Closed Hearings?

In June 2018, WorkCompCentral reported County Argues Inmates Are Entitled to Comp. The story was essentially about whether those engaged in inmate work details should be limited to the exclusive remedy of workers' compensation. The issue arose when there was an explosion in Fresno, California in 2015; one inmate was killed and nine were injured. The allegation is that a county employee struck a gas line with a piece of equipment. But, that is not what made the story of interest to me. 

Many tend to perceive workers' compensation as a burden on business. That perception has some foundation in fact. Work injuries are an expense for the business. But, workers' compensation shields employers from civil liability in constitutional courts. There is a "benefit" along with a "burden" for both employers and employees. 

Some involved with the Fresno County litigation assert that the effort to include the inmates in workers' compensation is a reaction to a civil tort claim that has already been filed on behalf of some of the inmates. That civil liability can be at the hands of a jury and can involve categories of damages that are simply not available in the statutory alternative recovery of workers' compensation. Thus, in this instance, there is a perception that the employer "benefit" is the issue. 

I was recently asked about "the grand bargain," by a lobbyist. This observer of the legislative process had concluded that "the grand bargain" (March 2019) referred to some underhanded, back-room, shady deal that had deprived injured workers of their right to sue in civil court. I had to explain that both employers and employees both gained and lost in the "bargain." There are periodic expressions of individual perceptions regarding whether that exchange was equitable or whether it remains so today. But, both employers and employees in a holistic sense both gained and lost in the "grand bargain."

Employees receive benefits without proving fault of the employer, and receive benefits in a far more rapid process than civil court litigation can deliver. Employers receive protection from juries, a far more predictable calculation of damages (benefits), and varying control of various aspects of care and treatment. In short, there are debates about how "fair" workers' compensation is in particular anecdotal situations, but the "grand bargain" overall has been reasonably beneficial for many employees and employers over the decades. 

But, my interest in the Fresno County debate is more focused. The WorkCompCentral.com story reports that the attorneys for Fresno County wanted the "media . . . barred from covering any hearings related to the claims." Reportedly, the county's attorneys "argued that workers’ compensation cases are different from civil and criminal hearings that are open to the public." They asserted that "the majority of workers’ compensation trials are open only to the parties to a case because of privacy concerns." Furthermore, the County argued that a news reporter could only be present if she/he filed "a written petition" first. 

WorkCompCentral says that "workers’ compensation judges are authorized to take necessary steps to ensure orderly conduct and the integrity of judicial proceedings." A spokesperson for the Department of Industrial Relations (a combined state regulatory and adjudicatory office) said that proceedings of the state's "Workers' Compensation Appeals Board . . . are generally open to the public," but said a judge could order "specific portions closed to protect sensitive matters such as the contents of documents that were filed under seal." The spokesperson clarified that reporters may attend just as the public does, but a petition is required "for permission to record, photograph or videotape a hearing."

That was intriguing to me. In Florida, workers' compensation proceedings are open to the public. Section 440.29(2) Fla. Stat. ("Hearings before the judge of compensation claims shall be open to the public"). Similarly to California, "The judge of compensation claims may preserve and enforce order during any such proceeding." Section 440.33(1) Fla. Stat. Thus, hearings in Florida are notably more public than those in California. The presumption is that hearings shall be open. That presumption is not, however, necessarily absolute. 

In fairness, I have presided over close to 1,000 trials as a Judge of Compensation Claims. Only once that I recall was there any interest from the news media. The case was one of the more complex I ever heard, involving multiple fundamental issues related in some respect to an allegation of occupational disease, and in an unrelated context to setting aside a settlement of an unrelated workers' compensation settlement regarding the same injured worker. Sanders v. City of Orlando, 997 So.2d 1089 (Fla. 2008). It was the only case I recall where my decision was ultimately reviewed by the State's highest court. 

As I recall the hearing, there were two news crews present in the hearing room. One was to the side of the bench facing the parties and attorneys. The other was beyond the far end of the hearing room table and pointed toward the parties and me. Admittedly, their presence required some accommodation and was a bit concerning. The concern did not occur to me until they had set up and we were in the midst of the trial. The injured worker was a former firefighter. Several minutes into the case, it suddenly occurred to me that if there were a fire or other emergency during the trial, we would have struggled to escape that room. Not a huge concern, but it occurred to me nonetheless. 

How should a Florida Judge reconcile the public nature of hearings and the need for orderly conduct? Ultimately, the Judge's primary responsibility in presiding is the safety of all parties and counsel. I should have been more aware of the potential issues with exiting that hearing room. Secondarily, the orderly procedure is a major concern. The parties and their attorneys deserve to be heard and to have the full attention of the presiding judge. Beyond those concerns, the Judge has to be concerned that an appropriate and accurate record is created. This allows for review later by an appellate court if necessary. 

In retrospect, I did a poor job in Sanders of assuring everyone's safety. I perceive that I conducted an orderly trial and that everyone's rights to due process were appropriately safeguarded. But, I reflect even today on "what if we had needed to get out of that room," with the cables, the tripods, the various people, etc.

A judge has to balance the rights of the public to be present with the safety and security of all involved. But there are some reasonably simple solutions. In a case with news crews, a hearing may need to be moved to a larger room in order to accommodate everyone. While there is no requirement for a "petition" from the press, notification to the trial judge would be a positive step for just that reason. Perhaps those who would seek to cover a hearing might be able to utilize the smallest footprint (occupy the least space) with a camera tripod?

Turning from such a press interest to the general public, a judge has to balance the rights of the public to be present with the orderly conduct of the hearing. If someone present is disruptive or threatening, perhaps, it is appropriate to exclude/excuse that person if disruption persists. Before doing so, the judge should certainly provide warning(s), and instruct the person to refrain from disruptive or threatening behavior. Their right to be present is not a right to impair the ability of the parties to both try their case and to hear and understand the positions, arguments, and testimony presented by their opponent(s).

The ultimate resolution of such instances rests with the sound discretion of the trial judge. The various interests and rights of the parties and the public should be balanced. The safety of all involved should be paramount, particularly when simple solutions such as a larger hearing room or others are available.