CopyCited 23 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 132
...Appellee Trask is a deputy commissioner of Workers' Compensation in District K, Dade and Monroe Counties. He was initially appointed to his post in January 1974, and subsequently reappointed to four-year terms in 1978 and 1982 following the favorable determination of the judicial nominating commission in accordance with section 440.45, Florida Statutes (1981)....
...cing them with political cronies. This argument has no merit in fact or law. Appellants were not acting on their own volition; they were responding to legislative directions which, at least on their face, were valid. Further, under the provisions of section 440.45 a governor can only remove deputies for cause....
...If the judicial nominating commission votes not to retain the deputy *134 commissioner, the deputy commissioner shall not be reappointed... . If the judicial nominating commission votes to retain the deputy commissioner in office, then the Governor shall reappoint the deputy commissioner for a term of four years. § 440.45(2), Fla....
...under the statute, but only four positions authorized under the appropriations act. Further, they had no guidelines or criteria from either the appropriations act or statute on how to select the deputy position to be abolished. Indeed, by its terms, section 440.45 denied the Governor the authority to remove any of the incumbent deputies....
...hat the legislature furnish ascertainable minimal criteria and guidelines on how the selection was to be made. A second closely related ground for our decision is that the proviso in the appropriations act conflicts with substantive law contained in section 440.45....
...Appellants argue that the statutory language requires only that there be deputy commissioners and does not specify how many deputies there are to be. Thus, appellants urge, the proviso reducing the number of positions does not conflict with substantive law. What this argument overlooks is that section 440.45 severely restricts the power of a governor to remove deputies from office....
...There is no authority in substantive law for a governor to remove a deputy except for cause. The maxim that the express mention of one thing is the exclusion of another (expressio unius est exclusio alterius) is applicable. Dobbs v. Sea Isle Hotel,
56 So.2d 341 (Fla. 1952). The clear legislative intent embodied in section
440.45 of ensuring that appointments and reappointments of deputy commissioners are based on merit would be nullified if governors were permitted to remove deputies for reasons other than that expressly authorized....
...One final point merits comment. In its final judgment, the trial court enjoined appellants on equitable grounds from appointing a successor to the deputy commissioner who resigned in February 1984. The authority of a governor to appoint deputy commissioners is embodied in law, section 440.45....
...The effect of our decision today is to declare that three vacant positions remain in District K. That the judicial nominating commission has not presented the governor with candidates to fill the three positions, which the governor would be obligated to fill pursuant to section 440.45, is a commentary on the restraint of the nominating commission. We find no express obligation for the nominating commission to provide the governor with a list of candidates within any prescribed time, see article V, section 11, Florida Constitution, and section 440.45, Florida Statutes (1983), but absent the elimination of these positions by act of the legislature, or the proper delegation of the power to the executive, there remains an unresolved conflict between the budgetary constraint of the legislature and the number of positions for deputy commissioners....
CopyCited 15 times | Published | Florida 1st District Court of Appeal
...[2] Legislative forum shopping, if ultimately upheld, marks the beginning of the end of Florida's judicial system as we now know it. I respectfully dissent. NOTES [1] Cf., Maryland Casualty Co. v. Marshall,
106 So.2d 212, (Fla. 1st DCA 1958); §
440.25(3)(b), Fla. Stat.; §
440.45(3)(j), Fla....
CopyCited 9 times | Published | Supreme Court of Florida | 29 Fla. L. Weekly Supp. 734, 2004 Fla. LEXIS 2168, 2004 WL 2810829
...Then, in 1993, a separate section of the Florida Statutes governing workers’ compensation was modified to grant rulemaking authority to the Office of Judges of Compensation Claims (OJCC). See Ch. 93-415, § 40, Laws of Fla. The modification appeared in section 440.45, Florida Statutes' (Supp....
...Such rules shall include procedural rules applicable to workers’ compensation claim resolution. ... The workers’ compensation rules of' procedure approved by the Supreme Court shall apply until the rules promulgated by the [OJCC] pursuant to this sec *477 tion become effective.” See § 440.45(5), Fla. Stat. (Supp.1994) (emphasis added). In 2002, section 440.45(l)(a), Florida Statutes (2001), was amended to give the director of the Division of Administrative Hearings (DOAH) rulemaking authority under section 440.45(4)....
