Art, Life, or Both

Oscar Wilde is credited with saying "life imitates art far more than art imitates life." This has been interpreted as being "about how art affects the way we look at the world around us." The world around us is complex from various perspectives. We are all amalgams of experiences, inputs, interests, and more. Does art influence the manner in which we view our own worlds?

In some manner, I would suggest that it may not be. I am familiar with a town that recently invested significant money in placing multiple unattractive sculptures in its locale. One proponent initially opined that people would visit to experience this "art." Initially, I heard the sculptures and the town's naivete discussed by a number of observers. Though it is possible that someone finds beauty or perspective in the art, I have never heard from that someone. It has been forever since I have heard them mentioned at all. These sculptures are seemingly not positively influencing anyone. Art perhaps affects us and our perspective as Mr. Wilde proposed, but as likely art may be ignored as well. 

This line of analysis occurred to me when I read a recent article on the British Broadcasting Company (BBC) news website: Meet the artist who designed a hotel room that’s difficult to stay in. The headline is catchy if only because of the conflict suggested. Why would anyone design something to be difficult. Or, perhaps, why would anyone want to? 

Christopher Samuel uses a wheelchair. He is "one of 19 artists who have kitted out a room" in a Blackpool bed and breakfast. Ironically, the designing artist has never seen his creation. The bed and breakfast in which it has been constructed is not accessible to the disabled. This irony is not lost on the artist, who says "I think it's brilliant." This project is an attempt, in a broad context, to use "the arts to try to improve life." The sponsor hopes that tourism will "make (the) art pay for itself." While that may be a potential in some of the other "art" rooms described. It is doubtful that many will tolerate the obstacles built into Mr. Samuel's art. 

Mr. Samuel has designed his room "to be as annoying as possible" while "remaining just about habitable." He has designed the bed to be "difficult to get onto," the room has limited open space, and there are various specific annoyances. The article's author finds himself chuckling "at the fiendishness of Samuel's adaptations." The author finds humor in the fact that this room is inaccessible, unfriendly, and annoying. Some might argue that in itself is art. 

The point, however, is not humor. The point Mr. Samuel strives for is to give others "a taste of the access problems faced by many disabled people." Through exaggeration (perhaps), this art is to point us toward the perspective of another. Mr. Samuel has a perspective on life and accessibility that is an amalgam of experiences, inputs, interests, and more. All of our perspectives are such. His art is an effort for us to better appreciate another perspective, one to which we personally perhaps do not innately gravitate. 

Mr. Samuel admits that he anticipated amused responses. His comments suggest an intent for that amusement to draw the viewer in. Through humor and exaggeration, this artist captures our attention long enough for us to consider the gravity of the underlying statement. He is communicating that what may be an unimaginable inconvenience is what some people deal with on a daily basis. We fellow travelers perceive identical surroundings but through the filter of our own experiences. With these exaggerations, we are treated to an appreciation of how everyday surroundings are perceived by others. 

Mr. Samuel complains that he lived for months in a hotel room that was inconvenient and inaccessible. He asserts that circumstance was created by "two local councils, who were arguing over my care costs and access needs." He blames the result of his living arrangements on the government. That is an interesting point that the article does little to further explain. The government in Britain is apparently responsible for providing housing for its citizens, and in this instance did not provide housing to this particular citizen's liking. 

Mr. Samuel suggests that there needs to be a conversation, reflection, and consideration of the perils that the disabled face daily. He notes that tasks many of us would take for granted result in significant impacts to those whose abilities are unique or at least different. He notes examples such as door operation, light switches, and using tables whose construction includes wheelchair barriers or obstacles. It is not that these tables are intended to obstruct a wheelchair, but that the design is not conscious or accommodating of the impact upon a wheelchair. Mr. Samuel describes some of these specifics as "little things," but describes a more significant cumulative effect of the "little things." 

Another source quoted by the BBC contends that the illustrations of this art is a microcosm of a wider societal complaint. There are broad allegations that society is letting those with disabilities down. Specific allegations center on the "disabled and the elderly." The article focuses upon both Mr. Samuels' art-inspiring extended hotel stay and what he considered distasteful suggestions of his personal alternatives, presented by the provided accommodations, which included "a care home" and "an incontinence pad." 

The overall tenor of the article, and the art display, may indeed bring retrospection to some broader population. It is possible that such an experience is the only path for one to fully appreciate the challenges of wheelchair confinement. I wondered, however, whether those with less severe impairment face significantly similar daily obstacles and challenges. In the world of workers' compensation, I perceive many who utilize canes, crutches, braces, knee-walkers, scooters, and more. For some, those devices will be a temporary necessity. And for others, such assistance may become a way of life. Might each similarly offer challenges that are just not apparent to the casual observer? 

Are there things in our ordinary experience that are vexing to the mobility or comfort of those who require canes or other assistive devices? Are there arrangements or items in our commonplace living that would be an obstacle to those with mobility challenges? Are we perceptive of that potential and appreciative of how we might facilitate those around us? It is a sobering exercise to reflect upon others and their perspective on the world. Perhaps this artist's frustrating hotel room helps with that. Or, perhaps it will be as ignored as the unattractive sculptures installed by the naive town mentioned above?

Art may influence life. Perhaps we can be drawn to perspectives we do not necessarily have to live. Maybe we can individually give some reflective consideration to our surroundings and wonder how a person with mobility challenges might perceive them.

 

Mischaracterizing Pot Again.

There is general misunderstanding in this country regarding pot. Though many have struggled to keep the record straight, misstatements and poor word choices can lead to confusion and untoward legal outcomes.

