mouth and thereby lungs. There is also purportedly something called a "shotgun kiss" that accomplishes something similar. I have not found anything specific on this, but wonder if someone providing smoke to a minor in this way would incur similar penalties?

Colorado.gov assures us that exposure to secondhand smoke "is unlikely to make you 'high'." But, it also notes that "marijuana smoke, both firsthand and secondhand. contains many of the same cancer-causing chemicals as tobacco smoke." It encourages smokers to "protect your children and family from the effects of second-hand smoke." Now that may just confuse everyone in light of the assurances that "there have been no reported medical cases of lung cancer" attributed to marijuana."

But, putting concerns of weed and second-hand smoke aside, "Parents Against Underage Smartphones," have instead elected to take on what they see as a greater risk to Colorado's children, the smartphone. Dr. Farnum admits that some have been critical of the effort, suggesting that the smartphone decision should be left to the individual parent (the same parent perhaps that decides whether to blow dope around the kids). Cell phone industry groups have suggested an alternative approach in which parents would "talk with their children about responsible use and set rules that are right for their family." It is unclear why that solution is not preferred. A professor of pediatrics cited by CNN advocates for setting usage parameters, parental monitoring, and conversations between kids and adults.  

As I wrote this, I was reminded of a 2015 movie about video games, Pixels. In it, aliens attack Earth with an assortment of video game iterations from the 1980s. Confronted by this challenge, the President assembles the best and brightest at the White House for discussions. One leader, Admiral Porter, has a recurring solution to the challenge, to "bomb" whoever is responsible, eventually suggesting "let's bomb google." There is a viable solution, no matter what, let's bomb something, or should we just ban something?


There is general support for the concept of technology addiction. A recent study concluded that "over a third of Internet users worldwide agree they have a hard time disconnecting from technology." The study seems to support that the impact of technology, and the struggle to disconnect, is more prevalent with teenage users. But, in that broad concern is another question or two. Should this Colorado ban address tablets, laptops, desk tops, or consoles like the PS4, Wii, or XBox? Are games and gaming more addictive or more damaging if they are on a phone? Some will argue that phones are more accessible and portable. Perhaps. But the marketplace is full of an assortment of "handheld" video game devices. 

There is evidence that studies support "screen time" can present risks of "expressive speech delay" in children under 2. A demonstrable harm attributed to use by the very young. But, there is no data cited to suggest that "screen time" on a cell phone is any different than the "screen time" on any other type of handheld or console device. 

So, will the state that seemingly leads the nation in the unprosecuted production and distribution of marijuana be the first state to monitor and regulate children's possession of smartphones? Is there risk in secondhand smoke (intentional or inadvertent)? Is the distinction between the vast array of gaming options and the smartphone valid? Would the better answer in these contexts be better parenting, parameters, and conversations? If you had told me ten years ago that smartphones would be seen as a bigger risk to kids than marijuana, I would have laughed. But, who's laughing now?


Thursday, July 13, 2017

Offensive is Protected (somewhat at least)

There has been so much written about freedom of expression lately. There are those in our society that wish to never be offended. They seek government intervention to protect them from the statements of others. There are even those who advocate repeal of the First Amendment to the United States Constitution, arguing that both the framers were, and and the document is, "flawed." 

Fox News reported in 2015 that Ivy Leagers sign 'petition to repeal First Amendment. The National Review reported that "many Americans support making it a criminal offense to make public statements that would stir up hatred against particular groups of people." The NY Times reports that American universities have striven to provide "safe spaces" for people to shelter from speech that they might find "troubling or triggering." That has not been without controversy according to the Atlantic

In a general sense, America seems to be eschewing the age-old maxim that "sticks and stones may break my bones, but names can never hurt me," which most will remember as a recess mantra of some bygone era. Another favorite was "I'm rubber, you're glue, everything you say sticks right back to you." Ah, those were the days, remember recess? If you were looking for a definitive "non-safe zone" the elementary school playground was often a good bet back in the day. 

Incidentally, this year House Bill (HB) 7069 passed in Florida, which requires "free-play recess" for students. We have to legislatively force schools to provide recess. Don't get me wrong, I like recess (why not a statute that mandates "free-play recess" for workers' compensation judges?). But, I digress. 

