Waiving Statutory Rights in Florida

On April 20, 2016, the Florida First District Court of Appeal rendered a decision in Miles v. City of Edgewater Police Dept.,190 So.3d 171 (Fla. 1st DCA 2016). The factual setting involved a police officer endeavoring to prove entitlement to Florida workers’ compensation benefits, without the aid of an attorney. Eight days later, the Florida Supreme Court rendered Castellanos v. Next Door Company, 192 So.3d 431 (2016).

Mr. Castellanos challenged Section 440.34 on multiple grounds, including the “right to contract.” The Court decided the case “on the basis of the constitutional rights of the claimant under due process,” and therefore did not address “the other grounds raised,” including the "right to contract." While the case may not specifically stand for contract rights, the issue was raised. 

A main premise of Castellanos is that injured workers are not capable of representing their own interests in a Florida workers’ compensation proceeding. The Court noted that “in a ‘lengthy and expensive contest’ with an E/C, a claimant proceeding ‘without the aid of competent counsel’ would be as ‘helpless as a turtle on its back.’” 

The Court analyzed Florida’s “statutory fee” a formula by which the labor of attorneys was compensated using “a sliding scale based on the amount of workers' compensation benefits obtained.” Using that formula, the Court considered a fee specific to that case, which effectively compensated “Castellanos' attorney . . . only $1.53 per hour for 107.2 hours of work.” 

The Court concluded that specific outcome unconstitutional. But, the Court eschewed traditional constitutional analysis of “facial” or “as applied” infirmity, and concluded instead that Section 440.34 was unconstitutional because it established a “conclusive irrebutable presumption.” The Court was clear that it “is the irrebuttable statutory presumption - not the ultimate statutory fee awarded in a given case - that we hold unconstitutional.” Statutes that fix a set amount, and afford no "out" are unconstitutional.

The Court noted that this outcome, invalidating a statutory mandate regarding compensation, is appropriate. Because, the Court says, reasonable attorney's fees have always been "the linchpin" to the constitutionality of the workers' compensation law. Not “a” linchpin (linchpin, according to the Cambridge online Dictionary , is “a person or thing that is the most important part of a group or system’s operation.”). Attorney fees, the Court held, are the most important element of Florida workers' compensation. 

The Court held that a fee award (payment for labor) “calculated in strict compliance with the statutory fee schedule” meant that “the statute presumes that the ultimate fee will always be reasonable,” and that the statute failed to provide “any mechanism for refutation.” In other words, the statute legislatively set remuneration as reasonable, and deprived both parties to the employment (of an attorney) contract of the ability to deviate (higher in this Castellanos instance) from that statutory mandate. Of course, the statute would clearly allow the parties to deviate downward from the fee, as it set a maximum not minimum fee. 

Days earlier, the Florida First District Court of Appeal had rendered Miles. The Court considered the Section 440.34 restriction on payment of attorney fees by injured workers in Florida. The Court concluded that while a statute may establish rights, we are free to waive those rights. The statute prevented or constrained injured workers paying fees. The Court concluded that the state has no interest in protecting workers in this way. 

The Court noted “Florida case law has long recognized that an individual can waive his or her personal constitutional rights,” even “protective rights.” A litany are cited, including rights to present evidence, to be free from warrant-less search, and to remain silent. That last one always reminds me of the comedian describing his arrest when he says "I had the right to remain silent, but I lacked the capacity." 

The Miles Court reasoned that “if a person can waive constitutional rights, a person can also waive statutory rights.” In fact, the Court noted that The Florida Supreme Court has already so held in In re Amendment to the Rules Regulating the Florida Bar, 939 So.2d at 1038–39 (Fla. 2006). The Court concluded similarly, there is “no reason why a workers' compensation claimant should not be able to waive a limitation on claimant attorney's fees.” When the legislature enacts laws to protect people's best interests, those people are free to waive those protections. 

That is a critical difference between the analysis in Castellanos and Miles. The Castellanos Court painted over the statute with a finding of patent unconstitutionality (it cannot be appropriately applied in any case because it sets a fee and affords the contracting parties no opportunity to negotiate to some other, mutually agreeable, figure). Miles, instead, confines to traditional constitutional analysis and concludes the statute unconstitutional “as applied” to Ms. Miles. 

There are those that now argue that all Florida workers are as impaired by the law as Ms. Miles. Their contention essentially that the statute is unconstitutional “as applied” to any worker, or at least to many workers. Others argue a more constrained interpretation of Miles, and a case-by-case analysis of the statutory impairment demonstrable to each particular worker. As of this time, the debate continues and there is no necessarily definitive answer, but some predict that further analysis may be forthcoming from the Court in future cases. 

The Miles Court concluded “Thus, the public harm to be prevented - undue depletion of workers' financial resources and undue disruption of the workplace - does not prevail against the individual's right to contract for legal representation.” The individual, you see, has the right to contract according to the Court. The injured worker has the right to hire an attorney and the attorney has the right to negotiate the terms upon which she or he is willing to perform the work. Some conclude that Miles therefore is a "right to contract" case, more so than Castellanos. 

But, what if the statute did not set maximum fees for attorney representation? What if it instead set minimum fees for representation. If a statute cannot determine the most that someone can be paid for their labor can it nonetheless set the minimum? Some argue that this is the effect of Section 440.34 in setting a "statutory fee." 

