Who should make the law?
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). Eight days later, the Florida Supreme Court rendered Castellanos v. Next Door Company, 192 So.3d 431 (2016).
Each concludes some aspect of constraint on Florida attorney's fees is unconstitutional. These decisions have generated a great deal of discussion in Florida, and beyond. As I attend various conferences and speak on various topics, questions seem to persistently gravitate back to these two. The third 2016 constitutional case in Florida, Westphal v. City of St Petersburg, 194 So.3d 311 (Fla. 2016), has seemingly generated far fewer questions or discussions. A recurring theme of the fee cases has become defining "reasonable."
I am participating on a panel discussion in October in Dallas. Somehow, the planners concluded that Texas (Ryan Brannan), Mississippi (Beth Aldridge), Virginia (Wesley Marshall) and Florida (yours truly), all pictured below, would make an interesting combination to discuss various current workers' compensation issues. I am humbled to be in that number, sitting among icons of the workers' compensation world.
In preparation, our moderator, Texas Commissioner Ryan Brannan, sent us an outline of possible topics. One of them is essentially, "those Florida constitutional cases." So, perhaps I am being viewed as a "designated hitter," on workers' compensation constitutional complications? I look forward to Dallas in about two weeks (October 12-13). As I recently thought about these cases, I wrote a post on waiver of rights, which raises some (perhaps) intriguing questions about state law. And, there is an interesting issue of separation of powers that bears discussion today as well.
Separation of Powers is an American constitutional construct with an intention of delineating how government will work. The framers of the U.S. Constitution get a great deal of credit, but remember they did their drafting in 1787. By then the thirteen colonies had each adopted a constitution following the Declaration of Independence in 1776. Not that the framer's work is not monumental, it is. But, they had a great many resourced to draw upon by then.
This historical progression enabled significant state power and autonomy. So, the Articles of Confederation that followed independence enabled a weak national government. Before the U.S. Constitution could be finished, those independent states had issues and ideas that required compromise and accommodation. The U.S. Constitution is therefore a document replete with both borrowed ideas and compromise.
One of its great concepts is the Separation of Powers. It is a hallmark of the U.S. Constitution, but not a compromise. The New York Times noted "the doctrine of separation of powers was accepted without question. Yet it was not written into the Constitution." Instead, the establishment of three constitutional branches created Separation of Powers, without being so named in the document. Of course, the concept itself was not new. It has deep roots in various forms.
Charles Montesquieu had composed The Spirit of Laws in 1750. In it, he had described forms of government. And, "he asserted that, in the state that most effectively promotes liberty, these three powers must be confided to different individuals or bodies, acting independently." From his academics, the three branches were conceived, studied, adopted by states, and then ingrained in the U.S. Constitution. Undoubtedly, that document itself became a model as states thereafter joined the union, with each likewise drafting and ratifying a constitution, generally with three branches.
The idea is simple enough. The power in America is in its people. The people delegate power to the government. The government is one of limited, specific powers. The people, through the Constitution define what powers and authority each branch have. And for clarity, the tenth amendment was added to assure we remember that government is limited. The powers not stated are retained by the states or the people, in the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The relationship of the three branches with the people are also somewhat different. With reasonable consistency, governors (executive) and representatives/senators (legislative) are generally elected. Who is eligible to serve in each may be defined by a constitution or statute. Sometimes there is no qualification stated. Recently I posted on the curiosity of Kansas allowing identity theft. And, more recently the curiosity of qualification for Kansas governor was again in the news as third teenager announced candidacy for Kansas governor.
Constitutions in each state likewise delineate how judges are selected. Some states elect judges, others appoint judges, and still others cannot be so readily categorized because they use various methods depending upon the type of judge. In Florida, all appellate judges are appointed. Trial judges are elected, but when vacancies occur the Governor may appoint a replacement. For judicial appointments, the Governor's discretion is constrained by a requirement her/his appointment come from a list of candidates nominated by an independent commission. Therefore, Florida might be characterized accurately as a "mixed" state regarding judicial officials.
With this foundation in separation of powers, the Court's decision in Castellanos has some asking: which branch should make the law? There is a perception among some that the Court's Castellanos decision makes law, legislates. The decision returns Florida workers’ compensation attorney fee analysis to the realm of “reasonableness,” by its conclusion that Section 440.34 is unconstitutional. At least in the attorney fee context, the Court concluded that statutes that afford no basis for exception are unconstitutional. Whether that analysis would hold in other contexts is less clear.
But "reasonableness" could be in the eye of the beholder (as, Plato assured us, is beauty). The Court decided that in determining reasonableness, there should be some standard. In fact, a critical finding of the Court, in dismissing Justice Polston's dissenting opinion, was that a more traditional "as applied" constitutionality decision "would be both unworkable and without any standards." The Court thus appears concerned with standards, and follows through in its holding by providing standards.
In Castellanos, the Court returned Florida's workers' compensation system's fees to the Court's 1968 legislation. See Lee Eng'g & Constr. Co. v. Fellows, 209 So.2d 454, 456 (Fla.1968). There, without public discourse or debate, the Florida Supreme Court legislated the standards of attorney fee “reasonableness.” Lee Engineering relied upon the Court's earlier analysis in Florida Silica Sand Co. v. Parker, 118 So.2d 2 (Fla. 1960) and provisions of the Rules Regulating the Florida Bar, Castellanos at 439.
The Court created standards, made law. Some contend that doing so, the Court abandoned the judicial role delineated for it in the Constitution.
