Tuesday, September 19, 2017

Social media and judges

The ABA Journal recently reported that a Texas judge is subject to some scrutiny as a result of social media. Meanwhile, a District Court in Florida takes a different path regarding Judges and Facebook. And, an Alabama Judge's Facebook activity led to a disqualification petition with the Alabama Supreme Court. All three are stories worthy of Judges paying attention. 

I have written about social media, most recently in Sharing Everything of is it TMI. The perils of social media surround us, see Assume Everyone is Watching. Everything that we say, do or write may become part of the social media environment whether because we post it or because someone else does, see How are People Viewed and Treated. One of the most perilous platforms for judges is Facebook, in part because if its vernacular choice, labeling people as "friends," See Will You Be My Friend?

In multiple professional presentations, I have cautioned judges that the best way to stay out of trouble on Facebook is to stay off of Facebook completely. But that brings us back to our Texas Judge. 

According to the ABA, this judge was in the midst of a trial, a criminal case involving an allegedly drunk river. A friend was corresponding with the judge about personal issues ("he was home with a cold"). After receiving the "home with a cold" message on Facebook, this judge replied:
I’ve had the worst cold but instead of staying home I’m being tortured by an attorney in a trial. So, I’m actually jealous of you!
But the judge's reply was not viewed merely by her sick friend. An issue with social media is that things people say are not private, nor intended to be, and can often be seen by a great many people. In this instance, the response "raised some eyebrows among Austin criminal defense lawyers." The local lawyers had some questions, according to the Statesman

One attorney quoted by the Statesman said that the comment was a harmless joke. He characterized it as an attempt to make a sick friend feel better. Others were not as forgiving. 

One of the attorneys involved in that trial reportedly said that he did not believe it was a joke. He believed that "she said that on purpose and she was being rude." He described the decision to post that comment on social media as "eye-popping," "disrespectful," "unprofessional," and "unethical." He also contended that the comment violated the criminal defendant's constitutional rights (he represented the defendant). Though the judge did not say which particular attorney in the trial was "torturing" her, it could have been a reference to the defense attorney. 

In Alabama, the Supreme Court has temporarily halted a murder trial over Facebook. There, a police officer is accused of killing a motorist during a traffic stop. There are racial overtones to the case, and before the case was assigned, the eventually-assigned judge wrote on Facebook about racial profiling. The defense moved to disqualify the judge, but that was denied. An appeal of that decision to an intermediate Alabama appellate court did not result in disqualification. Now the Alabama Supreme Court will decide.

In Florida, the Third District Court concluded in Herrsein v. USAA, Case No. 3D17-1421 that being "friends" on Facebook is not grounds for disqualification of a trial judge. There, one of the attorneys and the trial judge are "friends" on the trial judge's personal Facebook page. The Court acknowledged that the Fourth District Court has already concluded that such a "friend" ship has supported disqualification. That decision was in part based upon a 2009 opinion of the Florida Judicial Ethics Advisory Committee (JEAC) that concluded Florida Judges are precluded from having lawyers that appear before them as "friends" on Facebook. 

But, the Third District concluded here that “[a] Facebook friendship does not necessarily signify the existence of a close relationship.” It examined a Fifth District decision questioning both the Fourth District decision and the JEAC opinion. The Third District was also persuaded by several out-of-state Facebook cases that involved trial judges who were "friends" with witnesses or potential witnesses in cases. After a discussion of the methodology of "friend" selection and applied mathematics, the court discounted the Fourth DCA's conclusion that a "judge’s selection of Facebook 'friends' necessarily 'conveys or permits others to convey the impression that they are in a special position to influence the judge.'”

So, in Texas, a judge's comments lead to criticism, the Alabama Supreme Court will address comments, and in Florida it is now quite unclear whether judges should participate in Facebook or how they should deal with "friends." There are multiple issues. 

As to comments, were either the Alabama or Texas judge "wrong?" People may perceive things differently. In the judicial realm, there are dangers of impropriety, undoubtedly. But, the greatest challenge that judges face is often not so concrete. Judges are governed by the Code of Judicial Conduct, and that code can be very broad. 

One phrase continuously comes up for discussion. The Code (each state has their own, but this phrase or a similar statement is in many) precludes both impropriety and the "appearance of impropriety." That means that judges should avoid things that a reasonable person might view as inappropriate, even if the action or words are genuinely not necessarily "actually" inappropriate. That is a tough burden. In essence, Judges must be on their individual guard regarding how they speak and act (appropriate) and how others perceive their words and actions. 

In large part, the Florida decision centers on that standard, and whether reasonable people perceive the existence of a Facebook "friendship" as actually connoting a relationship. The opinion cites multiple examples of witnesses, parties, and jurors who have over a thousand "friends," in some instances unknowingly including someone else involved in a particular legal case. The Court seems focused, in that, upon whether there is a perception today that Facebook interaction is meaningful or connotes relationship, or whether "friends" has devolved to the colloquial labeling that exists in all social media in some form (though one is "linked" to or "follows" another may not connote actual interest in or "following" in reality.)

But, with that standard in mind, are the Alabama and Texas cases different? Certainly, an appearance of impropriety could be grounds for disqualification under the Code. And, perhaps the mere existence of a connection, be it labelled "friend" or not, could raise such an appearance. But what about when the Judge's activity on Facebook is the issue rather than merely the existence of connection?

Canon 2 of the Code says
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities.
Canon 3(b)(4) of the Code says
(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity,
Canon 3(b)(5) says
A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice,
Canon 3(b)(9) of the Code says
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.
In Alabama, the judge wrote about his personal perceptions of experiences with the police. Those comments were made before this particular litigation was assigned to him. Therefore, it is not a comment "while a proceeding is pending," and likely not necessarily "impending." However, could a reasonable person conclude that the words manifest a bias or a prejudice?