The analyses of both Miles and Castellanos have spurred some other interesting discussions. Discussions of the right to contract, and statutory provisions that set compensation without some methodology allowing deviation. 

For example, in Florida, minimum wages for workers are set by both the Fair Labor Standards Act, and the Florida Minimum Wage Act. Section 448.110(3), Florida Statutes (2009). These laws establish a minimum hourly rate at which work will be compensated. Under these, the “Employer was required to pay Claimant a minimum wage for all hours worked during the course of employment.” See, Martinez v. Ford Midway Mall, Inc., 59 So.3d 168 (Fla. 3rd DCA 2011). There is no common law right to such minimum compensation, nor any constitutional mandate of such wage. 

Theses statutes create a right, arguably in a similar manner as Section 440.34 created a right regarding attorney fees payable by an injured worker. These statutes arguably restrain the ability of two persons to negotiate a contract of employment, placing statutory constraints on the terms of such a contract. 

In this regard, does the requirement of a minimum wage abut Miles and Castellanos? Do Floridians have an absolute right to contract? Can a person agree to perform work or tasks for another in exchange for some monetary (or even non-monetary) consideration? And, though the government has seen fit through both federal and state legislation to define the minimum compensation for labor, just as it did regarding compensation for attorneys, are the parties to other employment contracts equally free under Miles to waive those “statutory rights.” 

Might two parties sit at the table and negotiate a contract for the performance of work? Might those parties each propose terms and conditions of the agreement, from "where," to "when," to "what," and to "how much" will be paid and how much will be performed? And, following the Court’s waiver logic (whether the Florida Supreme Court’s in Amendment to the Rules, or the First District’s in Miles), does not a worker have every right under the constitutions (Federal and Florida) to waive the mandates of the minimum wage?

There might be arguments about whether such a waiver would or would not be in the worker's interest. Some might contend that such an "interest" analysis is not relevant. Others might argue that worker interest is both relevant and an integral part of the Miles analysis. They might argue that the waiver outcome in Miles is only appropriate with such an "interest" caveat. Still others might argue that the state's interest in an income minimum is more compelling than its interest in income source (Miles) or an income maximum (Castellanos). 

Perhaps an argument on the minimum is more compelling because of (potentiality or reality) that state services and programs could be more burdened by those whose earnings fail to meet a level providing sustenance, such as the "poverty level." But, would that sustenance argument be applied as validly to a teenager working after school as to a head of household in the same job? Some might argue that such a disparity in people is the foundational basis for an analysis that is "as applied" as used by the Miles Court? 

And, the Miles Court analysis centers in part on the conclusion that without the attorney fee waiver, thus without the attorney, the injured worker might therefore receive nothing. The Court explains that something is likely better than nothing in that context; that receiving some benefits, though depleted by fees to some extent, is better than receiving no benefits. In that regard is receiving some wages (though not the minimum) better than receiving no wages (because the business hiring makes an economic choice not to hire because of the minimum)? Is an absence of available work at a minimum price preferential to some work at some lower price?

Similarly, might a worker have every right to waive statutory rights under the Occupational Safety and Health Act of 1970? Might a worker preemptively waive rights under the Affordable Care Act, Social Security Act, Family Medical Leave Act, Whistleblower Act, and more? Are these any less statutory rights than the statutory rights which both the Florida Supreme Court (In Re Amendments) and First District Court (Miles) have concluded may be freely waived?

Perhaps such a broad application of statutory waiver is not the Courts' intent in rendering their analyses. Certainly, the decision processes of courts are markedly different from legislative bodies. Courts make decisions based upon the evidence that is adduced and presented in a particular case. The law is interpreted in light of that particular set of facts and circumstances. Legislative bodies are conversely perhaps more likely to explore broader circumstances, to be less confined to a particular fact scenario or controversy. 

Miles began with worker who sought to make a contract. The employee and a lawyer and a third party negotiated an agreement that was (at that time) arguably outside the mandates of Section 440.34. Arguably, that contract violated the statute. The parties sought legal enforcement of that contract, and were successful because the First District Court concluded that the constitutional rights of those parties (to contract) afforded them the right to proceed in that manner despite the contrary statute. In such a conflict of authorities, the constitution takes precedent over the statute, and thus the contract prevailed. 

Similarly, could a Florida employer enter into employment contracts with Florida workers that are, at the time of negotiation, outside the constraints of various Florida statutes? Could employment contracts waive the minimum wage, FMLA, unemployment compensation, and more? Could an employment contract waive all of the protections of Florida workers' compensation? Could an employer effectively “opt-out” of workers’ compensation today by negotiating a preemptive waiver of such statutory rights as part of each contract of employment? Some argue that Miles says nothing less. 

Or, would the Courts have a different view of those statutory rights, and the ability of a contracting party to waive them? Would the interest of the state be perceived as stronger in some or all of these other statutory right contexts? Might the interest of the state in some contexts be deemed more "compelling," thus leading the court in a particular case to a less profound respect for the right to contract?