Can we make the world "offense free?" There are efforts underway. There are street names being changed, college buildings being renamed,  statutes being removed, statutes being replaced, emblems being reconsidered, and even lawsuits over state symbols. Each represents some level of offense perceived by someone. However, recognizing that people are individuals, can we build an environment that is not offensive to anyone? One might win the Nobel Prize and yet not enjoy universal acceptance or admiration. Can the city name the street I live on after such a Prize winner with whom I disagree?

This subject arose again recently with the United States Supreme Court's decision in Matal v. Tam, 137 S.Ct. 1744 (June 2017). Simon Tam is a singer and his band is called "the Slants." Mr. Tam tried to register "THE SLANTS" as a trademark, to protect the intellectual property of his band. The Patent and Trademark Office (PTO) denied that application under a provision of "the Lanham Act" (note there is no "g" there, no relation whatsoever). This law prohibits "registration of trademarks that may 'disparage . . .or bring  . . . into contempt or disrepute' any 'persons, living or dead.'" The PTO found the term "slants" offensive in this context and therefore denied Mr. Tam's application. He sued, after all that is the American way. 

This is commonly referred to as the "disparagement clause." And, there is certainty that the term "slants" can have a negative and even insulting connotation. But, Tam is of Asian descent and he "chose this moniker in order to 'reclaim' and 'take ownership' of stereotypes about people of Asian ethnicity." Similarly, the band has named its albums "The Yellow Album," and "Slanted Eyes, Slanted Hearts." This appropriation is not new per se, others have expressed that the same logic, of appropriation and ownership. It has been employed by others who appropriate insulting epithets directed at their own perceptions of identity. There is a perceived power in appropriating derogation and denying words power over one's self. 

An eight judge unanimity of the Unites State Supreme Court concluded in Tam that employment of the "disparagement clause" is an unconstitutional infringement of "the First Amendment's Free Speech Clause." The Court rejected the government's contention that by granting such a government protection (trademark or copyright) that the speech would become "government speech." In a humorous paragraph, Justice Alito noted
For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or “Have it your way” (Burger King)? Was the Government warning about a coming disaster when it registered the mark “End Time Ministries”?
These are great examples. By the same token, is the government endorsing someone is actually a Good Neighbor, that you will actually Be all You Can Be, or can eat your way to success with the Breakfast of Champions? Is government endorsing that we Eat Fresh, or Got Milk, or that something might actually be Good to the Last Drop? Let's face it, a great many trademarked promotional phrases make some pretty strident promises. 

Justice Alito wrote that if trademarks were government speech, then undeniably "The Federal Government is babbling prodigiously and incoherently" (some might find such a characterization to be offensive, but I am sure none was intended by the Justice). It is possible that this potentially offensive characterization hurt the feelings of some few government lawyers at the PTO (who may have simply adopted a "sticks and stones" stance in response, or who may now be seeking counseling to assuage their insulted feelings). 

This characterization of trademarks being "non-government speech" is compared by the Court to actual government statements. Coincidentally, the Court has held that "monuments in the park represent government speech." That distinction may be of interest in the instances of building renaming, statute removal and more discussed above. The Court similarly dismissed comparisons to the content of messages on state-issued, state-owned, vehicle license plates. These actually are government speech, and perhaps treated differently than individual speech. 

So, the law currently, seemingly, supports that free speech protections of the First Amendment protect the private ("non-government") expression of ideas that are offensive to some. Mr. Tam has won his right to appropriate and copyright a term that to some derogates his heritage, but by which he refuses to be personally offended. He has won the right to use and protect the term. 

It is nonetheless possible that others of Asian descent and heredity might nonetheless take offense at THE SLANTS. It is possible (or factual) that Native Americans, or those of native American descent, could find the Washington Redskins trademark as offensive. That is a trademark that has similarly been in the news in recent years. A federal judge in 2015 ordered "Redskins" and other trademarks cancelled because they were "disparaging to a substantial composite of Native Americans." 