A fundamental premise of our Constitutional Republic is that the people have various fundamental rights. We believe their existence to be "self evident." One of these is the right to be able to be informed of criminal prohibitions; to comprehend the law. The "vagueness doctrine" thus requires that people of reasonable intelligence must be able to understand what a statute prohibits. If a law lacks clarity, if it is too vague, then the law violates our fundamental rights with which we are endowed by our creator; rights which are protected by our constitution. 

This protection is founded in the constitutional precept of due process under the law, which is in both the 5th and 14th Amendments to the U.S. Constitution. The Florida Supreme Court has stated this thus: "the standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct." Brown v. State, 629 So.2d 841 (Fla. 1994). We are entitled as people to understand what our government has criminally forbidden.

This is an issue with the current state of pot regulation in America. That is in part due to legislative action (state), inaction (federal) and the media. A fair number of people are continuing to use incorrect and misleading vocabulary. Whether through inadvertence or intent, those word choices have the potential to detrimentally affect Americans. Even a room full of very bright lawyers might struggle with the confusion created, as I recently experienced at a yet another seminar presentation on American pot and the law (though the proponents are careful in choosing their nouns, and it is not "weed," "marijuana," or "pot," it is always "cannabis"). 

There are a great many instances in which speakers and writers refer to "legal" marijuana. Recently, a headline announced: Bill To Legalize Marijuana In Minnesota Will Be Best ‘In The Country,’ Top Lawmaker Says. Another read: Lawmaker hopes Wisconsin could be close to legalizing marijuana. Yet another proclaimed: Missouri petition trying to legalize marijuana. Even the seemingly academically expert American Bar Association says: Despite statewide legalization, some counties ban probationers from using medical marijuana. The use of "legal" and "legalize" is as rampant as it is incorrect. No state can render marijuana "legal." That is a fundamental truth. In an excellent illustration, a speaker at that recent program compared this to a state "legalizing child pornography." Passing such a state law would still leave pornography illegal under federal law. A state cannot change federal law. 

There is a precept in American law that holds federal law superior to any conflicting state law. The idea is almost as old as our very republic, ensconced in Article VI of the Constitution:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

In the law, we call this the "Supremacy Clause," and it is not new to these pages. See Kansas Cannot Prosecute Identity Theft (September 2017); Learn from the Past or Repeat it (May 2016); Constitutional Challenge Recap and Overview (March 2016); What would you do for $2 billion? (April 2017). Federal law is superior to state law. Our founders believed it, they ensconced it in the U.S. Constitution, and our forebears ratified it. 

The subject of marijuana is not new to these pages either. See Marijuana May Be a Problem, You Think? (January 2016); Measuring Marijuana Intoxication (July 2015); So Federal Law Matters in Colorado (June 2015); Federal Law Matters in Maine Also (June 2018); 2019 Marijuana Statute in Florida (2019). Pot has been a challenge on the horizon of workers' compensation for a decade and the discussions of it are building in both tenor and frequency.

The specifics of our Supremacy Clause and state regulation of medicine is found in Zohydro or Pot, A study in Federalism (April 2014). There are instances in which federal law is enforced, to the detriment of states striving to address drug issues. But, with marijuana, the federal government is deferential and detached. Under federal law, marijuana is illegal, but the federal government as yet declined to enforce the law. Thoughts on the oxymoron "Medical Marijuana" were published in January 2015. The progress of state-sanctioned or empowered use of illegal drugs has been seemingly unrelenting in recent years. 

Suffice it to say that I have spent a fair amount of time thinking about the avalanche of pot rolling over our American landscape. The fact is, as mentioned above, that this subject is difficult even for lawyers to comprehend, in the current state. Our trip to the present began when federal officials began minimizing marijuana possession prosecutions. Without changing the characterization of this drug ("illegal"), the government evolved to less strict enforcement, allowing possession of small quantities. This was a recognition that our prison populations were expanding with (largely) non-violent offenders guilty of drug possession. 

More recently, the federal ambivalence grew. Under the Obama administration, the Department of Justice flatly said that it would not prosecute marijuana violations. CNN reported that there were three memoranda "that had adopted a policy of non-interference with marijuana-friendly state laws." This was essentially a federal "hands-off" policy toward certain possession of such drugs. The memo announced that the executive branch would not enforce the federal law prohibiting this drug. In what context is it appropriate for a police agency to announce it will not carry out the will of the legislative, representative, branch?

In 2018, Attorney General Jeffrey Sessions issued a contrary memo:

"unleashing federal prosecutors across the country to decide individually how to prioritize resources to crack down on pot possession, distribution and cultivation of the drug in states where it is legal." (Emphasis added).

Notice again the press' misguided reference to the characterization "legal." But, despite that announcement by Attorney General Sessions, there has not been a return to federal prosecution of the many people actively engaged in drug dealing across America. 

There is some suggestion that Congress drives this very process. Congress has not acted to decriminalize or legalize marijuana. Clearly, as our federal representatives, it could change the federal law that makes pot illegal. To date, it has been unwilling to do so. To pass such a law would require Congress to own the consequences of the drug use, and potential abuse, that could flow therefrom. 

But Congress has dabbled in this discussion nonetheless. In 2018, Congress included language "to bar the DOJ from enforcing the federal marijuana ban in some circumstances." Most recently in 2019, Congress discussed the need to ease banking regulations to allow (illegal) drug merchants to utilize banking institutions. They were not an open legalization of pot, but attachments to federal spending bills. The efforts to facilitate the illegal drug industry were largely unsuccessful. Some see a hypocrisy. Congress holds true to pot being illegal but actively precludes the federal government from enforcing that law. 

Another poor word choice is "prescription" for marijuana. There are many in the press who insist that those people choosing to use marijuana are doing so with a "prescription" from their physician. Recently this has been stated in Indiana ("a valid medical marijuana prescription"), Massachusetts ("obtained a medical marijuana prescription"), and New Jersey ("In 2016, his doctor prescribed marijuana"). Even experts in workers' compensation have used that term ("for the cost of medical marijuana prescribed"). The news is rampant with such examples. 

