A Harbinger?

We are all too familiar with the recent storm that struck Tallahassee. May 10, 2024, was a tough day when the power went out in Tallahassee. There were some optimists that bought into an automated website estimation that power would be restored that morning before lunch. That was a bit ambitious. Friday passed, as did Saturday, Sunday, Monday . . .. I was sitting in Paradise and kept hearing Chuck Jackson in my head: Any day now (Wand 1962). Most were very eager to get the power restored. 

On Tuesday, May 14, 2024, electrical service was restored and our systems at the Office of Judges of Compensation Claims began to spool up and reboot. Exhilaration and relief soon turned to patience. There are lots of tools and software working for you each day. They work together, and they each need some time to power up, re-establish relationships, and function as normal. It is fair to say that "normal" returned finally on Wednesday, May 15, 2024.

The storm that hit May 10, 2024, was a bad thunderstorm and it included tornados. It was serious. Not to belittle or deny, but it was not a hurricane. Hurricanes are a breed unto themselves. 

Hurricane season starts soon (June 1, 2024). It will be a long 6 months of pensive tropics-watching. Every year, I set Google to automatically open the NOAA page each morning. I watch that threat map and I worry.  I really love the one that they keep up during Respite Season ©2023, see It's That Time Again (April 2023). It stays static week after week. They have switched, and today it merely shows no activity. I love this image also, but know it will not persist. Some days this year it will be covered with little "X marks in various colors. 

I have written a great deal about hurricanes over the years. Examples include National Disasters and Planning Ahead (December 2018), Time to Prepare for Hurricane Season (May 2017), Sally in September (September 2020), The Waffle House Index (May 2017), and Hurricanes Past and Future (April 2018). I have lived through more than my share, including direct hits in Paradise, direct hits on family members, and direct hits on my OJCC team out there in so many locations. We have had hurricane closures in places like Orlando that I historically misperceived as "safe." There is no part of Florida "safe" from hurricanes. 

So, thinking of the season each May is not new. The May 10, 2024 Tallahassee storm was a reminder. Not a prediction. Regardless of what the scientists tell you, they cannot tell how many are coming this year, where they will hit, or what their severity will be. 

In fairness, they can predict, but anyone can do that. I predict (1) there will be more than I want, (2) too many will strike population centers, (3) there will be property damage somewhere, and (4) you will be really lucky if none of it impacts you or yours. In that, you are not alone as the whole East Coast and Gulf Coast face risks and threats from these storms. All of Florida is at risk for hurricane impact.

The power had been back at the OJCC in Tallahassee for hours when a storm cell walloped Houston, TX. That is about 500 miles west of Paradise. We watch their weather because their storms often become our storms. Houston was devastated with 100+ MPH winds, flooding, and death. One official told NBC7 it was serious, such as has not been "seen in Harris County since Hurricane Alicia in 1983.” That was a few months back, huh? We hear of "century" storms (the likes of which only happen so rarely). Well, this storm cell seems to perhaps fit that characterization. That is saying something in Houston. 

 

Ok, so the news about Houston gives us (1) it was a serious storm, (2) there was a great deal of damage (3) it could take weeks for power to return to all accounts. More troubling, 7 people lost their lives. It was a storm with little warning, it was serious, and people died. That is often said of various hurricanes. 

We get it. Hurricane season is coming, we need to prepare. That message is old, but it bears repeating each year. The May 10 and May 16 storms are each a harbinger. 

Let's focus elsewhere on our Houston analysis. Let's consider something that is said too infrequently. Let's think about what comes after the storm. As KPRC2 reports, there were 7 deaths blamed on the storm:

1. "a 57-year-old man in northwest Houston who died trying to move an electrical pole."
2. "a 60-year-old man who lost power in the storm went out to his truck to plug in his oxygen tank."
3. "lightning hit a trailer that went up in flames, killing an 85-year-old woman."
4. "A Houston mother of four died when she went outside to move her car so it wouldn’t get hit by a tree. As she was doing that, a tree came down on top of her, crushing the car."
5. "a 72-year-old cement worker was killed when a crane collapsed and slammed down on the cab of his truck."

The details of the two additional deaths have not been published, but one of those likely involves a falling tree because two of the deaths "were (reportedly) caused by falling trees." 

There are lessons in the details we have though. Much of the interruption of power is due to falling trees and limbs. Storms will cause trees and limbs to fall. It is tragic when one kills someone. Remember that those limbs and trees can fall long after the winds have subsided. That said, during a storm is not the time to try to protect your car or other property. Leave the car there, it is not worth your life. You have warnings of approaching hurricanes, prepare then or evacuate. 

The fire death in Houston is tragic. Know this, once the winds get significant, the fire department may not respond to your urgencies or needs. Your call to 911 may garner nothing but a calm voice unable to send the police, ambulance, or other services. You may be very much alone. Plan, evacuate when ordered, and avoid this. The unexpected storm in Houston did not afford that opportunity. But we can learn from the tragedy. 

Electricity is unpredictable and dangerous. If there is a power pole or line in your way, leave it in your way. There may be delay, but in time someone will come to move that pole. There is no percentage for you in moving a power pole, an electrical line, or anything that is touching a power line. Electricity is dangerous and you cannot tell when a wire is or is not energized. As services are restored miles from you, a momentarily inert line may be suddenly dangerous again. 

If you are in need of medical equipment or medications, have that stockpiled. It is unfortunate when there is no electricity to power your oxygen tank or other medical treatment modality or tool. Prepare for that difficulty. There are many tools, but the easiest is likely a UPS or other battery. Such a device may be a lifesaver for those dependent on oxygen, nebulizers, and more. Having your vehicle is helpful, but having redundant methods to get you through the aftermath is critical. 

You can be in the heaviest, biggest, safest vehicle in the fleet, and there will always be something bigger. The photos of the concrete truck in the cited articles are sobering. Work accidents happen during storms. People with safety training are hurt and killed by storms. People in the biggest, baddest vehicles around are killed in storms. The driver of that truck was crushed by a falling crane. Unexpected, unpredictable, and so seemingly random. There is no "safe" place in a storm, no "safe" vehicle. That is why 911 will calmly tell you that they cannot dispatch one of those huge fire trucks to save you in the midst of a storm. 