In Texas, the judge wrote about lawyer "torturing" her. Many would likely conclude that if such a statement were made to an attorney in court it would be less than patient or courteous. Should it matter that the statement was broadcast on social media instead of being made in court? Does such a comment, made while the "proceeding is pending" have any potential to "affect its outcome?" 

These three cases raise a fair few questions about how the Code could be implicated. I remain unconvinced that the best advice for Judges and Facebook is not "stay off of Facebook completely." However, perhaps the more realistic advice in today's social media age would be to avoid commenting in any media regarding a case that is pending before you. Whether the Texas judge's comments would warrant sanction or disqualification, there is the potential for a perception of discourtesy or an appearance of impropriety. 

Sunday, September 17, 2017

Kansas Cannot Prosecute Identity Theft

The Kansas Supreme Court recently rendered an intriguing decision in State v. Garcia. A companion decision was simultaneously rendered in State v. Morales. The decision written by Justice Bieir, despite two dissenting opinions, essentially legalizes identity theft in Kansas. 

Ramiro Garcia was prosecuted "for identity theft for using another person's Social Security number to obtain employment." Mr. Garcia used "the Social Security number of Felisha Munguia." obtain restaurant employment." He was convicted, but the Kansas Supreme Court concluded that Kansas may not prosecute identity theft because its statute is "expressly preempted" by "the federal Immigration Reform and Control Act of 1986 (IRCA)." 

Mr. Garcia was involved in a traffic stop. Based upon a "routine records check," the police contacted his employer and obtained his "[e]mployment application documents, possibly the W-2, the I-9 documents." The investigation led them to charge Garcia. In Kansas, it was illegal to "use, sell or purchase any personal identifying information, or document containing the same, . . . with the intent to defraud that person, or anyone else, in order to receive any benefit. K.S.A. 21-6107, K.S.A. 21-6804 and K.S.A. 21-6807." 

The investigation revealed that Mr. Garcia completed an I-9 form in obtaining employment, and the information from that form "was transferred to a W-4 form." Mr. Garcia also completed digital W-4 and K-4 tax forms. These both "contained a Social Security number," and were "digitally signed." These were admitted as evidence by the trial court. The Social Security number did not belong to Mr. Garcia. Based upon IRCA preemption, the trial court excluded the I-9 from evidence, but admitted the W-4. 

Mr. Garcia appealed his conviction alleging that criminalizing identity theft is unconstitutional "based upon the Supremacy Clause of the United States Constitution." The constitution has been interpreted as allowing the Congress to "preempt state law." Preemption is a complex legal issue. The Court discusssed "eight possible ways a party may challenge" state law through preemption. 

The Kansas Supreme Court made it a point to remind that its decision was based upon Mr. Garcia's challenge of "the use of law of general application to himself alone." The challenge was thus an "an as-applied claim." This distinction has been discussed previously in this blog. Other courts have been less definitive in their discussion of constitutional challenges, and have left considerable doubt and chaos in their wakes as a result. But, the Kansas Court was clear, "The relief provided in this case will flow solely to Garcia." 

Of course, others may mount similar challenges regarding the application of the law to themselves. As the court explained, Mr. Garcia "does not seek to prevent all prosecutions under the state law." Therefore, this "challenge can fairly be characterized as 'facial' in the traditional sense only insofar that its holding will apply to other aliens," specifically, other aliens who "use the Social Security card or other document listed in federal law of another for purposes of establishing employment eligibility."

The Kansas Court recited various preemption maxims. First that courts "presume no preemption." (Citations omitted). And, that courts "read federal statutes whenever possible not to [preempt] state law." (Citations omitted). Essentially, if a federal law is "susceptible to more than one plausible reading, courts ordinarily accept reading disfavoring preemption." Despite these, the Kansas Court concluded that preemption precludes the prosecution of Mr. Garcia not because of his I-9 form, which was not evidence, but because other forms that included the same information found on the I-9 form were evidence.  

The Court noted that "Congress included an express preemption clause" regarding forms required by IRCA, such as the I-9. That preemption says "A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter . . .." But, the Kansas Court extended that prohibition markedly by banning any evidence, in whatever form, that is coincidentally on the I-9 form. Its logic bans fraud involving a person's name, date of birth and more.

The Kansas Court conceded that Mr. Garcia was not prosecuted for violating federal law, but "under a generally applicable statute prohibiting identity theft." However, the Court held that 
Congress clearly and manifestly intended to prohibit the use of the Form I-9, documents attached to the Form I-9, and documents submitted as part of the I-9 employment verification process, whether attached to the form or not, for state law enforcement purposes . . . . 
Thus, the I-9 form, Social Security card or copy, and other documents attached to or required in verification of the I-9 form may not be used in the enforcement of state laws. The Court conceded that some information was also used in the "W-4 and K-4," but concluded that this information was effectively "part of the I-9," and therefore not usable to enforce state laws. 

Justice Biles dissented from the Court's holding. The justice noted this decision and its "rationale sets up a sweeping prohibition against identity theft prosecutions." And that "The statute does not make it illegal to attempt to secure employment as an unauthorized alien." Factually, "immigration status was not relevant to whether this conduct was unlawful." What was relevant under the law was whether the applicant was providing false information or not, on forms like the withholding form (W-2 and K-2). 

Justice Biles concluded that the Court in Garcia held that "federal law effectively prevents any prosecution under the Kansas identity theft crime occurring in the employment context if it relies on information that also just happens to be on or attached to a Form I-9." Justice Biles noted that this interpretation of "information contained in" applied by the court to that information "wherever else it might be found" such as the other forms, is too expansive. 

