Retroactive Legislation

There is an intersting legal issue being discussed in the news recently, spurred by legislative action in 2024. It involves retroactive application of statutory changes in the broadest context, but the focus is a Home Owner Association (HOA) in Sarasota. 

The story starts with covenants attached to land in a particular neighborhood development. As a result of these in particular, residents are not allowed to park trucks at their homes overnight ("between the hours of 11 p.m. and 5 a.m.").

That may not be completely accurate. It seems vehicles may be parked inside a garage at any hour. As it is possible such garages are at those homes, then perhaps some such vehicles may be parked at homes overnight. Those whose vehicles will not fit in their garage apparently pay hundreds of dollars a month to park in a lot about a mile from their home.

Moneywise reports that homeowners in this community knew of the truck constraint when purchasing their homes (or when purchasing their trucks). The restriction on truck parking dates to 1976, and is derogated in the article as "an archaic HOA rule." That "archaic" rule is essentially attached to the property that people have purchased.

Some see rules of this sort as protecting the neighborhood and property values. There are neighborhoods out there in which residents park assorted vehicles in driveways, yards, and streets. There is a population of people who find such collections unsightly or unappealing and they prefer a more uniform appearance. 

That said, there are others who perceive home ownership as an issue of personal freedom. These believe generally that their home and property are their business and no one else's. They feel it is their choice alone if they wish to park their boat, RV, or trailer in the driveway or yard and that the appearance is no one's business but their own.

Thus, some property owners are drawn to the orderliness of HOAs and others are repelled. There have been odd reports of HOA rules. One reportedly defines a dress code for garage sales, or what time the garbage may be put at the road for pick up. Others may prevent for-sale signs or require conforming appearances. I had a friend who once complained of being fined for leaving her garage door up on a Sunday.

Years ago, I lived next door to an aspiring basketball player. This kid was persistent in his practice and thrived on the sport. His parents had been denied permission to put a goal on the house, but had one that could be wheeled out into the driveway and later stored in the garage. Other neighbors, offended by the noise, soon approached me with a petition to limit the hours of permissible dribbling. They wanted to change our HOA agreement to set permissible times for such activity. I demurred. Sorry, folks, kids engaging in sports is likely a good thing. 

In the parking situation, the Florida Legislature took up HOA constraints in 2024. House Bill (HB) 1203 was passed and signed. It addressed parking by a "property owner, or a guest, tenant, or invitee." The new law said that those people could not be prohibited

"from parking his or her personal vehicle, including a pickup truck: in the property owner's driveway, or in any other area at which the property owner or the property owner's tenant, guest, or invitee has a right to park."

Viva la camioneta! 

The crux of the recent news coverage, however, is that this change in the law is not being given retroactive effect. Apparently, some contend that the law does not change contracts (covenants) that were entered into before the law was passed. Those folks see the covenant or contract of the HOA constraints as binding, and there is a citation to Kaufman v. Shere, 347 So. 2d 627, 628 (Fla. 3rd DCA 1977). The press does not refer to this case as "archaic," though it dates similarly to the HOA restrictions discussed. 

This is of interest to the world of workers' compensation because it is a statutory change in common law rights. There are rights and obligations imposed by statute and the law generally characterizes those laws as part of the "contract of employment." This maxim says that the rights of the parties to this "contract" of workers' compensation are bound to that agreement despite later statute changes.

This works to the benefit or the burden of various employees or employers. For example, if an accident occurred at 11:59 on December 31, 2023 the "maximum compensation rate" in Florida might pay only $1,197; but if that accident happened at 12:01 on January 1, 2024, then the maximum would be $1,260. That change is driven by statute and changes each year. 

Is it fair for the law to make such a distinction? Might the 2023 employee complain that the "archaic" constraint of 2023 is being applied despite the change? What about the impact over years as that rate continues to increase annually but leaves behind the 2023 employee? Fair? Would it be fairer to take more of the employer's property each year after an accident to pay the increased rate instead? In that, there might be complaints of predictability or underwriting.

Similarly, it is also possible for the Legislature to change the law. If a particular injury is defined with entitlement to certain benefits, then employees and employers are bound by that law if an injury occurs. Thus, an injury in 1993 might entitle a worker to "wage loss" benefits and the same injury days later in 1994 might only entitle the worker to "impairment benefits." And the difference there might be only minutes, as noted above. 

Some cry foul. There is some sentiment that changes in the law should be more generalized. Those who advocate this are arguing for "fair," but usually from their own perspective. There is a counterargument that the benefits should be predictable. Those who advocate for predictability are also usually focused on their own perspective. 

So, an employee injured this year may be limited to the benefits in the law this year, and her/his employer is likewise limited. The employee can budget and plan, as can the employer. Nonetheless, there may be outcomes viewed by any particular party or group as fair or not. 

The Court has explained that whether statutory amendments in workers' compensation have a "retroactive" effect is analyzed, in part, by considering whether a change is "substantive" or "procedural." In Ace Disposal v. Holley, 668 So. 2d 645 (Fla. 1st DCA 1996). There is a detailed explanation there of this distinction. Thus, in the end, some might suggest that the question "does this law change apply retroactively?" might validly be "It depends."

There is logic in both paths. It makes sense that a new statute would not increase an employer's cost or decrease a workers' benefits for a previous injury. It also makes sense that if a new form or process is created, that new process for obtaining and paying benefits might be more readily deployed in a consistent manner for all employees and employers. Nonetheless, there has been litigation over the years about what is or is not "substantive."

In the parking example above, there are those who think the new law should override the old HOA rules, the rules by which those homeowners agreed to live when they selected that neighborhood or vehicle. Others think that they are entitled to the protection from unsightly vehicles (who sees them "between the hours of 11 p.m. and 5 a.m.?)" around the neighborhood.

As in Kaufman, that may depend upon whether the contract (the HOA agreement) says that it is subject to change. There, the agreement in question adopted existing law and said "as it may be amended from time to time.” The Court concluded that language signaled the intent of the parties to be bound by that statute as it existed or as it might thereafter change. That may play a role in the parking dispute.

Or, it may be that the homeowners might meet and amend their own bylaws to conform to the desires of the majority as regards parking or any number of common issues perceived in such a development. One might wonder if changing the rules, in a small neighborhood democracy is "archaic?" Similarly, parties to a workers' compensation case might meet and reach agreements regarding benefits and process, called stipulations, that could be unique to a particular case or situation.

In the end, the parking is an interesting reminder that legislative change may or may not impact a particular situation or circumstance. There is the potential need for interpretation, consideration, and construction to discern what law applies in what manner in what circumstance. That may be frustrating and perplexing, but it is how the law works.

Amazing Contestants

I spent an afternoon recently judging a couple rounds of the E. Earle Zehmer Moot Court competition. This was the 37th annual, and I have been involved in about 1/2 of those. I am usually the "alternate" judge waiting on the bench to be called in. It is a great experience, and I would never want to displace an adjudicator who wants to participate. So, each year, I ride the bench waiting for them to call me up from the bullpen. 