There will be many engaged and busy in days and weeks to come. They will reconnect power, trim trees, dispose of debris, repair buildings, care for injuries, and more. A storm is an event, but the reaction, recovery, and rehabilitation are much longer, more labor-intensive, and unfortunately often more dangerous. In the moment, there is a focus on the situation, the danger, and the threats.

In the recovery, there has to be caution, consideration, and self-care. Every one of these events is only the beginning of a long road home for any stricken community. There will always be events. Those will always include bad outcomes for some and tragedies for others. But, in that, there is a reminder for the rest of us. Danger lurks in storms and in their aftermath. 

As we prepare for the 2024 season, stock our shelves, consider our evacuation plans, and mentally adjust, it is a worthy time to remember that the aftermath may be as bad or worse for our safety than the storm.

Let Houston and Tallahassee be a harbinger. Take their impact and challenges as a warning and motivation. Know that storms will come. Know your practice may be affected, even if the actual storm path and power outage is hundreds of miles distant. 

Get prepared now for the season. Review your plan. What would you need, what would you take, where would you go, who would you stay in contact with, how would you inform others (family, employer, etc.) of your location and status, how would you finance your evacuation, do you have special needs? 

The best time to plan, those calm weather winter months is past. But in fairness, you have some time. June is traditionally not as active, the season is just beginning. Review in May, or June if you must, and facilitate smoother and simpler reactions if the next storm is in your neighborhood. Prepare your practice to be without e-filing. Know that the worst can happen and that your safety is paramount when it does. 

Remember that the recovery from any storm may be long. Prepare to feed yourselves for at least 72 hours with canned goods. Prepare to be without power for weeks. Think about how you will power your tools like phones and computers and the internet. Think now, plan, and prepare. 

A harbinger, an opportunity to think, plan, and prepare. It was a tough week last week for many. We think of all they are going through with sympathy, and we turn our minds to what the season may bring. Think about you, the potential impacts, and how you can and will react. Now is the time. 

Human Resources 101

The last challenge any manager needs is an employee in crisis. That said, everyone has the potential for crisis. Life brings events and circumstances that are destabilizing and disturbing. Humans respond to this differently in terms of the depth and duration of our reaction(s) and adjustments. As we prepare to present the next iteration of The Point (A Bob Wilson Production, in conjunction with WorkCompCollege.com), mental health is on my mind this week. 

Mental health is a complex and deep set of issues. An author on the subject provided the following interview once:

"SR: So generally speaking, what is it in our brains that can go so wrong and cause mental health problems?
DB: Well, that's a hole with no bottom, isn't it?"

The point he is making is that we are complex. The vast volume of chemical and physical activity in one minute of human life is beyond astounding. Check Just a minute: incredible numbers at play at the macro and micro level, published in the Canadian Medical Association Journal. Your body and mind are amazingly complex and persistent at work in maintenance, sustenance, and renewal. It is, frankly, unbelievable and amazing. 

Part of our foundation is personal and internal, certainly. But, we are social animals and there is a great deal of our lives that depends upon the actions and inactions of others. That person that cuts you off in traffic, the service provider that does not deliver as promised, that neighbor who won't leash his puppy. 

These are human interactions and they impact us. But, a great many of our interactions are at or about work. Our livelihood depends on our success in that environment. And as managers we have to work with a multitude of people who, like us, are imperfect, stressed, and facing challenges. 

There are a multitude of perspectives on the workplace and human potential. Today, a sizeable population of people have no interest in being in a workplace. Time and again, I hear the refrain in our hiring process "the applicants all want to work remote." That was a viable method of limping through a pandemic. For some companies and employees, remote work remains a way of life today. It is not for every employer nor for every employee.

I was recently on a conference call in which an executive described the office as "a ghost town." There was disappointment and pain in that voice. I have met as a guest speaker with various teams by Zoom. Some of those groups relate that they are "never" in the office, and only see each other on a video call bi-monthly at most. Some express that with enthusiasm and verve, others not so much.

Mental health and the workplace. There are potential benefits from remote work. I spoke recently with an attorney who is remote several days per week. The attorney related that life is less stressful because a quick break from work allows time to start a load of laundry, empty a dishwasher, etc. The attorney related that evenings are less stressful because of those opportunities during the day. "

Forbes reported last year on the mental health issues intertwined with remote work. It cited similar benefits

"employees appreciate how working from home allows for a better work-life balance. This may lead to higher job satisfaction and a greater likelihood that they'll stay with the company."

The article goes on to say that remote work benefits employees with anxiety and other "neurodivergent individuals." Cleveland Clinic says that term refers to "people whose brain differences affect how their brain works." Hint for the critics out there, everyone's brains are different and so are all the people that work with those brains.

The challenges of remote work, cited in the Forbes article are

1. "struggle(s) with loneliness"
2. "(blurred) lines between their personal and professional lives"
3. "they might use breaks to take care of household chores. In a way, it's like they're always working."
4. "Focus can also be difficult to maintain."
5. "Personal disruptions—like a dog barking during an important call or a child needing immediate attention—can be harder to avoid."

These are all significant concerns. There appear to be mental health challenges both in remote work and in the office. Likewise, there are apparent mental health benefits from working remote. It is, as are we, complex. 

Employees insist on various surveys that they are more productive when working from home. Supervisors tend to conclude otherwise and often note that supervising remote workers is more stressful for them. 

If one employee is allowed to work remotely, but not all workers, does that cause stress or anxiety for the in-office members of the team? If a worker never encounters coworkers except on a screen is that troubling or challenging? In truth, either paradigm can cause or exacerbate issues, anxieties, and challenges. 

In all work, there are issues of balance and management. The world is full of workplace managers. The world is not full of good workplace managers. I find it amazing how many poor managers and management decisions we run into in the world of workers' compensation. But that is for another day. 

There is an old adage that you can learn a lot from a bad example. The news recently noted such an example at the company that is the "biggest search engine" in China. The public relations manager (that drips irony) "has apologized after her comments glorifying a work-till-you-drop culture." This leader essentially told her employees to "suck it up." The story does not say she called them "snowflakes" or belittled their abilities. But perhaps close. 

In this regard, know that the next generation is not up to your standards. I get that. No "next generation" ever was. Every "next generation" has had it easier than the present generation. They have had advantages. They have not suffered or sacrificed. They are spoiled. My elders said it of me, your elders said it of you. That is an absolute truth, and despite the various elders' perceptions or beliefs, they were all absolutely correct and fatally misinformed. Yes, you can simultaneously be 100% right and wrong in the same thought and moment. You are complex.