Perhaps the reason so many find the law intriguing, is that courts are called upon to make difficult decisions. They are presented with the laws enacted by the elected representatives of the people following debate and broad analysis. But they interpret statutory language, and consider whether constitutional protections or fundamental rights are unduly impaired, with a more focused, case-specific analysis. The law is an inextricable conflict of the general and the specific, the writers (legislature) and interpreters (courts). It is complex, confusing, and ever-changing. And that is perhaps why people find it so interesting.  

The Hot Seat, Opioids, Marijuana and More

Opioids are getting national attention. In August, the President announced that Opioids are a National Emergency. There are a fair few national emergencies unfrotunately. CNN reports that we currently have 29 national emergencies on the list. One dates to the Carter administration (some may not remember, he was the President before Reagan. Everyone remembers Reagan as the President the last time the Kentucky Wildcats beat Florida at football).

Suffice it to say that declaration of an emergency is likely "a" good step in addressing the death and destruction that surrounds Opioids. However, the declaration itself is not "the" solution. Note that on the CNN list, narcotic traffickers were targeted as a national emergency over 20 years ago (1995). There are other long-standing issues on that list, indicating that the attention of an emergency declaration may not be sufficient alone to solve a problem.

The President is not alone. ABC News reports that Florida's Governor declared a Public Health Emergency in May. The Governor recognized in his Executive Order that

opioid abuse "Poses a severe threat to the State of Florida and requires that measures are taken to protect the communities and general welfare of this State."

ABC reports that the Governor will announce more efforts today.

I have made no secret about my concerns regarding Opioids. I was curious about More Powerful Opioids in 2013, and remained curious about them as they were in the news, protested by Attorneys General, and in the news again, and yet again. As stronger Opioids were brought to market, I struggled with several questions such as why do we need stronger Opioids, and why do we need any Opioids that lack abuse precautions. Those blog posts generated some interesting conversations, and through them I met some very interesting people who share an interest in better medicine and the bigger questions of our Opioid epidemic.

In 2015, I started to perceive similarities between our headlong 1990s rush to Opioids, and the groundswell of "medical marijuana." States that are free to ignore federal law regarding marijuana are nonetheless constrained in their abilities to constrain Opioids, addressed in A Study in Federalism. There are some interesting questions about marijuana that perhaps merit our attention, but more on that in a moment.

Opioids are causing damage in America. At the risk of sounding like a Broken Record, people are dying from ingesting these substances. The New York Times reported last summer that Opioid deaths for 2016 were likely more than 59,000 in America. The story was updated later to claim it was over 64,000. In the entire span of the Vietnam conflict, American casualties total 58,220, according to the National Archives.

Digest that for a moment, more Americans died in one year, 2016, from Opioids than were killed in the long, bloody conflict that was Vietnam. America is suffering a Vietnam every year, right here at home. And, whether we want to look in that mirror or not, the fact is that we are all likely to blame in some degree. Can you imagine us building a memorial each year to list the names of all the Opioid fallen?

How did this happen? That very question is stated in the National Institute of Drug Abuse site, and answered thus:

In the late 1990s, pharmaceutical companies reassured the medical community that patients would not become addicted to prescription opioid pain relievers, and healthcare providers began to prescribe them at greater rates.

Producers assured doctors that there was no harm. Doctors began to prescribe more often. Doctors believed that "patients would not become addicted." Some advocate not blaming the addicts, but instead those who manufacture and market these drugs. An interesting Guardian article takes this approach. This perspective blames the manufacturers, their lobbyists, and their marketing. And, perhaps, the doctors (experts) that went along?

Anyone who lived through the 1970s likely remembers the news reports of heroin. Heroin is an Opioid, and was identified as a problem in the 1970s. The death and destruction it instigated led to President Nixon to declare war on heroin (Nixon was the one before Ford, who was before Carter, whose emergency declaration mentioned above lingers yet). I might suggest that there is nothing new about the troubling nature of Opioids. Anyone exclaiming "they're addictive" has all the credibility of the "Barney Fife" policeman in Casablanca.

courtesy giphy.com

The deaths are troubling. The destroyed lives of non-users are as troubling or more so. I know I sound like a Broken Record, but it is not just the users who are affected. Each of those dead from Opioid abuse had someone that loved them (well, we all at least have someone that likes us). What is the human toll on those people left behind by the addictive behavior and death?

How many people are affected? The Centers for Disease Control (CDC) says that men are more affected than women, but equality is coming. The highest rates are among those 25 to 54. Might that age group  also be presumed to be the most predominant age of working Americans? The CDC statistics are troubling

In 2014, almost 2 million Americans abused or were dependent on prescription opioids.

As many as 1 in 4 people who receive prescription opioids long term for noncancer pain in primary care settings struggles with addiction.

Every day, over 1,000 people are treated in emergency departments for misusing prescription opioids.

All this from substances that we were assured by science were not addictive. All this from substances that the experts, medical doctors, prescribed. These experts, and their knowledge, and their experience, missed the boat. They wrote the prescriptions and people actually did become addicted. People actually died.

As the fallacy of their failure came to light, doctors became reluctant about Opioids. There were efforts to curtail prescribing. The great "pill mills" were raided, shuttered, and banned. Recognizing the dangers and the false propaganda, the experts began to be introspective and analytical about Opioids. Less were prescribed, less were diverted, and less were available on the streets. But those who were addicted to them remained.