The problem this year was written by Tennessee Judge Tim Conners and focused on multiple aspects of workers' compensation litigation. Kudos to Judge Conners for the time and effort that is required. I have written a couple of moot court problems over the years, in various competitions, and it is a larger task than one might think.

This one is twisted around the characterization of a witness as consulting or testifying. There are arguments to be made and inferences to be drawn. It also includes issues of judicial discretion and the challenging standard of review for such issues, called "abuse of discretion." See Abuse of Discretion (June 2018). Interwoven with these are other issues and challenges designed to stimulate thought and debate. The point of the competition is that - debate.

Students can learn much from debate, challenge, and adversity. 

I had an experience years ago with a student who felt mistreated in a competition setting. A volunteer judge was perceived as overly focused on this student rather than some other student. The complaining student jumped to the explanation - "it's because I am ______________." There is this sentiment today that everything has to do with some "ism" or another. I am confident that the world is full of "isms," prejudices, and unfairness. Life, they say, is not fair.

In fact, author Travis Bradberry said:

"Everyone knows that life isn't fair. Saying it's not fair suggests that you think life is supposed to be fair, which makes you look immature and naive."

That may sting a little, but it is worth considering. But then I wonder if that means I should not say life is not fair?

I had the opportunity in that particular setting to speak with participants, judges, coaches, and observers. I gathered perspectives, perceptions, and conclusions. It was an amazing experience for me simply due to the breadth and depth of feelings, assumptions, and judgments that I encountered. It is fair to say that various people can watch an identical series of events and yet have different reactions, thoughts, and verdicts. It was a fascinating experience.

In the end, I concluded there that the student in that setting had the misfortune to draw the more controversial of the two challenges in the competition problem, and worse, drew the most difficult side of that question. Make no mistake, lawyers are adept at making their stand, but they do not always have great facts or law on their side. Often, they even lack sound policy arguments or rationale for the outcome for which they are advocating.

However, their job is to ignore those weaknesses and represent their client. Easy to say, but sometimes uncomfortable to do. Lawyers have to get used to such circumstances. Sometimes the facts and law are on your side and other times you are simply the underdog (meaning no disrespect in any manner to canines of any description). 

When you are the underdog, it may seem as if you are getting all the attention. It may be that the particular weakness of your case draws many more questions. That is likely to have nothing to do with any "ism," but perhaps "skepticism." You may hate skepticism if you wish, but it shall persist so long as humans do. Anticipate it, prepare for it, and battle it. But know that you will not win every argument. No one can. 

Lawyers need to both expect and accept that. They must prepare for the "skepticism" and prepare to meet it. That is the burden of representing your client. That is the job.

Back to the 2024 competition. I judged two rounds. That meant eight students. I was utterly impressed by each. They were articulate, logical, focused, and enthusiastic. They were obviously bright and engaged. Their preparation, eye contact, and presentation were nearly flawless. Everyone can likely improve in any avocation. Well, maybe not Simone Biles, but as they say the exception proves the rule.

Nonetheless, even Ms. Biles seems to persistently do things better and more impressively each time she competes. That potential for improvement is a major point for these law students, and it is not lost on them. I therefore enjoy providing critiques and comments after the rounds. I hope that I am teaching them something as well as encouraging their great skills and growing expertise.

The eight this year were amazing. I would not want to argue against any of them, and that says much for the promise of our future. We hear repeatedly about the failings of the next generation. That group includes some slackers and challenges, what generation ever didn't? But, these eight prove to me again that there is great promise in our young people today and tomorrow indeed looks bright.

I cannot congratulate the Zehmer Moot Court organizers heartily enough. Each year, Judge Jacqueline Steele, Tracy Hyde, Esq., Elaura Hodgetts, Esq., and Amie DeGuzman, Esq. do an amazing job organizing, publicizing, and producing this. I am certain there is a raft of people who assist them, and regret that I am not sufficiently aware to note those others here.

The preliminaries are all by Zoom, and the Tech/IT team at Florida State University School of Law is a persistent presence in that regard. Each year, those tech experts manage the various challenges of Zoom-rooms, rotating attendees, and other complications. It is indeed a complex undertaking and one which they handle seamlessly. 

Why is it complex? The organizers tell me that this year there were 23 teams (of two students each) in the preliminary round, arguing before 36 judges. There are also timekeepers, coaches, and more. That is a great many logging in, moving about, and interacting in a virtual environment. Frankly, some are tech-savvy and others are as challenged as me. I would guess well over 100 people logged in. It is heartwarming to see the law school supporting competitions like this.

The General Chair of the Workers' Compensation Institute (WCI), James McConnaughhay, noted his congratulations to Judge Steele and her team after the competition. He reminded us this is an annual "major nationwide legal event certainly unmatched in the WC (workers' compensation) community in the US." That is indisputable.  

However, I would argue, that it is unmatched period. I am aware of no other such competition in which the judging is all provided by actual adjudicators. Those student competitors were given an amazing opportunity in that regard. And, to be fair, we were all just as fortunate to witness their skill, acumen, and expertise. 

Another year, another opportunity. As I reflect on my participation in over thirty annual WCI conferences, I can say without reservation that this competition has been among the most amazing, memorable, and worthwhile experiences. At the WCI in August, the competition continues in a live setting. I encourage you to attend, observe, and see the promise that these young people hold.

Sunday, August 18, 2024: 1:30 pm – 4:00 pm 

E. Earle Zehmer National Moot Court Competition 

Quarterfinal and Semi-Final Rounds 

Grand Ballrooms 11-14.

Monday, August 19, 2024: 1:00 pm – 2:00 pm
E. Earle Zehmer National Moot Court Competition 

Final Arguments 

Palms Ballroom – Canary.

AI and Dan

Artificial Intelligence is the latest discussion point in the technology world. We hear mounting feedback about what it is and how it could impact our lives. I have been on the AI topic for years. see Chatbot Wins (June 2016); Artificial Intelligence in Our World (January 2017); Artificial Intelligence Surveillance (August 2020); Intelligence (November 2022); AI is a Tool (October 2023), and the posts cited there.

It seems inevitable that we will continue to hear about AI and its potentials for impacting our lives, professions, and more. A recent report from the British Broadcasting Corporation (BBC) indicates that some are turning to AI in lieu of human interaction. I am not a psychologist, but this raises interesting questions about mental well-being.

Reportedly, some women have been relying on "Dan," the "'perfect man' who has 'no flaws'.” The name is an acronym for "Do anything now" and is based on the foundation of commercially available AI large language models (LLM). As AI makes its way into your internet searches and begins to strive for your attention elsewhere, this is a significant deployment or evolution.

The import of the story is that people are electing to "date" this artificial intelligence. The AI reportedly is a relief from the "real world experiences of dating." The interactions with this computer program involve flirting, dating, and "emotional support.” The computer, you see, will always agree with you, always do as you wish, and facilitate whatever you desire.

Well, almost.

The idea has already been the topic of pop culture. A 2013 movie featured a man falling "in love with his AI virtual assistant." Her (Warner Brothers 2013). An episode of The Big Bang Theory featured a main character essentially falling for Siri, his iPhone assistant. The Beta Test Initiation, 2012). Those were humorous and the premise was entertaining. 

