Sunday, July 30, 2017

Lessons in Recusal and Disqualification

There are occasions when an assigned judge will no longer preside over a case. One example is when a judge grants a motion for "disqualification" (where some party(ies) request that the judge no longer preside). There is the "recusal" order, in which a judge essentially disqualifies upon her or his own motion. It is also possible for the parties to be assigned a different judge when the venue (where the case is heard) is changed. 

In Florida workers' compensation, if a judge enters an order transferring venue, the presumption is that she or he intends that the case also be reassigned to a judge in that other venue; however, a judge may transfer venue and remain presiding by so stating in the venue order. Or, in limited circumstances, the Deputy Chief Judge may reassign a case without such an order, upon the request of the assigned judge. So, there are various ways in which a new judge will become responsible for a case. 

Recusal and disqualification are not issues that many attorneys experience often. As such, it is a subject that has been known to both confuse and frustrate some. A recent case cause me to delve into the subject substantively, and it is possible that the research might be of value to others. I therefore am posting some of the findings recently entered, specifically regarding the law of recusal and disqualification. 

In this instance, the judge sua sponte (on his own motion) recused himself from the case. That action is appropriate when indicated under the Canon's of the Florida Code of Judicial Conduct. After doing so, the Judge noted that the same parties were involved in other cases pending before the judge; upon reflection and further examination, the Judge concluded that there was no basis for recusal in these cases after all. The Judge conferenced with the parties, regarding the other pending cases, and there was conversation as to how the judge might regain jurisdiction over the case in which the erroneous recusal order was entered. It appeared that all parties and the judge were comfortable with the judge regaining jurisdiction and adjudicating the case. 

As regards the entry of any order, it is worth remembering that the appropriate method to seek an order or any relief in this system is a motion, Rule 60Q6.115(1). Thus, if a party thought a recusal order to be in error, the seemingly appropriate method to bring that to the judge's attention would appear to be a motion. Perhaps a Motion for Rehearing, see Rule 60Q6.122.

However, it is perhaps not practical for a judge to later vacate or otherwise address an order of recusal. Having entered an order of recusal, a voluntary expression of having no further involvement in a case, a judge can generally have no further involvement. The Third District Court explained in Schwartz v. Schwartz, 431 So.2d 716 (Fla. 3d. DCA 1983):
it is true that once a trial judge recuses himself, further orders thereafter are void, Rogers v. State, 341 So.2d 196 (Fla. 4th DCA 1976), cert. denied, 348 So.2d 953 (F Ia. 1977); Gilmer v. Shell Oil Co., 324 So.2d 171 (Fla. 2d DCA 1975); Weiss v. Miami National Bank, 320 So.2d 466 (Fla. 4th DCA 1975), it is also the rule that a trial judge who recuses himself has the authority to enter final judgments on issues already tried, Coastal Petroleum Co. v. Mobil Oil Corp., 378 So.2d 336 (Fla. 1st DCA), cert. denied, 386 So.2d 635 (Fia.1980), or to continue where limited jurisdiction has been retained. State ex. rel. Cobb v. Bailey, 349 So.2d 849 (Fla. 1st DCA 1977). These latter propositions state the rule applicable in this case.The Florida First District has held that “Once a trial judge recuses himself from a given case, any subsequent orders he enters in that case are void and have no effect.” Davis v. State, 849 So.2d 1137 (Fla. 1st DCA 2003). But, the fact is that the recusal order was an error, a mistake. Cannot the judge correct a mistake?
It is not a novel question. The First District addressed it in Miller v. Bell South Phone Co., 860 So.2d 523 (Fla. 1st DCA 2003). There, a Judge of Compensation Claims (JCC) entered an “order recusing herself.” The judge thereafter “reversed” that recusal order and “reasserted control over the case.” Following a trial, that judge entered a final order denying compensability, which was appealed, and led to the Court’s published opinion. 

The Court in Miller stated:
a. “Florida law is clear that once a judge recuses himself or herself for whatever reason, the judge may not thereafter reconsider the recusal decision and reassert judicial authority over the case.”
b. “A judge may not reconsider his decision to disqualify.” 
Therefore, the Miller Court reversed and remanded the JCC’s compensability denial, with instructions that the case “be reassigned to another judge of compensation claims.” That appeal occurred, and reversal resulted, despite the fact that neither party had apparently contested the judge “reasserting” control over the case anytime prior to the trial concluding. Any party might have raised that issue, prior to the investment of time and money for trial, and the case might have been reassigned more expeditiously and less expensively. 

The Court in Miller cited Deberry v. Ward, 625 So.2d 992 (Fla 4th DCA 1993). There, a trial judge “made a clerical mistake when signing the order to grant the motion to disqualify,” and upon discovery of the error “reinstated himself.” The Court concluded that “A judge may not reconsider his decision to disqualify,” and directed “the lower court to transfer the case to another judge.” Even if the order was a mere clerical error, it may be irreversible. 