But, as MarijuanaDoctors.com notes:

"you can not get a prescription for Medical Cannabis. Since it is still illegal at the federal level, technically doctors can not write a prescription for Medical Cannabis. However, they are able to write a recommendation for Medical Cannabis."

The press coverage, with repetition of "prescription," "legal," and "medical" creates an air of legitimacy that is unfortunate for the debate and potentially dangerous for ordinary people. How might it be unfortunate? The decision in Coates v. Dish Network is an example. So Federal Law Matters in Colorado (June 2015). 

Mr. Coates was terminated from his employment for testing positive for this illegal substance. However, he held "a Colorado state license to use marijuana for medical purposes." In his mind, he was using a legal substance because his state government passed a law that said it would not prosecute the possession or use of pot. His state's decision not to prosecute, in his mind, equated to legality. He said he believed he was acting legally when he consumed the pot. Whether that was his spontaneous conclusion, or whether he was influenced by the poor media word choices is not clear.  

But, Mr. Coates lost his wrongful discharge lawsuit against his employer (So Federal Law Matters in Colorado)(June 015). He lost because, as the Colorado Supreme Court noted, his use of marijuana was in fact not legal. It was illegal under federal law. The Supremacy Clause is the authority that federal law matters. Thus, this Colorado worker was lulled into a belief that his actions were legal, perhaps through the misstatements and mischaracterizations of the press who insist on promoting "legal marijuana." He was perhaps fooled by a state law withholding its prosecution for marijuana. Perhaps lulled by a federal practice or policy of not prosecuting the use of pot. Perhaps he was lulled by characterizations that it was therefore "prescribed" or "legal" or "medicinal." But, in the end, the marijuana was and is simply "illegal." Ordinary people need to be able to understand that, and its consequences. 

The press and the states are creating and enabling confusion with phraseology. There are speakers in seminar after seminar that pontificate about "legalized marijuana." This creates no illusion for those who are growing and marketing the pot. I recently attended a seminar in which an all-star panel discussed the legality of marijuana. It is apparent that those who advise the producers and marketers of pot are careful in their word choice, parsing the law in advising their clients. It is clear that there is top-flight legal service being delivered to these grower/marketers. 

But what of the everyday American who decides to partake? S/he may find that what they were led to believe is "prescribed" or "legal" is in fact grounds for discharge from their job. It is as possible that such a person might find it difficult thereafter to locate work within that, or even other professions. They might lose professional licenses or certifications that could impact the finding of their next job. While the decisions of the legislative leaders are within their powers and discretion, it would be of benefit to the everyday Americans if everyone would stop using the "legal" and "prescription" labels. If Congress is convinced that enforcing the law is inappropriate, would it not benefit society to then change the law, rather than quietly instructing the police not to enforce it?

Before a doctor "recommends" pot, the physician should explain that use remains illegal and subject to consequences. The doctor should make clear that they are not "prescribing" this illegal substance. Failure to do so may be seen by some as creating liability for the doctor if untoward consequences follow.

The press would do Americans a great service by striving for clarity on the "decriminalized under state law" and "recommended" by a physician distinction, followed by a warning that pot remains "illegal" in this entire country. The failure to do so is a disservice to those who are encouraged or lulled into use of something that may present serious consequences. 

Employers should be frank and blunt with employees. If the use of pot could result in the loss of employment, the employer should clearly and unequivocally say so. That message should be repetitive. Employees should have no doubt that their illegal activity could result in loss of a job. Employers in today's environment cannot count on employees to understand that pot is illegal in the face of the multitude of misstatements and mischaracterizations that flood the environment. 

We are entitled to know what is forbidden by law. It is our fundamental right. Not given by the government, but endowed by our creator. In this, we ordinary people are dependent upon our leaders and the fourth estate for clarity and accurate communication. As speakers, writers, and leaders in our workers' compensation community, we all should strive to be accurate in our vocabulary. We should decry the use of "legal," "prescribed," and other misnomers. We owe it to the debate, and to the people whose lives may be affected by misstatements. 

A Holocaust Survivor Speaks

I had the opportunity recently to attend an educational conference that was outstanding. Throughout the year, I find myself speaking at numerous conferences and writing about the law. It is rare that I find the opportunity to sit in an audience and listen. This conference featured many outstanding speakers and compelling topics. But, I was most impressed with a presentation by Irving Roth, a Holocaust survivor. He was born in Czechoslovakia and lived through arrest, internment at Auschwitz, slave labor, and the death march to Buchenwald. I had a brief moment to speak to him after, and it was an honor. 

In his speech, Mr. Roth was compelling. He described the rise of totalitarianism in Germany. He noted that one of the panelists from this program had earlier noted a quote from Justice Scalia that a Bill of Rights does not make the United States special:

“Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution." 

That resonates. Any government can aspire to promote and support a free society. But words are merely words without the commitment that is required of them. The structure of the Constitution, its foundations, and its separation of powers are the foundation that has sustained us for almost 250 years. Of course, some question whether that success can continue. 

Mr. Roth suggested that the Nazi rise to power had much to do with both the absolute power of a single person and the corresponding failure of other critical elements of government. This includes the lack of balancing force in the legislative and judicial branches. In a constitutional sense, it is important to remember that the United States has a constitutional separation of powers (horizontal balances). As important, there is a vertical balance of powers between the national and state governments, Federalism, that also has periodically been invoked in reigning national government. However, Federalism has clearly eroded over a period of decades; in some obvious instances, and in others more subtle. 

