Tuesday, May 9, 2017

Should I "Go" or Can I "Stay?"

In February 2017, the Florida First District Court rendered an interesting decision in Brighthouse Networks v. Yohn Weinstein, Case No.1D16-4189.

Appellate legal decisions serve two main purposes. In each case, there are parties that are involved in a disagreement(s). And, the opinion is of value to the parties in that case (who prevails?). But, an equally important purpose of appellate court opinions is that they educate the public and other attorneys about disputes. For this second reason, attorneys read appellate court decisions and cite them in their arguments to trial courts in their own cases. This is the "common law" and those published decisions provide people with an ability to predict how their own disputes might be decided. 

I have written repeatedly about precedent, and the value of the common law. See Learn from the Past or Repeat It, Kentucky, Stare Decisis and the Noncompliance Standard, The Publication Distinction in our Modern World, and more recently A Kentucky Constitutional Decision. I am a strong believer in precedent, stare decisis, and the common law. Predictability, stability, and transparency all have a purpose in the law. That does not mean the law may not change, but when it does the court doing so should carefully explain why. 

Disagreements are initially ruled upon by a trial judge, and with each decision there are typically parties that agree with the judge's ruling and others that do not. In some cases, perhaps all the parties disagree with the judge. The disagreeing parties seek review from an appellate court. Typically, three judges of these courts, called a "panel," review trial judge decisions. The panel can affirm the trial judge, reverse the trial judge, grant relief or deny relief. 

In Brighthouse, the employer/carrier sought a stay of proceedings from the Judge of Compensation Claims. The trial judge denied the order and the E/C therefore sought relief from the District Court. The District Court denied relief, with an order called a "per curium" opinion. The vast majority of appeals in Florida are disposed of either with a "per curiam affirmed" or a "denied." These opinions generally do not provide any guidance as to why the relief was denied or why the trial judge was affirmed. For those not involved in that particular case, these unexplained decisions are of little precedent value, although I have seen lawyers rely upon them.

Occasionally, the court will provide an opinion as to why a trial judge's decision is affirmed, but it is not commonplace. Conversely, when appellate relief is granted, there is usually a written opinion, an explanation for the relief, provided. That is "precedent." Rarely, when the panel's decision is to simply affirm or deny (per curiam), one judge of the panel will nonetheless write something (a concurrence) to express that individual judge's reason for the outcome, and perhaps to provide that judge's individual explanation of the law or that conflict. 

When a court panel provides an opinion in affirming or reversing, that has value to the public in terms of the second purpose of appellate opinions discussed above. Within an appellate court's jurisdictional region, such written opinions compel consistent decisions from trial judges, that is what stare decisis means. An opinion from Florida's First District Court is binding on all Florida workers' compensation cases. An opinion from the Florida Supreme Court is binding on all Floridians, including the First District Court.

When the deciding court does not provide an opinion, but one panel judge writes to explain individually, that logic is perhaps enlightening, but it is not similarly binding on trial courts. The explanation may not necessarily ever be adopted by the court in an actual opinion. However, it still provides explanation and perhaps some predictability. Trial judges may find that explanation persuasive. 

In Brighthouse, Judge Kemmerly Thomas concurred in the denial of appellate relief regarding the trial judge's denial of a stay of proceedings. Judge Thomas' concurrence is educational and informative. The Judge wrote "to clarify that, under these facts, rule 9.310(f), Florida Rule of Appellate Procedure, is not the correct procedural vehicle to secure review of the Judge of Compensation Claims’ order denying a stay of proceedings." In other words, in asking the Court for relief, the party cited the wrong rule.

Essentially, the E/C sought a stay of trial proceedings on current petitions because "a prior final merits order" was appealed and the First District had not yet decided that appeal. The E/C essentially sought to have the remainder of the case proceed no further on any issues until the outcome of that pending appeal is known. It asked the appellate court to stay or stop those trial court proceedings. 

The E/C asked the trial judge to cancel a March 9, 2017 final hearing, and to proceed no further. The trial judge denied the motion for stay, and the E/C therefore asked the appellate court to stay the trial proceedings. This is a critical point in the "stay" analysis. When one finds an administrative hearing officer, like the Judges of Compensation Claims, without authority to grant the relief one seeks, one may always look to a court of competent jurisdiction for that relief. 

Judge Thomas explained that the relief sought from the appellate court was "not to stay a final or non-final order pending review." The E/C instead was seeking "a stay of all further proceedings pending review of a previously appealed merits order." Therefore, "Rule 9.310, Florida Rule of Appellate Procedure, is not applicable." That rule is about staying "a final or non-final order pending review." 