There is a very limited exception to this rule stated by Florida courts. In Cascone v. Foster, 774 So.2d 773 (Fla. 1st DCA 2000), the Court reiterated the “general principle” that “a judge who enters an order of disqualification may not take further action in the case.” It stresses that such “principle is limited however, to an order disqualifying a judge from presiding over a particular case.” 

A judge might enter an order barring involvement in a population of cases. Perhaps those involving a newly elected judge's former law firm. The OJCC has no capacity to identify such, or to effectuate such broad "blanket" orders, but various county clerks in the state do. The Cascone exception allows that circuit or county judge to later enter an order changing that broad, non-case-specific, recusal decision. 

It bears noting that The Florida Supreme Court has held that “there is no provision in the statutes or the decisions for a blanket decree restraining a particular judge from hearing all cases in which a particular attorney may appear.” Ginsberg v. Holt, 86 So.2d 650 (Fla.1956). In fact, in Livingston v. State, 441 So.2d 1083 (Fla.1983), the Court more directly stated “a lawyer's request for a general disqualification will not be granted.” See also, R.M.C. v. D.C., 77 So.3d 234 (Fla 1st DCA 2012). Thus, the "blanket" concept may apply only in a civil context and with voluntary recusal.

It also is notable that the Court has been clear that “stipulations of the parties are normally binding,” and that “it is the policy of law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes.” That legal maxim might be seen as supporting that the parties preferences, expressed in stipulation or joint motion, might be considered just such an stipulation. Citrus World v. Mullins, 704 So.2d 1128 (Fla. 1st DCA 1997). A stipulation for the judge to "regain" control or jurisdiction of a case. 

That said, there is also authority that parties cannot confer jurisdiction (the power or authority to act) by stipulation where none exists. This has been noted both in appellate courts, Bramlet v. State, 15 So.3d 839 (Fla. 1st DCA 2009) and trial courts, Brautigam v. MacVicar, 73 So.2d 863 (Fla. 1954). 

It is also true that the law should not exalt form over substance. Grainger v. Indian River Transport/Zurich U.S., 869 So.2d 1269 (Fla. 1st DCA 2004); Wintz v. Goodwill, 898 So.2d 1089 (Fla. 1st DCA 2005); Florida Hosp. v. Williams, 689 So.2d 1255 (Fla. 1st DCA 1997); Mahoney v. Sears, Roebuck & Co., 438 So.2d 174 (Fla. 1st DCA 1983). There are those who may feel that not reassigning a case to a mistaken judge when the parties stipulate might seem inconsistent with this maxim. 

However, the parties are not likely well-served by expending time and resources trying a case, only to find on appeal that the erroneous recusal order cannot be undone, Miller. To find out at that late stage that a stipulation no more reinstates authority than some later order of the recusing judge does, would leave the parties "back at square one," beginning the trial process again with a new judge. Considering all of the authority discussed above, it may be best to simply proceed with the newly assigned judge following a mistakenly entered recusal. The risk of harm with attempting to undo that recusal may not outweigh the benefit perceived. 

Of course, the best solution is to avoid the mistaken recusal order. But, we are all human and we will all make mistakes. The issue in life is really not about some potential that we will be perfect, we will not. The issue is about learning from our errors when they occur and growing in our capacity to avoid repeating those errors in the future. And that, perhaps, is the value of this blog where one might learn from the mistakes of others, so as to avoid repeating them?

#workers' compensation

Thursday, July 27, 2017

The Adversary Judge

What is the judge's role in a legal proceeding? This is a question that I have heard time and again over the years. I heard it again recently at a program that involved an attorney delivering a lecture. In criticizing the fairness of a proceeding, the attorney highlighted how the presiding judge "interfered" and questioned a witness. 

The witness was essentially asked by a lawyer "did you insist on a grant of immunity before you would testify in this case." The witness affirmed. The judge then asked the witness "if you did not do anything wrong, why did you want immunity." Sort of a "have you stopped beating your spouse" question in the best of circumstances. But coming from the judge presiding over the trial, such a question might certainly influence how the witness is perceived. 

