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."

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