Mr. Roth was also critical of the many citizens who knew of the open and obvious efforts to destroy the Jewish people, as well as other minority populations. The society and very people of those countries were knowledgeable and acquiescent in this epic criminal tragedy. His words reminded me that our government is "of the people, by the people, for the people," as so eloquently phrased by Abraham Lincoln. As clarified by the people in the Tenth Amendment: 

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

It was the people of this country and the states which they had formed, that constructed and empowered the United States, and its government. It is perhaps easy to forget that. Ultimately, in this nation, the very people ruled must be recognized as primary. That construct remaining clear is an important aspect of our Constitutional Republic. 

Mr. Roth was compelling and inspirational. His message was a needed reminder that while there is rightly significant discussion of the separation of powers, the complexity of the U.S. separation is greater than many acknowledge. The focus on horizontal separation between federal branches is discussed. However, the role of our states and our individual responsibilities are worthy of periodic consideration and reinforcement. 

As President Lincoln's closing words at Gettysburg remind us, it is our personal and collective responsibility that "government of the people, by the people, for the people, shall not perish from the earth." In our appreciation and respect for the separation of powers, we each owe the duty to understand and respect the Constitutional structure implemented by our forebears. We periodically need to be reminded of the framework of our Constitution, and the words of the likes of Justice Scalia, Abraham Lincoln, and Irving Roth. 

It is unlikely that we, individually or collectively, will be flawless in our nationhood or personhood. But, as the Florida Supreme Court recently demonstrated, mistakes can be acknowledged and corrected. See Stare Decisis, Death Penalty, and Workers' Compensation. Similarly, we could each individually use the periodic opportunity to consider our path and posture. Do we appreciate the construct provided us by the Constitution? Do we value and appreciate the freedom with which we are blessed? Are we cognizant and conscious of the past, such that we will not be doomed to repeat it? 

A great speech. An uplifting yet sobering experience. As the years pass, a day is coming when you will no longer have the chance to be privileged to hear directly from a Holocaust survivor. I was enriched by the experience. History is our teacher, and to meet those who have survived it is a true honor.

The Rule of Necessity

The interrelated subjects of judicial recusal and disqualification have been discussed here: Lessons in Recusal and Disqualification; Recusal Lessons from Pennsylvania; Unrecused, Is That a Thing; and Why do we Recuse. It is a recurrent topic because of its complexity and the many judicial implications it has. 

A recent Missouri case addresses the subject in a context that will be unfamiliar to many or perhaps most Floridians: the Rule of Necessity. The case is Nivens v. Interstate Brands Corporation, WD82132 consolidated with WD82136 (Mo. Ct. App., 2019). In it, the state second injury fund sought the Court's review of a decision of Missouri's Labor and Industrial Relations Commission. 

In American workers' compensation, there are a vast variety of procedural processes engaged. As an example, Florida law directs that all disputes regarding workers' compensation are to be adjudicated by Judges of Compensation Claims (JCC), which are administrative (Executive Branch). In neighboring Alabama, all such benefit disputes are adjudicated by the same constitutional courts that preside over personal injury, probate, family matters, and more. There are decisions rendered by commissions, after fact-finding by deputy commissioners. There are administrative law judges, judges of compensation claims, and more. 

Another way in which Florida is distinguished from other state workers' compensation systems is our appellate process. Decisions of a Florida JCC are reviewable only by the Florida First District Court, a constitutional court. In other states, trial adjudications may come from a state "commission," or the adjudications of the state's workers' compensation judges may be reviewed by such a "commission" or "board." Missouri is such a state. The Commission there concluded an injured worker to be "permanently and totally disabled." Neither the worker nor the second injury fund was pleased and each sought review. 

The Fund "allege(d) that the Commission improperly invoked the Rule of Necessity." Therefore, "a conflicted commissioner" nonetheless took part in deciding the case and awarding benefits. Following a long employment history, the worker was injured in 2008. Thereafter the employer accommodated his return to work by providing "him with an assistant who was responsible for" some of the more physical elements of his job. After a time, that accommodation was withdrawn, leading to the claim for permanent total benefits. 

An Administrative Law Judge ("ALJ") heard the case in 2017 and "entered a Final Award" regarding benefits and liability. The Second Injury "Fund appealed the award of the ALJ to the Commission." One of the three Commissioners, "Commissioner Chick initially declined to participate in a review of the action because he had a 'social relationship' with" this particular injured worker "when (in) . . . high school" (before his graduation in 1966, 52 years before this case). The Commissioner did so to "avoid any appearance of impropriety." The "appearance" standard has been discussed here before, see Judicial Ethics and the Great Pumpkin; Social Media and Judges; and Fundraising and Politics by Judges. 

The Commission was thus comprised of only two decision-makers. There are instances in which that would not necessarily be troublesome, but in this instance, the two disagreed as to the outcome. Thus, there was no avenue to a Commission decision. The disqualification of Commissioner Chick left the agency in deadlock. Following that determination of a deadlock, "Commissioner Chick invoked the Rule of Necessity to (re)join in the review," sided with one of the other two Commissioners, and thus a 2/1 decision was rendered by the Commission. 

The Second Injury Fund asked the appellate court to conclude the invocation of the "Rule of Necessity" was error. The Court reminded that the factual conclusions of the Commission were entitled to deference, but that "issues of law," such as the disqualification of an adjudicator, were subject to an examination anew, a "de novo" consideration. The Court undertook a detailed review and explained that the "Rule of Necessity" is to "be viewed with 'special intensity,'" with consideration of whether "any injustice has been done." 

The Fund noted particularly that a new commissioner was appointed days after the Commission decision joined by Commissioner Chick. It argued that Commissioner Chick "should have waited" for that appointment, and allowed the new commissioner to decide the case. The Court explained that the "Rule of Necessity" is reserved for situations in which "no arrangement is made for a substitute judge." It is a necessity "because there is no mechanism under the statute to allow a final award to be entered" in a stalemate. In effect, there is thus some path to imperfect justice despite appearances. 