...Rule 60Q-6.101 provided that these rules of procedure would apply in all workers’ compensation proceedings before the judges of compensation claims and that they would “replace workers’ compensation rules of procedure 4.010 through 4.900 and all forms referenced therein.” Section 440.45(1)(a),(4), Florida Statutes (2003), was cited as specific authority for the rule....
...s judges within the executive branch as part of the Department of Labor.” Id. at 51 . The Court ultimately held that “[h]aving determined that judges of compensation claims fall within the authority of the executive *479 branch, we conclude that section 440.45(2) violates the separation of powers doctrine to the extent that it deprives the Governor of his power to appoint and reappoint.” Id....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...ne Smith as a result of her attempts to claim further workmen's compensation benefits" instead of the alleged reason of excessive absenteeism; (2) that the deputy had "jurisdiction to hear this cause pursuant to Fla. Stat. §
440.205, §
440.25, and §
440.45," and (3) that a prior order denying additional benefits for the claim in question "does not preclude the undersigned from considering a violation of Fla....
...[3] There appears to be no legal barrier foreclosing a deputy commissioner from acting as the agency head for the purpose of making a declaratory statement in construing Section
440.205. In fact, it would appear that the deputy would be the logical and appropriate choice. Section
440.45(3) states: "The deputy commissioners shall be within the Department of Labor and Employment Security under the secretary of that department." That statute does not clarify whether the deputy is also "under" the Division of Workers' Compensation....
...Ledford Const. Co. v. King,
381 So.2d 330, 332 (Fla. 1st DCA 1980). There is also no reason why the Division could not delegate agency head status to the deputy commissioner for the limited purpose of resolving a Section
440.205 claim. For example, Section
440.45(6) provides: The division may delegate to its attorneys, examiners, safety representatives, field agents, inspectors, and other legal representatives such powers and authority as it may deem necessary in the administration of this chapter....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 819
...They filed this petition for writ of mandamus, arguing that the statutory language in the applicable statute was mandatory. Additionally, they named Honorable Robert Martinez, Governor of Florida, as a respondent and sought to enforce the terms of section 440.45(1)....
..., see section
216.262(1)(a), Florida Statutes (1985). As there is no ministerial act which the Governor can perform to fulfill the requirement of the statute, the remedy of mandamus is inappropriate. Our conclusion is reinforced by the provisions of section
440.45(5), which gives the Governor authority to appoint temporary deputy commissioners where a need exists, but the subsection makes clear that the exercise of such authority is clearly discretionary for the state's chief executive....
...unclear what ministerial act that Chief Commissioner Carroll could perform that would bring the relief sought by the petitioners. The Chief Commissioner does have authority to act as deputy commissioner but this authority is also discretionary, see section 440.45(3)(g), Florida Statutes....
CopyCited 5 times | Published | Supreme Court of Florida
...On the other hand, it would appear to be within the peculiar competence of an industrial judge to decide the existence or non-existence of insurance coverage when relevant to a workmen's *372 compensation problem. The industrial judges are all lawyers who now devote full time to the duties of their office. Fla. Stat. § 440.45 (1967), F.S.A....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1995 WL 410682
...ee statute that applies to this case. *74 Claimant James Howard suffered an industrial injury on December 1, 1989. In 1994, he petitioned for permanent total disability benefits, costs and attorney's fees. On March 10, 1994, the docketing judge, see section 440.45(3), Florida Statutes (Supp....
CopyCited 2 times | Published | Supreme Court of Florida | 1994 WL 245612
...John Paul Jones, Jr., a compensation claims judge, petitions for a writ of mandamus, asking this Court to require Lawton M. Chiles, Governor of the State of Florida, to reappoint him to office as required by the reappointment procedure set forth in section 440.45, Florida Statutes (1991). We have jurisdiction under article V, section 3(b)(8), of the Florida Constitution. We find that the portion of section 440.45(2) that eliminates the Governor's choice in the reappointment of a compensation claims judge is invalid, because it unconstitutionally encroaches on the power of the Governor to appoint executive branch officers....
