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Court Holds Exclusive Remedy Facially Unconstitutional: [2014-08-20]
For some reason, I have found myself thinking of great comedians this week (veiled reference to the loss of one of America's greatest last Sunday). I am always a fan of those that make me laugh. One that came to mind yesterday afternoon is Jim Carrey and his portrayal of the Grinch in Ron Howard's modern adaptation. There is a scene in which the Grinch is somewhat forcibly fed "pudding" by the Whos, with each spoonful receiving a comment. This scene ends when one spoon is shoved in his mouth with the comment "this is not pudding," to which he replies with some alarm (and a priceless facial expression) "what IS IT?!?"
I blog twice a week, usually on Mondays and Wednesdays. I have a lot of respect for those who have the energy to produce more often or even daily like Bob Wilson (Bob's Cluttered Desk) and David DePaolo (DePaolo's Workcomp World). But I take to the blogophere this morning because the world of workers' compensation has many questions this morning. Could Aug. 13, 2014, be a "red letter day" in workers' compensation across the country?
A circuit judge in Miami concluded that Florida's workers' compensation law is unconstitutional on its face. That is, there is no circumstance whatsoever in which Florida's exclusive remedy is constitutional. There will be much head scratching this day and many will be as confused as the Grinch when they analyze this decision and the equivalent of a cry "what IS IT?" will be heard in many a conference room, on many a phone call, and answers will be elusive. In short, it is likely too early to make any concrete conclusions about where Florida workers' compensation stands today.
The first question on everyone's mind seems to be "where does it (the decision) go from here?" The decision is from the 11th Circuit Court in Miami. Therefore any appeal of yesterday's decision will initially be in the 3rd District Court of Appeal, which is also in Miami. That court could agree with the trial court, holding that the Florida workers' compensation law is unconstitutional, or that court could reverse that decision. That review by Florida's district courts is the normal or customary procedural process for review of trial court orders.
If a district court, such as the 3rd District, "declares invalid a state statute," (agrees with the trial court in this instance) then the case "shall" be reviewed "by appeal" by the Florida Supreme Court, pursuant to Florida Rule of Appellate Procedure 9.030(1)(a). The Supreme Court "may" review any decision of a district court that "expressly declare valid a state statute." Rule 9.030(2). So, any decision of the 3rd District in this case could be reviewed by the Supreme Court, but a decision by the 3rd District concluding the statute is unconstitutional must be reviewed by the Supreme Court.
There are procedures that allow a district court to "pass" on review of a case, and instead send it directly to the Supreme Court. Rule 9.030(2) allows the Supreme Court to hear appeals of "orders and judgments of trial courts" if the district court (in this instance the 3rd DCA) certifies that a pending appeal "require(s) immediate resolution by the supreme court" and that the appeal is "of great public importance" or has a "great effect on the proper administration of justice." Most Floridians will recall that this was the procedural course in Bush v. Gore, in the early part of the century. Is the situation here of such a pressing nature?
There will be debate today on these possibilities. Will the State of Florida appeal? Will the 3rd DCA hear the case or pass it to the Supreme Court? In either event, how long will it take for the appellate courts to rule? In the meantime, what does the trial court decision mean, for people on workers' compensation benefits, for people injured today, for the administration of the system? So many will ask today, essentially, "what IS IT?" There will be doubts and questions.
Back to the decision yesterday and what it means. I cannot answer definitively the "what IS IT?" question. I will leave the opinions and prognostications on that to others. But we can better understand some foundational concepts of constitutional law.
For those who do not study the Constitution, there are a couple of points worth noting. First, constitutional law is an analysis of competing rights in most cases. Both our Florida and United States Constitutions memorialize rights which we enjoy. It is often when the rights of one person or group collide with the rights of some other person or group that we see a court step in to sort out the conflict.
It is important to remember that in constitutional analysis, there will be action of the government, that is "state action." The constitutions protect people's rights, certainly, but that protection is against state action. You generally do not have a right to equal protection from your neighbor John, nor any right to freedom of assembly on someone's private property, for example. It is when the government is involved that the Constitution provides protection. For the most part, it is the state's actions which are constrained by these memorials or recitations of rights.