This Chinese manager did remind them that she is "not your mother." She tells them to get back to work and threatens that failure or poor performance might motivate her to "make it impossible for you to find a job in this industry." Her tirades reflect the mentality of a "work until you drop" devotion to the job (or to this manager). In or out of the office, such a devotion can take its toll. As I draft this at 01:55, I am wondering if I am trying to convince the reader or myself.

China apparently leads the charge of "work until you drop." there are examples cited of ridiculous work hours, 12 hours daily, 6 days per week. There are anecdotes of asinine levels of focus that causes employees to completely forego and forget personal lives, commitment, and leisure. You are complex and you need both the achievement of accomplishments and the time to slow, stop, and savor the life you are leading. 

In one of the most tone-deaf quotes, the Chinese manager tells subordinates "Keep your phone on 24 hours a day, always ready to respond." That is perhaps among the worst advice I have ever heard. Not that I ever turn mine off. Not that I am short of compulsive in checking mine. But, I make that choice. No one has ever told me to be available 24/7. There is a vast difference between checking your phone constantly and being told to do so. 

The BBC article about the Chinese PR manager is a worthy read. There has been some degree of outcry about her message and the treatment of her coworkers and subordinates. The story drew me back to the challenges of remote work, and comparisons to the conventional workplace.

In the end, there is no difference between the management of in-person and remote teams. There are simple rules that will help managers through either task. 

1. All employees are different
2. The degree of follow up and task management varies
3. Some employees are self-motivated
4. Some employees are detail-oriented
5. Some employees need supervision
6. Some employees need large projects broken into small tasks
7. All employees need to recharge and recuperate
8. Not all people are right for all jobs (sorry, that is simple truth)

Whether in the employee is here or there, management means interaction, assignment, and evaluation. The how, when, and where are all dependent on the multiple variables that make up that job and that employee. I often discuss management challenges with supervisors. They frequently lament that management is difficult. That is true.  They tend to lament tools they lack instead of focusing on the tools they have. That is true. 

The variability of humans, tasks, and details will render all of that absolutely true. The difficulty will always remain. Management will never be easy. Some will make it look easy, but one cannot fall into that trap. That Tom Brady makes quarterbacking look easy does not make it so for everyone. Management is hard. Employees are challenging. Variability is constant. Mental health is unique, fluctuating, and multi-factoral. 

The answers are therefore sometimes difficult. In the end, however, the most important challenge is reasonableness. The employee must be a reasonable contributor to the team and the effort. The manager must be a reasonable leader within the needs of the team and the individual employee. The solid, persistent, management will persistently be a need to fulfill in any organization. 

Expectations have to be personal and reasonable. Do not ask me to quit checking my phone 24/7, but similarly do not tell others that they must check their phones every minute. Recognize people's differences, strive to find their strengths, feed their personal goals to the extent possible, and lead them to outcomes that benefit the organization. Through that achievement, the employee grows and finds self-worth. The organization benefits through production, earnings, and more. 

Easily said. But, keep in mind that if management was either easy or unnecessary, the company would not need you. And no matter if you are the CEO or working in the mailroom (an antique illustration of a starting job in the bygone era of paper), someone is likely struggling to manage you as well. Are you communicating with her/him? Are you frustrating her/him? Are you focused on your mental health and considering theirs?

Register for The Point. It will be a lively discussion of mental health and various challenges we face personally and societally. 

She Must Go

An intriguing story started last November when a Douglas County Probate Court Judge was before a Judicial Qualifications Commission in Georgia. The whole story is reported in detail on Law.com. Fox5 Atlanta reported last summer that she faced "40 allegations of alleged judicial misconduct," after ten others had been dropped by the Commission because "some did take place before...her candidacy."

The trial of the judge went on for days. That in itself is not necessarily common. I have been following judicial discipline decisions for decades, and it is far more likely for a judge to admit error, seek mercy, and move on. But, there is no reason for a judge to do so if he or she believes there are insufficient grounds. Fighting for what is right is admirable.

The judge testified at some length regarding the allegations. The Commission concluded that her "attempts to avoid responsibility for these clear violations bordered on farcical, severely erroding her credibility." Credibility is critical in any witness. Stick to the facts, be consistent, and your odds increase. 

One complaint had to do with disregarding courthouse security. That incident resulted in revocation of the judge's "after-hours" access to the courthouse. There were allegations in the defense that the accused judge had been subjected to "a contentious judicial atmosphere" and that there was "discord between judges" that led to some "snarky" correspondence from the accused judge. She apparently questioned a colleague "How are you a judge?"

Judge Peterson testified that she believed she was treated unfairly. She perceived that she "was, in essence, convicted guilty (in the investigation process) until proven innocent.” Commission members expressed perceptions of discord. There were allegations that the Judge's testimony about her correspondence was "confused" and that “the evidence [didn't] line up with the testimony.”

The prosecution highlighted education that had been provided about the Code of Judicial Conduct. There was emphasis that the judge had been provided a mentor "at least for the first year of...judgeship." Other witnesses attested to Judge Peterson's intellect and her adherence to process. In short, there were witnesses both for and against. 

There was emphasis on her ex-parte communication with "her HOA" in an attempt "to settle a lawsuit she had filed...though she knew the HOA was represented by an attorney." It is undeniable that the Code of Judicial Conduct precludes ex parte communication (though perhaps not in this context), but so do the Rules of Professional Conduct that apply to all lawyers (including those appointed/elected to the bench). There are rules about speaking to represented parties. Every lawyer knows them. Every judge knows them. 

The news report notes the contempt decision, which the Commission characterized as "a hasty and sickeningly disproportionate reaction." That involved a lady who wanted to correct a public document. She was sentenced to two weeks in jail for contempt and served two days. The contempt charge appears to have been viewed by the commission as untoward and unnecessary.  

Contempt is an incredible power that must be used very sparingly and respected. Too many constitutional judges joke about contempt. Too many judges have been quick to employ it. It is powerful and therefore requires great restraint and respect - from those it threatens and those who have the power to employ it. It is not for simple instances of mistake, lost patience, or frustration. 

There were allegations about social media use by the judge. The argument was raised that “actions taken outside a judicial capacity can warrant discipline only when taken in bad faith.” The judge argued that in the absence of evidence of "bad faith," the commission should dismiss the social media allegation. But, there are significant constraints on judicial comments and statements. That they are made off the bench or on social media does not change that. 