The Court affirmed the Commission's decision. It noted that although a replacement was later appointed, there was "nothing in the record to suggest that the Commission knew that an appointment was imminent." Though two commissioner's terms had expired, including Chick's, there was no evidence as to an anticipation of immediate replacement. The Court also noted that the new commissioner might well have maintained the previous deadlock ("The newly appointed commissioner did not replace Commissioner Chick"), potentially leading nonetheless to the necessity of Chick's re-entry into the dispute. 

The Court explained that Commissioner Chick had not stated that "he is not an impartial adjudicator in Mr. Nivens' case." Instead, he removed himself because of the potential for an appearance based upon "a social relationship . . . over fifty years before." This does not equate to an inability to be impartial. And, the Court noted, that even if the relationship between Chick and Nivens had been closer and more recent, Commissioner Chick would nonetheless have been justified in re-entering the deliberation in these circumstances.

The key word to describe the Rule of Necessity is perhaps imperfect. That is, it is practical to believe that our various rules and processes will not always yield the ultimate conclusion. There will always be humans involved in the process of adjudication and as such there will always remain the potential for human frailty and imperfection. The result of any litigation may likewise be imperfect. The goal is therefore not to demand the absolute elimination of any imperfection, but to enforce effective processes through which all judges strive toward that goal. In some rare circumstances, the facts may not allow the best outcome and then the necessary outcome may be the remaining choice. And, in those instances, the court review should be more intense, a careful and particular search for injustice.

It Helps us Think?

There is a trend in America. Our society appears to be increasingly in search of chemical solutions to problems. You cannot watch television without being bombarded with ads for various solutions. They encourage us to "ask our doctor" about their solution to our problem (whatever it may be). The truly aged may remember Mother's Little Helper in 1966. Others may instead remember White Rabbit by Jefferson Airplane:

"One pill makes you larger, and one pill makes you small
And the ones that mother gives you, don't do anything at all" 

The use of drugs is nothing new to American culture. Drug use, drug acceptance, and drug culture have been with us for many years. It is glamorized or humorous in music, television, and on the big screen. 

But, there are some who wonder about the current trend toward greater acceptance of recreational drug use. With the Millennials more interested in dope than alcohol, questions are asked and petitions are signed. "Legalization" is discussed in states, while "decriminalization" is a more accurate label in light of federal regulation. 

What do the pills do? What are the long-term effects? What price might society pay in the long run (remember when cigarette companies had doctors endorsing their products, which we later learned actually can kill people?) Are we, as a society, simply enthralled with the pharmaceutical solutions to all our problems or maladies? If one substance can gain market acceptance without science or study, what is the justification for regulatory constraint on other substances?

A fascinating recent article on the British Broadcasting Corporation (BBC) website caught my attention: The 'Psychedelics Coach' with Drug-Fueled Career Advice. When one is seeking guidance, how prevalent is the thought "I need some mind-altering drugs to help me through this?" Once one starts down that road, needing some recreational drugs for this decision, might one need some more for the next decision? And, on what training or expertise does one stand when claiming to be able to help people safely and effectively trip?

Though this is a BBC article, it focuses on a gentleman in California who offers services as a "psychedelics coach." Psychedelics include "magic mushrooms," and LSD. They are "best known for their hallucinogenic effects." Perhaps not the best path forward when making career decisions? In planning your future, is it really best to somehow chemically detach from reality? 

According to the BBC, psychedelics are "fixtures in Silicon Valley’s tech-heavy and success-obsessed culture." They are taken with the intent of enhancing mental acuity in some "altered state," in an effort to accomplish feelings of "humbling," "liberating," and to help "understand . . . potential.” 

The path is described as "microdosing," which is "the practice of taking a low dose of the drugs." This is seen as potentially enhancing "creativity, productivity, and general well-being." Apparently, the use of hallucinogens for enhancement dates to the 1950s, and has been linked to such technology luminaries as Steve Jobs and Bill Gates. The article contends this practice has enjoyed increasing acceptance, but concedes that "there is little data to back up these claims." One wonders if a little LSD is good, how much is bad?

A stated problem with microdosing is establishing the dose. Notably, those who are engaging in this process are likely not doing so with the help of a physician. A physician would not prescribe LSD, but might they recommend it? One of the proponents says that finding the right microdose may require "a little help.” Thus, the role of "psychedelics coach." So, those purporting expertise from their own significant experience taking illegal drugs coach others in their use. The coach featured in the article believes that his clients are seeking meaning in their work and see psychedelic drugs as aiding in that search. He seeks to assist others with using these drugs "in a safe, meaningful way." 

We live in a society that may vilify or prosecute medical doctors for the advice they render or care they provide. But, it appears that anyone else, without training or license, is perhaps free to "coach" people in their use of recreational chemicals. 

When I hear someone suggesting that a small exposure to something may be acceptable. I think of the "slippery slope" arguments discussed in various legal analyses. Lawyers sometimes love to raise the slippery slope. I also think of Mae West's historic quote "If a little is great, and a lot is better, then way too much is just about right!” Would Mae make a good psychedelics coach? How much LSD is OK? Does your answer depend on whether the person taking it is your physician, airline pilot, or plumber? What will increased tolerance of such substance use mean to safety, in the workplace and in general? 

The Coach concedes that the drugs are illegal. He notes that they are obtained by his clients for their own use. He finds them "much easier to come by since being decriminalized." He contends that these drugs facilitate people being "more honest and open" with themselves, more objective "about themselves." The key to self-improvement, the coach seems to suggest, is becoming impaired. To make good decisions on a monumental scale (planning your life) is is best to hallucinate? 