Nature abhors a vacuum, and so other substances entered the market. Heroin, the scourge of the 1970s returned in force according to the CDC. A synthetic Opioid called Fentanyl entered our lexicon and deaths from it made the news. It turns out that there are people who wanted Opioids badly enough to buy or steal or connive prescriptions for pills. Later deprived of that source by the doctors and Attorneys General, those same people were apparently just as willing to turn to street dealers and street drugs.

Despite the Guardian's point regarding the contribution of pharmaceutical manufacturers and expert physicians, the fact seems to remain that there are people who engage in drug-seeking behavior without resort to prescriptions. In short, there are people who are drawn to the siren's call of drug use. They seek it or it is thrust upon them. They engage, they partake, and too often they succumb.

And that returns me to the current rush to the arms of yet another panacea for the new century. Marijuana is said by the National Institute on Drug Abuse to be addictive. But others, like the New York Times reassure us about Marijuana. Though the Times concedes that Marijuana can "produce a serious dependency" and could "interfere with job and school performance," it poses "little or no risk for healthy people."

The Times assures us that the "science" should reassure us. It says that "the clear consensus of science (is) that Marijuana is far less harmful to human health than most other banned drugs and is less dangerous than . . . alcohol and tobacco." Science, per the Times, has spoken. And yet, no one asks whether this is the same or better science than told us that Opioids would not be addictive. How soon we seem to forget.

On Friday, September 29, 2017 at noon, I will be privileged to participate in a discussion on Opioids, Marijuana and pharmacy formularies. The program is called the "Hot Seat," and this inaugural program will feature Mark Pew and Ryan Brannan. They will provide their perspectives and thoughts on the issues we face with these substances, the costs they pose for society generally, and our American workforce. It promises to be an interesting and unscripted discussion. 

Are we blindly following science into another debacle? Are we irrationally resisting legalization of a benign substance? Are we making the point or missing the point? This discussion may provide answers or pose more intriguing questions. Register today and join us for the conversation. 

UPDATED 09.27.17 - On Tuesday, September 26, 2017, Governor Scott unveiled a proposal to limit Opioid prescriptions to a three day supply, investment of $50 million in drug treatment, and described other proposed changes. The details were published in multiple publications, the Palm Beach Post among them.  

Can We Make Ourselves Safe(er)?

There will be disagreements. People are very different from one another. Despite our differences, we are drawn together through socialization, in communities that include towns, schools, and workplaces. And, as people are brought together, they have disagreements. The vast majority of us are able to deal with those disagreements in a civil and adult manner. Unfortunately, there are some among us who either do not, or cannot. 

We see the results of those who cannot. In June, a driver in San Francisco entered a facility and shot several co-workers; three of them died. The motive remains unclear. 

Also in June, an employee went through a warehouse in Orlando "singling out his victims," killing five coworkers before turning the weapon on himself. His motive is also not known, but the company had fired him and some perceived that his violence was focused upon management employees. 

U.S. News reports that workplace homicide in 2015 was 2% higher than in 2014. The total volume in 2015 was 417, which is just over 8 per state. In 2015 there were 354 shootings. These killing and shooting numbers are not identical. Remember, not all work shootings are homicides, and not all work homicides are shootings. To put it further into perspective, there are 156 million Americans in the workforce. So, work homicides are a very small percentage (0.0003%) of the workforce. However, the increase in violence is nonetheless concerning. 

Judges are not immune from violence. In 2016 a chilling video from Michigan documented an attempted prisoner escape. CBS reported that a weapon was taken from a sheriff. Two retired police officers working as bailiffs were killed, as was the would be escapee. This was not someone who brought a concealed weapon into a courthouse, but someone who seized an opportunity presented by an armed law enforcement professional. Perhaps that officer was careless or inattentive. Perhaps it was just happenstance. 

More recently, in Ohio, a judge was shot while walking into the courthouse. Around 8:00 a.m., a 65-year old judge in Stuebenville was "ambushed." The attacker exited a car and rushed at the judge, firing "point blank at the judge," as many as five times according to the Washington Post. Initial reporting noted, "authorities still did not know what might have motivated" the shooting. In days thereafter, it was determined that the shooter had recently been involved in a case before the judge, according to the Post Gazette. 

When that story hit the news, the subject of judicial security arose again. I had some discussions regarding whether we as judges are safe, and whether we can be. It is a difficult topic. 

In the midst of this Ohio shooting, two factors likely led to the judge's survival. First, the judge was armed and managed to return fire.  I am always curious whether I could maintain my presence of mind similarly in such a situation. Second, a nearby probation officer was also armed and rushed to the judge's aid. While it remains unclear who fired the fatal shot, one of these two killed the attacker. In response, local officials "added security at the courthouse." Noting the long-standing deployment of "a metal detector at our main entrance," one official noted "we will have to look at security outside of the courthouse."

That is a thought that has occurred to me before. We do our best to secure our Florida OJCC District Offices. However, our customers face a great many risks both coming to and departing our offices. There are potentials for many challenges in that "going and coming."

I recall a hearing some years ago. The assigned office guard where I was presiding approached me. An injured worker was present for a settlement hearing, but there were two others in the lobby that also wanted to attend. This injured worker had confided in the guard that the two spectators were a former roommate and the roommate's significant other. 

