Tuesday, February 28, 2017

Separation of Powers - An Intersting Analysis

Can Courts convey authority, or do they just interpret the law, which they are given by the Legislature?

There is a concept of American constitutional construction that seeks to define and constrain government, called "separation of powers." The idea is simple enough, though it is perhaps less respected today than historically; perhaps less than intended. But, interpreting the intent of constitutional framers can be a difficult endeavor. 

Separation of powers, stated simply, keeps the state's executive out of legislative and judicial responsibilities, while keeping the courts out of executive and legislative responsibilities, and keeping the legislature out our executive and judicial responsibilities. The message of separation of powers is "focus on the job that the people have given to you"; after all, under our American concept of government, the people are the root-source of all authority. 

In this constitutional construct, "we the people" have given specific (called "enumerated") powers to the government through the U.S. and various state constitutions. From our delegation of our authority, we have empowered government. From our delegation comes government's power, and from our delineation and definition comes the need for their various powers to be separated and distinct. This came to mind when I read a recent thought-provoking piece in which former U.S. Representative Mickey Edwards asserts that We No Longer Have Three Branches of Government

In 2004, the Florida Supreme Court provided us some insight on separation of powers in Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004). The Court ended by clarifying that separation of powers precluded it from making rules for workers' compensation proceedings in the Office of Judges of Compensation Claims. First, It began by describing a long history through which it had nonetheless done so for decades.

It began in 1973. Workers' compensation had come to Florida in 1935, and had managed without procedural rules for almost 40 years. Then, in 1973, the Court adopted formal rules of workers' compensation procedure in In re Florida Workmen's Compensation Rules of Procedure, 285 So.2d 601, 601 (Fla. 1973). The process began with rules drafted and proposed by the Industrial Relations Commission of the State of Florida ("IRC"). The Court recognized then that the proposed rules were for executive branch agency officials, then called "a judge of industrial claims" which was a "quasi-judicial officer.” As an aside, back then the judge's decisions were subject to appellate review by the IRC. 

Under the statutory construct, the appellate decisions of the IRC could then be reviewed by the Supreme Court, and therefore the Court found it had "a direct interest in" the process and procedure by which cases progressed. Under its constitutional authority to "adopt rules for the practice and procedure in all courts...,” the Court adopted those 1973 procedural rules, finding that the fact that a "court" would later potentially review the decisions made the whole workers' compensation process "more judicial than quasi-judicial." In that decision, the Supreme Court was in error, and it unconstitutionally adopted rules for the executive branch to follow. 

But, the Court was not alone. The next year, the Florida Legislature passed a statute that said the procedural rules would come from the Court, essentially legislatively "delegating" the rule-making authority to the Court. Thereafter, the Supreme Court adopted rules and revisions repeatedly, approximately every two years. Initially, the Court had cited the Florida constitution for its authority, but in each decision of the Court thereafter, adopting new rules, it cited instead to the 1974 statutory delegation. Each time that is until 1992 when the state constitution was mentioned again. 

In 1993, the legislature amended the statute and instead delegated authority to make rules to the "Office of Judges of Compensation Claims (OJCC)," part of the Department of Labor and Employment Security (DLES). The OJCC ignored that delegation. in 2001, when the OJCC became a part of the Division of Administrative Hearings (DOAH), the statute was amended yet again delegating that authority to DOAH. Unlike the Department of Labor, DOAH took the legislature at its word and promulgated rules. 

The Florida Bar disagreed with the legislature. The Bar saw this legislative action as taking away the authority of the Supreme Court. It sought to have the Court continue rule adoption for the OJCC in 2002. The Bar felt that the "Legislature had improperly usurped" the Court's rule-making authority. It was the Bar's petition to amend the Court's then existing workers' compensation rules in 2004 that resulted in Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004).

The Florida Supreme Court concluded there that it lacked "the authority to promulgate rules of workers' compensation procedure." The Court explained that its authority and powers emanated from "article V. of the Florida Constitution." And, that article's grant of authority to "adopt rules for the practice and procedure in all courts” is limited to courts. After a review of the constitutional definition of "courts," the Court concluded that the OJCC is not a "court of this State." (Confusion abounds still among practitioners and judges alike who for some reason still refer to JCCs as "courts," despite this clear authoritative interpretation to the contrary). 

In its analysis, the Court noted that it previously clearly made this same point in 1994, concluding that “compensation claims judges are executive branch officials, not judicial branch officials.” Jones v. Chiles, 638 So.2d 48, 51-52 (Fla.1994). But despite that recognition, the Court continued thereafter to make rules for the executive branch for another ten years. 

The Court in 2004 then explained separation of powers and concluded that it had no authority to make rules for the executive branch. It said "this Court has no authority," and "nor has this Court ever had the constitutional authority" to make rules of procedure "for this executive entity." The Court concluded that it had acted unconstitutionally for over thirty years, from 1973 to 2004. And, the Court therefore receded "from the decision in In re Florida Workmen's Compensation Rules of Procedure, 285 So.2d 601 (Fla.1973), to the extent that that case and all subsequent cases conclude that this Court had jurisdiction to promulgate such rules." (Yes, Florida used to regurlarly use the genderist "workmen's")

The Court also addressed the legislative delegation of rule-making authority. It held that the "Legislature in 1974 had no authority to" delegate authorization, authority or power over such rules to the Court. It clarified that the power "conferred upon the courts by the Constitution cannot be enlarged or abridged by the Legislature.” The Legislature's 1974 enactment of section 440.29(3), Fla. Stat., which said the Court would make rules, was "an unconstitutional delegation of executive branch authority to the judicial branch in violation of the Separation of Powers Clause of the Florida Constitution. See art. II, § 3, Fla. Const."

The Florida "Separation of Powers Clause" says "no person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Thus, only when the Florida Constitution provides for delegation of authority will the exercise of delegation be appropriate. The Court noted that were it "to conclude otherwise, the Legislature would have the discretion to statutorily alter this Court's jurisdiction under the Florida Constitution." So, what the people delegate to the Courts in our constitution, the Legislature cannot change. The power of government comes from the people. 

Thus, the Supreme Court retreated in 2004 from a decades-long involvement in workers' compensation rules in the executive branch. In it, the Court conceded that it had acted unconstitutionally for decades. It provided explanation of both Separation of Powers and Delegation. The Court clearly and succinctly clarified that Judges of Compensation Claims are not, and frankly have never been, "courts." It took 30 years for the Court to reach that conclusion. In the thirteen years since 2004, practitioners and judges have nonetheless continued to refer to the OJCC as "this court." 

Perhaps before the 30th anniversary of Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004), practitioners and judges alike will accept that the OJCC is not a "court of this State," and will quit referring to this office as "this court?" Perhaps the Court's analysis is of value in recognizing that because we become accustomed to the way things are, that does not necessarily mean things are the way they should be? 

Today, I insert the 2016 "Best Blogs" banner in my post for the last time. As nominations open tomorrow for the 2017 "Best Blogs" awards, the 2016 banner becomes history. I am proud to have been selected last year. When the 2017 judging is concluded, perhaps I will be able to display that banner here for the next year?

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