The BBC claims that there is scientific evidence to support that LSD "unifies" the brain. As such, the ego is diminished and the brain works "in a more unified way." Through that, a researcher in England claims that those who take these elicit drugs come to perceive themselves as more connected to "connection within themselves and with their surroundings." As such, the contention is that there are "potential medical uses of psychedelics" (mental health, addiction, and headaches are mentioned), which have long been illegal in the U.S. 

Before we dismiss the potential of medical LSD, we must recall that not long ago the premise of "medical marijuana" was often summarily dismissed. Some might argue, despite the U.S. Government's conclusion that there is no medical use for pot, that "medical marijuana" is now mainstream. Based on anecdotal reports of efficacy, marijuana has become medical. Is there reason to doubt LSD's status or acceptance could similarly commute? 

As the American culture has changed, there has been a recent acceptance of dope for both treatment of maladies and recreational use. The blurring of lines has been noted in various discussions. Marijuana has been recommended by physicians because patients claim it is efficacious, with little or no research or science in support. While some substances undergo evaluation and await FDA approval, others insinuate themselves into commonality through illicit use later endorsed or at least acquiesced. 

Does our future hold a similar promise for psychedelics like LSD? Is decriminalization a path to more open and notorious use? We have seen the dealers of drugs face criminal conviction for the results in some instances. Will the same be seen for "coaches" who merely advise, counsel, and encourage? It is a curious transformation of society mores that we have witnessed regarding dope. Where the path leads next may be more interesting still. Where will we go next? "Go ask Alice, when she's ten feet tall."

Intrinsic Motivation

The British Broadcast Corporation(BBC) recently published The Things that Do and Don't Motivate Kids to Succeed. It is focused upon two potentials: "natural curiosity and the desire for a reward." Certainly, there are those among us that are interested in various topics and we learn for the sake of learning. I know people who read college textbooks for entertainment. But, others do not exhibit that tendency. 

The author contends that "children are naturally interested in exploring their environment." That is, in an innate sense, we are born with curiosity, and a drive to "know how everything works, feels, and tastes." The contention is that this natural curiosity is conditioned out of us by systems and institutions that teach us to expect, or at least that we might anticipate, some reward for our behavior (or avoidance of punishment). 

The "learning for the sake of learning" is referred to as "intrinsic motivation." The benefits of this motivation are illustrated in a "soon-to-be-published meta-analysis." Students across a spectrum of levels, in a large population (200,000) were tasked with completing questionnaires in hopes of determining the "measure (of) different types of motivation." Their grades and achievement were then monitored. The result, which is not shocking, is that "students who took more pleasure in particular subjects experienced higher achievement, increased persistence, and increased creativity." In short, it appears we naturally tend to do better on tasks or challenges that we like. 

Another study cited by the BBC concluded that when we are interested in that way, we have "higher levels of reading comprehension" than those who have other motivations (extrinsic). 

Despite this, the article concludes that "a reward culture creeps into the classroom early on." There are various forms we have all seen from smiley faces and "good job" notations to stickers, privileges, coupons, candy, and more. The BBC report claims that among teachers in one survey, almost "80% also used tangible rewards on a weekly basis." Some defend these as appropriate processes to maintain focus and attention on the subject matter.

Some teachers, though, avoid the "reward culture" and strive to build the "intrinsic motivation." They advocate for processes that match the student to the task such that their self-motivation flourishes. One example is in reading, allowing "comic books or magazines over novels" so as to facilitate the student's perception of control of, or at least influence upon, the learning process. By thus "broadening the conceptualization of what it means to be a reader," these teachers engage the natural implications of "intrinsic motivation." 

This is geared primarily toward conveying to the student that each has "choices and is doing things of their own free will." This leads to the engagement of the intellect and the motivation of individual through their own preferences and participation. Reading this, I was reminded of the words of a mentor in college. He championed engaging and involving groups in decision-making. His mantra was that "members will support what they help to create." The results championed by the "intrinsic motivation" teachers cited by the BBC seem similarly focused upon the engagement and collaboration process. 

The "intrinsic motivation" teachers explain that this process means "listening to children and even acknowledging negative feelings" that arise in the daily work. They contend that listening to negative perceptions, and then explaining "why it is valuable even if it’s not particularly fun" engages the process of analysis and thus learning itself. Through this, the "intrinsic motivation" approach leads to acceptance of the importance of tasks or processes, even when they are not particularly enjoyed or enjoyable. 

There are those who want to extend the avoidance of "rewards" to the process of grading itself. They see grades, "the most obvious extrinsic motivator," as a distraction from the learning process. They are promoting the abolition of grading. They cite studies from the 1980s in support of a process that provides feedback only, no grades. It is fair to say that this perspective, despite the cited research, is not universally accepted. There are others that see benefits from the grading of performance. And, we have many generations that have seemingly flourished under that paradigm. 

Except to those with an intrinsic interest in teaching, the point of all of this is perhaps less than clear. But, ultimately, is the workplace that different from a school environment? Would employees thrive more readily if they are engaged? Managers should find ways to educate others in the importance of the day's tasks. Those who will perform the work need to understand what it accomplishes and why that is important to the customer who receives it. Then, those contributors (an important distinction) can engage from a sense of purpose. And, if the person can be matched to tasks that they find some "intrinsic" draw towards, similar to the students reading comic books," then it is probable that more will be accomplished.

It seems that the same could be said of elements of the workplace also. For example, the safety culture that is so critical. It is the safety program, the observance of rules and regulations, that has been so successful in recent decades. The rate of injury and death has improved dramatically. The effort to have workers focus on safety might be improved by similar focus on the safety culture. Knowing of its importance and participating in its planning and implementation might lead to even better results. 