The worker feared they were present to intimidate and that violence after the hearing had been threatened. The worker asked the guard to exclude the spectators. But, all of our hearings are public. I convened the hearing, introduced myself on the record, and asked all present to do the same. I also asked for the spectators to state their relationship, if any, to the case. 

I proceeded through a long list of questions of the injured worker, as is my practice in such hearings. When I concluded, and announced my ruling, I advised the injured worker was free to leave. I asked the two spectators to remain a moment. I left the record running as the worker departed. Before the hearing, when approached regarding the issue, I had prearranged for the guard to escort the worker outside to her/his vehicle after the hearing.

The spectators and I sat in the hearing room and discussed the day, the weather, and even college football (which had come up in the course of the settlement hearing itself). When the guard returned to the office, I thanked the spectators for their patience, excused them from the proceedings, and adjourned the record. It is possible that no violence was really threatened, and perhaps none would have occurred. It is possible that these two found the worker later, elsewhere, and that violence erupted despite our efforts. 

But, violence did not occur that day at the OJCC office, nor afterward in its parking lot. The spectator's presence was perhaps unnerving for the injured worker, but the legal proceeding was concluded and the worker was safe before, during, and after (to the vehicle). I like to feel that we provided piece (or peace) of mind that day. 

But, the fact is that the world is a place in which we all face a great many risks and challenges. We must all be on the lookout for danger in a variety of settings and potentials. We have to be aware, cognizant, and prepared.  Back in Ohio, the local sheriff spoke with the press following the judge's shooting. He expressed several thoughts on the shooting, concluding "Every judge should be armed today in America." Perhaps. 

I think that is a personal decision for judges and everyone else. However, everybody should be aware of the potential for danger and violence. An article I read recently provided advice labelled “Run-Hide-Fight!” The author, Judge Bruno Bishop of Louisiana explained she had learned at a recent conference that "When a danger presents itself, RUN. If you can’t run, HIDE! If you can’t hide, FIGHT!" I thought this apt advice. I have filed it away in my logic, hoping that when danger presents I have the presence of mind to access my logic, override my emotion, and respond. 

It seems in today's world that each of us would do well to devote some thought to the potential for violence. Where could it occur around us? What can we each do to avoid the potential for it? If it arises, what is our best reaction, our best evacuation, our best place to hide? If we are to react in that moment, and to survive, it is perhaps productive for us to think through potential threats in advance.

Can we see threats coming? Can we be absolutely safe? The answers are probably "maybe" and "no." Perhaps we cannot make ourselves "safe." Not an encouraging position, all things considered. But perhaps we can strive to see the threats, think about our safety, and strive to avoid risk. Perhaps we can be more attentive, more observant, and focus on being mentally prepared. Perhaps we can make ourselves "safer?"

Tomorrow, Tomorrow, I Love Ya, Tomorrow

A day late and . . . .

We have all heard the saying. It would not be one of my blogs without a rock and roll or movie reference, so perhaps Pat Benatar said it better still back in 1982 in Little too Late:

It's a little too little, it's a little too late
I'm a little too hurt and there's nothin' left that I've gotta say
You can cry to me baby but there's only so much I can take
Oh, it's a little too little it's a little too late

Well, this post is a day late. I publish on Sunday, Tuesday and Thursday each week. It is not safe to set your calendar based on my postings, but I am fairly consistent. But not yesterday. In fact, it did not occur to me that yesterday was Thursday until I awoke today and realized with it being Friday there are only two more work days this week. Then we can start again. 

On Sunday, September 10, 2017 and Monday, September 11, Irma made landfall in Florida. The Governor had closed all of our OJCC offices for Friday, September 8 and Monday, September 11. I spent the weekend anxiously watching the storm, worrying about our people and property in its path, posting, Tweeting, and hoping for the best. 

The weather channel did not help this, providing their real-time evidence of storm intensity and varying predictions. Certainly, they are doing their job and doing it well. But somehow, I need to figure out how to turn that off once in a while and let my blood pressure stabilize. 

Throughout the weekend and Monday, the electricity remained on in Pensacola, Panama City, Tallahassee, and Miami. Yes, Miami. I was encouraged to find Miami with electricity on Monday. We are fortunate that our offices are located in solid buildings, but I harbored grave concerns about the southernmost offices and the path of Irma. 

Yesterday, September 21, 2017 I lost track of posting a blog because I thought it would be a big day for the OJCC. I thought that almost two weeks after closing for Irma, the last two closed offices would reopen. And in the immortal words of comedian Ron White, "I was wrong." Ft. Lauderdale and Miami remained closed Thursday, September 22, 2017. 

I have heard from many of you, and the inquiries just keep coming. I hear you, your concern about your clients, the uncertainty about due process, the what ifs of filing deadlines, discovery, and more. I hear you. And, we are adjusting. But, I want you to know what we have been working on, and the progress that we have made. 

I was testing for power on September 11, 2017 and September 12. Much of that was by contacting our offices by telephone and videoteleconference. If the phones answered, the phone system was on, and I was exuberant. I was very pleased to find power on those days in Gainesville, Lakeland, Miami, Orlando, Panama City, Pensacola, Port St. Lucie, Saratsota, St. Petersburg, Tallahassee, and Tampa. That is 11 of 17 offices with power the day after landfall. Encouraging news indeed! But news of surge and widespread flooding in the city of Jacksonville dampened the spirits some that day. 