...The undisputed facts of this case are as follows. In 1972, Jones was appointed to a four-year term as a compensation claims judge to hear workers' compensation cases. Shortly thereafter, the legislature created a process for the merit selection and retention of compensation claims judges. See § 440.45, Fla....
...ppointed by Governor Martinez in 1988. In 1990, the legislature created a statewide nominating commission to replace the existing district judicial nominating commissions for workers' compensation judges. The retention process remained the same. See § 440.45, Fla....
...do so. At this time, Jones remains in office, is still performing his duties, and is being paid his state salary. He now files this petition for a writ of mandamus, asking this Court to require the Governor to reappoint him to office as mandated by section 440.45. Section 440.45 provides in pertinent part as follows: (1) The Governor shall appoint as many full-time judges of compensation claims to the workers' compensation trial courts as may be necessary to effectually perform the duties prescribed for them under this chapter....
...Judges of compensation claims shall be subject to the jurisdiction of the Judicial Qualifications Commission. *50 (3) The judges of compensation claims shall be within the Department of Labor and Employment Security under the secretary of that department. (Emphasis added.) As the underlined portion of section 440.45 indicates, "if the statewide nominating commission votes to retain the judge of compensation claims in office, then the governor shall reappoint the judge of compensation claims for a term of four years." (Emphasis added.) Because of t...
...aintains that the Governor must perform the ministerial act of reappointing him given that the nominating commission has voted to retain him in office. The Governor, on the other hand, argues that he need not reappoint Jones to office as required by section 440.45 because the statute violates the separation of powers doctrine by unconstitutionally depriving him of his gubernatorial prerogative to appoint executive branch officers....
...r. A number of provisions of the Florida Constitution are applicable in answering this question. By law, compensation claims judges fall under the Workers' Compensation Division of the Department of Labor and Employment Security. See §§ 20.171(d), 440.45, Fla....
...ed by and serves at the pleasure of the Governor. As such, only the Governor or the Secretary of Labor and Employment Security, subject to the Governor's approval, would have the power to appoint judges of compensation claims. The legislature, under section 440.45, directs the Governor to "appoint as many full-time judges of compensation claims to the workers' compensation trial courts as may be necessary to effectually perform the duties prescribed for them." Consequently, the Governor alone is...
...e the Governor is the chief executive officer in whom the power to appoint compensation claims judges is vested, a new *51 appointment by the Governor is required for compensation claims judges every four years. Under the reappointment provisions of section 440.45(2), however, the legislature has provided that reappointment of compensation claims judges is to be by majority vote of the statewide nominating commission. Because under section 440.45 the Governor must reappoint a judge of compensation claims if the statewide nominating commission votes to retain such judge, the Governor's act in reappointing a judge of compensation claims is purely ministerial....
...les of Procedure were adopted and promulgated pursuant to the legal authority of the Industrial Relations Commission but were approved by the Florida Supreme Court). Although we did acknowledge in Orr v. Trask,
464 So.2d 131 (Fla. 1985), that, under section
440.45, the decision to reappoint an incumbent rests entirely with the nominating commission, we were simply reiterating the requirements of the statute in ruling on the removal power of the Governor; we were not ruling, as we do today, on th...
...ominating commission. We find that compensation claims judges are executive branch officials, *52 not judicial branch officials. Having determined that judges of compensation claims fall within the authority of the executive branch, we conclude that section 440.45(2) violates the separation of powers doctrine to the extent that it deprives the Governor of his power to appoint and reappoint. Jones contends that this holding will compromise the position of compensation claims judges because it will make those judges beholden to the Governor. We note, however, that, in 1993, the legislature itself amended section 440.45, effective January 1, 1994, to eliminate the power of the statewide nominating commission to reappoint judges of compensation claims and to provide the Governor with that power instead....