In Florida, the Judges of Compensation Claims are governed by the Florida Code of Judicial Conduct. Section 440.442, F.S. adopts and applies it. The Code is a series of requirements and cautions, organized in a series of Canons, and therefore is sometimes referred to as the "Canons of Judicial Conduct." The Code is available on the Florida Supreme Court website

When it comes to the judge's role in proceedings, Canon 2 is sometimes referenced. It provides:

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities
Subsection A may be of particular note. It provides

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 3 is also noted periodically, it provides:
A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
And, likewise, two subsections of this Canon bear mentioning, B(5) and B(9):
(5) A judge shall perform judicial duties without bias or prejudice . . ..
(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.
A judge is expected to fulfill the role of impartial adjudicator. That always includes maintaining the process and progress of legal proceedings, that is keeping the case on course and on schedule. When the judge is not the finder of fact (where there is a jury to decide which facts are true and which are not) that procedural maintenance is the primary role, accompanied by the responsibility for making evidence decisions and other legal rulings. When there is no jury, in a bench trial, the judge is burdened with also deciding the truth of various facts that may be in dispute. In either setting, the role of judge is never simple and requires attention, perseverance and patience. 

If a case involves a juror, what harm might come from a judge questioning a witness as purportedly occurred as described above? There is the chance that the jury might perceive the judge as either believing in or doubting a witness. That perception might change or reinforce how the juror feels about that witness and her or his testimony. Even if the question is not accusatory or critical, the fact that the judge feels some point requires her or his questioning might suggest to a juror that this point or issue is one of special significance or importance. After all, would a judge who hears cases like this day in and day out ask about this issue if it was not critically important?

But what if there is no jury? Does that mean that there is no fear about a judge abandoning the role of impartial adjudicator? Absolutely not. Any trial may involve people who are accustomed to such proceedings, and used to the process. Certainly, this includes most attorneys, but it also includes other people whose professions periodically expose them to hearings such as claims adjusters, expert witnesses, risk managers and more. 

That does not mean that everyone involved in a trial has experienced the process and is comfortable. In the field of workers' compensation that may be the injured worker or the employer. The proceeding in which these two find themselves may well be the one and only time that either will be in a trial. Either is likely to find the process new, different, and perhaps uncomfortable. And how might either or both of them perceive a judge asking questions of one of them or some other witness? And, does the tone or criticism in such a question cause them concern or doubt?

The Code requires avoiding even "the appearance of impropriety." If someone thinks it looks like the judge is taking sides, the judge's actions or words may appear inappropriate. Knowing this, the judge must focus on promoting public confidence, and "public" includes those people in the room attending the trial; it includes the injured worker and the employer. The Judge must remain focused on remaining impartial and projecting impartiality to the observers. Remaining impartial will minimize chances of perceptions of bias or prejudice generally, and specifically any such perceptions from "public comment."

With these considerations in mind, it remains clear that no rule absolutely precludes a judge from asking a question. Over the years, I have done so in proceedings when necessary. My practice has been to try to limit such questions to the attorneys. For example, I recall a proceeding in which some prior event date was discussed repeatedly. When I perceived that a witness had misstated one of these dates, I stopped and asked counsel to clarify which event was being discussed, and explained to all present that I was concerned that I had written an erroneous note. 

There is no doubt that even such an innocuous inquiry to counsel could be misperceived or misinterpreted. But, adjudicators must remember the potential for perception or misperception of bias, partiality, or abandoning the adjudicator role. 

With these cautions in mind, one should not need to discuss situations in which judges engage in arguments with counsel, but those do occur. I have listened to hearings in which there were arguments over the law. In some, one attorney sits virtually moot while the judge questions opposing counsel's position and arguments. In those situations, it has appeared to me that a judge has undertaken an adversarial role, and has abandoned the role of impartial adjudicator. If it appears that way to me, it may be that others would perceive that departure as well.

For these reasons, the Florida Fifth District in Layman v. State, 728 So.2d 814 (Fla. 5th DCA 1999) aptly analyzed the role of trial judge. It did "not hold that a judge may never ask a question." But, it cautioned that "to do so is risky." And, that "repeated interjections without objection can recast the judicial role from impartial adjudicator to an apparent advocate." 

It is sound advice. Though the Layman context was a jury trial proceeding, I caution that the same concerns should be considered by any judge in any proceeding. It is not just the perception of the jury that merits consideration, but the perceptions of the public. That includes the parties to the case, and they deserve their day in court before an impartial adjudicator. As an aside, it is interesting that these folks that we know are not well versed in the legal world are often referred to as "laymen." Perhaps that name similarity will be of assistance to judges in remembering the perceptions that they might create with questioning or comments. 

Tuesday, July 25, 2017

Pot, Impairment and Car Crashes

I served on a panel at the Colorado workers' compensation conference this spring. IT was a tremendous program in an ideal setting at the base of Pikes Peak. Believe it or not, the subject of Marijuana came up (In Colorado, who'd have thought). Marijuana is a subject about which there have been multiple musings in this blog. A few of those are:

Medical Marijuana.
Marijuana May be a Problem, You Think?
So Federal Law Matters in Colorado.
What will the Next 30 Years Teach Us?