The offices without power as of Tuesday, September 12 were Daytona, Ft. Lauderdale, Ft. Myers, Jacksonville, Melbourne, and West Palm Beach. Six of seventeen offices that would remain closed. Frankly, after the news and weather reports through the weekend, I thought we were pretty lucky. Irma was a big storm, a powerful storm, and its effects would be expected to be widespread. We got a physical inspection report on Tuesday; Jacksonville had broken windows and a tree down. No flood damage, office essentially intact. Spirits rose again. This was great news. 

On Wednesday, September 13, 2017 the process resumed. Calls to each district, hopes for the phone to be answered. Ft. Lauderdale answered! Two days post landfall, power was restored in Ft. Lauderdale! My excitement that two South Florida facilities, Miami and Ft. Lauderdale were powered and ready was so reassuring. I was receiving reports of physical inspection around the state. No serious damage reports. The news seemed too good to be true (keep reading, as Ron White would say "I was wrong"). 

On Thursday, September 14, 2017, Daytona answered. Ft. Lauderdale reported in, everything was inspected and ready to open the office; streets were passable, but still many traffic signals out. Commutes would be slow, but we could reopen Ft. Lauderdale Friday. On Thursday, we got a physical report from Ft. Myers (close to Irma's landfall) and there was no physical damage. No electricity yet, but no physical damage. Another uplifting report. 

On Friday, September 15, 2017, Ft. Lauderdale's attempt to reopen suffered a setback. While some lights remained operable, the electricity was not sufficient to power the air conditioning or the computers. We would have to close. The power company had been contacted. Full power was expected to be restored by midnight Friday. We would have to postpone opening Ft. Lauderdale until Monday, September 18, que sera sera. By the end of that first week, all offices were reopen except Ft. Lauderdale, Ft. Myers, Jacksonville, and Miami. Thirteen of seventeen offices back online! 

Miami!?!? But, Miami District never lost power. Why was Miami still closed four days post-Irma? The landlord was asking us questions about our operations in Miami. We were told damage was being assessed, but the building remained "closed." News was coming "soon." We had high hopes for Monday, September 18, 2017. Late Friday, we learned that the air conditioning in Miami had suffered a catastrophic failure. The landlord had procured a portable chiller, from Jacksonville, and this tractor trailer-mounted rig was in route from Jacksonville. They would hook it up over the weekend and we would hear from them the next week. Not the best news, but promising. 

On Saturday, Ft. Lauderdale reported no electricity, but the power company had promised full restoration by Sunday at midnight. All weekend we hoped and the test calls continued to those offices without electricity. 

Monday, September 18, 2017 Jacksonville reopened. After the news of flooding in that city, and the fears and anxiety, re-opening Jacksonville was a great relief. There remained a tree to be disposed of, and glass to replace, but a relief nonetheless. Monday brought news that Ft. Lauderdale still had no electricity. But the good news was that it would be restored by midnight Monday. The staff was sent home. Miami reported that the chiller was being worked on and we would know soon. Ft. Myers still lacked electricity. 

Tuesday, September 19, 2017 came. Ft. Myers was re-opened! Ft. Myers, our closest office to Irma landfall! Fifteen of Seventeen offices re-opened and serving the public again, seven days post Irma landfall. But, Ft. Lauderdale again reported no electricity. The good news though was that it would be fully restored by midnight Tuesday and we could reopen Wednesday! With the promises and prognostications, we would very soon be 17 for 17! We installed multiple portable air coolers in Miami. They would cool part of the office to allow us to get some operations back. We started mediating Miami cases telephonically with Mediator Miller and help from other districts. 

Wednesday brought disappointment. Would you believe that the promises of Ft. Lauderdale power restoration did not come to pass Wednesday? But, the good news was that all power would definitely be restored by midnight Wednesday, and they "appreciated our patience" in this difficult time. At this point, we were in the Broward elite, the 1%! The news reported that 99% of power customers in Broward were fully restored as of Wednesday. But not us. 

So, on my regular posting day, Thursday, September 21, 2017, I was eager to get on the phones and forgot to post. I knew Ft. Lauderdale would be up. We had been promised. And, what are the odds we could be in the 1%? Being the very last last (or very first) is about the same odds as being hit by lightening or winning the lottery, right? But, the morning brought news that power was not back in Ft. Lauderdale. The good news though? It would "definitely be fully restored" by midnight Thursday. 

For some reason, I could not get the image of a little red-haired girl out of my head yesterday morning. Finally, a song came through in stereo and I realized I was humming the theme from Annie. Perhaps that is the theme song for more than just Annie?

Thursday also brought the realization that those small chillers we had deployed in Miami were not bringing the temperature down. For one thing, they had tiny little water collecting pans. The air is humid, and once they run a couple of hours, that pan is full and the machines turn themselves off to prevent making a mess. Unless someone attends to them 24/7, they will never run long enough to make a difference.

So Thursday brought no blog post. As a result, today you get this update. In a few hours, I will get my daily Ft. Lauderdale call. It may be exuberant: "power is on," and it may be a promise that power will be fully restored by midnight Friday (the power will come on, tomorrow, tomorrow, . . .). I know that the power companies are in a difficult time. They have lots of customers and they all want and need electricity. When it is your turn, it is your turn. Until it is your turn, you wait, listen to promises, and you hope. You would like to plan, keep people informed, and recover. But, instead you wait. 