Justice Biles clarified that Mr. Garcia was 
not convicted for using someone else's identity on Form I-9 to deceive his employer as to his work authorization. Instead, Garcia was convicted for using another person's Social Security number on tax withholding forms.
Justice Biles concludes that the Court's analysis "stretches statutory interpretation past the breaking point," and inappropriately ignores other appellate decisions in Arizona, Iowa, and Minnesota. 

Justice Stegall joined Justice Biles' dissent and also wrote to explain. Justice Stegall said that the Court's decision "appears to wipe numerous criminal laws off the books in Kansas—starting with, but not necessarily ending with, laws prohibiting identity theft."

Justice Stegall expressed doubt that the logic of Garcia would "be extended beyond the narrow facts before us. However, concern that the decision could have more far-reaching impact, Justice Stegall explained preemption, concluding that even if 
Congress intended to expressly preempt state use of all information contained in a person's I-9 form, it is doubtful Congress has such sweeping powers to interfere with the legitimate government of the states.
Justice Stegall pointed out the absurd extent to which the Court's logic could be stretched, asking "Can it really be true that the state of Kansas is or could be expressly preempted from using—for any purpose—the name of any citizen who has completed an I-9 form?" Justice Stegall expresses dismay that this simple question is not sufficient to end the debate in Garcia. Justice Stegall concludes that if Congress were empowered to so restrict the use of information, then our "delicate federal-state balance achieved by our system of federalism would not merely be disturbed, it would be obliterated."

These are all intriguing arguments. The justices were unanimous in one point, however. None of them noted the implications of another important constitutional clause, the equal protection clause found in the 14th Amendment. The 14th amplifies the due process clause of the 5th Amendment, and clarifies that "no state shall" deny due process or equal protection of laws. This requires that the laws be equally applied to all without regard to citizenship, race, color or creed. The law equally protects all. 

That perhaps suggests a fallacy in the Garcia Court's logic. The Court held that this "challenge can fairly be characterized as 'facial' in the traditional sense only insofar that its holding will apply to other aliens," specifically, other aliens who "use the Social Security card or other document listed in federal law of another for purposes of establishing employment eligibility." But that is simply not true. The law in Kansas requires that all employees complete the W4 and K4 forms. 

Therefore, if a tenth-generation American of unquestionable citizenship is hired in Kansas, she/he will complete an I-9 and both the W4 and K4 forms. And, if that employee lies on those forms, using your social security number, then that person has in fact stolen your identity. However, according to the Kansas Supreme Court's logic, that action can not be forbidden by or prosecuted under Kansas law. As Justice Stegall illuminates, this citizen could freely lie about their name, following the Court's logic.

That is equal protection, and the Court's attempt to limit the application of its decision to "other aliens" would violate the Fourteenth Amendment to the U.S. Constitution. In applying the regulation of this information, coincidentally provided in employment applications or withholding forms, on the basis that the same information is on the "protected" I-9, the courts are bound to equally apply the law. 

Thus, because the Social Security number is required on the I-9, and because that inclusion renders the false use of that number exclusively, preemptively, within the purview of federal law regarding immigrants, then that preemption likewise precludes state law enforcement in the similar circumstance of a U.S. citizen lying about a Social Security number. 

Justice Stegall's conclusions regarding name and other information included in an I-9 is as intriguing. Likewise, the Kansas Court's decision thus seems to preclude state law enforcement regarding misrepresentations of (1) address, (2) email address, (3) telephone number, and (4) date of birth, each of which is coincidentally required on the I-9 form. If these were falsely represented in an employment application or other document (as unrelated to immigration as the W4 and K4 forms), prosecution would be preempted, in the Kansas Court's logic, because those data points are likewise included in the I-9 form. 

Kansans appear therefore to be free today to lie about any of these during the employment process. State law may not preclude these misrepresentations, because of the Court's broad application of federal preemption.  Kurt Vonnegut, Jr. might encourage "forgive the court, it knows not what it does." Be that as it may, the law in Kansas now facilitates identity theft for procuring employment. A curious, and some will say strained, analysis. 

Effectively, if someone steals your identity, that is your problem. to paraphrase Dorothy, some may be glad they "aren't in Kansas anymore" Toto. 

Thursday, September 14, 2017

Harvey and Irma will be on Lists

Last Spring, I posted regarding the Atlantic Hurricane season, in hopes of spurring preparation. There is value in being prepared for storms, but every time you live through one of these you realize how unprepared you are. These are epic experiences, for which one can think and plan and prepare and yet be totally surprised by direction, location, duration, devastation and more. 

With the latest storm passed, our attention turns to those left in the path. They will each be affected by Irma to some degree. Some will not even realize as they live through the recovery, but one day will appreciate in retrospect how the preparation, storm, and aftermath impacted them. It will be a life-changing experience for many. 

The focus for most of us now is on those left in the wake. There will be many opportunities to help them. Some will contribute time and effort in big ways. I noted how some of them have in Because we Need it They Will Come. Others, perhaps, will have opportunities to help in smaller ways. I was moved recently to remind our OJCC team of how these events affect people. After I sent them an email, it occurred to me to make that a post because perhaps we all need to remember the people and the disruption to their lives. 

We also need to remember that people are the purpose of this agency. We are here to resolve and adjudicate issues that people cannot resolve themselves. People have disputes about injuries, treatment, return to work, and more. When they cannot resolve them, we mediate and adjudicate them. We listen to their evidence, evaluate conflicting opinions, and bring conclusion. Perhaps it behooves us to remember that people are the purpose of all our occupations, vocations, professions?

I for one am glad Irma is gone; Farewell Irma, I never Liked You. Irma was an event that will be among the worst we have experienced. It will also be an financially expensive event, both in the U.S. and across the Caribbean. In Time to Prepare, I restated the ten "worst" hurricanes according to the Weather Channel. Their focus was storms, and how they define "worst" is of course up to them. Time will tell if they believe Irma merits being on that list, but I predict it will. Regardless of "worst," it is destined to be among the most financially expensive. 