But really?

However, experts warn that these perfect partners could come at a cost. The Centers for Disease Control (CDC) has noted that "Social isolation and loneliness put a person at risk of developing serious mental and physical health conditions." There is evidence that our physical and mental health are interconnected in both patent and subtle ways. 

The evidence has been mounting that there are downsides to such things as gaming on the internet. These distractions lead to risks of withdrawal, dysfunction, and even addiction. Harvard Health suggests that there may be benefits, but the downside can be troubling. Some are "psychosocial problems," "loss of interest in other activities," "preoccupation," and "withdrawal."

The lack of human interaction is potentially damaging to mental health. Isolation and loneliness can lead to greater challenges. There are some who link these with a propensity for developing depression and other mental health issues. 

That is not to say that all human interaction is positive. From the standpoint of disappointment, I can see the attraction of the Dan. I run into many people with whom I do not agree. I run into news stories, books, music, and more that are neither attractive to me nor likely to find a place in my bandwidth. 

But, running into them, experiencing them, and making my preference decisions is a process. I enjoy encountering even that which I do not adopt or prefer. There is value in trying a new dish no matter if you decide not to go there again. The same is true for an array of new experiences. 

Life is about new. What we accept and adopt can become familiar, comforting, and foundational in life. But, every standby in your life (favorite: movie, friend, beach, vehicle, chair, etc.) was once a new experience. Many are rejected, and a few are adopted, but all were once new experiences. 

Everyone likes to be validated. Some thrive on acceptance and praise. The world is full of sycophants who can be counted upon to agree, enable, and encourage whatever behavior. The Roling Stone noted, "that having business (and personal) relationships with sycophants can be dangerous and could seriously harm your business." Beyond that, it could harm your well-being.

Dan is a sycophant. Plain and simple.

To be fair, so are many humans. Any failing can be perceived in a spectrum of applications or perspectives. 

But, at least in the real world, there is a chance of people disagreeing or challenging you. You may eschew those you do not value, but you will experience them. They will be new and challenging, and you will find growth in them, adopted or rejected. 

There is value in such challenge, discussion, debate, and disagreement. The arguments we engage in are not necessarily pleasant, but they stimulate our minds and cause us to consider the ideas, perspectives, and even stupidity of others.

Sorry, but that is true. Sometimes the ideas others bring are ridiculous, fanciful, and unhelpful. But, there is value in hearing it. There is value in periodically compromising with others. There is importance in realizing that we are not always right, and in valuing human interaction even when we are right but concede a point for the sake of the relationship.

With Dan comes the opportunity to never compromise. Dan can be the perfect companion feeding our personal worldview. It is a path away from the challenges of interaction, in this example dating. But in the absence of challenges, how would we grow, evolve, and develop? 

Imagine you have to work with someone who has never faced criticism. Have you ever worked with a narcissist? Ever try to compromise with an egoist. I have been blessed to work with some very complex people over the years. Some I liked more than others. Nonetheless, I learned something from all of them. Avoiding some might have been easier, but far less rewarding. 

I lecture often on the dangers of groupthink. I rarely hear it raised by others, but it represents a significant societal and personal challenge. There is danger in avoiding unpleasant or alien perspectives. It turns out that periodically we are not as all-knowing and perfect as we might want to believe. Being told you are wrong is likely less painful than finding that result through experience. 

Nonetheless, there are many interested in Dan. The BBC article notes that references to Dan are generating significant interest in terms of views, likes, and questions. There are literally millions of people interested in this phenomenon of isolation or avoidance. Millions are interested in the idea of a perfect pseudo-relationship in lieu of the challenges of the real world. 

I am no psychologist, but giving up on human interaction and surrounding yourself with sycophantic computer programs seems ill-advised, unhealthy, and expeditious. Sure, it makes for easy "relationships" with your computer of choice, but will it be beneficial to you mental health? Doubtful.

New and Improved

We live each hurricane season with the dread of the tropics. We all enjoy the converse, what I call Respite Season from December 1 through the following May 1 each year. It is comforting to think that there is a time when there will be no storms. That said, we have some pretty significant storms periodically during Respite ©2023, see It's That Time Again (April 2023). Some check the National Hurricane Center page daily through summer and fall.

Those who do are familiar with the graphic map that provides those moments of dread (when an "X" appears) and sometimes corresponding moments or either relief or terror.

When the "X" appears, it usually signals a potential for a tropical event (storm or hurricane). We begin to watch them as they parade across the map often changing color from yellow to red, which signifies the potential or probability for formation of a named storm.

Once a storm is established, one can click on the "X" and see what the Center's prediction is for the storm path. Thus the potential reactions. If it is pointed at you, perhaps terror, and if it is pointed at some other poor soul then relief. Not a Floridian alive can likely say they have "never" paid any attention to the "cone."

The Center is not able to predict the exact point of landfall until such a threat is imminent. Earlier, it will publish a "cone" or area of probability for the storm path. Some jokingly refer to this as the "cone of uncertainty," because it can be very broad initially and its coverage can shift, even back and forth, in the days before landfall.

Being "in the cone" is worrisome and signals that it is time for preparations. Windows are often boarded, items are brought indoors, and evacuation is considered. The "cone" and the projected storm strength are factors in many Floridian decisions and perhaps feed our anxieties. But - it is better to know and to prepare than to be surprised.

In addition to the "cone" of probability and the storm strength, many also consider the potential for flooding. The maps from the Center always provide graphic predictions of where there are flood and surge concerns. That helps residents think of dangers beyond the wind. There is no telling whether wind or surge will be a particular resident's greatest concern.

Building on our familiarity with the long-serving "cone," the Center will begin using a new version in August 2024. This is destined to arrive on our consciousness just as the peak hurricane season begins. This will provide greater information for the oft-forgotten hurricane watchers - those who live inland in Florida. Hurricanes and storms are not just for coastal residents.

While The Palm Beach Post notes there are coastal concerns, it says this "new cone will add tropical storm and hurricane watches and warnings for interior counties in the path of the storm." This will be an informative graphic that includes various threats to the path of a tropical system.

The Center provided an example (below is not a real notification, you are not in the "cone," please do not stress - yet).

On this example, the broader implications of such systems may be more readily discerned. Too many forget that storms can bring inches of rain. As the creeks, streams, and rivers strive to drain that water back into the gulf or ocean, they can become swollen. Bridges and low roads can become dangerous. There are flood risks even in areas that receive little or no rain.

With this new graphic, perhaps there comes greater information and preparation. There is recognition here that storms present potential problems for all Floridians. In that vein, the critical point is preparedness. We have had a warning in 2024, see A Harbinger (May 2024). No one can doubt that threats are always a potential and disasters do strike.

The time for preparing has been upon you for months. But, in the current relative calm, time remains. Make your plan now and be prepared for the threat to home and business. Talk about when, how, and where you might evacuate. Think about how you would preserve life, limb, and business in such an event.

