Langham: Another Look at Castellanos
Thursday, July 20, 2017 | 458 | 0 | min read
A great deal has been said about Castellanos v. Next Door Co. in the last year. I have written about it on a few occasions, including A Potential Procedural Progeny Potential of Castellanos, Constitutional Law in Florida 2016, and Castellanos is Decided by Supreme Court.
But for students of the law, the topic does not lose interest.
The decision is an intriguing one that departs from the mainstream of constitutional analysis. That mainstream generally categorizes constitutional analysis into two main groups, "facial" and "as applied."
A determination that a statute is "facially" unconstitutional is a conclusion that it cannot render an appropriate outcome no matter the facts involved. That is, as regards Castellanos, that the formula in Fla. Stat. 440.34 would not render an acceptable fee in any case under any circumstances.
Even before this case was decided there were few, if any, who believed this statute was facially unconstitutional. There were those who vehemently believed that the statute was unconstitutional "as applied" in that case, because the resulting effective hourly rate at which attorney fees were awarded was so low.
The "statutory fee" that resulted in Castellanos (because of the combination of the moderate or low dollar value of the claimed benefits, and the significant investment of attorney hours obtaining them) was $1.53 per hour.
In another case, now decades ago, the significant dollar value of benefits and relatively moderate volume of hours invested by counsel yielded an effective hourly rate of "of over $4,000.00 per hour" (What an Idea Inc. v. Sitko, 505 So.2d 497, 503 (Fla. 1st DCA 1987)). The statute was not unconstitutional as applied in that case because of the high effective hourly rate.
There have been those in recent years who have suggested that perhaps some cases yield low (effective hourly rate) fees, and others yield higher fees. They suggest that perhaps there is an overall average affected by all of these various cases, and that such a macro-analysis is more indicative of fee sufficiency than selecting any one case for the analysis.
There have been others over the last year who have explained to me that the statutory fee should be viewed as a "floor," providing a measure of predictability for attorneys. They argue that the departure from that fee should be considered in situations analogous to Castellanos but not considered in situations analogous to Sitko. This apparently advocates a micro-analysis when effective hourly rates are deemed insufficient, but a more macro view whenever the fees are not deemed insufficient.
Some will find fault with an analysis so focused. Others argue that the fee analysis might as readily lead to a decrease or increase.
I have heard these two, and other interesting analysis and justifications for various positions and postures over the last year. I find them all interesting. The point is that various people have different perceptions of how the Florida workers' compensation fee statute should work and what would be "fair."
The 2017 legislative session certainly stimulated a fair volume of discussion regarding that topic, with many conflicting, but nonetheless seemingly sincere, views expressed.
But, Castellanos was not decided on the analysis of "facial" or "as applied" constitutionality. Some might even argue that Castellanos was decided on an analysis of what would provide expediency. The court noted, in response to one justice's opinion, that a case-by-case determination of "as applied" would be a procedural challenge.
The Castellanos decision is founded upon the concept of an "irrebutable presumption." The court concluded that an irrebutable presumption cannot stand in the face of due process guarantees of the Constitution. As support, the court cited Recchi America Inc. v. Hall, 692 So.2d 153 (Fla. 1st DCA 1997). Recchi involved Section 440.09(3):
No [workers'] compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee... If there was at the time of the injury 0.10% or more by weight of alcohol in the employee's blood, or if the employee has a positive confirmation of a drug as defined in this act, it shall be presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. (Emphasis added).
This, the court concluded, "creates an irrebutable (or conclusive) presumption that violates the constitutional right to due process."
The district then applied a three-part test regarding the constitutionality of "irrebutable presumptions," from the Supreme Court's analysis in Markham v. Fogg, 458 So.2d 1122, 1125 (Fla.1984); Bass v. General Dev. Corp., 374 So.2d 479, 484 (Fla.1979).
Markham v. Fogg interpreted "agricultural classification" under Section 193.461, Fla. Stat. The court concluded that "section 193.461(4)(a)3.(1973) is in the form of a mandatory presumption." That section provided:
(4)(a) The assessor shall reclassify the following lands as nonagricultural:
3. Land that has been zoned to a nonagricultural use at the request of the owner subsequent to the enactment of this law ...
The court found persuasive that this section did not allow a landowner to "present evidence in opposition to the appraiser's reclassification," which another section of the same statute, Section 193.461(4)(c), did:
(c) Sale of land for purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted."
The court concluded that the "clear legislative directive to the property appraiser" of Section 193.461(4)(a)3. is therefore "in the form of a mandatory presumption." This conclusion is despite the absence from that section of the word "presumption" or "presume," or any similar indicia of presumption.
Bass v. General Dev. Corp. follows a similar analysis of the same statutory provision, concluding, without citation of any authority, that Section 193.461(4)(a)4(1975) "creates a conclusive presumption." That section states:
(4)(a) The assessor shall reclassify the following lands as nonagricultural:4. Land for which the owner has recorded a subdivision plot subsequent to the enactment of this law.
Again, no mention of "presume" or "presumption" in the statute. The court then engages in an analysis of the due process clause and the same three-element test engaged by the court regarding due process in Markham and Castellanos:
(1) whether the concern of the Legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid; (2) whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and (3) whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption. See Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Gallie v. Wainwright, 362 So.2d 936 (Fla.1978).
Thus, one might argue, the three-point analysis employed by the court is dependent upon the conclusion that a statute is an "irrebutable presumption." That conclusion might be reached based upon statutory language that states there is a presumption. Or, as in Bass, Markham, and Castellanos, that conclusion might be reached about a statute section that makes no mention of presumption in any context, tense or form.
And, from this, one might conclude that any statute that affords no judicial discretion is an irrebutable presumption, potentially unconstitutional under the three-step process described by the court in Weinberger and Wainright.
As noted in Wainright, there is also a "more stringent" test of the due process analysis. It is used when "a constitutionally preferred right or privilege is in issue." (Vlandis v. Kline, 412 U.S. 441, 452 (1973)).
It is worth remembering that the Supreme Court of the United States is always right. This is because it is the last court to which one may apply for relief. As there is no further court in which one could pursue one's case, the outcome at the U.S. Supreme Court is always right.
Associate Justice Robert Jackson is credited with saying "we are not final because we are infallible, but we are infallible only because we are final." An interesting interpretation of the role of courts in America.
There are those who find Justice Jackson interesting reading. For those with an interest in constitutional analysis, Jackson's dissenting opinion in Korematsu v. United States, 323 U.S. 214, 242-245 (1944) is interesting reading.
As regards interpretation of state law, the same "final" analysis might be undertaken. Many have stated that there is little to no chance of the United States Supreme Court reviewing workers' compensation decisions. The time has passed for such review of Castellanos in any event.
It is interesting to listen to various opinions regarding the appropriateness of the decision. There are those who continue to criticize the court's insinuation of "presumption" into a statute with no mention of that word. They predict a future in which other statutes might be similarly evaluated without due consideration of their actual words.
However, the decision in Castellanos is final, and as it is final, it is in fact infallible, according to Justice Jackson. It is possible that future analysis may find fault with its logic or interpretation, but it is today the law of Florida, despite the enjoyment some seem to glean from continuing to discuss it.
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.