Sunday, August 27, 2017

Stipulating Jurisdiction

I had an intriguing conversation recently about stipulations and litigation. The situation described to me involved attorneys that had both agreed with certain facts and conclusions. Based upon their agreement, a judge had made a ruling, and then the attorneys each filed an appeal of the decision, each faulting the judge for the result and each asserting that, despite their agreement or stipulation, the judge should not have ever considered the case. The appellate court agreed.  

This conversation revolved around the surprise and consternation at people being allowed to go back on their word, to change positions. This was challenging to some in the group, but lawyers know that there are issues as to which parties cannot stipulate. One example is jurisdiction or "authority." Lawyers know that tribunals either have jurisdiction of they do not. If they do not have authority, no amount of lawyer agreement or stipulation can give the tribunal authority. The catch-phrase is "you cannot create jurisdiction by stipulation." 

It reminded me of a comedy routine years ago in which the comedian described his wife tasking him with preparing breakfast for his children one Saturday morning. Tired, and harried, he had assembled the children in the kitchen and instigated a conversation about the morning's fare. As he proposed alternatives, one of the children noticed a large chocolate cake perched upon the refrigerator. 

That child, despite other alternatives offered, persisted in the suggestion that chocolate cake would be the best breakfast alternative. Predictably, perhaps, the other children joined the refrain. Everyone wanted chocolate cake. Everyone thought chocolate cake was appropriate. One even laid out a logical argument using the nutritious ingredients in chocolate cake, such as flour, eggs, and more. 

Dad was persuaded, retrieved the chocolate cake, cut each child a large portion, and breakfast was served. According to the comedian, this was met with universal praise and acceptance. There was even some degree of celebration, with one child even composing a chant, joined by the others: "dad is great, gave us the chocolate cake." The comedian reflected on the smiling, praise-chanting children and their pleasure at this outcome. 

Next, however, mom arrived to investigate the source of frivolity and joy. And, finding them eating cake for breakfast, she was not happy. When she asked what they were doing eating the cake for breakfast, the comedian described that the children "turned on" him, They pointed at their father and unanimously asserted that he had forced them to eat cake for breakfast despite their request for more traditional and nutritional breakfast food. 

The comedic effect of this routine is founded upon the change in positions. It is similar to the stipulation litigation that this recent conversation reminded. These individuals had sought the outcome (cake), agreed unanimously to the outcome, and sang the praises of the outcome while the cake was being consumed. But, they later lamented the outcome, denied the outcome, and placed blame for it squarely elsewhere, on the judge. 

Dad learned an important lesson from the cake breakfast. Just because everyone agrees at the time does not mean that they will not change their minds. 

In that regard, it is important for lawyers and judges to remember a couple of important points regarding jurisdiction or "authority." First, "a jurisdictional rule cannot be altered by the court or by agreement of the parties." That means that "the parties cannot stipulate to jurisdiction over the subject matter where none exists." Metellus v. State, 900 So.2d 491 (Fla. 2005). The authority to hear a case either exists or it does not. Lawyers can make arguments as to their beliefs or their client's positions as to jurisdiction, but ultimately the judge must decide if jurisdiction exists, based on the law, to hear the dispute. 

This arises in workers' compensation proceedings. Is there jurisdiction over the parties? Is the dispute about workers' compensation benefits or something else? Can a workers' compensation judge decide that non-workers' compensation "sick leave" was appropriately paid or should be refunded? Can a workers' compensation judge decide whether an offered return-to-work accommodation is or is not appropriate? 

There may be clear cut decisions, and there may be more subtle distinctions. They may challenge the parties and the judge. But in the end, it is the judge who must make the decision. And that cannot be based on whether chocolate cake is popular at that particular moment, but must be based instead on the law. 

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