And be prepared for the new and improved "cone of uncertainty," and the increased information that will be conveyed. There is value in information, and this new tool provides significantly more than we have become accustomed to.

Misinformation and Misdirection

To be clear, drug use can cause impairment. As clearly, Pot remains illegal in all 50 states. Even in jurisdictions that have decriminalized it, Dope remains illegal under federal law. Even in those decriminalized jurisdictions, impaired driving remains illegal, dangerous, and potentially fatal. Suggesting otherwise is misinformation. 

The news recently featured a story regarding an accident "that killed six high school girls in Oklahoma." A report by the National Transportation Safety Board (NTSB) concluded that the "16-year-old driver" rolled up on a stop sign and "then accelerat(ed) through" without stopping.

The pictures of the vehicle are gut-wrenching (the news used "horrific."). Some may find it difficult to identify even the vehicle manufacturer based on appearance. And, it may be simply too difficult to view.

I suspect that many drivers have rolled through an intersection similarly. I recall one intersection at which I have never observed my fellow drivers stop. It is a four-way in the middle of farm country. From any direction, drivers have unimpeded 360-degree views at least a half mile in all directions.

I have had following motorists angered at me for slowing before and stopping at those four signs. The common neighborhood practice is to blow right through that intersection. Those of us who stop periodically receive sign-language repercussions. 

I find that many students today have never heard the term, but in my youth, this was referred to as a "rolling stop," and was common in making right turns. We also referred to it as a "California Roll" or "California Stop." According to the Sacramento Bee, those terms are still used by some. But one now perhaps refers more readily to Sushi.

But, the real point of the story is that the teen driving in this tragedy "likely was impaired by recent marijuana use." THC was found in the body, and drugs were recovered at the scene. 

Notably, also, the vehicle was a Chevrolet Spark, which reportedly has four seats. The NTSB reported that this young driver had five passengers, plus the driver, and the "crash () killed six high school girls." In overloading a vehicle, there are potential issues of road visibility, driver distraction, and more. The Daily Mail suggests several passengers were unrestrained (safety device), and that the number of teenagers might have been distracting. 

Nonetheless, the NTSB is concerned about Dope. The Chair of the NTSB noted that "the Cannabis problem isn't limited to teens." There is some contention that driving under the influence of weed may be dangerous (sarcasm). Of course, we have all been assured for years that marijuana never killed anyone. That contention is increasingly doubted.

Why does Dope challenge us? There is some inclination to mischaracterize it. The news story says "As more states have legalized recreational Marijuana, teens and adults tend to underestimate the risks of driving under its influence." Misinformation and misdirection. No state has or can "legalize." 

In this, the news notes that “There's a perception that in states where it's legal that it's safe and legal." The very article reporting on the NTSB report interprets  misperceptions that it is somehow "legal to drive impaired on Marijuana.” Clearly, it is not "legal" to use Ganja. States have decriminalized it, but Mary Jane is not "legal" in a single state. See Decriminalizing Weed (May 2021). 

The news report on this crash mischaracterizes that and claims Dope is in fact "legal" in 25 U.S. jurisdictions. Some of the blame for untoward outcomes may rest at the feet of journalists who perpetuate such "legal" misinformation. For children and others, a belief that something is "legal" may lead to both acceptance and use. Beyond this, to my knowledge, no state has decriminalized Weed for minors. 

Legalization per se is likely coming. Congress has not acted on the legalization, but the Drug Enforcement Administration will likely reclassify Grass in coming days. It will remain a "controlled substance" but with federal easing, it will become increasingly available, accepted, and used. Some might say it cannot become any more available, as they point to the pot stores throughout America.

What will deregulation bring? It is likely that more people will be under the influence of these substances, or "high." That may be while lounging at the beach, chilling on their porch, or driving down the road. That last one worries me. The NTSB notes that "marijuana decreases motor coordination, slows reaction time, and impairs judgment of time and distance, all critical functions for driving." 

I have noted for years that there will be issues with vehicle use. See 

Pot, Impairment, and Car Crashes (July 2017). The government is legislating safety as regards impairment that may eventually produce decreased impaired driving. See Safety is Coming (March 2022). But, the impairment-detecting car is not here yet, and once new vehicles have that technology it will take decades before non-equiped cars are unavailable on the market. It will be forever before I will own one. 

The crash story reminds us of multiple critical points. First, vehicle accidents are among the leading causes of workplace injury. There are always potentials for impaired drivers to be on the roads with us, whether because of alcohol, Weed, prescription medications, exhaustion, distraction, and the list goes on. The driver of the gravel truck that struck the teens at 50 MPH in this collision was likely injured on the job as a result. Go look at that vehicle picture and remember this was only a 50 MPH collision. 

Nonetheless, impaired driving is illegal (as is Dope). Some may struggle with a perceived willingness to ignore illegal weed use generally but to prosecute doped driving. Nonetheless, that is likely. As likely, employers may deny compensability of work injuries due to impairment by, or even use of, Dope. Or, they may deny in some jurisdictions for violating the law (stop sign), overloading the vehicle, or violating company rules (too many passengers).

It may be acceptable to some for workers to be exhausted or to use medication at their desks but not while operating plant equipment, vehicles, etc. Thus, the second point is impairment and injury risk may fluctuate with job function and requirements. However, the impairment itself may nonetheless present risks and challenges in the workplace; risks of error, accident, and injury. 

Third, in the vehicle setting, the NTSB chair thinks that impaired driving has not received the attention it should. She sees states as "far ahead on legalizing it, but very behind when it comes to traffic safety.” Thus, from atop an important government safety commission perch, a leader laments societal Dope status and carelessly reinforces the misconception of "legal."

At the end of the day, the relaxations regarding Ganja seem to be increasing use. There are some reports that increased use has led to increased involvement in motor vehicle accidents, and by extrapolation perhaps more accidents generally. In that, there are perhaps concerns for workplace safety generally and in vehicles specifically.

Despite the dangers, the NTSB notes that only two states have required a "drug and alcohol abuse (school) curriculum" regarding Doped driving. There is some suggestion that people may not know that Weed can impair function and that public education on the topic will help the young avoid such tragedies. Will education similarly be necessary in the workplace as well? 

Is there really someone out there that does not realize drug use can cause impairment? Don't we all easily grasp that exhaustion can cause impairment? Has the impaired driving discussion of the last 40 years failed to reach someone? Perhaps so. And, generally, additional education is always good. 

In the end, a tragic outcome for six. Weed and driving don't mix. Stop means stop. Overloaded vehicles are dangerous. The outcome here is tragic, but unfortunately perhaps predictable. If you made it through the horrific pictures of that Chevy Spark, the pictures of the six promising lives extinguished are in the Daily Mail; a tremendous and senseless waste. 

Supermodel

The British Broadcasting Corporation reports that you too could be a supermodel! Sounds too good to be true for me. If I were a model, I would be one several years out of date, without many of the most up-to-date features, and likely missing the owner's manual. A model perhaps, but more of a "T" than a "super." Well, read on.