In another post, Measuring Marijuana Intoxication, I discussed some issues with the way marijuana affects people, and the distinctions it has from alcohol. Alcohol presence can be measured more readily, even if scientists tend to believe that the thresholds such as .08 BAC are convenient but not necessarily scientifically definitive of impairment. Despite the scientific questions, laws across the country have defined presumptions of impairment with that blood alcohol presence (.08) and others. 

This spring, national public radio (NPR) reported that "drug-impaired driving is a growing concern." Despite that, "its actual impact is still difficult to measure." There is evidence that drug-impaired driving is even more prevalent that alcohol-impaired. But, in determining causation of accidents, NPR reports that  "findings cannot show that drugs are responsible for more deaths on the roadways than alcohol," and the reason is tied to the difficulty with measuring drug impairment. 

A recent "insurance study" reported by Fox News, "links increased car crash claims to legalized recreational marijuana." Keep in mind that there is no such think as "legal marijuana." Marijuana remains illegal under federal law in this country, and no state can legalize it. The states can, and some have, elected not to criminalize possession or use under state law. The states can also elect not to enforce federal law. But states can no more legalize marijuana than they can legalize kidnapping or counterfeiting. Those are also against federal law. 

This insurance study cannot link accidents to drug use or impairment either. Perhaps for the same reasons cited by NPR regarding impairment generally. What the insurance study found, however, is that "it would appear, not to anyone's surprise, that the use of marijuana contributes to crashes." And, one highway safety industry spokesperson noted that "while we have proven countermeasures, proven strategies for reducing alcohol impaired driving, there are a lot of unanswered questions about marijuana and driving." 

Some claim impairment can be effectively measured. One University of Massachusetts professor reported by The Boston Globe has "created and self-funded DRUID," which stands for "driving under the influence of drugs." It is an app that asks "users to tap the screen in certain places when they see different shapes." There are also tests for stopping a stopwatch at 60 seconds and using the finger to follow a moving object on the tablet screen. Although there are no peer review studies to validate the relevance, Professor Milburn recommends the app for those who wish to avoid impaired driving. I wonder as I write this if the app could be adapted to have some kind of fruit or birds involved (gazing into space and pondering).  

A PhD candidate at the University of Akron has recently announces another tool, which operates from a sample of saliva. This device was reported on Cleveland.com (Ohio, a state that has not yet de-criminalized marijuana). It is called a Cannibuster, and it measures the "levels of THC," which the developer notes is "the active ingredient in marijuana." Of course, there is evidence that THC is one of "over 400 chemical entities of which more than 60 are cannabinoid compounds" in cannabis. See NCBI

There remains much to be done. There are perceptions that drug use is contributing to accidents. Police who are directed by law to ignore possession and distribution of federally controlled substances may nonetheless have to deal with those who drive under its influence and perhaps contribute to or cause accidents. An effective and reliable method for measuring impairment is perhaps needed in order for their to be consistency. Of course, it is possible that the other debate, whether such standards are scientifically efficacious, should be had instead. 

Much to ponder in the world of marijuana; a world that seems to become larger everyday.

Sunday, July 23, 2017

Writ Protection as Opposed to Appeal

In June, the Florida First District Court published its opinion in Lewis v. Dollar Rent a Car. The case is instructive and interesting. Though it is an appellate court decision, it is not technically an "appeal." Appellate courts have both appellate jurisdiction and "original jurisdiction," and in this instance it was original. 

Appeal generally follows the issuance of a final order either by some court or an administrative agency such as the Office of Judges of Compensation Claims (OJCC). As an aside, there is no doubt that the OJCC is no "court," though a great many still refer to us as "this court." Whether that is the product of ignorance or inadvertence is unclear and likely as unimportant. But, it is worth reiterating periodically. 

Trial courts and administrative agencies conduct hearings, and make decisions regarding disputes between parties. Those can be major disputes such as whether one side has proven entitlement to damages (or workers' compensation benefits) or not, whether a witness is telling the truth, whether one physician's conclusions are more credible than another, and more. 

Or, the disputes may be smaller conflicts that arise while the parties prepare the larger dispute for trial. When these smaller disputes arise, the parties often work them out through discussions and compromise. But, when they find they cannot, one of them will often file a motion seeking the tribunal's intervention. A motion is simply a formal request for the trial court or judge to settle the minor dispute. It is astounding how many motions are filed and how many orders a judge must enter resolving them all.

During this period when cases are prepared for trial, when these smaller disputes arise, it is possible that a variety of disputes might come to the trial judge for resolution in a particular case. The outcome of any of those disputes might have an effect on the ultimate outcome of the trial towards which the parties are moving. For example, the dispute might be over the production of certain documents one party has but does not want to provide to the other party. How the trial judge decides that dispute may affect what evidence is ultimately available and introduced at trial. 