When the prosecution rested, the judge's attorney moved "for directed verdict," a decision by the commission that the case had not been proven. It was denied. Just to be sure, the judge's other attorney "move(d) for directed verdict on all counts contained in the JQC’s complaint." The case nonetheless moved on to the defense's witnesses and evidence.

The prosecution sought sanctions to limit harm to the public and the court. They suggested training, and supervision by other judges in any situation where contempt was discussed. The defense argued: 

"There’s no judge in the history of American jurisprudence that had 50 counts [of ethics violations] and yet we stand here today, after two attempts to remove her from the bench, and 20 or more of those 50 counts have been dismissed or withdrawn by the Judicial Qualifications Commission.” 

Essentially, that argument is that if a prosecutor chooses not to pursue all the charges it must equate to innocence. Prosecutors elect to forego millions of charges in the U.S. every day. That equates to efficiency and prosecutorial discretion. It does not equate to innocence in each instance, though that decision might the subject of such an argument. 

Thus, the lawyer argued “This is not a judge, that, in my view, even comes close to somebody that you would remove from the bench.” But, the Commission disagreed. 

One might find it curious that 50 charges were perceived by the defense as grounds to conclude that the judge should not be disciplined. The unprecedented "50 counts" may seem to some an indicator of problems. To others, perhaps it signals unwarranted persecution. Certainly, there is not fire whenever there is smoke, but as the volume of smoke rises the search for fire will likely intensify.

Fox 5 Atlanta reported April 1, 2024 that Judge Christina Peterson has been found "guilty of systemic incompetence" and that "she must go." The recommendation of the Commission was reportedly unanimous. Its conclusions were founded on "ignor(ing" courthouse rules, abuse() of courthouse personnel...inappropriate posts on social media," and failure to perform the job. 

There are some who excel at "the judging business" and others not so much. When allegations of wrongdoing arise, they must be investigated and conclusions must ultimately be reached. The lessons for judges are clear. Treat people with respect, check your black robes disease at the door, remember that you are a judge 24/7, and remain vigilant with your social media (like this blog post). 

Diligence, Efficiency, and Promptness

Hon. John Beamer is a Circuit Judge in the Ninth Judicial Circuit, which includes Osceola County, Florida. Osceola is just south of Orange County and includes the city of Kissimmee that many will associate with theme parks, hotels, and tourists. Judge Beamer was appointed just before the onset on the SARS-CoV-2 pandemic, taking the bench the month before that strange time began. In fairness, adapting to a new job had to be difficult in that moment.

Judge Beamer, like all constitutional trial judges in Florida has to face the challenge of re-election periodically. It is generally every six years. However, when a new judge is appointed, they must stand for retention election more rapidly at the outset. Judge Beamer was reelected in a primary election in August 2022. His current term runs until January 2029.

Judges in Florida are subject to a process of discipline that includes the Judicial Qualifications Commission or JQC. Complaints can be lodged there and the Commission is charged with investigation and recommendation. It cannot punish a judge. That falls exclusively to the Florida Supreme Court.

Following a JQC investigation, the Florida Supreme Court rendered Inquiry Concerning a Judge, No. 2023-153 re: Hon. John Beamer, No. SC2024-0284 (Fla. May 9, 2024). The Commission investigation revealed "dozens of cases and significant delays in rulings and orders." The Commission concluded that the judge was "counseled repeatedly without result.” When inappropriate behavior is identified and illuminated, there is benefit to all in there being both acknowledgment and remediation.

For some, there is an immediacy that is created by official action. It is different when a co-worker or chief judge points out a deficiency or problem than when an official body like the JQC does so. Channel 35 Orlando noted that filings indicate the

"chief judge of the 9th Judicial Circuit, which includes Osceola County, met with Beamer on 'no less than three occasions between late 2021 and early 2023 to discuss complaints about his delays in entering rulings and to stress the importance of entering prompt rulings.'"

The Supreme Court noted that when it undertook an investigation,

"The Commission also noted, however, that the Respondent immediately accepted responsibility for his conduct; cooperated with the Commission's Investigative Panel; and, both before and after receiving a notice of investigation, took steps to address the backlog of pending matters."

Those are critical. When you have a problem - admit it. When you fail, address it and improve. The JQC here entered a stipulation with the judge that his delays in entering rulings "violated Canons 1, 2, 3B(8), and 3C(1) of the Code of Judicial Conduct." These address performance of work "promptly, efficiently, and fairly" and diligence in "administrative responsibilities.

Judge Beamer was publicly reprimanded last week by the Florida Supreme Court. The investigation findings provide minute detail that includes "24 cases with final judgments pending more than 60 days." and 10 cases "pending more than a year since the trial." The parties in some of those cases have had meetings with the judge ("status conferences") to discuss the delayed rulings.

This is an interesting decision by the Court. And there are parallels certainly with the Florida Office of Judges of Compensation Claims. The primary parallel is that the judges of this office are bound by the same Code of Judicial Conduct. Section 440.442, Fla. Stat. That has been true since 1978 in one form or another. No JCC can claim to not know that.

Diligence is expected of constitutional judges. But, diligence and timeliness in the Circuit Court arena are more vague and subject to interpretation than in workers' compensation. In Chapter 440, this office has requirements for timely mediation, trial, and order entry. Section 440.25, Fla. Stat. These parameters of 130 days for mediation, 210 days for trial, and 30 days for trial order are also not new.

Those parameters have been part of the statute for over twenty years. Every lawyer who has practiced workers' compensation knows these statutory parameters. Almost all of the judges have experience with them from practicing law (not Judge Lewis or Medina Shore as they have been on the bench since before those parameters were legislated in 2001). And, critically, every judge has been reminded of those time parameters with each Annual Report of this Office since 2006.

There is no Judge of Compensation Claims that is not (1) aware of the requirement of timely orders, and (2) bound by the requirements of diligence, efficiency, and promptness set forth in the Code of Judicial Conduct.

It is troubling to see Judge Beamer publicly reprimanded for his delays in ruling. His delays are significant and unflattering. His explanations that delays result from "his own inadequate time management practices and work-flow issues" cannot have been easy admissions. I admire him for his candor and commitment to performing in a more timely manner. 

His struggles are impacting Floridians, and are now quite public. What judges have to remember, though, is that such delays are often the subject of ridicule and disrespect in hushed tones among lawyers long before they are truly "public" as in this instance. 