And, there will be discussion in the future about whether our individual identity, or identity perceptions, matter in the delineation of offense. Is it acceptable for Mr. Tam to appropriate the potentially offensive "SLANTS" because he is of Asian descent, or will equal protection be afforded if a non-Asian seeks to use some similar potentially offensive term? Does the identity of the user matter? 

That will be at least two-fold, does identity matter in trademark (will the non-native american owners of the Redskins receive the same treatment as Tam), and does the identity matter in public perception (will society be more forgiving of spoken utterances of derogation if they are spoken by those they originally or traditionally disparaged)? Despite receiving a trademark, might some individuals nonetheless stage protests against either the Redskins or the Slants?

The fact that the law protects this speech seems settled, at least in this PTO or trademark context. But, that does not mean that language will not offend or hurt (the fallacy of "sticks and stones" is that words really do sometimes hurt, like it, admit it, or not). Does it matter in that context that the speaker is self-deprecating or appropriating as strength (as in Tam or Kanye), as opposed to purposely insulting others? May a listener be offended by such expression despite the identity or intent of the speaker? 

In a far broader context, is it possible to render the world an "offense free zone," or even to render smaller "zones" so? It seems a difficult proposition, particularly in light of the subjective nature of people's perceptions. What might seem innocuous to many in Tallahassee (an FSU Seminole jersey, bumper sticker, or lapel pin) might be downright offensive to some whose loyalty lies in other 'villes around Florida. Can one freely eat a hot dog without fear of offending some passing vegan? There seems so much that might offend, upset or disconcert. I have seen fist fights erupt over the relative desirability and reliability of the Bow Tie versus the Mopar. 

It is a fascinating discussion, about speech, expression, government involvement, offense, perceptions, feelings, and more. Perhaps it will turn out that each of us will invariably hear and see things periodically that offend or hurt us. Not necessarily because someone intended to hurt us, but because the speakers have no way of knowing our individual thoughts, beliefs, and trigger points? Is it possible that there might be a little "snowflake" in all of us, but that some of us internalize and cope with our offense more? Or, is "snowflake" per se offensive and inappropriate to say or to trademark?





Tuesday, July 11, 2017

The United States of Xanax

A recent NY Times article caught my eye. No, I do not subscribe to the Times (or any paper for that matter), but this story was found sitting next to me as I recently awaited a flight. The headline was "An Anxious Nation," but when I looked it up online for this post the name had been changed to "Prozac Nation is Now the United States of Xanax." 

The NY Times reports that Americans are anxious. One source cited in the article claims that “If you’re a human being living in 2017 and you’re not anxious, there’s something wrong with you.” That may be just a bit disconcerting for the rest of us I guess. But, perhaps it is just a matter of vernacular, as the author suggests that we are perhaps merely using the word "anxious" more often and more freely. It is suggested that it "has become our everyday argot."

The analysis draws a comparison between anxiety and depression, which the article stresses "are medical conditions," but suggests that "anxiety is (also) starting to seem like a sociological condition." And, the suggestion is that it may begin with over-scheduled, helicoptered youth targeted on the successful end-game, with too little focus on just growing up. It suggests that anxiety has become a "shared cultural experience" that is spread to us all through constant exposure to news and social media. In support of this hypothesis, it is suggested that today's "it" diversion, the fidget spinner" has found a home with a great many people, an endless expenditure of "nervous energy rendered in plastic and steel." 

The Times notes that youth from 13 through 17 have high volumes of diagnosed anxiety disorders, between 26% and 38% depending on gender. Anxiety is said to be "the most common  mental health concern" on American college campuses, surpassing depression. Thus, the revised article title reference to Prozac (for depression) and Xanax (for anxiety and panic disorder). College students report that they suffer from anxiety, having focused for years on success. 

One student described how " the pressure began building in middle school when she realized she had to be at the top of her class to get into high school honors classes, which she needed to get into Advanced Placement classes, which she needed to get into college." This is a cycle that I have certainly heard over years of parenting and extra-curricular activities. The quoted student has seen two effects. First, she now attends prestigious University of Michigan. But, she also has "has A.D.H.D., anxiety and depression."