The role of the appellate court, in most cases, is to review a trial judge's decisions on such issues after a trial is concluded. Dissatisfied with the outcome of trial, a party might appeal based upon the decision regarding a motion before trial, or upon an evidentiary ruling at trial, or upon an interpretation of the law made in the course of the ultimate decision from trial. These appeals can be limited to a single tribunal decision, or may focus on a number of decisions made both before and during trial. 

But, there are also instances in which it may be inappropriate for a decision to await the end of the trial process for review. In those instances, rather than appeal after the trial, a party may seek to have the appellate court intervene on a particular decision that the party believes should not await the conclusion of the trial case. The party in that instance files what is called an "extraordinary writ." There are various descriptions of these, but three common writs are for "prohibition" (asking the appellate court to tell the trial court to stop doing something), "mandamus" (instead telling the trial court to do something particular), and certiorari (correcting an error of the trial court). 

In Lewis, the employer/carrier asked the injured worker to attend a functional capacity evaluation (a test in which the physical capabilities of a patient are tested and measured). The injured worker did not wish to undergo the test, and he employer/carrier filed a motion asking the trial judge to order attendance, which the judge granted. The injured worker might have undergone the test and nonetheless appealed the ultimate outcome of the trial, then contending that order was wrong. But, in this instance the worker sought immediate review by certiorari. 

There are many cases in litigation at any moment in time, and a great many motions are decided in them. It would be impractical for any appellate court to review all such decisions. For example, in Florida there are over 1,000 trial judges at work each day making decisions, and there are only 72 appellate judges (including 7 Supreme Court Justices). The 65 judges of the intermediate appellate courts (the District Courts of Appeal) make their decisions collectively, usually in three judge panels (those 65 judges can collectively form about 22 panels at a time). It is mathematically impractical for appellate courts to review every decision by certiorari. 

Therefore, this type of review, an immediate review, is not available for every trial court decision. To be entitled to such relief, a party must demonstrate that the complained of decision causes "harm that cannot be corrected on appeal,"and that the order complained of results "material injury for the remainder of the case." In other words, the party must demonstrate to the court that there is a compelling reason for appellate intervention in the process before the conclusion of the ultimate trial. 

In Lewis, the Court noted that the motion to compel had been based on a prescription from the treating physician and that the employer/carrier asserted it was "medically necessary." But, the Court noted that no evidence to support those medical opinions was filed in support of the motion. But, on the morning before the motion was heard, documents were filed including the FCE prescription, medical records, and a physician note saying the test was “medically necessary.” 

The trial judge accepted the documents as evidence over the injured worker's objection. The injured worker argued that the documents from the doctor were not provided in a timely manner, and that they were "unauthenticated." Authentication is a legal requirement that is too often ignored or overlooked. Authentication of documents usually requires the testimony of a witness, someone with knowledge as to what the document is. Although some documents are "self-authenticating," because some statute or rule says that type of document is what it says it is (newspapers are an example), most documents require a witness to attest to what they are, where they came from, etc. 

Medical records are not "self-authenticating." In order to be admissible as evidence, medical records generally need to be authenticated by some witness who is competent to testify that these particular pages are what they say they are. Generally, medical records are authenticated by the physician that created them or by an office employee who is responsible for maintaining those records (often referred to as a records custodian). 

In Lewis, there was no such testimony to authenticate the medical records. And as such the genuineness of the documents was not established. One might see this as a technical point. But, it is important that trial judges make decisions based upon evidence that is appropriate, legally allowable, and genuine. 

In Lewis, the Court noted its previous  holdings that 
[i]n the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.
It then rejected the Employer/Carrier's argument that an FCE is not "invasive." The Court held that it had 
never interpreted the invasiveness of the examinations so narrowly, and our decisions have not turned on proof of the type of medical procedures that may be included as a part of the compelled exam.
Essentially, the Court concluded that any medical examination is per se "invasive," and therefore the ordering of any medical examination is potentially "irreparable harm." In support of its conclusion, the Court noted prior decisions in which it had determined that "the invasion of privacy alone may constitute irreparable harm."

The Court also reminded, that in workers' compensation, the rights of both the employer and the inured worker are generally controlled by the statute in effect on the workers' date of accident, which in Lewis was in 1988. That statute did not "expressly provide for FCEs." However, the Court concluded, that because the law "requires the E/C to provide Claimant with medically necessary remedial treatment," then "an FCE may be considered a medical benefit." Therefore, in a 1988 case, an injured worker could seek an FCE and the Judge would have authority to make an Employer/Carrier provide that. 

However, the Court concluded, that the JCC lacked statutory authority to order the injured worker to undergo an FCE, that is to "require a claimant to submit to medical treatment or testing." The Court held that there must be specific statutory authority for such testing, and that there was no such specific in the 1988 statute. Thus, there is statutory authority to give an injured worker the right to such a test if desired, but no authority to force such a test on the worker against her/his will. 