...t courts. See art. V, § 5, Fla. Const. Consequently, no provision exists to prohibit the legislature from placing the jurisdiction of workers' compensation claims within either the county or circuit courts. [5] In conclusion, we find the portion of section 440.45(2) that eliminates the Governor's choice in the reappointment of a compensation claims judge to be invalid because it unconstitutionally encroaches on the power of the Governor to appoint executive branch officers....
...cept: (a) When provided by law, confirmation by the senate or the approval of three members of the cabinet shall be required for appointment to or removal from any designated statutory office. [3] Chapter 93-415, section 40, Laws of Florida, amended section 440.45 to read as follows: (1) There is hereby created the Office of the Judges of Compensation Claims within the Department of Labor and Employment Security....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 126, 2010 WL 90380
...vil cases by the adoption of Florida Rule of Civil Procedure 1.525 (which requires that a motion seeking to tax costs be served "no later than 30 days after filing of the judgment . . . or the service of a notice of voluntary dismissal"). See, e.g., § 440.45(4), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...Evidently the carrier was not interested in solving this problem through telephone calls to the hospital and to Medicare and Blue Cross. Evidently this complex problem is beyond administrative solution by the Division of Workers' Compensation. Evidently the skills of the Chief Commissioner, section 440.45(3)(a), (d), (f), (j), and (k), Florida Statutes (1981), are unequal to the task....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1977 Fla. App. LEXIS 15395
...it would appear to be within the peculiar competence of an industrial judge to decide the existence or non-existence of insurance coverage when relevant to a workmen's compensation problem. The industrial judges are all lawyers who now devote full time to the duties of their office. Fla. Stat. § 440.45 (1967), F.S.A....
CopyAgo (Fla. Att'y Gen. 1992).
Published | Florida Attorney General Reports
...-judicial powers. And see , Biennial Report of the Attorney General, 1931-1932, April 3, 1931, p. 567; AGO 54-129, Biennial Report of the Attorney General, 1953-1954, May 31, 1954, p. 641 (performance of the marriage ceremony is a "judicial act"). 2 Section 440.45 (3), F.S....
CopyPublished | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 795, 2002 Fla. LEXIS 1884, 2002 WL 31084673
...(f) “District Court” means the District Court of Appeal, First DistrieL (ge) “Division” means the Division of Workers’ Compensation of the Florida Department of Labor and Employment Security. *794 (h) “Pocketing judge” means one or more judges designated-by the chief judge pursuant to section
440.45(3),■ -Florida Statutes (if) “EAO” means the Employee Assistance and Ombudsman Office created by section
440.191, Florida Statutes....
...This rule defines the types of claims not included in a petition for benefits filed under section
440.192, Florida Statutes, that bypass the request-for-assistance process in section
440.191(2)(a), Florida Statutes, and the docketing judge’s review under section
440.45(3), Florida Statutes....
...MANDATORY MEDIATION (a) Initial Mandatory Mediation. Except as provided in this rule, an initial mandatory mediation conference is required to be held concerning every petition filed under section
440.192, Florida Statutes, that survives dismissal after review by a docketing judge under section
440.45(3), Florida Statutes, or a motion to dismiss filed under section
440.192(5), Florida Statutes....
...Judge of Compensation Claims This is to certify that the above order was entered by the judge of compensation claims and a copy was served by U.S. mail on each party and counsel at the addresses listed above on.(date). Assistant to Judge of Compensation Claims . We recognize that subsection (4) of section 440.45, Florida Statutes (2001), “Office of the Judges of Compensation Claims," charges the Office of the Judges of Compensation Claims with "adopting] rules to effect the purposes of this section” and provides that "[t]he workers' compen...
CopyAgo (Fla. Att'y Gen. 1990).
Published | Florida Attorney General Reports
...the statewide judicial nominating commission for worker's compensation judges. The deliberations of the commission, therefore, must be conducted in accordance with the provisions of s.
286.011 , F.S. Section 39, Ch. 90-201, Laws of Florida, amended s.
440.45 (1), F.S., relating to the appointment of judges of compensation claims to the workers' compensation trial courts. Judges of compensation claims (formerly referred to as deputy commissioners) 1 are within the Department of Labor and Employment Security under the secretary of the department. 2 As amended, s.