One perspective is that these standards are good; that the Court adoption of them leads to predictability and consistency. This perspective identifies the value of standards, stare decisis in the larger context, and argues that the Court was the only body in a position to create such standards. This perspective points out that there are many cases in which a court has found, and suggested need for legislative action, only to be answered by legislative silence. Thus, without this judicial legislation, the potential for decisions made without standards is too real, leaving the Court no alternative to action.
Others argue that the appropriateness of both having standards, and of these particular standards, is proven by the Florida legislature later adopting those Lee standards in 1977, Section 440.34. They argue that any criticism of the Court's legislating these 1968 factors is moot in light of that subsequent legislative endorsement. A potential flaw in this endorsement analysis, distinct from the analysis of whether the Court should have legislated factors in the first place, is that some might argue that equal weight be given to the legislature's later decision to remove those factors in 2003. Thus, if deference to the Court comes from adoption, then as strongly comes criticism from the removal.
As an aside, the adoption proponents might also have to explain the somewhat similar adoption of workers' compensation procedural rules by the Court. The Court, perhaps similarly, legislated procedural rules. The legislature accepted that by passing legislation that said the Court had such authority. The legislature later revoked that delegation. And, the Court later concluded that it never did have the authority to make such rules applicable to an executive branch agency. See, Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004), see also Separation of Powers - An Interesting Analysis. Though it took decades, the Court recognized Separation of Powers in Florida workers' compensation.
There is also a school of thought that finds Separation of Powers more absolute. Some argue that the Court has no authority to decide what factors or standards might be appropriate for a determination of "reasonable." They argue that in establishing standards or factors, the Court is legislating, a power that the people have specifically delegated to their elected representatives; a power that the people have not delegated to appointed judges. They argue that court cases should address specific cases, within their own contexts, and that public policy and making law should be left to the legislative branch.
There is also a school of thought that finds Separation of Powers more absolute. Some argue that the Court has no authority to decide what factors or standards might be appropriate for a determination of "reasonable." They argue that in establishing standards or factors, the Court is legislating, a power that the people have specifically delegated to their elected representatives; a power that the people have not delegated to appointed judges. They argue that court cases should address specific cases, within their own contexts, and that public policy and making law should be left to the legislative branch.
Thus, there is a difference of opinion. Some believe that the Court legislated appropriately in establishing the standards initially in 1968, and that it has legislated appropriately again in Castellanos. Others contend that the Court acted outside the scope of its powers in legislating, and believe that eventually the Court will acknowledge that as it did decades after in Amendments. Notably, the Amendments decision is predicated on the very Separation of Powers analysis discussed above.
There are multiple perspectives on the constitutional authority issue. One argument is that the regulation of attorneys is certainly within the sole purview of the Florida Supreme Court. The courts have so held, see Pace v. Miami Dade School Bd., 868 So.2d 1286 (Fla. 1st DCA 2004); Art. V. section 15, Fla. Const. Thus, in adopting the Rules Regulating the Florida Bar, the Court would seemingly be within the powers delegated to it by the people of Florida. In that regard, perhaps few would contend that the Court legislated at all, but in the context of reasonable fees it merely regulated.
Another perspective might be that the Rules Regulating the Florida Bar are regulations detailing what the Court thinks are "reasonable" fees; that this broad regulation defines what behavior is subject to attorney discipline and what is not. But, perhaps that "reasonable" for discipline (in a quasi criminal law context) is distinct from what might otherwise be labelled "reasonable" in a strictly civil law context. In other words, that which is sufficient to avoid Court discipline might be seen as a different analysis than what is appropriate under a remedial statutory benefit "scheme" (a word that has been used repeatedly by courts to describe workers' compensation).
So, should "reasonable" it be up to the legislature or the courts? Which should determine what "factors" are appropriate to consider in determining whether a fee is or is not reasonable? In the 2017 legislative session, some versions of House Bill 7085 (e.g. line 567, et seq.) included "factors" for a judge to consider in determining a "reasonable fee." Those legislative factors do not match the Lee Engineering factors. Thus legislative determination of factors in this setting might be construed differently than the 1977 legislative adoption of the Court's Lee or Rules Regulating the Florida Bar analyses.
Would legislatively adopted "reasonableness" factors or standards be appropriate in light of the Court's exclusive constitutional authority to regulate attorneys? Is the determination of appropriate "reasonableness" standards the exclusive purview of the Court? Alternatively, is a "reasonableness" standard establishment, at least in the narrow scope of a remedial statutory program like workers' compensation, within the legislative mandate and authority, similarly to the appropriate enactment of workers' compensation procedural rules?
In this context, of which branch should determine the standards or "factors" for reasonableness, does the nature of the branches influence perspective? Does the fact that legislators are elected by the very people governed provide any support for legislative exclusivity in establishing standards? Or, is the appointed judiciary as appropriate in exercising such legislative, or regulatory, function in this regard based upon its inexorable ties to the practice of law and regulation of lawyers?
From the perspective of the academic, these are fascinating questions. But, from the perspective of the marketplace, the employees, employers, and attorneys of Florida, these Separation of Powers questions are perhaps a bit closer to home. Any attorney, subject potentially to either discipline (by The Florida Bar or Supreme Court) or scrutiny (under any statutory standard) would likely prefer to understand at the outset what standards control the determination of "reasonable."
I look forward to discussing these points and more at the Texas Workers' Compensation Conference in about two weeks.