There is a potential that such a test might be seen as a medical benefit. In that regard, the Court noted that "the claimant always has the right to reject medical assistance," but conceded that there might be "consequences" from such refusal. 

The Court held that the absence of such statutory authority precludes ordering the FCE. Because there was no authority, the injured worker undergoing the examination would "cause Claimant irreparable harm." Returning to the distinction between an appeal and an extraordinary writ, the Court did not "reverse" the trial judge but "quashed" (reject or void) the judge's order requiring the FCE. 

The distinction is apparent. By demonstrating the requisite harm, and other facts, the injured worker did not have to undergo the testing. The trial judge's order is nullified. This case aptly demonstrates the effective use of the extraordinary writ. 

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."

Tuesday, July 18, 2017

Another Look at Castellanos

A great deal has been said about Castellanos v. Next Door Company in the last year. I have written about it on a few occasions including A Potential Procedural Progeny Potential of Castellanos, Constitutional Law in Florida 2016, and Castellanos is Decided by Supreme Court. But for students of the law, the topic does not lose interest.

The decision is an intriguing one that departs from the mainstream of constitutional analysis. That mainstream generally categorizes constitutional analysis into two main groups, "facial" and "as applied." A determination that a statute is "facially" unconstitutional is a conclusion that it cannot render an appropriate outcome no matter the facts involved. That is, as regards Castellanos, that the formula in Fla. Stat. 440.34 would not render an acceptable fee in any case under any circumstances. Even before this case was decided, there were few, if any, that believed this statute was facially unconstitutional. 

There were those who vehemently believed that the statute was unconstitutional "as applied" in that case, because the resulting effective hourly rate at which attorney fees were awarded was so low. The "statutory fee" that resulted in Castellanos (because of the combination of the moderate or low dollar value of the claimed benefits and the significant investment of attorney hours obtaining them) was $1.53 per hour. In another case, now decades ago, the significant dollar value of benefits and relatively moderate volume of hours invested by counsel yielded an effective hourly rate of "of over $4,000.00 per hour." What an Idea Inc. v. Sitko, 505 So.2d 497, 503 (Fla. 1st DCA 1987). The statute was not unconstitutional as applied in that case because of the high effective hourly rate. 

There have been those over the recent years who have suggested that perhaps some cases yield low (effective hourly rate) fees and other yield higher fees. They suggest that perhaps there is an overall average affected by all of these various cases, and that such a macro analysis is more indicative of fee sufficiency than selecting any one case for the analysis. 

There have been others over the last year that have explained to me that the statutory fee should be viewed as a "floor," providing a measure of predictability for attorneys. They argue that the departure from that fee should be considered in situations analogous to Castellanos but not considered in situations analogous to Sitko. This apparently advocates a micro analysis when effective hourly rates are deemed insufficient, but a more macro view whenever the fees are not deemed insufficient. Some will find fault with an analysis so focused. Others argue that the fee analysis might as readily lead to a decrease or increase. 

I have heard these two, and other interesting analysis and justifications for various positions and postures over the last year. I find them all interesting. The point is that various people have different perceptions of how the Florida workers' compensation fee statute should work and what would be "fair." The 2017 legislative session certainly stimulated a fair volume of discussion regarding that topic, with many conflicting, but nonetheless seemingly sincere, views expressed. 

But, Castellanos was not decided on the analysis of "facial" or "as applied" constitutionality. Some might even argue that Castellanos was decided on an analysis of what would provide expediency. The Court noted, in response to one Justice's opinion, that a case by case determination of "as applied" would be a procedural challenge. 

The Castellanos decision is founded upon the concept of an "irrebutable presumption." The Court concluded that an irrebutable presumption cannot stand in the face of due process guarantees of the constitution. As support, the Court cited Recchi America Inc. v. Hall, 692 So.2d 153 (Fla. 1st DCA 1997). Recchi involved Section 440.09(3):
No [workers'] compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee.... If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee's blood, or if the employee has a positive confirmation of a drug as defined in this act, it shall be presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. (Emphasis added). 
This, the Court concluded, "creates an irrebutable (or conclusive) presumption that violates the constitutional right to due process." The District then applied a three-part test regarding the constitutionality of "irrebutable presumptions," from the Supreme Court's analysis in  Markham v. Fogg, 458 So.2d 1122, 1125 (Fla.1984)Bass v. General Dev. Corp., 374 So.2d 479, 484 (Fla.1979).