The news is about a drug that extends life. Juan Ponce de Leon would be heartened by that. There is no telling how many years that intrepid explorer shaved from his short stay on the planet by trudging about in the wilderness in search of a fountain. Some believe he did so wearing armor, but perhaps it was well-ventilated?

The results in recent lab tests are amazing. Scientists at Duke University have been successful in extending the lives of mice by as much as 25% (keep in mind that for mice this means additional weeks, not years, of life. 25% not sound like much. They are calling it the "Supermodel Granny" drug. Well, I guess that lets me out in several ways (not "super," not a "model," and not a "granny").  

Consider that the Centers for Disease Control says the average American life expectancy is 77.5 years. 25% would change that to 97. And the math is just the attention-getter. The news of this study is deeper.

Think of Richard Simmons at 76 passing this last week. Or, think of Shannen Doherty passing at 53. In the midst of serious, even threatening news, it is amazing that major news services recently maintained those headlines and stacked other developing news stories under them on their internet feeds. War, pestilence, passing celebrity, which gets top billing?

Nonetheless, what would 25% have meant to them? My AI says that Maria Branyas of Spain is 117 and is currently the planet's oldest living person (I was sure it was Richard Sicking, but I digress). 25% would get her up into the 146-year range. Someone 146 today would be able to tell us much about growing up in the 1880s! ("No phone, no lights, no motor car, not a single luxury; like Robinson Crusoe, it's primitive as can be." Theme to Gilligan's Island). Such a life expectancy would be extraordinary.

That 146-year-old potential made me think of Mickey Mantle's thought: "If I had known I was going to live this long, I'd have taken better care of myself!"

The Duke University study is focused on extending life. But it is also noteworthy that the mice that got the drug were "healthier, stronger and developed fewer cancers than their unmedicated peers." Fewer cancers. There is a tagline worth repeating. So, here goes, "fewer cancers." Each of these effects seems to be great news. Well, except for the one caveat. they are still determining if it will work on people. Who wants a mouse that lives 146 years (or even mice-years)?

The villain they have identified is "a protein called interleukin-11." It turns out this is produced in our bodies and it can impact our health, particularly "higher levels of inflammation." This is big as we get older, and that happens daily. But this drug "flips several biological switches that control the pace of aging."

The challenges are broad. The scientists caution that this "interleukin" is very important to us in our youth and development. Turning it off completely sounds like a bad idea. The key is that it becomes a threat to us as we grow older. So, we do not want to eradicate the chemical until an opportune moment.

Thus, it turns out generations have all been engrossed with the fountain of youth for many years. The article mentions other common medications are being tested "for their anti-aging qualities." These show some promise, perhaps because of their interaction with "interleukin" and perhaps for other reasons.

And, there is suggestion that you might achieve similar results if you just quit eating so much. The author cites a scientist who says eating less is a key to longer life. The New York Times noted some contention like that earlier this year. Essentially, some believe that "eating fewer calories slows down metabolism." Thus, your body works less and therefore lasts longer. Think of the vintage vehicle that was only driven by a little old lady to church on Sundays.

Therefore, they hypothesize that if we fasted more, were miserable more, we would live longer. Yeah, you read that right. Avoid this, that, and the other, and eat less. That is a path to greater longevity. But, seriously, a life without double-pepperoni pizza would be bleak at best. That led the scientist quoted by the BBC to conclude a drug is likely to be easier for people than calorie restriction.

Isn't a drug always an easier path? But, time and again, we have found that various miracle drugs often come with side effects, unexpected outcomes, and even dangers. Many have come and gone over the years, discarded on the trash heap of history after initial excitement or acclaim. 

Time will tell if they can pharmaceutically stretch life. Will healthy people be interested in such potentials? Some will. Nonetheless, if such "interleukin" reduction means fewer cancers, anyone suffering from that would be more likely to embrace any therapy available. It is an intriguing breakthrough and will be watched carefully by us elder folks who can see the end from where we stand today.  

Judicial Intemperance

Sarcasm is troublesome. It's likely the worst challenge society faces (sarcasm). No, we can all likely live without sarcasm, but many might find a variety of concerns as weighty. Discourtesy? Perhaps that is equally inappropriate, and perhaps more so. A judge in Seminole County, Florida is currently working through an investigation by the Florida Judicial Qualifications Commission (JQC). The process has extended over months.

The overall characterization is of intemperance. This includes sarcasm, raised voice in the courtroom, and unfortunately profanity. The news reports that "during a two-and-a-half-week period in 2022" several allegations were made regarding conduct. The JQC has recommended "a 60-day suspension, public reprimand, and continued anger management," but ultimately the Florida Supreme Court will decide the appropriate course.

In one event in 2022, the judge was conducting a hearing. The JQC concluded that he "made sarcastic comments to a litigant," and “declared the litigant to be in direct criminal contempt, without conducting the legally required hearing.” That is not to discount the sarcasm, but possibly it was the imposition of direct contempt without hearing that was most critical. For more on contempt, see Follow Orders or Seek Relief (August 2017)(yes, I have been blogging a while). Imposition of contempt was recently in another judge's news, see She Must Go (May 2024).

As an aside, there are Judges of Compensation Claims who have lamented their lack of contempt powers over the years. I have conducted hundreds of trials and thousands of hearings without that power. Certainly, those have included an unruly individual or two. Nonetheless, I have been fortunate in never feeling that I either needed or would have used contempt to enforce order. While that power is likely essential in the broader jurisdictions of the constitutional courts, it is not necessary in administrative proceedings.

The second incident cited by the news was apparently during a time that "social distancing" still prevailed. I suspect we will all struggle at some point to make people understand what the world was like during the COVID pandemic. In a nutshell, there were valiant efforts to keep people from getting too close, and that meant within six feet. There were stores with stickers on the floor in the check-out lines. There were waiting rooms with taped-off chairs. It was a surreal time.

Apparently, a person entered the judge's courtroom in February 2022 and was confronted with some frustration in finding a place to sit. The shortage of seating was thus disruptive, and eventually, the judge was heard to say “Can you shut up and sit down?” Perhaps it was not the seat-searching as much as it was not done quietly? According to the news, the interaction with this seat-searching person also led to "threatening the use of his contempt authority."

There was a third instance involving contempt in February 2022. This one involved holding another man "in direct criminal contempt for failure to attend a required batterer’s intervention class, (and)

sentencing him to the maximum 179 days in jail. That is almost 6 months. The allegation was that "This contempt proceeding failed to comply with clearly established Florida law."

The JQC issued a report and recommended discipline in 2022. According to the news, the Supreme Court "rejected" a "recommended suspension" of the judge and instructed the JQC to hold a hearing. When that occurred, the judge testified and "admitted he did not act in the proper way, and he voluntarily completed an anger management course and sought mental health counseling."

The judge was reportedly "shock(ed) . . . by his use of profanity." He also admitted "the public would rightly be appalled." The news noted that his recognition of the problem was immediate and admitted, with him leaving the courtroom with the comment to his staff that "I really messed up in there.” I am a big fan of recognizing mistakes or failures. When we make errors, and we all will, owning them is a critical part of moving forward.