According to Axios, the costliest natural disasters in U.S. history are:
Hurricane Katrina $160b 
Hurricane Harvey (predicted) $85b
Hurricane Sandy $70.2b
Hurricane Andrew $47.8b
1998 Drought $42.4b
1993 Midwest Flooding $36.1b
Hurricane Ike $34.8b
2012 Drought $32.4b
1980 Drought $31.6b
Hurricane Ivan $27.1b

It is intriguing to me that the list does not have any earthquakes, blizzards, or tornadoes. Those are all compelling natural events. But the "costliest" are in large part due to wind and water (whether too much with flooding and surge, or too little with droughts).

WorkersCompensation.com reported Tuesday that insurers are breathing a sigh of relief regarding Hurricane Irma. There were prognostications last week that this killer storm might do $100b in damage, taking the number two spot on the list from the recent Hurricane Harvey landfall in Texas. However, it reports that the estimate are now only "between $20 and $40 billion." You know what they say, a billion here, a billion there and pretty soon you are talking about real money (an adaptation of a quote attributed to Everett Dirkson, correctly or not).

More recently, CNBC reported this week the J.P. Morgan conclusion that Irma will likely be the fifth costliest hurricane in U.S. history. They list the ten costliest as

Katrina $49.8b (2005)
Andrew $24.5b (1992)
Sandy $19.9b (2012)
Ike $14.0b (2008)
Wilma $12.5b (2005)
Charlie $9.4b (2004)
Ivan $8.9b (2004)
Hugo $7.3b (1989)
Rita $6.8b (2005)
Francis $5.7b (2004)

And, they predict that Irma will take her place in the "top 5," which will displace Hurricane Francis. There is little doubt that Harvey, less than a month ago in Texas, will take his place in that top 5 also and that Rita will likewise fall from the list.

Hurricane Wilma was the "most intense in the Atlantic basin," back in 2005, according to the SunSentinel. Recent news suggests Irma will take that distinction from Wilma. I read that list above and I recall watching those that hit Florida: Andrew, Wilma, Charlie, Ivan, Francis. I also note that Houston and vicinity experienced Ike, Rita, and now Harvey. Not that this diminishes any of the others on the list, or those that did not make the list, but there are some places that seem to be visited more often than others.

The statistics will bear out that these storms were big, dangerous, and life-changing. The statistics will become lists, and by whatever criteria the list-makers choose Harvey and Irma will be discussed and critiqued. They will be valued by the accountants, bankers, actuaries, and more. The "value" they assign the storms will be monetary. And, the rest of us can perhaps instead remember and remind of the more important human value, human cost, of these events.

In the end, our ability to deal with the aftermath of these and the persistent threat of those that will undoubtedly (someday in the far future we hope) follow, will lie in our ability to help others through this and those to come. People need you. They need a kind word, they need compassion, and they need a willing ear. There will be other needs, but these human needs are perhaps the most important. And, they can be provided absolutely free.

Tuesday, September 12, 2017

Farewell Irma, I Never Liked you

As Tuesday dawns on the east coast, we begin the task of cleaning up after a massive storm. It will be along road home for many, and they will appreciate a kind word in days to come. 

This storm was astounding in several ways, and this morning I try to capture some of that. One of the first things that comes to mind is the preparation. Florida's emergency preparedness team began hitting us with information a week ago. There were Tweets, broadcasts, and press conferences. This was one of the best publicized storm evacuations and preparations I have ever seen. 

I lost count of the places that Governor Scott was prior to the storm, including emergency operation centers, shelters, and more. All through the storm, the tweets just kept coming from the Governor. He was reassuring and inspiring. Another Tweeter that deserves mention is Dan Daley. He is the Vice Mayor in Coral Springs, and his efforts to keep the public informed were upbeat, timely, professional, and sometimes even humorous. I am certain there are many others out there that did a great job, but these two caught my attention repeatedly. 

The resources massing was inspiring. A video of power trucks was popular on social media. There was also video of fuel trucks being escorted by the Florida Highway Patrol, part of the effort to make sure there was fuel for evacuation. 

The National Hurricane Center and others had a difficult time predicting the track of Irma. We had much conjecture and explanation, but there was much uncertainty until Sunday. There were storm-track predictions (these are published in what they call "spaghetti models") over various portions of Florida through the week last week. The difficulties in prediction raised anxiety and fear. I spoke with a Pensacolan (not a real word, I know) on Saturday who was convinced that Irma would "head into the Gulf and then all bets are off." 

The rain. Florida got a great deal of rain. Data has been published by the National Weather Service (this is their photo) showing the volume. Along with storm surge in various locations, the flooding has been horrible. 

However, in other locations, the predicted storm surge did not materialize. Some meteorologists have opined that the storm having a "weak" back side contributed to that phenomena. They describe how the front of the storm drove water away from shore on the west coast and into the Gulf of Mexico, but the "weak" side failed to return that water at flood levels on the back. That is simply amazing. As amazing was the way the far-reaching "strong side" pulled the Atlantic into Jacksonville, St. Augustine, and Daytona as the storm moved north.

The results we saw included people walking into the bay in Tampa, there was no water for hundreds of feet out. Similar pictures were posted of the Bahamas. But, to lend some respect to the size of this storm, there were also pictures posted of Mobile Bay, Alabama. That photo made the rounds on social media. And there is some truth to the proposition that Irma winds pushed water out of that bay 300 miles west of the eye wall. But there is also truth that Mobile Bay is very shallow and almost any southern wind will effect mudflats there, particularly during low tide. 