It is likely that we will all need reinforcement over time, even when "intrinsically motivated." We all need to be periodically reminded of the value, the importance, of what we do. For the Office of Judges of Compensation Claims, what we do is essentially due process. We provide an environment in which people can define and refine their disagreements and disputes. When those do not bring resolution, we provide the facilitation and edification that is mediation; often this leads to solutions that are created collaboratively by the participants. And, when there is no ultimate agreement, our role is to be impartial, receptive, engaged, and decisive. To be "intrinsically motivated," we must find value in the due process and the procedure that we provide. 

How does the maxim fit in your business? First, determine what value you seek to deliver. What attributes are worthy of your attention. How do they deliver value to those whom you serve? With that in mind, communicate that value to the (perhaps many) hands that will contribute to delivering that value. Explain and remind of the importance, of the value. If we are to be successful, it seems, our chances are enhanced when the team is collaborative, motivated, and engaged.

Stare Decisis, Death Penalty, and Workers' Comp

These pages have featured the doctrine of stare decisis, a legacy of our English roots and the common law system that underpins our American judicial process. Literal translations are "to stand on the decisions" or "let the decision stand." This is an ingrained foundation that brings predictability and thereby stability to our legal system, and thus to our society generally. It is upon lawyers' interpretation of what courts have done that predictions and recommendations are made regarding what courts may do in the future. 

Previous stare decisis posts here have included Kentucky, Stare Decisis and Noncompliance Standards (June 2016); A Kentucky Constitutional Decision (July 2016), and New Jersey Judges have Inherent Authority (February 2018), a discussion that integrated the anomaly of Florida's prior but now faltering reliance on the supreme court decision in Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351 (Fla. 1987). The stare decisis topic is not new. As a general proposition, litigants and lawyers benefit from stare decisis in the sense of predictability. But, every lawyer zealously seeks the outcome desired by her/his client, and thus may well argue against precedent in any particular case. Thus, the law evolves as time passes. The resistance of stare decisis versus the friction of circumstance in a persistent conflict. 

The Florida Supreme Court on January 23, 2020 rendered an opinion in State of Florida v. Poole, No. SC18-245, in which it reversed a relatively recent precedent. This is a lesson or reminder in stare decisis, and perhaps broader implications. There is little doubt that there will be discussions of the Poole conclusions in various legal circles that are engaged in the death penalty, as that is the substantive focus. There is likelihood of classroom discussion in broader contexts regarding the stare decisis foundation and the Court's recession from earlier authority. 

By this point, Statler and Waldorf are perhaps asking: "What does this have to do with workers' compensation?" I am persistently surprised when even seasoned lawyers sometimes forget that workers' compensation is (in part) a judicial system in which quasi-judicial decisions are made, laws are interpreted, and stare decisis is critical. Predictability and evolution are as fundamental to this particular adjudicatory system as they are to any. Workers' compensation touches the law in broad contexts, and likewise, the broad foundations of law are critical foundations to workers' compensation. 

Though the Florida Supreme Court rarely decides a workers' compensation case (July 2018), it does occur. Frequent readers may recall The Supreme Court Declines Review of Padgett (December 2015); Padgett, a case known by several names, was a direct challenge to the constitutionality of Florida workers' compensation. There may be those who remember the Court similarly declining to hear the challenges in Brock and Hector (January 2015); there was even effort thereafter to have the Supreme Court of the United States review the Florida workers' compensation statute in that context. 

Everyone involved in Florida workers' compensation is familiar with the imaginative decision of the Florida Court in Castellanos (April 2016). The Court's sua sponte (or spontaneous) adoption of the Daubert evidentiary standard in May 2019 brought clarity to Florida's courts and perhaps squelched an academic debate regarding expert testimony in workers' compensation. Some will remember cases like Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005) and its ripples through the insurance and employer communities. And, of course, there were implications and clarity brought to the community by the 2004 decision in Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004). Though rare, the Court does impact this community periodically. 

Notably, in that last example, the Court had a long history of promulgating Comp procedural rules dating to 1973. Amendments provides an in-depth discussion of the involvement of the Florida Legislature, delegation of constitutional authority, and precedent built case upon case in the periodic adoption of procedural rules for over 30 years. Amendments, however, enunciated the conclusion:

"this Court has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for this executive entity." Amendments., at 478. 

In effect, the Court there concluded it had acted without authority and it declined to proceed in doing so thereafter. It admitted it had been long and repeatedly wrong. Precedent was disregarded, upon the conclusion it was ill-founded. 

Returning to the present, the Court recently considered State of Florida v. Poole, No. SC18-245 (January 23, 2020). At issue was the process by which decisions are made regarding the imposition of Florida's death penalty. It will be for that reason that the case may attract news coverage. The decision link is provided above, but the reader is warned that the factual details recited by the Court may be disconcerting or disturbing. The defendant was sentenced to death for his actions, and took issues with the procedure. 

The Court explained that "from 1973 until 2016" there was a framework for considering such sentences (it is an odd coincidence that 1973 similarly marked the first adoption of Court rules for workers' compensation). This "penalty phase" begins with a proceeding in which evidence is heard of the "nature of the crime and the character of the defendant." There may be presentation of "statutory aggravating and mitigating circumstances." and such a sentence is based on whether such circumstances do or do not exist. The fulcrum of the Poole debate is how the jury and judge interact in deciding the existence of those circumstances. The Court noted that the United States "Supreme Court itself (has) considered and rejected Sixth and Eighth Amendment challenges to" that process. 

The Court explained various Supreme Court of the United States (SCOTUS) decisions and the intriguing evolution of death penalty consideration. That itself illustrates that the law has experienced a change in reaching its current state. Lawyers have argued, and change has occurred. The Florida Court noted that ultimately the SCOTUS concluded:

“If a State makes an increase in a defendant’s authorized punishment contingent on a finding of fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.” 

Thus, a judge, alone, may not make such a finding of aggravation, in rendering this sentence. 