Thursday brought a conference call with the Miami landlord. The portable chiller is in place, ready. But, the building was not designed for such an external device, and so modifications are underway. They are working 18 hour days, redesigning, reworking, and repairing. The machine that we understood would be there last Saturday, and cooling the next week is now there and we understand should be "cooling next week." But, there remain unknowns. How much will it cool? 

By that, I mean will it cool the whole building? We are on the 9th floor, and I am assured by my engineer friends that heat in fact rises. Will the portable chill the whole building or the lower floors (driving more heat to the OJCC office)? Will the portable chill the whole building to a comfortable temperature, or a uniform and unworkable malaise, an improvement but not a solution? We will tune in Monday to let you know. 

Throughout, we have posted information on our website, www.fljcc.org. The "announcements" include office closure information.

One caller this week suggested that this announcement needs to be more obvious (red text suggested). We will work on that. We have posted continuously on the announcement blog, updating the Hurricane Irma Resources daily, sometimes hourly. As we get the information, you get the information. As we are promised "tomorrow," we promise you tomorrow. As we are disappointed and dismayed, unfortunately so are you. 

And, though we are doing our best with what we are given, you have my heartfelt apologies. It is not easy to live through the stress of a storm, I get that. You want to recover, and you want information, I get that. I am sorry that our information has been less than complete as we have relied upon the best data we can glean from those who are actually either "in the know" or who control the situations. 

What is next? We intend to restore service in Miami and Broward. To do so, we are shifting all mediations in those counties to telephonic. New notices will continue to flow today and in coming days to alert you to your mediation and time. At least for the rest of September, there will be no live mediations in Miami and Ft. Lauderdale. Parties and attorneys are expected to be telephonic for these mediations. We get that, it is intended that everyone will be called and no one will be present. If you are in the town the newly assigned mediator is in, and want to come to our mediator's office to attend, you are welcome. But, there is no requirement that you do so. 

Out-of-district judges are reviewing MIA and FTL stipulations, settlements and motions that are titled "emergency." we are striving to get you orders and responses. I can be reached at david.langham@doah.state.fl.us. That is 24/7/365. If you are in an urgency or emergency, email me (copy opposing parties and/or counsel), and let me know how we can help. 

We will restore hearings in Ft. Lauderdale as soon as the power is on. We hope that is today (but that song is running in my head as I type this, and I am feeling a bit like Charlie Brown and the power company is Lucy holding that football, but we will run at it again this morning). 

We will continue to push, to question, and to update. Check the blog, follow us on Twitter (@FLJCC). If you know any line repair specialists in the Broward area, our address is 

4500 North State Road 7

Building I, Suite 200

Lauderdale Lakes, FL 33319

We would surely be ecstatic to have power restored, so that we can get on with doing your business. But, we understand that there are a fair few of us in that 1% in Broward County and each of us is as eager for power restoration as the next. 

I close by reiterating how proud I am to be privileged to work with the consummate professionals of this office. They were visiting offices post-Irma, assessing, evaluating, communicating with me and their staff teams. We have had a great focus on returning to full function. We have had judges and staff around the state jump to volunteer to provide assistance and support. And, this will all bring fruit. Maybe it won't be today, but we are working on it and it will soon. If our information has been too little, too late, too hard to find, I apologize. We will try harder. 

Thank you for your patience and support. We understand this has been difficult on you, your clients, your attorneys, your service providers. We get it. Now let's keep on getting back up, helping others back up, and getting people's lives back on track. 

Sorry again that I missed Thursday's post. Stay tuned.

Updated Saturday, September 23, 2017 04:30: All OJCC offices will repopen Monday September 25, 2017. The power was restored to Ft. Lauderdale at noon Friday and a walk through confirmed no damage. The Chiller in MIA brought the building temperature within workable temperatures Friday morning and sustained it all day. Two weeks after closing in preparation for Irma, we return to service in all offices. 

Social media and judges

The ABA Journal recently reported that a Texas judge is subject to some scrutiny as a result of social media. Meanwhile, a District Court in Florida takes a different path regarding Judges and Facebook. And, an Alabama Judge's Facebook activity led to a disqualification petition with the Alabama Supreme Court. All three are stories worthy of Judges paying attention. 

I have written about social media, most recently in Sharing Everything of is it TMI. The perils of social media surround us, see Assume Everyone is Watching. Everything that we say, do or write may become part of the social media environment whether because we post it or because someone else does, see How are People Viewed and Treated. One of the most perilous platforms for judges is Facebook, in part because if its vernacular choice, labeling people as "friends," See Will You Be My Friend?

In multiple professional presentations, I have cautioned judges that the best way to stay out of trouble on Facebook is to stay off of Facebook completely. But that brings us back to our Texas Judge. 

According to the ABA, this judge was in the midst of a trial, a criminal case involving an allegedly drunk river. A friend was corresponding with the judge about personal issues ("he was home with a cold"). After receiving the "home with a cold" message on Facebook, this judge replied:

I’ve had the worst cold but instead of staying home I’m being tortured by an attorney in a trial. So, I’m actually jealous of you!