Social media was alive with Irma. Twitter provided us with photos and video. One south Florida video was of a Miami construction crane collapsing. Another Miami video showed the roof being torn from a structure by high winds. The flooding videos were compelling. One from Miami was seen repeatedly on social media, showing Brickel Avenue. The photos of flooding in Jacksonville are heartbreaking. 

Social media also picked up on people allegedly liberating some shoes from a store in Miami. Yet another shoe store video from Ft. Lauderdale made the social media rounds as well. These reminded me of the news story two weeks ago in Houston. There a reporter contacted authorities and alerted them to a store being emptied. Social media erupted, not with praise for the reporter, but scorn. Many took issue to the reporter calling that looting. Some commented on those stories suggesting that people stealing food or necessaries during an emergency are not "looting." 

We had a scam story out of Jacksonville yesterday. Supposedly people were impersonating utility employees and robbing folks. That has now been debunked. Floridians will do well to be wary of scams in days to come however. Unfortunately, there are some people who thrive on taking advantage of situations like Irma, and they could come to your town. Watch for them and report them. After Ivan, I learned of a group that charged a 90 year old home-bound lady $1,000 to remove a "tree" from her home. In truth, a large branch had landed there and these hooligans merely threw it from her roof to the yard. Some people have no shame. 

There was great coverage on Irma social media of the heroes coming to our aid. I liked the video of a Los Angeles Fire Department truck driving into Florida in preparation for search and rescue. There were inspiring moments. Some Manatees were grounded by the falling tide, but were rescued. Two gentlemen in Marco Island struggled to rescue a dolphin. A first-responder even rescued a flag

People were rescued from boats, from homes, and cars. It seems that there was no shortage of people who needed help. Fortunately, there were a great many there to provide help. But the storm has produced fatalities. ABC News reported two law enforcement officers died in a car accident. Other Irma fatalities have been attributed to wind, electrocution, and carbon monoxide (generators can be very dangerous). 

I am proud of the job our OJCC team did in preparing for this storm. As of this morning, we believe that 11 of our 17 offices have electrical power and are ready to open Wednesday. Two offices in the panhandle are already open today. Although there were outages in other court systems, the OJCC electronic filing system remained up and functional all weekend. And, believe it or not, people were out there e-filing throughout. 

On September 8, 2017, we had 625 documents e-filed (compared to the Friday two weeks prior, which had 2,496). On Saturday, September 9, 2017, we had 23 documents e-filed (compared to 69 on Saturday, August 26). Sunday, September 10, 2017 brought us 20 e-filed documents (compared to 52 on August 27). And yesterday, September 11, 2017 we had 71 filings (compared to 2,322 on August 28). I am proud that our system was available for people to file. Many people were without power and were dealing with important issues of home and family. But, It is good to know our system was there for those that did want and need it. 

There will be much news in coming days. News of damage, tragedy, recovery, heroism, and love. The nation's eyes will focus on Florida and the thousands of people that come here to genuinely and selflessly help. Then the media will likely be distracted by some new and shiny story elsewhere, but the work here will continue. Long after the news crews cease to be interested, Floridians will be rebuilding. That is just the way it is. 

Long after the spotlight shifts, we as Floridians will remain true to our friends, neighbors and communities. We must not forget those who have lost and those who are recovering, no matter how long that takes.  

Sunday, September 10, 2017

Because we need it, They Will Come

It is the things we have done and lived through that matter to us, so much more than words that have been said to us. We have all experienced challenges, tragedies, and failures. In large part, they make us who we are.

I have struggled this last week, watching Irma march across the Caribbean. Watched as the "cone of uncertainty" included so many Floridians. You are blessed if you are able to ignore these storms. I spend months each year anxiously watching the Atlantic. When I open my browser each morning, one of the automatic pages that opens is the National Hurricane Center. I struggle not to obsess, but each time an "X" appears, I worry about it. When an "X" becomes a named storm, it is worse. Fortunately, the vast majority of them either dissipate, or they head for somewhere other than Florida.

Hitting elsewhere is a hollow relief. I have lived through one more tropical cyclone than I care to. Stated otherwise, one is too many. I grew up isolated from such events, in unaffected climates. Only upon moving to paradise (pronounced flawr-i-duh), did I take notice. I visited Miami shortly after Andrew (1992), ran when Floyd threatened Jacksonville (in 1999, this same weekend, about 18 years ago), but it went north. I ran from Ivan in 2004 and Dennis in 2005. I am a runner, when they say "get out," I go.

I watched many I know run from Katrina in 2005. Shortly after, I drove west into the mess she left behind. I have become intimately familiar with cyclones. And it is troubling that we can be so relieved when they hit somewhere else. The fact is, there are no "good" storms, and there is no "good" place for them to strike. Every escape for one of us is tragedy and destruction for someone else, and wishing it on others, in selfish exchange for your salvation hurts.

Ivan hit me pretty hard. I wrote about that experience in May this year, encouraging people to prepare for the 2017 season, Time to Prepare for Hurricane Season. Taking the preparation seriously is important. And in times like this, our preparation and resolve are tested. That post listed the ten worst cyclones in history, but the list will be different soon. We know Harvey will join the list; we knew as we watched, spellbound, as incredibly selfless volunteers and professionals hauled people through the floodwater only weeks ago.

We know that Irma will likely join the list also. We don't want to admit it in advance, and we don't want to talk about it, but we know it. It is not an intellectual conclusion, but a feeling tugging at us from the root of our being. Our "guts" are getting to the answer long before our intellect can. With so many and so much in its path, I watch and wait in helpless anguish. Certainly, some population centers on the East Coast have been spared the eye of Irma, but there will be damage there. The path of storm-eye landfall from Naples/Ft. Myers north through Tampa/St. Petersburg promises to be heartbreaking.