Judge Beamer has now been discussed by Channel 35 Orlando, Channel 9 WFTV, the Orlando Sentinel, and Law360. Such exposure and public discussion have to be disconcerting and upsetting. Every judge believes themselves capable and effective. In fairness, judging is an extremely difficult job and requires our very best every day. It cannot demand perfection because it is a human occupation. But it is not too much to ask for diligence, efficiency, and promptness.

Such a reprimand is a good opportunity to refocus. In truth, no one can erase yesterday; that there have been unfortunate cases in which untimeliness has occurred in the past. The hope is that with correction can come growth and a new tomorrow. That is what the Chief Judge in Osceola undoubtedly hoped when those meetings occurred. That is what the lawyers hoped when those status conferences occurred. That is what the Supreme Court hopes now that a reprimand has been required.

Bluntly, there is no merit in delay. Trial orders do not get better with age. Wine does. Cheese does. Wisdom does. But even wine turns to vinegar and cheese turns to dust. Time will not make the judge's decisions easier, the order drafting easier, or somehow the job easier. Delay will only bring accumulation of unaddressed orders, pressure, and stress. 

Everyone is rooting for the judge to rebound from a troubled start. There is admission of delays, violations, and shortcomings. There is a commitment to grow from the challenges and to meet tomorrow with a renewed spirit and verve. Certainly, there are high hopes for tomorrow. And, as certainly, there is the probability of ongoing public scrutiny. 

The best advice for any judge? Get the orders out today. Focus on the task at hand. Eliminate distractions and invest in getting the job done. Know from your peers that timely and effective performance is not only possible but quite common. Know that if your peers can do it, you most certainly can also. You need only decide that you will. 

Hubris and Petulance

There are a great many judges in this world. The idea of a judicial system is reasonably universal, though the stature, dignity, and independence of those display some significant degrees of variety across the globe. 

In the United States, there are something more than 30,000 judges. In such a broad field of people, it is likely difficult (at best) to distinguish yourself. How does one stand out from the crowd?

A suggestion, humbly, would be that there is no reason to stand out from the crowd. The job before us is one in which doing the job, day after day, with humility, consistency, and dedication is a tribute to the serious challenges people face and the critical role that judges play in analyzing conflicts, facilitating discourse, and steering disputes to resolutions.

The purpose of a judge is not to find Andy Warhol's promise. Supposedly, he said that "in the future, everyone will be world-famous for 15 minutes." There is some doubt about that attribution. And, there is some criticism. Comedian Daniel Tosh is quick with that quote and to explain the 15 minutes is an average. He then points out those in the audience who will get "zero for you, you, you, you, zero, zero, zero, zero, zero" so that Mr. Tosh can have far more than 15 minutes in that "average" conceptualization.

Judges are like cooks. Our job is largely to deal with a process that is imperfect. It is said to be an art, more than a science. In fairness, art is often in the eye of the beholder. People actually look at Picasso's work, believe it or not. Not my cup of tea, but that is what makes the world go around. 

Much of the meal is determined by the groceries. If all you bring us is unripe kumquats, banana pudding mix, and a can of spam, you can hardly be shocked when the judge doesn’t conjure a gourmet meal as a result. Ok, you can be shocked if you want to be, but your credibility will take a serious hit.

In the naïveté of our youth, we were all led to believe that such judicial positions naturally attract the best and the brightest. To be a judge, you must have something on the ball, right? In truth, judges are no more likely to be exceptionally smart, than college professors, counterworkers, or floor moppers. There is no inherent characteristic. Much of life comes down to luck and opportunity. 

Thus, appellate judges are no more intelligent or sensical than any other judges. But, at least, they tend to make decisions through a collective and sometimes collegial process. That collective effort and ample reflection time perhaps round off some rough edges in trial decisions they review. Their collective wisdom is maybe less fallible than any individual's? Well, if it makes you feel better to cling to that, that itself has value. 

Our story today is of a Nevada judge. Fortunately, or not, she recognizes her own indefatigable superiority. She is gaining 15 minutes of fame because she has made up her mind, and will not be swayed. She, perhaps sees herself as the “man who can't be moved.” As irrational as it may become, she just keeps repeating "So I'm not moving, I'm not moving." The Script, RCA, 2008. 

No, when the Nevada Supreme Court told her she had erred, and reversed in 2022, she stood her ground. The matter was brought to the Supreme Court a second time, and surprisingly, perhaps, like your mother (“what part of no didn’t you understand?“), the court agreed with itself, and told the judge again in 2023 to follow its previous instructions.

So, perhaps the court delivered clarity and its second iteration. Nonetheless, the judge in Nevada is too brilliant to be swayed by the missives of the states highest court. Convinced, perhaps of the Supreme Court's misconstruction, misinterpretation, or misapprehension, the trial judge remains steadfast in her decision.

Oh, and in her hubris, abstinence, and petulance, she earns 15 minutes of fame.

Not fame for being the calm influence through a difficult trial. Not for being the stoic ear that hears people out despite their feelings. Not for being the diligent decision-maker sorting through competing arguments. Not for the patient and dignified work of the work-a-day judge. 

No, she earns her 15 minutes of fame for being disrespectful, defiant, and disruptive. It is disappointing in this nation of laws, to witness those who flout it. It is worse when those who defy it are the very scholars that have been appointed or elected to uphold it.

Remember, Daniel Tosh? Kudos to the judges who’s lifetime “fame accounts” equal “zero, zero, zero, zero…” But as he mentions, it is an average, and this judge is studiously making up for their fame deficits. 

I have written about this Judge previously. One might recall It's the Appearance (February 2024) in which this judge's social media activities were featured. There she is not necessarily the dignified embodiment of scholarship and decorum. She posted bathing suit photographs on social media. 

That, in itself, is not a sin. I’ve had my picture taken in a bathing suit Admittedly, I have never posted photos of that on social media or elsewhere. There are things in this world worse than me in a swimsuit, but not many. 

But in that instance, this judge posed with friends in a hot tub. Before she was a judge, she was a public defender. Those she posed with in the tub are current public defenders. There is some potential for perceiving ongoing friendships and connections between those attorneys and the judge. Those attorneys and their colleagues appear in court before that judge. 

There is, at least, the potential for an appearance of impropriety in the judge's hot tub escapades. The photos show to some poor judgment and lack of decorum. They are inappropriate and unfortunate.