Courts deal with such conflicts between rights using analyses called "standards of review." Any lawyer will remember these from law school, and although there are arguably several additional standards, the primary three provide a rudimentary road map for illustrating constitutionality analysis. They are "rational basis," "intermediate" and "strict scrutiny."
When laws or state action affect rights, the first decision of a court is which of these standards to apply in analyzing the allegation(s). Most economic regulation is afforded a "rational basis" analysis, in which the court presumes that the government action is constitutional. When action or legislation discriminates against a protected class (race or national origin), or when legislation affects a "fundamental right" (which may or may not be specifically listed in the Constitution), then the Court applies "strict scrutiny," in which the court presumes that the action is unconstitutional. When the action or legislation discriminates based on gender or heredity, then the analysis applied by the court is between these two and is called "intermediate scrutiny."
It would be simpler if these were the only standards, and it would be simpler if each were clearly defined and consistently defined. They are not. For example, in recent years, the U.S. Supreme Court's analysis of gender discrimination has seen a definition of "intermediate" scrutiny that has subtly edged closer to the "strict scrutiny" standard. Generally, these subtleties are of interest mostly to those few who study the Constitution (yes, some of us read this stuff just because it is interesting). But a rudimentary understanding is needed to comprehend Florida's decision yesterday.
The circuit court in Miami concluded that the Florida Legislature, in enacting workers' compensation, impaired a "fundamental right" of Floridians. This conclusion led the court to apply the "strict scrutiny" standard of review. This standard creates a presumption that the law is unconstitutional.
Presumptions are often confusing and confounding, even to lawyers. They should not be. A presumption is simply a conclusion that will stand unless someone proves that it should not. The example most Americans can quickly grasp is the presumption of innocence. We hear it on television today, and it has been a staple throughout the last forty years of Perry Mason, L.A. Law, Boston Legal, and every other police and court show. That is, when Americans are accused of crime, they are innocent until the state proves that they are guilty; this is the "presumption of innocence." The presumption, innocence, is the conclusion that is true until someone (the state) proves otherwise.
In "strict scrutiny," the law (Florida' workers' compensation statute) is presumed to be unconstitutional until someone (the state) proves otherwise. That did not occur in Miami. In fact, the state did not intervene (that is take an active role) in Miami. The attorney general did file a response to an earlier order of the trial judge; this response challenged the court's jurisdiction and asserted that changes in workers' compensation benefit levels are within the Legislature's appropriate authority. The challenger of the statute (Florida Workers' Advocates and others) appeared in this case, Florida Workers' Advocates v. State of Florida. The judge heard evidence from the challenger or "plaintiff" (technically those seeking the determination could be referred to as "intervenors" or "petitioners," but it is perhaps clearer to use "plaintiffs" for the non-lawyer readers). The State of Florida, the "defendant," did not appear, did not produce evidence, did not make any arguments.
Based upon the information submitted by the plaintiffs, the court concluded that "among a multitude of other infirmities, the Florida Act, after October 1, 2003, no longer provides any benefit for permanent partial disability" and that "as a matter of law, Chapter 440, effective October 1, 2003 is facially unconstitutional as long as it contains 440.11 as an exclusive replacement remedy."
Thus, the State of Florida did not prove that the workers' compensation law is constitutional. In the absence of that proof, the "strict scrutiny" presumption, "unconstitutional," stands. The presumption remains true until it is proven untrue. The burden of proof in "strict scrutiny" situations is upon the government, in this instance the state government.
The trial court's decision will be read and re-read today, tomorrow and for days to come. Decisions will be made about whether and how any appellate review will be pursued. Doubts will be expressed about our process and system. Questions will be asked. Advice will be sought. Opinions and prognostications will be in ready supply.
The eyes of the nation will be on Florida. Workers' compensation is a "huge" process. For an idea of how huge, see "How Huge is it Anyway?" in the Lex and Verum, June 2014. In a nutshell, workers' compensation is billions of dollars annually "huge." It is a program that is in place in every state. It is a program that touches millions of lives and the vast majority of employers and their employees (small employers are not required to participate in many jurisdictions). It is is "huge." Its operation and transparency affect many Americans. Whether and how it works or fails is a subject in which millions will be interested and upon which much will be said in coming days, weeks and months.
What IS IT? Time will tell.
David Langham is deputy chief judge of the Office of Judges of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.