There are object lessons here for any and all. First and foremost, following the law is a judicial mandate. The point and purpose of judges is to interpret and follow the law. That is troubling to some who believe that means it is the judge's job to agree with their interpretation or argument. No, the judge's job is to make interpretations following their argument. There is no right to have the judge agree with you.

There will be instances in which lawyers and parties do not see the law in the same way that a party or parties might. That is a difference of interpretation or construction. If a party is disappointed in such a judicial decision, the appellate court is the appropriate place to seek review and correction. That said, judges are expected to follow the law and there is import to the conclusion of failing to "to comply with clearly established Florida law."

A second worthy point is that time is always limited. There are many tasks we face daily and there are only so many minutes. When our tasks are interrupted, but someone seeking a seat or holding a conversation, that may well frustrate progress and process. Nonetheless, there is a certain angst for many in attending legal proceedings. What is familiar to lawyers and judges may be a stressful new experience for others. Add to that the stress of SARS-CoV-2 and the distancing, sanitizing, and more, and stress levels might be challenging.

The man looking for a seat may have been stressed. He may have been anxious. He may have been loud, disruptive, and frustrating. In short, there will be interruptions in our day sometimes. We may have reactions. Perhaps in addition to admitting an error "I really messed up in there," there would be merit in reentering that room immediately and addressing those people? A simple, sincere, apology can go a long way in accepting errors and making amends.

There is no harm in voicing concerns. Lawyers, parties, and judges may all do so. Lawyers and parties may seek out a Chief Judge or the JQC. In the end, there is a process for perceptions of demeanor or temperance. If the concern is over legal interpretation, there are appellate courts that specialize in reviewing, analyzing, and interpreting laws, processes, and conclusions. 

Time will tell where this particular recommendation leads. For anyone presiding over a hearing, trial, or even simple meeting, the lessons are clear. Strive persistently for patience and decorum. Take a break if you near a breaking point. strive to avoid reaching a moment of anger or outburst. When you find yourself in error, own it and apologize.

All that said, sarcasm is not likely the root of this story. Nonetheless, it is almost never welcome or appreciated. Reflecting, as here, may help us to avoid it and its potential for annoyance and discontent. The fact is that annoying behavior may not be actionable or earth-shattering any yet may remain annoying. 

Got a Buck?

Every bill from United States of America has the phrase “this note is legal, tender for all debts, public and private.“ I always presumed that meant any debt that I owed could be settled with dollars. The phrase seems to mean that this money is useable and acceptable anywhere in the country. Years ago, I found myself in a foreign country and saw signs in stores that expressed a preference for dollars over that country's currency. So, anyone could choose to accept dollars. 

There are various trends evolving in the world of money, which I find challenging and interesting. In the realm of business management, potential accidents or injuries, and the calculations of average weekly wage, there are implications here. Money and the exchange of value is changing.

Months ago, I ordered at a local restaurant and noted a warning on the menu. Each page had a footer that essentially said using a credit card would result in the imposition of a 4% “convenience fee.” In essence, the cost of processing a credit payment was being passed on to the customer. That was a unique experience, but I have encountered it repeatedly since. These businesses, it seems, prefer the old greenback.

There was once a legislative attempt to prevent such "surcharges," but it was deemed "an unconstitutional regulation of speech." The spending of money may in some ways be constitutionally protected. Some will undoubtedly struggle with how a constraint on some fee is speech restriction, but there it is. 

Some would argue that this is no different than passing along any cost. A restaurant might impose a restroom fee (I’ve eaten at northern restaurants where coins were required, although that’s more common outside the United States). Any element of a dining or shopping experience might be separately monetized, or the cost of such components might be aggregated into the cost of the good or service. In either event, the cost is borne, sometimes more directly than others. 

Having adjusted to this paradigm, I was troubled by a recent conversation with a next-gen about currency. As we discussed purchasing, I learned the next-gen literally does not carry cash. That is "never" carries cash. While I know there are many App and card alternatives, I assumed everyone kept some cash on hand. Wrong.

I inquired why and was told that many businesses this individual frequents simply do not accept cash. I was told that these businesses post notes on their entrances to advise customers that no cash is present or accepted. That got me thinking about the note on each bill that says it is "legal tender." How can a business refuse dollars?

The Federal Reserve says that there is no requirement that anyone accept American money.

"Private businesses are free to develop their own policies on whether to accept cash unless there is a state law that says otherwise."

In that vein, it is therefore apparently permissible for a business to similarly post a sign that says "Only krone, rupee, and won accepted." The business is free to insist on its preferred payment currency. Or, perhaps to say "anyone paying in rupees will be charged a 4% convenience fee?"

So knowing it is permissible to insist on cash, the next question is why? Channel 12 Pheonix reports that businesses say that going cashless makes them "more efficient and safe." The efficiency comes in not having to make change. I have met people who struggled to count out change even when a computer told them how much. See Rudimentary or Superfluous (July 2023). That makes some sense. The efficiency may impact the workforce; less effort needed, fewer employees needed?

The business' effort to share the cost of service is also perhaps intertwined. The "tip jar" at the counter is increasingly ubiquitous as is the constant inquiry about tipping in each app or card transaction. See Tipping (February 2023). is the cashless paradigm more prone to encouraging or guilting tipping and thus lowering business labor costs?

But "safe?" How are cards or Applications any more safe? Less person-to-person contact as regards germs? No, it turns out the safety has to do with miscreants that rob the business, demand the cash, and threaten customers and staff with violence. The Phoenix story cited above includes an explanation of robbery and losing cash. The elimination of robbery and its potential for violence is an admirable goal, if that sort of thing occurs (it does not make the news in some areas, and the frequency is hard to judge). 

Though I have encountered the "we charge extra if you use your card," I have not encountered the "we don't take cash." Does that have to do with regional preferences, trendiness, or what? According to the Tampa Bay Times, "A growing number of businesses of all sizes are going cashless." There are various Florida locations and venues that are identified in that discussion. 

Regardless of safety and convenience of transactions, there have been many cases litigated over the years regarding average weekly wages and the questions of tips. The receipt of cash by workers can be challenging for businesses in this regard. States have reacted with various statutory limitations. Florida imposed the "earned and reported for federal income tax purposes" definition in 440.02. Thus "unreported" tips are distinct from those known to the employer. Nonetheless, some AWW litigation remains prevalent. 

That statute was designed to both encourage employees to actively participate in funding the government and to diminish the volume of post-injury disputes about what wages were actually earned. There was some perception that tips were not being actively or accurately recorded in the day-to-day, but were being claimed in the post-injury benefit calculation process. Perhaps, on the whole, those disputes are diminishing. 

With payment through apps and cards, perhaps this is also impacted. There is, in that, less opportunity for unreported or underreported earnings. There are bookkeeping advantages, recordkeeping simplifications, and thus efficiency benefits for both workers and businesses. In a cashless society, perhaps tips become more readily reported and taxed? Some critics also complain that their spending habits might as readily be tracked, and evaluated, and their privacy diminished. 