But, the more recent Supreme Court order is far more disturbing. The hot tub is a problem with intellect, appearance, and the Code of Judicial Conduct. The problem with refusing (twice) to do what the Supreme Court says is petulant, immature, and rebellious.

It turns out, in Nevada, that the Supreme Court apparently cannot tell Judge Erika Ballou what to do. She will not follow the orders of the state's highest court. So, more recently, the Court ordered "District Court Judge Jerry Wiese" to assign the case in question to a different judge.

District Court Judge Eric Johnson apparently proceeded within days as instructed by the Supreme Court. 8 News Now reported that it took this judge mere hours to follow the Supreme Court's decision and directions. Perhaps following instructions is not so hard after all?

Judge Ballou's punishment for not following orders of the court? She has her workload decreased and places the burden of her work on another judge. One of the not famous, workaday judges down the hall who is merely getting the job done each day rather than lounging in hot tubs and ignoring the state's highest court. 

In fairness, it is the trial judge's job to manage a docket. The trial judge is burdened with a myriad of challenges and decisions on a daily basis. It is a difficult job that requires attention, patience, and persistence. In short, it is not the job for everyone. Intelligence? Sure that helps. But in reality, it requires work, dedication, and focus.

Judge Ballou wasted taxpayer money. She exhibits a disrespect for the law. She demonstrates contempt for the state's highest court. There has been an embarrassment to the judicial profession.

If there is a glimmer of positivity, I find it in the miles between Florida and Nevada. It is a small solace, but at least this is not happening here. They say you can learn as much from a bad example as you can from a good one. I am grateful that this lesson is long distance.

So, 15 minutes for Judge Ballou, 15 minutes for Nevada, "zero for you, you, you, you, zero, zero, zero, zero, zero." All of those "zero fame" judges with their heads in the work, with their hearts in the job, getting it done every day and not being famous, good for you. 

Surreptitious Recording

A curious instance of legal misfeasance occurred some time ago. It was brought to my attention just before it was referred to the authorities. The litigation had been ongoing for several years and late in 2022 a motion was made for appointment of an Expert Medical Advisor. About a month later, an EMA was appointed and trial was continued to accommodate the evaluation and testimony.

There was later an objection to the EMA provider. This was premised in part on the requirement for a "conflict of interest" form. The objecting party noted that the form "form was never returned to the JCC according to the Court File." This seems to refer to the OJCC file, merely a lazy reference to "court."

The objecting party also noted that the EMA charged a significant fee for the examination and other services. There were allegations that those exceeded what the law allowed. This included a schedule of charges including "$1,000 per hour to read records." Arguments were made of indifference to this fee amount, and allegations of the carrier being "complicit in concurring with this with this knowing violation." There were other complaints voiced regarding the charges for a deposition (another $2000).

To this point, the case was somewhat familiar. There have been various instances over the years in which medical charges have raised questions. The parties elected to instigate a joint call to the assigned judge's office to discuss perceptions of the fee issues. One of the attorneys decided that it would be prudent to record this conversation. There are two red flags in this paragraph.

First, the OJCC staff is not empowered to remedy substantive issues for the parties. There is no valid purpose for attorneys to engage staff except to seek scheduling assistance or advise of challenges or problems. State staff is not who to ask for relief, see Rule 60Q6.115. 

The second red flag is the recording of the call. Any Floridian should have seen that immediately. If you are a lawyer, you should have seen it even sooner. 

So that there would be no denying the recording occurred, the lawyer in this instance embedded a link to the recording in a pleading and filed the pleading with this Office. That lawyer was seeking various relief from this Office, and included this recording link. An important point is that anything filed with this Office is a public record. This pleading, in which the recording is described and linked, is a public record.

Essentially, it is a public record that says "I broke the law, and here is the proof." 

Florida is what is referred to as an "all-party consent state." That means that if a person has "a reasonable expectation of privacy (e.g. not in a public place)" then making a recording of that person without their permission may be a crime. See Recording Phone Calls, and Conversations, a 50-State Survey, Justia.com.

In some instances, violation of the Florida statute, section 934.03 is "a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41." That is problematic. Lawyers, you see, are not supposed to commit felonies (in fairness, no one is supposed to commit felonies). The Bar frowns upon criminal activity. As important, The Rules Regulating The Florida Bar (3-4.3 and 3-4.4) may be of interest in the whole "felony" arena.

The Florida Fourth District Court has noted that "section 934.10, Florida Statutes (2019), ...creates a civil remedy for violations of the Act, including unlawfully recording phone calls without the consent of all parties. See § 934.10(1), Fla. Stat. (2019)." Race v. Mitchell, 357 So. 3d 720, 722 (Fla. 4th DCA 2023), review granted, No. SC2023-0432, 2023 WL 4270985 (Fla. June 29, 2023).

So, perhaps one might face both civil and criminal penalties for recording someone without their knowledge. And if the recording is done by a lawyer, then there could be broader concerns with The Bar. 

In this regard, the actions of staff may be the lawyer's responsibility, see Rule 4-5.3, Rules Regulating The Florida Bar. Potentially, the staff could commit the crime and/or be civilly liable, but the lawyer could face Bar discipline for the staff's actions. Some might successfully argue that same staff is an agent of the attorney or law firm and seek those civil damages from the lawyer under the theory of respondeat superior. 

Making surreptitious recordings of people without their knowledge may be problematic. Admitting to having done so, in a public record filing, is perhaps not the brightest maneuver one might contemplate. The criminal referral in this particular matter did not result in a conviction. Nonetheless, the behavior justifies serious consideration and thought. 

A lawyer prosecuted for breaking the law might run serious risks of penalty. A conviction might even impact the lawyer's ability to practice law. "As guardians of the law, lawyers have a special obligation to honor the law themselves." The Fla. Bar v. Behm, 41 So. 3d 136, 139 (Fla. 2010). See Rules Regulating The Florida Bar, Rule 3-4.3 and 4-8.4(c). 

It would seem untoward at best to record conversations in Florida without the consent of the others on the call. It is an important thought for all, but more so for a licensed attorney. Making a recording is a bad idea. Making a public record admission that you have done so is beyond foolish. 

$1.7 Million Toilet

Some perceive a housing crisis in America. The Supreme Court recently took up a challenge in which some seek to preclude towns or other localities from banning camping on public property. There is a population that believes people should be able to do as they wish, where they wish, and when they wish. From that perspective, the belief is either society provides these people with accommodations or they should be free to camp when and where they choose. Some places have digital maps to help pedestrians avoid the feces on the sidewalks instead of punishing those who do the defecating. Purpose (October 2023). 