In Hurst v. Florida, 136 S. Ct. 616 (2016), "the (Florida) Supreme Court addressed the significance of" that analysis on "the constitutionality of Florida’s capital sentencing procedure." The Court in Hurst concluded that the Florida law "which required the judge alone to find the existence of an aggravating circumstance" was unconstitutional. Therefore a "new rule" was announced by the Court: 

"before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death."

In Poole, the Court concluded, "our Court was wrong in Hurst v. State." It said:

"this Court clearly erred in Hurst v. State by requiring that the jury make any finding beyond the section 921.141(3)(a) eligibility finding of one or more statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or Eighth Amendment, nor the Florida Constitution mandates that the jury make the section 941.121(3)(b) selection finding or that the jury recommend a sentence of death."

There are those who would argue that there is merit in owning an error. The Court explained that stare decisis is important. But the Court must be "willing to correct its mistakes." Therefore, “[t]he doctrine of stare decisis bends . . . where there has been an error in legal analysis.” (citation omitted). Admittedly, "it is no small matter for one Court to conclude that a predecessor Court has clearly erred." The Court concluded that in 2016 it had misapplied "a narrow and predictable ruling" and "disregard(ed) decades of settled Supreme Court and Florida precedent" in deciding Hurst. 

Thus, the Court explained the Hurst decision was a failure of stare decisis; one which created new rules for the adjudication of such cases. The Court in Hurst did not follow the precedents, its own prior decisions. Thus, the Court essentially concluded in 2020, that following the misplaced Hurst further would be error. To give that decision the respect of stare decisis would be to compound the error that it created. 

The Court was similarly critical of its decision in North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003). That decision and its analysis of the why and how of overruling prior precedent was urged by Poole in arguing to retain the Hurst analysis. But the Court noted that the reversal considerations listed in that opinion were accompanied by "no citation to support its compilation." In other words, those considerations are perhaps of questionable origin. The Court did not go as far as saying they were imaginative or creative but noted they had no precedent. Furthermore, the Court concluded that such "multi-factor stare decisis tests or frameworks" are "malleable and do not lend themselves to objective, consistent, and predictable application." The application of them could lead to decisions that are not "principled."

The Court concluded that the "proper approach to stare decisis is much more straightforward." Of course, where higher legal authority is binding, the Courts' "job is to apply that law correctly to the case before us." But, "when we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield." That is, when an error has occurred such as Hurst, it is necessary, beyond appropriate, that stare decisis not blindly compound and amplify that error. Thus in deciding whether to follow prior decisions, the Court will look to the logic, reason, and precedent for such prior decisions. 

Interestingly, the Court noted that "stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up.” Thus, when the Court concludes that prior a decision(s) is "clearly erroneous, the proper question becomes whether there is a valid reason why not to recede from that precedent." The critical point, it seems is what type of case is being considered when this balance of predictability and correction comes to the fore. The Court noted that reliance upon such decision(s) is broadly critical, but more important in cases of "property and contract rights” than in cases of "procedural and evidentiary rules.” Thus, whether a poorly reasoned precedent is abandoned or maintained may be a function of the type of law interpreted (or created?). In some instances, stability may militate toward reinforcement of bad law. 

The Poole decision acknowledges that Florida's legislature responded to Hurst and made statutory changes. The Court specified that Poole is neither a criticism nor endorsement of those legislative actions. It clarified instead that Poole is simply the restoration of the "discretion that Hurst v. State wrongly took from the political branches." Though not announced as such by the Court's introduction to Poole, this decision is thus largely a separation of powers decision, not dissimilar in that regard to Amendments, supra. The Court has concluded that the error of Hurst, in lacking legal foundation, inappropriately invaded the province of the legislature. 

That issue is the subject of the composite of the Poole decision. Four justices of five concurred in the Poole decision. It is noteworthy for the sake of history that Florida's Court is composed of seven Justices. However, currently, two vacancies exist following the appointment of two Justices to the Eleventh Circuit Court of Appeal in 2019. Justice LaBarga dissented in Poole with a written decision. Justice Lawson specifically concurred with a written opinion responding to the dissent criticisms. Both are worthy of reading. Some will perhaps see therein hints of a difference of opinion regarding the appropriate separation of powers between a Court interpreting and a representative body legislating. There are also differences of opinion as to precedent and stare decisis specifically.

The decision has implications for those who stand accused of capital crime. In those settings, Poole will find citations and arguments. My brief experience with death penalty litigation was both enlightening and frustrating. The stakes are high and the advocates on both sides are among the most intelligent and resourceful I have encountered. It is a difficult and challenging area of practice. 

But, in deference to Statler and Waldorf, I return to workers' compensation. There continues in this county a "grand debate" about the "grand bargain" that is workers' compensation. Are benefits sufficient? Should sufficiency be a "system" analysis, or is it "personal" and individual? Is the process afforded appropriate? How does the evolution of tort law (the system Comp supplanted) enter that analysis? The list goes on. There has been a fair volume of constitutional challenges to workers' compensation in state courts in Florida. Will that trend continue? Will there be a tendency therein to remain true to precedential decisions, or is it possible that in workers' compensation, there might be coming court admissions of having "clearly erred," and therefore a court being "willing to correct its mistakes?"

Whether one's perspective is of reliance upon Florida Court precedent or is of imaginative argument in opposition in such a challenge, the Poole decision is informative. How and when the predictability of stare decisis may prevail against the imaginative or innovative challenge is worthy of any litigant's consideration and analysis. Workers' compensation may not be as grave as the criminal death penalty. However, it literally permeates the world of work for millions of Floridians. It is a critical lynchpin of the employer/employee relationship. Its stability and continuity are foundational to lives and livelihoods. Its importance cannot be overstated, and should not be misunderstood.