2004, when I experienced Ivan, we had four major storms in Florida: Charlie, Francis, Ivan, and Jeanne. They were all notable, destructive, and deadly. Only Charlie remained on the top-ten list as of last May (number 10), and it appears likely it will soon not be. The next year, 2005, we thought Dennis was bad in the Florida panhandle. The winds were high here, but the damage not as extensive for most in Pensacola. We were blessed that it hit to our East; close, but we were not on Dennis' "strong side." The joke was that everything that could blow away had blown away the summer before in Ivan.

The "joke"; see, we came to a point at which we could make jokes about the experiences we had shared. Not so much with outsiders, but among ourselves. We, those who had lived through them both. It is a shared experience, a kindred. We run into people who have lived through these cyclones, and we have a commonality of experience, a shared understanding. Once you are touched by a tropical cyclone, it becomes part of who you are, and you understand and sympathize with your fellow travelers in a new way.

"Close" is a relative term also. Ivan and Dennis struck relatively close to Pensacola. But when you consider that term with cyclones, "close" can be hundreds of miles depending on the storm. Irma is a very large storm, some estimating it to be 400 miles across. As I note this morning's projected path over Tallahassee later tomorrow, I ponder that 400 mile size and the 200 mile drive from here to Tallahassee.

Governor Scott announced early last week that this storm was likely to affect every Florida county. It is looking increasingly likely he was right. Reports last night from local lumber stores here confirmed that there remains a brisk business in plywood. Generator sales have stopped only because there are none left to sell. At 200 miles from predicted eye-passing, panhandle people that remember Erin, Opel, Ivan, Dennis, and Katrina are battening down, waiting, and watching. Close is a term that takes on new meaning in cyclones.

If you have "blue-roofed" a house, hung plywood over a window, sand-bagged a doorway, eaten red beans and rice provided in a church tent from Indiana (or other distant state), been handed MRE's (meals ready to eat) or bagged ice by a friendly kid in a national guard uniform, had your ID checked entering your neighborhood by a peace officer from hundreds of miles distant, you have lived it. Once you have lived it, you will never forget it.

The destruction is heart-breaking. The trauma is incredible, and the recovery is agonizingly slow. I would wish that none ever have to experience it. I sit this morning agonizing for them, updating our Office Closure lists, Tweeting, watching, and hating. I hate cyclones, wherever they are. I hate what they do to people.

But, there is good. There is an unbelievable population of people that will show up in the aftermath; with nothing to gain, they will pitch in and help out. There will be church tents and hot food from places of which you have never heard. There will be helping hands and generous souls. There will be shared tears, broken hearts, and hugs. They will listen, lament, and help.

I am reminded of a speech in Field of Dreams (1989) in which Terrance Mann (James Earl Jones), explains people's needs, he says they will come to see this ball field built by Ray Kinsella (Kevin Costner). He says:

People will come Ray. They'll come to Iowa for reasons they can't even fathom. They'll turn up your driveway not knowing for sure why they're doing it.

And that is true of Harvey and Irma. People will come. They will come to Florida and Texas for days and weeks to come. They will turn up in driveways, at churches, schools, and more; From towns of which you've never heard, arriving in towns with which they are equally unfamiliar. They will bring life and love with them, in the form of food, supplies, sweat, and tools. They will work, they will listen and they will help. Their presence will reassure, whether they wear a uniform or not.

Volunteers support us and reinforce us. Already, we see power crews readying at the storm's periphery. They will move in force once this eye passes. We see volunteer first-responders from places like Tennessee and California (not a typo, see below).

Los Angeles Fire Department Search and Rescue

Power Trucks massing for response

Array of guard and military resources waiting

Amphibious vehicles positioning

Tennessee Search and Rescue rolls out for Florida

I could have gone happily through this life without being touched by the effects of Ivan, Dennis, Katrina, and their ilk. I hated them then, and I hate them still. But, I am grateful for the people that I have met and worked with because of these storms. I am a hurricane survivor, and can say with assurance that a great many more will be hurricane survivors. We understand the challenges you face and the pain you will endure, as only someone who has lived it can.

Good will return. Buildings will be repaired, livelihoods will be rebuilt, and the scars will heal. Not because we cannot bear them, but precisely because we can, we will, and we have.

As I sit this morning typing this, my thoughts are with you that are sheltering, evacuated, scared, tired, and at wit's end. I cannot be there with you, but I can tell you it gets better. The storm will pass, and they will come.

If you are one of those that wants to help and don't know how to begin, here is a link for Volunteer Florida. You don't have to live here, we'll take all the helping hands and hugs we can get our hands on. Governor Scott called for volunteers early last week, and thousands have signed up so far. It is an amazing outpouring of compassion and love.

As Terrance Mann said, "People will come." In that movie, he said that the "one constant" in America is baseball. Perhaps. But I think that the one constant in America is good-hearted, compassionate, and hard-working people. And they will come. We are so lucky to have them. Welcome to Florida.

Wednesday, September 6, 2017

What do we Expect from those who Serve and Protect

It is easy to be the Monday-morning quarterback. Viewing events in retrospect lends to analysis that is perhaps impractical in real time. And, it seems popular these days to be critical of various professionals and their interactions with the public. The following is not about "piling on," or criticizing, but merely asks consideration of what can be reasonably expected by the public. 

There seems to have been a recent series of occurrences involving law enforcement officers. Today, there are those who see trends in both news gathering and reporting. They contend that one story in a particular direction seems to lead other news sources to feature similar stories. This was a subject of discussion this summer regarding stories of school teacher infidelity, which seemed to come to be headlines on an almost daily basis. Some question whether events themselves are more prevalent at a given time, or whether some otherwise consistent volume of events merely becomes more news-featured at a given time.