An Oregon city reportedly made "it illegal to sleep outdoors in public spaces." When the city enforced that (there was an effect on someone, not merely words), some of those who were punished sought review of the ordinance alleging that it "violate(s) the Eighth Amendment’s ban on cruel and unusual punishment." The argument is seemingly that putting people in jail for breaking the law is cruel and unusual. Or, that criminalizing the unfettered use of public space is cruel and unusual.

Justice Kagan elaborated and suggested that sleeping and breathing are similar. She says that the unhoused (she called them by the pejorative "homeless") have "no place to go." For them, she suggested, "sleeping in public is kind of like breathing in public.” So, is defecating in public like breathing in public? Is exposing oneself in public like breathing in public? What human function is not like breathing?

According to The New Republic, the U.S. Supreme Court seemed reluctant to prevent the operation of the Oregon ordinance. It seems, to some observers, that the Court will not conclude people have unfettered rights to do as they wish, where they wish, when they wish. However, there are those who fear that any acquiescence to any punishment of the unhoused, by the Court, is essentially to "green-light laws that effectively criminalize homelessness" (The New Republic used the pejorative "homeless").

This is interesting because it illustrates a constitutional conflict that is challenging on several levels. In a recent post, I suggested that no constitutional right is absolute. In Conflicting Rights (April 2024), I suggested that there is a persistent friction between the rights of various persons. You are free to have the Roling Stones play for your backyard party, despite it disturbing your neighbors; but, if the music goes on until 02:00, there is a sound argument that the needs/rights of the neighbors may overtake your needs/rights to hear your band.

And that is with the Stones. Imagine instead that it is Miley Cyrus performing in your neighbor's yard. She, after all, comes in like a "wrecking ball." Or worse, Billy Ray Cyrus and his Achy, Breaky, Heart. The horror! 

The unhoused debate is perhaps similar in that the rights of some may abut the rights of others. Do those whose daily labors and taxes support a community have a right to live and work unaccosted in the public areas of their communities? Or, do the rights of the unhoused somehow trump their rights? Is this a ban on the unhoused, or a ban for all people? Under Justice Kagan's analysis, perhaps any of us should be free to do as and when we wish? Time will tell how the Court interprets the appropriate outcome of the friction.

Housing is expensive. Forbes notes that "the U.S. median home price was $412,000 in September 2023." That is a significant amount of money. According to the National Association of Home Builders, the average American home has 2 bathrooms. If one ignores the kitchen, bedrooms, and more, that comes out to about $206,000 per bathroom.

This introduces another issue with the unhoused and a news story from San Franciso (you remember, where feces is on the sidewalks). USA Today reports that city has just opened a public bathroom (no bedrooms, kitchen, etc., just a bathroom). Remember when you could get a "solid gold toilet" for a mere $6 million. Those were the days. Well, the officials in charge of the Noe Valley Town Square recently went to work on a toilet which initially was estimated to cost "$1.7 million with a two-year timeline."

Some are convinced that would be quite a toilet. In the end, the city did not pay that. It received a donation that saved it 

"$115,500 on construction, $91,800 in project management fees and $90,000 in architecture and engineering fees"

Yes, you read that right, $90,000 in architectural fees for the toilet. According to Career Explorer, the average annual salary for an architect is about $80,000 and Glass Door says for an engineer it is about $86,000 to $156,000. That is for a year. of work The $90,000 above is for a toilet. Talent.com says a construction manager's salary for a year is about $65,000. Does it take a year to build a toilet? How much is really involved in designing a toilet? Have there been any toilets previously designed that we might just copy?

In the end, the city managed to install a single toilet, with drinking fountain on the outside, for about $200,000. The savings were not accomplished through decreased efforts or material, but through donations of materials. But for the donations, it is likely still about a $1.7 million toilet. The cost of things is beyond preposterous. A single toilet for half the price of the median American home? No one is apparently surprised. 

I previously wrote about a contest to design a new garbage can. These are the Good Old Days (December 2022). That noted a city (coincidently San Francisco again) holding a contest for what would replace its 3,000 street-side garbage cans. The city spent more ($500,000) on that contest than it spent on the recent toilet. It could have had 2.5 toilets, at a ridiculous price, instead of a trashcan contest. One of the entrants in the can contest was a unit that cost $20,000 each. Imagine the hubris that comes with a refuse container at that price. 

The contest concluded with a decision to buy the "Slim Siloutte," a unit that cost less than $19,000 to prototype. The good news is that with mass production, these can be built and delivered for only $3,000 each. According to Mission Local, there was an alternative that cost "only" $630 per unit. Apparently, the city has picked the $9 million alternative ($3,000 x 3,000)(that is equal to 6 public toilets at $1.7 million or 45 toilets at the still ridiculous price of $200,000 each). But, the can replacement may be on hold because of "fiscal constraints."

Comedians have apparently been critical of the new San Francisco toilet. Is there any feeling of fiscal constraint in the marketplace? How many unhoused might have a charitable bed for $20,000? $200,000? Or, how much might taxes be reduced on the rest of society if less were spent on folly and failure?  

The USDA estimates you can feed a person for a day for about $4.00. San Francisco estimates it has about 7,754 experiencing unhousedness. So, perhaps alternative uses of the folly money would be to feed those people, for this many days:

$20,000 can cost = .6 days

$500,000 can contest = 16 days

$1.7 million toilet = 55 days

$9 million replacing waste cans = 290 days

Or, the city could pay someone to scrape the feces off of its sidewalks? Or, it could enforce the law and stop people from defecating on the sidewalks. Or, is it cruel and unusual to punish people for defecating in public?

A challenge may be that those who have money tend to find ways to spend it. Google "city lowers taxes" and see how many news stories pop up. There will be a few stories about decreases in state taxes in the wake of the SARS-CoV-2 pandemic. But, for whatever reason, there are no stories about municipalities lowering taxes. Google "municipalities spending on ridiculous things" and for some reason, there are multiple examples. In fairness, that query returns local, state, and federal folly and absurdity. 

The idea that banning camps of the unhoused, is cruel and unusual is at best anachronistic. See Conflicting Rights (April 2023). Where Justice Kagan gets off the path is not in her contention that sleeping is as fundamental as breathing. The departure from reality is that anyone has any fundamental right to do anything particular in the public domain. There is nothing untoward about building a public restroom, but overpaying for it is senseless. 