But the judge's reply was not viewed merely by her sick friend. An issue with social media is that things people say are not private, nor intended to be, and can often be seen by a great many people. In this instance, the response "raised some eyebrows among Austin criminal defense lawyers." The local lawyers had some questions, according to the Statesman. 

One attorney quoted by the Statesman said that the comment was a harmless joke. He characterized it as an attempt to make a sick friend feel better. Others were not as forgiving. 

One of the attorneys involved in that trial reportedly said that he did not believe it was a joke. He believed that "she said that on purpose and she was being rude." He described the decision to post that comment on social media as "eye-popping," "disrespectful," "unprofessional," and "unethical." He also contended that the comment violated the criminal defendant's constitutional rights (he represented the defendant). Though the judge did not say which particular attorney in the trial was "torturing" her, it could have been a reference to the defense attorney. 

In Alabama, the Supreme Court has temporarily halted a murder trial over Facebook. There, a police officer is accused of killing a motorist during a traffic stop. There are racial overtones to the case, and before the case was assigned, the eventually-assigned judge wrote on Facebook about racial profiling. The defense moved to disqualify the judge, but that was denied. An appeal of that decision to an intermediate Alabama appellate court did not result in disqualification. Now the Alabama Supreme Court will decide.

In Florida, the Third District Court concluded in Herrsein v. USAA, Case No. 3D17-1421 that being "friends" on Facebook is not grounds for disqualification of a trial judge. There, one of the attorneys and the trial judge are "friends" on the trial judge's personal Facebook page. The Court acknowledged that the Fourth District Court has already concluded that such a "friend" ship has supported disqualification. That decision was in part based upon a 2009 opinion of the Florida Judicial Ethics Advisory Committee (JEAC) that concluded Florida Judges are precluded from having lawyers that appear before them as "friends" on Facebook. 

But, the Third District concluded here that “[a] Facebook friendship does not necessarily signify the existence of a close relationship.” It examined a Fifth District decision questioning both the Fourth District decision and the JEAC opinion. The Third District was also persuaded by several out-of-state Facebook cases that involved trial judges who were "friends" with witnesses or potential witnesses in cases. After a discussion of the methodology of "friend" selection and applied mathematics, the court discounted the Fourth DCA's conclusion that a "judge’s selection of Facebook 'friends' necessarily 'conveys or permits others to convey the impression that they are in a special position to influence the judge.'”

So, in Texas, a judge's comments lead to criticism, the Alabama Supreme Court will address comments, and in Florida it is now quite unclear whether judges should participate in Facebook or how they should deal with "friends." There are multiple issues. 

As to comments, were either the Alabama or Texas judge "wrong?" People may perceive things differently. In the judicial realm, there are dangers of impropriety, undoubtedly. But, the greatest challenge that judges face is often not so concrete. Judges are governed by the Code of Judicial Conduct, and that code can be very broad. 

One phrase continuously comes up for discussion. The Code (each state has their own, but this phrase or a similar statement is in many) precludes both impropriety and the "appearance of impropriety." That means that judges should avoid things that a reasonable person might view as inappropriate, even if the action or words are genuinely not necessarily "actually" inappropriate. That is a tough burden. In essence, Judges must be on their individual guard regarding how they speak and act (appropriate) and how others perceive their words and actions. 

In large part, the Florida decision centers on that standard, and whether reasonable people perceive the existence of a Facebook "friendship" as actually connoting a relationship. The opinion cites multiple examples of witnesses, parties, and jurors who have over a thousand "friends," in some instances unknowingly including someone else involved in a particular legal case. The Court seems focused, in that, upon whether there is a perception today that Facebook interaction is meaningful or connotes relationship, or whether "friends" has devolved to the colloquial labeling that exists in all social media in some form (though one is "linked" to or "follows" another may not connote actual interest in or "following" in reality.)

But, with that standard in mind, are the Alabama and Texas cases different? Certainly, an appearance of impropriety could be grounds for disqualification under the Code. And, perhaps the mere existence of a connection, be it labelled "friend" or not, could raise such an appearance. But what about when the Judge's activity on Facebook is the issue rather than merely the existence of connection?

Canon 2 of the Code says

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities.

Canon 3(b)(4) of the Code says

(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity,

Canon 3(b)(5) says

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice,

Canon 3(b)(9) of the Code says

(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.

In Alabama, the judge wrote about his personal perceptions of experiences with the police. Those comments were made before this particular litigation was assigned to him. Therefore, it is not a comment "while a proceeding is pending," and likely not necessarily "impending." However, could a reasonable person conclude that the words manifest a bias or a prejudice?

In Texas, the judge wrote about lawyer "torturing" her. Many would likely conclude that if such a statement were made to an attorney in court it would be less than patient or courteous. Should it matter that the statement was broadcast on social media instead of being made in court? Does such a comment, made while the "proceeding is pending" have any potential to "affect its outcome?" 

These three cases raise a fair few questions about how the Code could be implicated. I remain unconvinced that the best advice for Judges and Facebook is not "stay off of Facebook completely." However, perhaps the more realistic advice in today's social media age would be to avoid commenting in any media regarding a case that is pending before you. Whether the Texas judge's comments would warrant sanction or disqualification, there is the potential for a perception of discourtesy or an appearance of impropriety.