The Phoenix story also noted an effort to require businesses to accept American money for goods and services. The sponsor of that legislation says that such policies have disparate impacts on some societal elements. He notes "minority populations are less likely to be enrolled with banks and (therefore to) rely on cash." Thus, refusing American money is seen by some as discriminatory. There are perhaps some who might instead say "racist." The courts long ago concluded that "disparate impact" on a group is a grounds for allegations of discrimination. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Florida has had similar discussions, though many businesses and some transactions were specifically excluded in the most recent discussion. House Bill (HB) 35 was debated in 2024, along with a companion - Senate Bill (SB) 106. That effort did not reach the chamber floors this year. A similar bill in 2022 was not successful. Nonetheless, debates and discussions may continue.

Accessibility for all is an admirable goal. Should businesses be free to decline cash (their freedom of speech perhaps, as in the setting of fees)? Or, is there as strong a counterbalancing right of access, that is diminished discrimination, that might prevail in the interest of the "non-banking" population? That is yet another example of balancing rights. See Rights Collide (February 2016) and Free Speech and Due Process (June 2022).

Is there a broader solution?

Halfway around the world, India is adapting to a "Unified Payments Interface" or UPI that is purportedly answering the "cashless" call with a process that is accessible to almost anyone. The system is involved in India's central bank and is free to use. The system is processing an amazing 14 billion annual transactions according to the British Broadcasting Corporation (BBC). Its use increased 50% last year alone. The news characterizes it as "wildly popular."

But, it is also rife with fraud threats that are challenging the public's learning curve. There are the same concerns of privacy, which are perhaps more feared than in the bank setting. This is a government system that could track consumption and preferences, a step beyond a bank being able to do so and to share with a government. Whether such fears are valid or not, the fact that fear and reluctance can exist has to be considered in any discussion of reaching some degree of uniform participation.  

Thus, there are various trends. There are those who love cash and those who do not. There are issues of accessibility, simplicity, efficiency, safety, privacy, and more. There are advocates for paradigms and the debates will likely continue. In the end, I will continue to keep a bit of cash with me. Call me old school, but somehow I am more confident in my dollars than in the phone-tech and plastic that may one day nonetheless replace it. 

A Hostile Environment

A federal judge in Alaska has resigned according to CNN and others. His departure, on little notice, brings to an end an investigation by "The Judicial Council of the Ninth Circuit." The report of that group is an intriguing peek at the process by which federal judges can be subject to discipline despite their tenured status. I have enjoyed some animated debates regarding tenure over the years.

A local professor took issue with my characterizing federal judges as "appointed for life." He countered that the Constitution says no such thing, but instead says judges shall "hold their Offices during good Behaviour." U.S. Const., Article III. While that is certainly true, In the last 250 years only 15 were ever impeached and of those only 8 were convicted. Whether the document says "life" or not, I stand on that characterization.

So, why does a judge with a lifetime appointment resign? The job pays $243,000 per year and appears to keep up with inflation. Retirement is allowed with 15 years of service. In all, it seems a fairly reasonable occupation. Stressful? likely. Challenging? undoubtedly.

The resignation this week is perhaps related to "The Committee’s investigation." It included review of 21 witness interviews and "more than 700 pages of text messages." The allegations were centered on the judge creating "a hostile chambers environment for his law clerks." They were broad in some ways, but largely centered on his attention for one law clerk. 

The broad issue is the judge lacking any "filter as to the topics he would discuss with the clerks." The judge believed that discussions with staff of "dating life, his romantic preferences, his sex life, the law clerks’ boyfriends and dating lives, his divorce, " and more were fair game for conversation. He used course and derogatory language, including "rating" people as regards his perceptions of whether they were attractive to him. The report labels some language as "vulgar."

His alleged choices of phrases in the report are interesting but not worthy of repeating. In short, some of the statements are perhaps reminiscent of boorish repartee among high school students or truck drivers. Yes, I have been each of these. No, vulgarity and harassment are not any more appropriate in those settings than in a federal court, but perhaps rude and crude are more anticipated in truck stops, locker rooms, and the like. Not appropriate, but perhaps less shocking. 

Some have noted perceptions that the judge was "insecure," and so stated in some interactions. Insecurity and insufficiency sometimes walk hand in hand. Others perceive that he set out to groom a particular law clerk. In all, the quoted statements by the forty-something judge are well beyond what should occur in any work setting. 

The committee noted that despite being new to the bench, this judge had training about harassment and the workplace in previous employment. Even without that, any lawyer would recognize the failures noted here. 

One law clerk was apparently a special matter of the judge's attention. The two exchanged hundreds of pages of texts, "only a small fraction of which had any relationship to her legitimate job duties." The texts demonstrate a lack of boundaries and inappropriate language, innuendo, and topics. The committee notes that there was repartee and that clerks "humored" the judge's excesses. It noted that uncomfortable subordinates may fear repercussions, denial of future recommendations, and more from a supervisor.  It is no defense that staff and employees seemingly tolerate such behavior or fail to object. 

After leaving the clerk position, this lawyer began working for the United States Attorney's office. The judge invited the clerk out for drinks and to say the situation devolved is perhaps an understatement. The committee concluded that the Judge's "version of events, ...differ(ed) markedly from the law clerk’s." In his version, the law clerk instigated a physical interaction, but the law clerk disagreed. The report notes that each was intoxicated. 

Eventually, another event brought the two together again socially. The clerk felt the judge was "hitting on me openly." They later spoke privately in his truck, then his apartment, and eventually the bedroom. The clerk later testified that the interactions became physical and the clerk was uncomfortable and felt pressured. 

The Judge denied there was any "physical or sexual interactions with the law clerk at any point." Notably, the two persisted in texting thereafter. The Committee concluded "the law clerks and other witnesses were credible and that (the) Judge ... had been dishonest with the Committee." 

Eventually, the Judge "admitted ... that his statements to the Committee—specifically his statement that no sexual interaction occurred...were not truthful and that he lied to the Committee."  

In his response, the judge characterized these issues as simply an "overarching trend of me treating employees as friends." He conceded he "allow(ed) my personal and professional struggles to become topics of conversation." And, he stressed that those office "relationships did not develop due to any sinister or illicit intent.” The committee aptly noted that "intent" is not pertinent or relevant. 

The Judge explained that his service began during the pandemic, and he therefore "only had a few weeks to observe his colleagues before the courthouse began shutting down." He noted that for his first year on the bench, he was isolated due to staff being absent from the courthouse, and the particular clerk was “often the only person I would interact with face to face.” 

The findings were succinct, noting "misconduct by"

(1) subjecting his chambers staff to a hostile work environment, including subjecting them to unwanted, offensive, or abusive sexual conduct and harassment, and treating them in a demonstrably egregious and hostile manner; 

(2) sexually harassing a law clerk during her time as his law clerk and in the weeks after she departed her clerkship by continuing a sexualized relationship; 

(3) engaging in inappropriate sexual and verbal encounters with a law clerk; and 

(4) being dishonest with the Committee through his written responses to the allegations in this complaint and during his interview. 