Rights Collide (February 2016) in society. That you have a fundamental right to sleep or to breathe does not mean it persists everywhere at every time. I suspect that Justice Kagan would not agree that the unhoused have a fundamental right to do either in her living room or even her front yard. If she believes that they do have such rights, and those people, in fact, do stay with her family, Google has produced no evidence of such accommodation. 

Urinating is a lot like breathing, but we still restrict where people may or may not do so. 

Procreation is a lot like breathing, but we still restrict where people may or may not do so. 

Defecating is a lot like breathing, but many of us still restrict where people may or may not do so (the City by the Bay proves Jung's hypothesis of rules). 

When people are constrained in their activities, fined, or jailed for violating society's laws, is it "cruel and unusual" because their activities are fundamental? May we dictate where people go, exclude them from certain buildings, or constrain their activities there? Is speaking your mind a lot like breathing? As Justice Kagan suggests, is the fundamental test whether one's activity is "like breathing?" Perhaps, or maybe that is an oversimplification?

Why are the rights of some exalted at the expense of others? Who is to make such decisions? Will it be the same people who see no excess in the $1.7 million toilet or the $20,000 (or even $3,000) garbage can? 

Dopey

Dope is not a new topic. In Florida, we await November to see if the people will constitutionally de-criminalize dope. The vehicle for this effort is Amendment 3, and it was cleared for the November ballot by the Florida Supreme Court, according to the USA Today network. They refer to this as "recreational weed." Of course, there is no medical purpose to weed, so "recreational" is all it could be. But wait, stay tuned (see further below).

For other points about dope, see Edibles and Illness (November 2023); and Dope and Heart Disease (March 2024). There are many links in the Heart Disease article. Back in 2021, I addressed the decriminalization challenges and noted that there is a fair amount of disinformation out there about ganja. See Decriminalizing Marijuana (May 2021). There, I recount some examples of unfortunate people who lost jobs because they partook of the dope and ignorantly believed it was "legal."

Of course, marijuana is not "legal" anywhere in the United States. The Federal government has frustrated enforcement of the ban on dope, leading the Federal authorities to look the other way as people illegally sell it on virtually every street corner. States, in turn, have decriminalized the drug on the foundation of "medicinal use," though it is listed as a Schedule I Drug, meaning that the Federal Government considers it "to have no accepted medical use and a high potential for abuse."

There is some very deep hypocrisy in that. If it is so dangerous, why is the Federal Government ignoring the mass production and retailing of Mary Jane? If there is no reason for the Federal Government to enforce its laws against this stuff, why doesn't it own up to this and simply re-classify or legalize weed? The Associated Press (AP) announced this week that the Drug Enforcement Agency will reclassify, but weed will remain a "controlled substance."

The report claims it will move from Schedule 1 (where we find "heroin and LSD") to Schedule III (with "ketamine and steroids"). This is said to be a recognition of the "medical uses of cannabis." The AP story also uses the "L" word repeatedly in referring to the actions of various states in decriminalizing dope.  

Time and again, as noted in the linked articles, people have lost jobs. Often this occurs when they are hurt at work and sent for a drug test. They test positive and are not surprised. The surprise comes when they are informed that weed is illegal and that there are two outcomes:

1. the employee's workers' compensation claim is denied on the premise that the dope caused the accident.
2. The employee is separated from employment on the premise that marijuana is illegal.

The hue and cry is often "but its legal." And no, Virginia, it is not. But "the news says it is!" That is too true. A simple Google search will locate lots of examples. I have attended many seminars at which reasonably intelligent speakers have both exalted the benefits of dope and parrotted the "legal" adjective. They take real umbrage when you point out that they are wrong (in fairness, who doesn't).

So, Florida will soon have a choice. The good folks at Ballotpedia are helping to feed the disinformation, trumpeting that the proposed Florida amendment would "legalize marijuana."

The headline at Politico says similar. As this initiative is pending, there is an intriguing case that the Supreme Court of the United States (SCOTUS) will take up. The appeal is being pursued by a company called Oxymoron Inc. (not really, it is actually "Medical Marijuana Inc.,"), which might be pretty close. The company has been producing and marketing products that are derived from or based upon dope.

The case involves a worker who was suffering from chronic pain. He self-medicated with a "CBD-rich medicine” marketed by Oxymoron Inc. Apparently, the advertisements were clear that the product was "hemp-based," but also promised that it "did not contain THC, the active ingredient in marijuana."

Well, believe it or not, the worker used this "medicine" and then "failed a drug test and lost his job." He is relying on "the Racketeer Influenced and Corrupt Organizations Act," which is shorthanded "RICO." It was passed to "go after mobsters and others." In case you missed that, let's slow it down. It is a law that was passed to use against people operating criminal enterprises (like manufacturing and selling something that is illegal?).

This is a civil lawsuit and the worker is seeking damages. He believes that the advertisement and denials of THC content were misleading. He is seeking actual damages (what he lost in being fired) and alleges that under RICO he should "get three times the amount of actual damages and attorney’s fees."

The Oxymoron, Inc. group asked a court to dismiss the lawsuit. It sought dismissal of the suit. The District Judge, however, concluded that the loss of work is a "business" loss within the meaning of RICO.

To what extent may this impact the growth, production, and marketing of weed? Is it likely that SCOTUS will conclude that it is appropriate for the producer and marketer of this illegal substance to face consequences for its representations? More importantly

Will those manufacturers potentially face damage if a dopey driver gets fired for an auto accident? What of the dopey business owner who loses a contract due to some Federal Drug-Free Workplace provision? What about if someone loses their job due to lung cancer from the "harmless" weed? And, what of the doctors who are marketing or recommending the ganja? Are they innocent and appropriate, or might a plaintiff name the dope doctor as a co-conspirator?

Do weed producers have liability insurance to protect them from the threat of damages based upon misrepresentation or mistake?

If there are civil damage awards under the auspices of RICO, might a prosecutor somewhere elect to take a RICO shot at criminal charges?

The topic is intriguing. The emotions around Canibus run high. The grass folks will likely be watching this case as it progresses. It is possible that Disney's dwarfs might describe the outcome. Will it be 

1. Sleepy,
2. Happy,
3. Grumpy,
4. Doc, or
5. Dopey?