440.45 (1), F.S., provides in pertinent part: The Governor shall appoint as many full-time judges of compensation claims to the workers' compensation trial courts as may be necessary to effectually perform the duties prescribed for them under this chapter....
...ajority vote of the other ten members of the commission. The meetings and determinations of the nominating commission as to the judges of compensation claims shall be open to the general public. (e.s.) Prior to its amendment by the 1990 Legislature, s. 440.45 (1), F.S., provided that the appellate district judicial nominating commission for the appellate district in which the judge of compensation claims would principally conduct hearings was responsible for nominating three persons to the Governor....
...judicial circuit for the trial courts within such circuit. Thus, the provisions of s. 11(d), Art. V, State Const., recognizing that the deliberations of judicial nominating commissions may be closed are not applicable to the commission created under s. 440.45 (1), F.S. Accordingly, there is no constitutional impediment to the Legislature requiring the deliberations of the statewide judicial nominating commission for workers' compensation judges to be open. Section 440.45 , F.S., as amended, does not indicate a contrary result....
...286.011 , F.S. Sincerely, Robert A. Butterworth Attorney General RAB/tjw 1 Section 23, Ch. 89-289, Laws of Florida, substituted references to judges of compensation claims and chief judge for references to deputy commissioners and chief commissioner. 2 Section 440.45 (3), F.S....
CopyAgo (Fla. Att'y Gen. 1992).
Published | Florida Attorney General Reports
...ut the aims for which they were created. 2 All rule-making authority granted to an administrative agency, likewise, is limited by the statute conferring such power. 3 Thus, an administrative agency may not enlarge its scope of power through rules. 4 Section 440.45 (1), F.S., mandates that the Governor appoint as many full-time judges of compensation claims to the workers' compensation trial courts as may be necessary to effectively perform the duties prescribed for them under Ch. 440 , F.S. Each appointment is made from a list of at least three persons nominated by a statewide nominating commission. Section 440.45 , F.S., further provides: The statewide nominating commission shall be composed of the following: five members, one of each who resides in each of the territorial jurisdictions of the district courts of appeal, appointed by the Board o...
...Thus, the appointment and composition of the statewide nominating commission is statutorily prescribed and may not be altered by rule, absent legislative authorization. There is no provision, however, for the enactment of rules to govern the procedures of the statewide nominating commission. Section 440.45 , F.S., was amended during the 1990 Legislative Session to provide for the nomination of prospective judges of compensation claims by a statewide nominating commission. 5 Prior to its amendment, s. 440.45 (1), F.S....
...6 There is also a constitutional requirement that uniform rules of procedure be established by the judicial nominating commissions at each level of the court system. These rules are reflected in the Uniform Rules of Procedure for District Courts of Appeal Judicial Nominating Commissions, Florida Rules of Court. When s. 440.45 , F.S....
...Given the lack of authority or statutory direction, it appears that the matter of rule-making authority and the procedures for the operation of the statewide nominating commission should be addressed legislatively. In light of this conclusion, your questions are answered as follows: (a) Section 440.45 (2), F.S., provides that each full-time judge of compensation claims is appointed for a term of four years, but may be removed during such term by the Governor for cause....
...forth procedures for the selection of new prospective appointees to be judges on the district courts of appeal. As noted above, these rules provided the procedures for selection of nominees for judges of compensation claims prior to the amendment of s. 440.45 , F.S., in 1990. While the uniform rules have not been made applicable to the statewide nominating commission, they may provide guidance for the commission to carry out its duties under s. 440.45 , F.S. (c) Relative to meetings of the statewide nominating commission, s. 440.45 , F.S., only requires that such meetings and the determinations of the commission be open to the general public....
...(d) Absent any constitutional or statutory provision, the power to make an appointment to an office includes the power to fill a vacancy in the office. 10 This office, in AGO 92-58, concluded that the statewide nominating commission did not possess the authority to fill vacancies on the commission which are mandated by s. 440.45 , F.S., to be appointed by the Governor and The Florida Bar....