Markham v. Fogg, 458 So.2d 1122 (Fla.1984) interpreted "agricultural classification" under Section 193.461, Fla. Stat. The Court concluded that " section 193.461(4)(a)3.(1973) is in the form of a mandatory presumption." That section provided:
(4)(a) The assessor shall reclassify the following lands as nonargicultural:

3. Land that has been zoned to a nonagricultural use at the request of the owner subsequent to the enactment of this law, or
The Court found persuasive that this section did not allow a landowner to "present evidence in opposition to the appraiser's reclassification," which another section of the same statute, Section 193.461(4)(c), did:
(c) Sale of land for purchase price which is three or more times the agricultural assessment place on the land shall create a presumption that such land is not used primarily for agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted."
The Court concluded that the "clear legislative directive to the property appraiser" of Section 193.461(4)(a)3. is therefore "in the form of a mandatory presumption." This conclusions despite the absence from that section of the word "presumption" or "presume" or any similar indicia of presumption. Markham, 458 So.2d 1122, 1125 (Fla.1984)

Bass v. General Dev. Corp., 374 So.2d 479, 484 (Fla.1979) follows a similar analysis of the same statutory provision, concluding, without citation of any authority, that Section 193.461(4)(a)4(1975) "creates a conclusive presumption." That Section states:
(4)(a) The assessor shall reclassify the following lands as nonagricultural:4. Land for which the owner has recorded a subdivision plat subsequent to the enactment of this law. 
Again, no mention of "presume" or "presumption" in the statute. The Court then engages in an analysis of the Due Process Clause and the same three element test engaged by the Court regarding Due Process in Markham and Castellanos:
(1) whether the concern of the legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid; (2) whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and (3) whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption. See Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)Gallie v. Wainwright, 362 So.2d 936 (Fla.1978).
Thus, one might argue, that the three point analysis employed by the Court is dependent upon the conclusion that a statute is an "irrebutable presumption." That conclusion might be reached based upon statutory language that states there is a presumption. Recchi America Inc. v. Hall, 692 So.2d 153 (Fla. 1st DCA 1997). Or, as in Bass, Markham, and Castellanos, that conclusion might be reached about a statute section that makes no mention of presumption in any context, tense or form. 

And, from this, one might conclude that any statute which affords no judicial discretion is an irrebutable presumption, potentially unconstitutional under the three-step process described by the Court in Weinberger and Wainright. As noted in Wainright, there is also a "more stringent" test of the Due Process analysis. It is used when "a constitutionally preferred right or privilege is in issue," see Vlandis v. Kline, 412 U.S. 441, 452 (1973). 

It is worth remembering that the Supreme Court of the United States is always right. This is because it is the last court to which one may apply for relief. As there is no further court in which one could pursue one's case. the outcome at the U.S. Supreme Court is always right. Associate Justice Robert Jackson is credited with saying "we are not final because we are infallible, but we are infallible only because we are final." An interesting interpretation of the role of courts in America. There are those who find Justice Jackson interesting reading. For those with an interest in constitutional analysis, Jackson's dissenting opinion in Korematsu v. United States, 323 U.S. 214, 242-245 (1944) is interesting reading.

As regards interpretation of state law, the same "final" analysis might be undertaken. Many have stated that there is little to no chance of the United States Supreme Court reviewing workers' compensation decisions. The time has passed for such review of Castellanos in any event. It is interesting to listen to various opinions regarding the appropriateness of the decision. There are those who continue to criticize the Court's insinuation of "presumption" into a statute with no mention of that word. They predict a future in which other statutes might be similarly evaluated without due consideration of their actual words. 

However, the decision in Castellanos is "final," and as it is final, it is in fact infallible according to Justice Jackson. It is possible that future analysis may find fault with its logic or interpretation, but it is today the law of Florida; despite the enjoyment some seem to glean from continuing to discuss it?

Sunday, July 16, 2017

Smart Phones and Kids in the Mile High State

We are struggling with technology, perceptions, and parenting. The world is changing around us and as individuals I think we are each struggling with change at some level and in some context. 

I recently read about a bit of a backlash against technology, particularly for kids. CNN reports on an effort by a Colorado physician to ban the sale of smartphones for children under 13 years of age. The motivation is Dr. Timothy Farnum's perceptions of his own son's "addictive behaviors toward the technology." Denial of the technology to his son resulted in "a pretty dramatic, very violent outburst." Dr. Farnum is also disturbed by "his 10- and 11-year-olds' loss of interest in activities such as playing outside."

I was reminded, as I read that, of the recent legislative debate in Florida regarding "addiction" and "compulsion." I  wonder if Dr. Farnum's son is actually "addicted" to technology as he asserts, or whether he is a "compulsive" user? However, I have heard the lament about how little time young people spend outside these days. And, video game pervasiveness is perhaps empirical. NBC news recently reporting young millennials are working less, and the young men are gaming more. Whether "addiction" or "compulsion," are gaming habits a product of early introduction to our youth?