It is fair to say that any of these, alone, is beyond the pale. That there are four such conclusions is indeed troubling. When an investigation reaches the conclusion that a judge has been "dishonest," that is of critical importance regardless of the allegations or accusations. 

The pandemic? Observing other judges? It is interesting that anyone might claim to need a role model to observe in order to avoid the language, behavior, and interactions detailed in the report. Does one need a mentor to learn not to use crass and vulgar language? Is there really a judge out there that needs a mentor judge to avoid such behavior? Is a role model needed to keep a federal judge out of bed with a subordinate?

There were multiple Committee recommendations made regarding staffing, office behavior, counseling, advising, and more. Innumerable hours were likely invested by the committee interviewing the many witnesses, and reviewing the voluminous texts. In all, a great deal of time and money was invested in this process, perhaps to some extent due to the misrepresentation and denial. 

The Report notes that the judge here "often hedged, cast blame on others, claimed not to remember significant details of the events at issue in this investigation (despite written documentation in his possession detailing many of the events), and otherwise provided vague responses to questions." In short, the investigation seemingly reached the truth, but through an extended an unnecessary process. 

The report cites the Code of Judicial Conduct, statutes, and more. It focuses on the conduct and on the conclusion that the judge "remains strikingly unaware that he was the source of all these issues." The conclusion seems to be that even as the investigation concluded, this federal judge did "not squarely acknowledge that his interactions with the law clerks had no legitimate place in any workplace, let alone a federal judge’s chambers."

Whether those are failings of comprehension or of acknowledgment will likely remain unknown. The judge is departing. Would the conclusions have been sufficient to result in removal from office? That question may linger. Nonetheless, the report is making the cover of virtually every news source on the Internet. The allegations are salacious and egregious. They demean the judge as well as the bench of which he was a part. 

The story will fade in time. Some will forget the judge's name and he will likely move on to some comfortable position elsewhere. But, it is likely, that the circumstances and conclusions will resonate for years. The reputation and character of the court have been tarnished, and people will perhaps remember that.  

But, more importantly, a group of professionals will deal with their untoward and unfortunate service in that court. They were treated badly, and no apology will change that. 

Repayment of Benefits

A recent NBC News report highlighted the interaction between a RIF and Veteran's Administration benefits. The expose is fascinating and illustrates the interaction and interpretation of law. In many contexts, statutes create and define government authority and govern the rights and obligations of individuals and other entities. It is intriguing to consider those statutes and their impacts.

At the outset, I have been employed in a variety of occupations over recent eons, likely about 25 jobs in my history, and never received any severance pay or offer of such a separation. It appears, however, that such payments are somewhat common in military service or have been in the past. The article cites multiple service members who were paid a parting compensation when there was some reduction in force (RIF).

One was paid $30,000 to leave the army, another $15,000. The story goes on to say that the average is more like $19,700 to $53,000. The payments were reportedly paid "in an effort to reduce manpower in certain career fields," and were titled "special separation benefits (SSB). That is perhaps prone to an appearance of good fortune. For many, it likely is in fact. Who couldn't use a few bucks when employment ends, perhaps unexpectedly? In the real world, however, a great many lose their jobs without any such consideration, compensation, or even warning.

Nonetheless, the point of this story is that a significant population of people who received the SSB now find themselves struggling financially. The crux of it is that VA disability payments are subject to reduction for the government to recoup previously paid SSB amounts. So, individuals who were counting on VA Disability to pay those monthly bills are receiving decreased payments as the government recoups that SSB. There is a suggestion in the article that some receive no Disability for a period while they are repaying. 

How prevalent? The article says that between 2013 and 2020 the law has affected "at least 79,000 veterans." In the moment, one might wonder at that. If they each got $15,000, then we might be talking about $1,185,000,000; If they got the $53,000 noted above, it would be about $4 billion.  As old Dirkson might say "Pretty soon you are talking real money." And, the allegation is that the number is more than 79,000 as some data was not analyzed because it was prior to "VA system changes" in 2013. 

There are equities expressed by the press. Apparently, one RIF's soldier received VA benefits for 30 years before someone noticed the SSB and instigated repayment deductions. That soldier expressed surprise at the recoupment efforts. It would likely shock anyone if a monthly check of any type suddenly stopped. 

The VA is noted in the story claiming that all of this would have been explained at the time of separation and the SSB. Perhaps in the stress of such a moment, long term implications might be overlooked or discounted?

Some service members suggest that they would have declined the SSB lump sum if they had known that they might potentially one day qualify for disability and face such a deduction. Viewed in retrospect, perhaps. But, few of us ever contemplate becoming disabled, impaired, or restricted. The fact is that admitting such a potential is not likely, particularly in our youth. That is a truism across disability systems. People simply do not anticipate they will perhaps one-day face injury and its consequences. I have heard the refrain in workers' compensation for decades, from so many, "I never thought this would happen."

The story delivers two pertinent points worthy of consideration beyond the equities.

First, this is not a discretionary impact on the veteran. The law requires the VA to make the recoupment. The funds, it says, are not from the same account or even similar. So, the VA is required to reduce payments in the event a disabled veteran received SSB. The equity of this is discussed, but in the end, the VA is apparently following the law. In society, is there value in following the law? Some would argue that there is value in elected representatives establishing law. 

Apparently, a veteran can apply for a waiver, but only the "Secretary" of a particular branch of the military can approve that. There is likely a significant challenge getting someone at the altitude of a "Secretary" to consider the particular case of any one service member. The article suggests that the odds are perceived as somewhat long. 

Second, the reduction in VA benefits appears to be significant. It is not apparently limited to some portion of each monthly payment. One soldier is quoted explaining that her entire monthly income was withheld until she paid that SSB back. In the real world, it is very likely that everyone has bills to pay, commitments to fulfill, and obligations. What does one live on when income goes from $3,700 per month to $0? It is unlikely that people plan their expenses and commitments with such a potential in mind.

Thus, there is opportunity in this news to see legislative drafting, intention, and enforcement. Some might contend that there are also various perspectives that might be expressed regarding the operation and impact of this particular set of laws and their interaction. There may also be those who would only focus on the equities and those who either did not hear of the repayment caveat or those who misunderstood it. 

Returning to the equities, the individuals involved are from various military branches. They likely have a great many distinctions from each other in terms of occupation/vocation, term of service, and more. But, each has in common that they answered the call to stand in defense of the rest of us. There is a necessity that commitments are honored, and perhaps that is heightened as regards veterans. 

Such outcomes bear consideration in the legislative realm. Was the potential of losing all income for some period contemplated when the statute was written? Some will be troubled that the law requires recoupment, and others will be more disturbed that the repayment is not somehow constrained so as to not reduce someone's income to $0.

The article describes an effort to amend the law and adjust how these two funds interact. As yet, that process has been described as "slow." That is perhaps a third point - change is a constant in our lives, but change is not always immediate or even appealing. There are many processes that require significant time, and outcomes are not always exactly as one might personally desire.  

In all, there are perspectives on such a repayment program. It is an intriguing example for consideration and study.