Three police stories caught my attention in recent days. the most prominently featured involved the Salt Lake City police department. Investigators there were working on a motor vehicle accident. Jalopnik.com and others have reported that there was a high speed police pursuit. In the course of that, which is depicted on that site in a disturbing video, the pursued vehicle strikes a truck and explodes. The pursued driver does not survive, and the driver of the truck is transported to the hospital. 

The high-speed chase, and the judgment decisions that were involved, has not received much coverage. Past critics have written on the subject however, in publications like USA Today. There are difficult questions about whether the various injuries and deaths precipitated by high-speed police chases are an acceptable risk in a crowded society. While that is not the focus today, that might be an appropriate discussion among those who formulate police procedure and practice. 

But in Utah, according to the York Daily Record, the high-speed chase victim was admitted to the hospital. He was unconscious and unable to provide consent to having blood tested when police detective Payne presented and demanded that of a nurse. The nurse reportedly followed both the law and hospital protocol in declining to procure blood for detective Jacob Payne, as the patient was not under arrest, incapable of providing consent, and there was no warrant. The video of that exchange was captured on the police body camera of another officer. That video has since been viewed by many and received significant publicity,

Detective Payne was persistent and insistent regarding the procurement of blood, and his behavior was perceived as threatening by the nurse's supervisor, who was involved in this conversation by speaker-telephone. Becoming frustrated that the outcome was not as he wished, Detective Payne arrested the nurse, who was "dragged and physically removed" from the premises, placed in a police car and detained for "interfering with a criminal investigation." Her calm and professionalism during the conversation provide a stark, and to some disturbing, contrast to detective Payne's behavior.

The detective has since been suspended, as has another officer apparently involved in the decision-making process. The video of the hospital scene has "gone viral" and the comments posted in response to news stories and the video have been largely critical of the police. The local District Attorney has called "for a criminal investigation into case." There exists a potential then that detective Payne could face charges for his assault, battery, and detention of this nurse.

The fallout continues though. Most recently, the New York Times reports "police officers will be barred from patient care areas" in this Utah hospital. Those appointed and sworn to "serve and protect" will not be allowed to enter areas in which medical care is delivered. Those who deliver care in that facility apparently feel more threatened than protected. 

Turning now to another of the three recent stories. In Miami recently, reported by the Miami Herald, an unmarked police car struck a man on a bicycle. Bicycles and cars can be a deadly combination. Tampa Bay Online has reported that Florida is a national leader in bicycle fatalities. In this Miami incident, a sandwich delivery rider was on his bicycle "in a cross walk," when an unmarked police car struck him. Florida has a statute regarding crosswalks. Section 316.130, Fla. Stat. says:
Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person.
It is the statutory responsibility of every vehicle driver to watch out for the person in the cross walk. The cyclist alleges that this driver was "on her phone" at the time of the collision. That is not currently prohibited in Florida, but there have been statutes proposed and debated in that regard. Many contend that cell phones are a distraction from safe driving. 

After this Miami police officer hit the bicyclist, one might have thought that an apology would follow. The bicyclist was angered by being struck, and threw his bicycle at the car that struck him. The police care was dented. This officer that struck the cyclist elected to forgo the apology, and instead arrest the bicyclist. He was reportedly detained for 12 hours. The Herald story does not support that the officer's cell phone talking or striking of person in a crosswalk is either being investigated or discussed. 

In a similar time-frame, Fox News reports, Ms. Danielle Allen in St. Louis called the police to report that a "a police officer sideswiped her legally parked car." Having reported the hit-and-run, this citizen anticipated repairs to her vehicle. However, she instead “got a letter saying the police officer was not responsible, not liable for accident, and is denying it all." 

Ms. Allen was not satisfied with the outcome. She was fortunate to have home surveillance video of her vehicle being struck, and thus produced evidence. When the local news channel contacted the police department on behalf of Ms. Allen, and when the video was provided to them, the situation changed. The city committed to paying $2,400 to repair her vehicle. 

Although the city has agreed to pay for car repairs, and although a city official said the evidence "suggests to me that it did indeed strike Ms. Allen's car," there is no news that the city is investigating the police officer regarding the involvement in an accident, the property damage, or the potentially illegal departure from the scene of an accident. 

Missouri law, MO Rev Stat § 577.060 (2013), seems to suggest that it is a Class D felony there to leave the scene of a motor vehicle accident that involves property damage in excess of $1,000. St. Louis officials have agreed to pay in excess of $1,000 for property damage to a vehicle. They have done so based upon video evidence that supports a police car struck that vehicle, and left the scene without stopping. But, there is no news of a city investigation into the potentially criminal activity of the city employee that drove that police car?

Back in Utah, the Mayor has apologized to the nurse that was assaulted, arrested, and detained by detective Payne. Though that apology extends also to the hospital, the facility has elected to bar those who "protect and serve" from patient care areas. The Mayor says the situation is "a troubling setback to efforts to train officers to de-escalate situations." The arrested nurse advises that police "need to be having conversations about what is appropriate intervention." 

Some have expressed perceptions, in various comments to these stories, that certain people believe themselves to be "above the law." Many of the comments have been critical of both the police officers and those who supervise them. Should those perceptions be part of these suggested conversations? Does the discussion of such behavior strengthen our society of laws, or is there some valid reason for not investigating a vehicle striking a pedestrian in a crosswalk or a parked vehicle? Could an investigation strengthen public faith and trust?

We live in a time where virtually everything we do or say is subject to both recording and distribution. See, Assume Everyone is Watching, It seems likely that misbehavior and simple mistakes will continue to occur and that they will be documented, publicized and discussed. Will that fact drive those who "serve and protect" towards better behavior? Will the increasing probability of video and publicity drive those who supervise and are responsible for people who "serve and protect" to better monitor and manage? 

Should people who stand in crosswalks, leave their cars parked, and treat patients be able to expect respect from those who "serve and protect?" Should we all be able to have such expectations?