An organization has been founded in Colorado, "Parents Against Underage Smartphones." The collective goal is to control parenting and thereby enforce the common good (good government, good parents, good kids). They are seeking "150,000 signatures in order to get Initiative 29 on Colorado's ballot." If passed, the law "would require retailers to ask a customer their age or the age of the intended primary owner of the smartphone before the sale." The stores would "have to file a monthly report" documenting who bought smartphones and "how old the owner was at the time of the purchase."

Selling a smartphone to be owned or primarily used by someone under 13 would "result in a written warning, the second violation would carry a $500 fine, and the fine would double for each subsequent violation." The import of this is that smartphones are allegedly seriously bad for children under 13. For comparison, the Colorado Department of Revenue website outlines retailer fines for selling cigarettes to minors, and those fines are $250.00 to $15,000.00, after the retailer has been issued a warning. The penalties for cell phone (with the doubling) might well exceed fines for cigarettes. 

Colorado has elected to decriminalize marijuana, allowing anyone over 21 years old to purchase and consume it at will. According to Colorado.gov, adults that provide marijuana to kids "may face civil or criminal penalties" and retailers "can lose their license for selling marijuana to anyone underage." According to Norml.org, the sale or transfer of "not more than 1 ounce" to a minor can be penalized by 6 to 24 months in jail and fine of $1,000 to $100,000.00 ("transfer" is broad, a parent might be imprisoned or fined for providing marijuana to a child; but no penalty for the parent that provides a smartphone?). So, distribution of marijuana to minors remains criminal, and potentially more expensive than the proposed cell phone penalties.

As an aside, I have wondered about second hand smoke from marijuana. But in a recent Florida court filing, it has been asserted that "there have been no reported medical cases of lung cancer" attributed to marijuana." Perhaps there is no risk from "second hand" smoke as regards marijuana. I have found no prohibitions on smoking weed around minors. 

I have also seen a trick where one shields the combustion portion of a pipe and blows air, causing a stream of smoke to emit from the mouthpiece of a marijuana pipe. The context of this action, sometimes referred to as "shotgunning" is to propel smoke into a second person's mouth and thereby lungs. There is also purportedly something called a "shotgun kiss" that accomplishes something similar. I have not found anything specific on this, but wonder if someone providing smoke to a minor in this way would incur similar penalties?

Colorado.gov assures us that exposure to secondhand smoke "is unlikely to make you 'high'." But, it also notes that "marijuana smoke, both firsthand and secondhand. contains many of the same cancer-causing chemicals as tobacco smoke." It encourages smokers to "protect your children and family from the effects of second-hand smoke." Now that may just confuse everyone in light of the assurances that "there have been no reported medical cases of lung cancer" attributed to marijuana."

But, putting concerns of weed and second-hand smoke aside, "Parents Against Underage Smartphones," have instead elected to take on what they see as a greater risk to Colorado's children, the smartphone. Dr. Farnum admits that some have been critical of the effort, suggesting that the smartphone decision should be left to the individual parent (the same parent perhaps that decides whether to blow dope around the kids). Cell phone industry groups have suggested an alternative approach in which parents would "talk with their children about responsible use and set rules that are right for their family." It is unclear why that solution is not preferred. A professor of pediatrics cited by CNN advocates for setting usage parameters, parental monitoring, and conversations between kids and adults.  

As I wrote this, I was reminded of a 2015 movie about video games, Pixels. In it, aliens attack Earth with an assortment of video game iterations from the 1980s. Confronted by this challenge, the President assembles the best and brightest at the White House for discussions. One leader, Admiral Porter, has a recurring solution to the challenge, to "bomb" whoever is responsible, eventually suggesting "let's bomb google." There is a viable solution, no matter what, let's bomb something, or should we just ban something?

There is general support for the concept of technology addiction. A recent study concluded that "over a third of Internet users worldwide agree they have a hard time disconnecting from technology." The study seems to support that the impact of technology, and the struggle to disconnect, is more prevalent with teenage users. But, in that broad concern is another question or two. Should this Colorado ban address tablets, laptops, desk tops, or consoles like the PS4, Wii, or XBox? Are games and gaming more addictive or more damaging if they are on a phone? Some will argue that phones are more accessible and portable. Perhaps. But the marketplace is full of an assortment of "handheld" video game devices. 

There is evidence that studies support "screen time" can present risks of "expressive speech delay" in children under 2. A demonstrable harm attributed to use by the very young. But, there is no data cited to suggest that "screen time" on a cell phone is any different than the "screen time" on any other type of handheld or console device. 

So, will the state that seemingly leads the nation in the unprosecuted production and distribution of marijuana be the first state to monitor and regulate children's possession of smartphones? Is there risk in secondhand smoke (intentional or inadvertent)? Is the distinction between the vast array of gaming options and the smartphone valid? Would the better answer in these contexts be better parenting, parameters, and conversations? If you had told me ten years ago that smartphones would be seen as a bigger risk to kids than marijuana, I would have laughed. But, who's laughing now?