CopyPublished | Supreme Court of Florida | 25 Fla. L. Weekly Supp. 866, 2000 Fla. LEXIS 2275, 2000 WL 1508551
...This rule defines the types of claims not included in a petition for benefits filed under section
440.192, Florida Statutes, that bypass the request-for-assistance process in section
440.191(2)(a), Florida Statutes, and the docketing judge’s review under section
440.45(3), Florida Statutes....
...Except as hereinafter -provided in this rule, an initial mandatory mediation conference is required to be held concerning every petition filed under section
440.192, Florida Statutes, that survives dismissal after review by a docketing judge under section
440.45(3), Florida Statutes, or a motion to dismiss filed under section
440.192(5), Florida Statutes....
CopyPublished | Supreme Court of Florida | 1967 Fla. LEXIS 3430
evidence already taken before him. See F.S. Section
440.45(4), F.S.A. The claimant has already been delayed
CopyPublished | Florida 1st District Court of Appeal
The Office of the JCC is a statutory creation. §
440.45(1)(a), Fla. Stat. The Florida Constitution authorizes
CopyPublished | Supreme Court of Florida | 21 Fla. L. Weekly Supp. 223, 1996 Fla. LEXIS 827, 1996 WL 268079
...ourt of Appeal, First District. (g) “Division” means the Division of Workers’ Compensation of the Florida Department of Labor and Employment Security. (h) “Docketing judge” means one or more judges designated by the chief judge pursuant to section 440.45(3), Florida Statutes....
...MANDATORY MEDIATION (a) Initial Mandatory Mediation. Except as hereinafter provided, an initial mandatory mediation conference is required to be held concerning every petition filed under section
440.192, Florida Statutes, that survives dismissal after review by a docketing judge under section
440.45(3), .Florida Statutes, or a motion to dismiss filed under section
440.192(5), Florida Statutes....
...(5) “Impasse — -is the parties’ inability to reach a mutually acceptable and voluntary agreemenh-as-to-any matter at the mediation conference. (6) “Chief judge” means the chief judge of compensation claims appointed by the-governor, serving in the Department-of~Labor-an4 Employment — Seeurity, pursuant to section 440.45(3),-Florida-Statutes. (7) “Judge” means a judge- of -compen-sation claims pursuant to -section 440.45, Florida Statutes....
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 296, 1992 Fla. LEXIS 1054, 1992 WL 99236
...(5) “Impasse” is the parties’ inability to reach a mutually acceptable and voluntary agreement as to any matter at the mediation conference. (6) “Chief .judge” means the chief judge of compensation claims appointed by the governor, serving in the Department of Labor and Employment Security, pursuant to section 440.45(3), Florida Statutes. (7) “Judge” means a judge of compensation claims pursuant to section 440.45, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
...We now address the Claimant’s argument that the
Legislature’s enactment of the EMA presumption violates
separation of powers by interfering with the executive branch’s
ability to fairly adjudicate workers’ compensation claims.
According to the Claimant, section 440.45(1)(a), dictates that the
OJCC is a separate budget entity and the director of the Division
of Administrative Hearings (“DOAH”) “shall be its agency head for
all purposes including, but not limited to, rulemaking ....
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 19945, 2010 WL 5557086
...pay as directed by the final order, without more, was not intended by the Legislature to be conduct addressed via the application of this statute. See Orr v. Trask,
464 So.2d 131, 135 (Fla.1985) (applying rule of statutory construction in construing section
440.45, Florida Statutes (1981))....
CopyPublished | Florida 1st District Court of Appeal
...professional rules require it. Presumably, the Office of the Judges
of Compensation Claims (“OJCC”) could adopt an administrative
rule incorporating the professional code for application in
compensation proceedings; it possesses the statutory authority to
do so. See § 440.45(4), Fla....
CopyPublished | Florida 5th District Court of Appeal | 1995 Fla. App. LEXIS 3603, 1995 WL 155565
...Compensation Act. The Judge of Compensation Claims (JCC) denied the motion solely on the ground that he lacked jurisdiction to consider the motion to dismiss because a docketing Judge had already ruled on the sufficiency of the petition pursuant to section 440.45(3), Florida Statutes (Supp.1994)....