The Times attempts to draw comparisons between the generations, suggesting there is some logic in the evolution from diagnoses of depression to anxiety. There is suggestion that faith in national leadership has affected generations, who have little belief in those who might explain to them where they fit in the grand scheme of life. The Times lauds a former "low key" President and laments "a fast-talking agitator from New York," but seems to ignore that America's anxiety is not a months-old phenomena. 

There is a conjecture that people lack self-confidence, foisted persistently on the petard of social media. Conversation is perceived as a dying art. A trip to virtually any eatery will surround you with groups in social outings, but submersed in their individual digital nirvana. I recently saw a group of youths sitting and keyboarding. There erupted a coincidental laugh by all present. I inquired how that coincident was choreographed, and learned this group was sitting together, but was texting with each other in "conversation" rather than speaking. Their out-loud laughter a spontaneous human reaction to their techno-interaction. 

The Times suggests that anxiety stems from "the Cold War, staring China, North Korea, and Russia." But, it conveniently omits mentioning that the Boomers who grew up in the real Cold War had Armageddon drilled into them, from the nightly news, to school-sponsored "duck and cover drills," (which drills the Times does acknowledge later in the discourse). And, despite that very real Cold War on the heals and memories of the greatest war in history, fought by America's Greatest Generation, anxiety was still not so prevalent in the 1970s and 1980s. 

The Times seemingly struggles to associate this anxiety with the current state of America, and ignores the Billy Joel adage that "the good ole days weren't always good." The 1930's brought economic devastation, the 1940's brought unprecedented global war, the 1950's a chilling Cold War, the 1960's unrest, protest, and violence, the 1970's the Great Inflation. Sure, the 1980's might seem a respite, but only because you choose not to remember Sammy Hagar, Twisted Sister, and the Scorpions (just examples). As Berkely Breathed reminded us periodically of the 1980's "there's a whoooole lotta higgledy-piggledy happening out there," and there was.   

Perhaps the problem is not that the world is in a state of confusion, conflict and disarray. That situation has seemingly been fairly consistent (I cannot remember a time when there was no violence or discord in the middle east, can you?). Perhaps the problem might be addressed by something other than lamenting the passing of the "good ole days" (that weren't always good), and wishing. 

The Times article, despite its various wild pitches, does perhaps identify one of the real issues. That is the access to information. Perhaps in the 1970's we could all just choose to ignore the nightly news. Perhaps it was easier, before social media and the 24 hour news networks, to simply ignore some or all of what was going on around us? Perhaps we were happier with believing we were overweight, athletically challenged, unskilled, awkward, shy and more without some "shamer" reinforcing our individual weaknesses?

But, I recently listened to a program that may bring another aspect to light. This speaker, whose name I missed while driving, lamented that the great onslaught of helicopter parenting, participation trophies, and more have produced a generation or two of Americans that don't deal well with adjusting. The speaker suggested that all of those painful childhood experiences (not getting picked for the team, not being invited to the party, not having a date for the dance) all confronted us with uncomfortable and painful results. 

That speaker claimed that we are who we are today because we were forced by those experiences to get back up, dust ourselves off, and move on. The suggestion is that by making our world "safer" (emotionally and physically, but certainly artificially) for children in recent decades we are depriving them of those challenges, defeats, and resulting opportunities to recover, learn, and grow. 

I am no psychologist. But, I see some merit in The Times' quote of Mr. Stossel that “Every generation, going back to Periclean Greece, to second century Rome, to the Enlightenment, to the Georgians and to the Victorians, believes itself to be the most anxious age ever.” And in that vein, so that you understand that I am not parent-bashing, perhaps every generation of parent perceives itself to be the most challenged. Each generation of parents has undoubtedly intended the very best results and success for the next generation. 

So, while there may be plenty about which to be anxious, perhaps we can find solace in Billy Joel (no, not the "good ole days" quote). Let's perhaps instead "keep the faith," "listen to our 45's" and remember it is "wonderful to be alive," whatever that brings. And, if someone decries your truth or opinion on social media or the nightly news, turn it off. Who needs them anyway?