Judge Thomas clarifies that the appropriate procedure in the circumstances of this case, seeking to stay "proceedings until resolution of issues raised by a previous order pending appeal" is instead governed by "Rule 60Q-6.115, Florida Rules of Procedure for Workers Compensation Adjudications, and rules 9.180(c)(1) and 9.190(e)(3)&(4), Florida Rules of Appellate Procedure."

Rule 9.180(c)(1) merely says that the "lower tribunal" (the Office of Judges of Compensation Claims, or "OJCC") "retains jurisdiction to decide the issues that have not been adjudicated and are not the subject of pending appellate review," while an appeal is being decided. 

Rule 9.190(e)(3)&(4) addresses a "stay (of) administrative action." The rule says that "the lower tribunal," presumably the OJCC, "shall have continuing jurisdiction," discretionary jurisdiction, "to grant, modify, or deny such relief."

Curiously, the appellate rules appear to some to grant authority to administrative hearing officers (the lower tribunal). Can Court Rules grant authority to an administrative hearing officer? The Supreme Court's analysis may assist in answering. In 2004, it wrote "this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for this executive entity." In Re Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). Florida courts may make rules for themselves, but they cannot make rules for the executive branch. 

Within that context, Rule 9.190(e)(3)&(4) becomes more clear. That rule specifically provides that "the lower tribunal," presumably the OJCC "shall have continuing jurisdiction," discretionary jurisdiction, "to grant, modify, or deny such relief." That is, what authority is duly vested in the lower tribunal, shall continue to exist. This rule does not create authority or jurisdiction. That power belongs to the legislature. The legislature may empower this tribunal (OJCC), but there is no authority that says the courts may similarly delegate or empower. 

The First District Court (in a published panel decision) has pointed out that "the authority to grant a stay or injunction has not been specifically delegated to the JCCs by the Legislature. Alachua County Adult Detention v. Alford, 727 So.2d 388 (Fla. 1st DCA 1999). In so holding, the District Court relied upon earlier rulings to the same effect by the Florida Supreme Court, See, Millinger v. Broward County Mental Health, 672 So.2d 24 (Fla. 1996) and Farrell v. Amica Mutual Ins., 361 So.2d 408 (Fla. 1978). 

Thus, the decisions in Florida hold that Judges of Compensation Claims ("JCC") are quasi-judicial officers empowered by statute. The courts have consistently held that JCCs lack inherent judicial authority beyond what is specifically, statutorily granted. Pace v. Miami-Dade County School Board, 868 So.2d 1286 (Fla. 1st DCA 2004). A JCC "possesses only the authority expressly set out in chapter 440, Florida Statutes." Capps v. Industrial Blowpipe, 8 So.3d 466 (Fla. 1st DCA 2009). 

Thus, unless some provision of Chapter 440 grants JCCs the authority (called "jurisdiction") to enter a stay, the JCC lacks such authority. On this point, Florida's courts have to date been clear regarding the entry of a stay. There is no appellate decision, no precedent, holding that JCCs have the authority to enter a stay. And the Courts do not have the authority to convey authority upon the executive branch, to delegate the court's authority. The appellate rules, enacted by the Florida Supreme Court may certainly define the parameters of appellate practice in the appellate courts. Those court actions may impact process and procedure in the administrative proceedings below, but they cannot convey authority. 

As the court has stressed repeatedly a JCC "possesses only the authority expressly set out in chapter 440, Florida Statutes," not the authority "expressly" set out in the statute and that "delegated by the courts." The "delegated by the courts" authority argued and inferred by some is seemingly unsupported in the statute, or the decisional law. 

The decisional law in Florida currently holds that JCCs do not have the authority to enter a stay. Suggestion, in an unpublished concurring opinion, does not change those prior decisions of the District or Supreme Court. The appellate rules, cited in the concurring opinion, do not convey authority or jurisdiction that has not been conveyed or delegated by the legislature. Those rules clarify, and only clarify, when authority continues.

Judge Thomas' opinion provides a critical lesson. When seeking relief from any adjudication process (trial judge or appellate court) it is important utilize the correct procedure and follow the applicable rules. From Brighthouse, we learn that there are distinctions between Rule 9.100(3)(c)&(e) and 9.180(c)(1), Florida Rules of Appellate Procedure. In that, perhaps we learn how parties may better seek relief from the courts, regarding the stay of proceedings in the lower tribunal.

And, in all of this, we see repeated yet again the value of precedent, stare decisis, and the stability and predictability they bring.


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Note: this post originally misstated that the injured worker had sought a stay of proceedings. That was an error attributable solely to me and has been corrected. My thanks to attorney Laurie Miles for noticing and pointing out my error!

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