Sunday, September 3, 2017

Florida makes a Legislative ADA Change

The Florida Legislature revisited the Americans with Disabilities Act in 2017.

The Americans with Disabilities Act (ADA) is a federal law passed in 1990. It is a bit troubling to me to write that, as I remember when it was "news," and I struggle to accept that was almost 30 years ago. I recall working through ADA complaints associated with a variety of workers' compensation accidents, and the challenges of various worker's returning to work. Most workers' compensation attorneys have at least a rudimentary understanding of the ADA, as it intertwines with the fundamentals of workplace injuries. 

We are persistently amazed by the imagination and ingenuity of medical science. Undoubtedly, there are literal miracles occurring around us and people are today cured of maladies in ways unimaginable not so long ago. But, the fact remains that many people who suffer injuries are not blessed with a recovery to 100%. They improve, they enjoy some remediation of injury, but they do not fully recover. They remain, after reaching maximum medical improvement, with some degree of impairment and/or various restrictions or limitations on activity. And those can be the foundation for requests for accommodation under the ADA. 

The Florida Legislature in 2017 passed CS/CS/CS/HB 727. That is a fair few "CS." It is an abbreviation for "Committee Substitute," which means that when the bill was eventually passed, the content was not identical to what was in the bill when it was filed or introduced. Each time a legislative committee makes a broad change to the bill, essentially by removing the then existing language and "substituting" a new version, it is called a "Committee Substitute." 

A bill may also instead be "amended" by a committee in the legislative process. Those are, generally speaking, less significant changes, and not always labelled with the "CS." So, the name of this bill indicates to us that there were significant alterations in the bill during the legislative session. This bill was passed near the end of the 2017 session and signed by the Governor. It became the law on July 1, 2017. 

The staff analysis of the bill notes that "Under the Americans with Disabilities Act (ADA), individuals with disabilities may sue places of public accommodation including private businesses for alleged violations of the ADA." This is a bit different from the the situation involving an employee of a business, which would be more consistent with ADA intertwining in a workers' compensation claims. In the "public accommodation" setting, a "prevailing plaintiff is entitled to injunctive relief," meaning the court would tell the business to make changes, but is "not entitled to damages for past discriminations."

So, a member of the public might sue a store, restaurant, hotel or other business alleging that some barrier precludes them access as a result of their disability(ies) or impairment(s). The successful suit does not bring monetary damages for the complaining person, but in some instances a court may nonetheless "award attorney’s fees to the prevailing party."

HB727 provides a process that may affect these lawsuits against Florida businesses. It 
Requires courts to consider ADA expert reports to determine if a plaintiff filed a claim in good faith and whether the plaintiff is entitled to attorney’s fees in lawsuits involving alleged violations of the ADA.
As with many legislative actions, there are details and definitions. The bill establishes who is competent as a "qualified expert" to perform evaluations and prepare such "ADA expert reports." The experts include:
engineer, general contractor, building contractor, building code administrator, building inspector, plans examiner, interior designer, architect, landscape architect, or a person who has been recognized by a federal court as an expert in Title III of the ADA or prepared a Title III of the ADA remediation plan accepted by a federal court. 
The process will be administered by the Florida Department of Business and Professional Regulation, the "DBPR." It will build and maintain a database of plans prepared by such experts regarding businesses accused of non-compliance with the ADA. The DBPR database or "registry" will put 
the public on notice that any business that filed a remediation plan or certificate of conformity with DBPR is in compliance with the ADA or is making reasonable efforts to come into compliance.
So, the statute establishes a process by which public accommodations can engage certain experts to evaluate whether their premises are or are not in compliance with ADA requirements for public access. By obtaining such a report, and filing it with the DBPR, the business demonstrates either compliance with the law or shows that it is "making reasonable efforts to comply."  

If the premises are certified as "in compliance," that certificate is "valid for three years after . . . issuance." If a premises is not in compliance, and a remediation plan is filed, there are specific requirements for such plans. One critical point is the plan must specify a "reasonable amount of time" for changes, which cannot exceed 10 years. 

This is likely to lead to a significant volume of "expert" evaluations of Florida businesses. They will be hired to evaluate the ADA compliance status of premesis, and their reports will be filed with the DBPR. Those reports, pursuant to the new law, will be accessible to the public. Thus, any individual who believes a business is not in compliance with the ADA may research whether that business is aware of such compliance issues (by searching the DBPR database). 

A plaintiff who thus is aware that a business knows of some defect or flaw may nonetheless file a lawsuit seeking a court order that a business make changes to comply with the ADA. However, the court might determine that such a lawsuit, because the flaw is already identified in a report on file with DBPR, and being addressed, is not in "good faith," and might deny or constrain attorney fees payable by the business to the plaintiff. 

Of course, there will be some implementation period. DBPR is unlikely to have this database or process in place today. But, the law provided funding to perform the DBPR work necessary. There will be programming to write, and likely hardware to procure. While the implications of HB727 are not a direct impact on workers' compensation, and the worker's return to work, it will perhaps positively impact those impaired workers, and all who suffer restrictions or limitations. 

Businesses may be more aware of accessibility issues, through the evaluations and reports of their experts. That awareness may benefit all who suffer disability. Businesses may become more accessible through the remediation that is recommended in those reports filed with DBPR. Improvement may occur, to the benefit of many, without the delay, expense, and emotional investment required for litigation. 

Some complain that the ADA lawsuits were a fee-making endeavor that hurt business. Others may complain this law merely shifts the beneficiaries from lawyers to "experts."

Time will tell the overall impact of HB727. It is an interesting idea, which passed both Florida chambers with unanimous support. When a bill passes unanimously, it is likely that a great deal of discussion has occurred, many perspectives have been appreciated and accommodated, and that its success can be reasonably anticipated. But, time will tell what affect this new law accomplishes.