CHIEF JUSTICE: LAD IES AND GENTLEMEN, THE FLORIDASUPREME COURT.PLEASE BE SEATED.

CHIEF JUSTICE: GOOD MORNING , LADIES ANDGENTLEMEN, AND WELCOME TO THE FLORIDA SUPREME COURT. I WOULD LIKE TO WELC OME SEVERAL GROUPS O F PEOPLE IN THE AUDIENCE. FIRST OF ALL , SPONSORED BY THE GOVERNMENT LAW YERS , THE ANNUAL PRACTICING BE FORE THE SUPREME COURT, WELCOME TO YOU, AND THEN I KNO W SOMEWHERE IN THE A U DIENCE , A STUDENT -- STUDENTS F ROM PROFESSOR CANT ER O 'S DECISION-MAKING IN T HESUPREME COURT CLASS, SO WELCOME TO BOTH OF YOU AND WITH THAT , WE W ILL CALL THE FIRST CASE, WHICH IS COSTARELL VERSUS FLORIDA ENEMPLOYMENT AEALS COMMISSION.

GOOD MORNING. HARVEY SE PLER ON BE HALF OF MR. COSTARELL. THE ISSUE BEFORE YOU IS WHETHER THE 200 2 VERSION O F FLORIDA STATUTE 443.09-1 OR ANY OTHER CHAPTER IN -- ANY OTHER PROVISI ON IN 443 OR ANY OTHER CLAIMANT FILING UNDER THE 2002 STATUTES , MANY IN PROCEEDING S PRO SE , ADEQUATELY DIRECTED THEM TO CONTINUE FILING THEIR CLAI MS WHILE THEIR CASE WAS O N AEAL.

CHIEF JUSTICE: MR . SEPLER , WE UNDERSTAND THAT YOU DID NOT REPRESENT THE PETITIONER BELOW. BUT YOU STATE IN YOUR B RIEF , SEVERAL FA CTS THAT IMPLY THAT THE PETITIONER M AY HAVE BEEN CHILLED FROM FILING HIS , CONTINUING TO FILE HIS COMPLAINT FORMS, BECA USE OF CONCERNS ABOUT FR AUD. AND IT DOESN 'T A P PEAR THAT THOSE FACTS ARE IN THE SECOND DIST RICT DEC ISION.

YES.

CHIEF JUSTICE: ARE WE TO ACCEPT THAT TH OSE ARE NOT FACTS, OR ARE YOU GO ING TO ARGUE THAT SOMEHOW THE FACTS CREATE AN ESTO EL?

YOU ARE ABSOLUTELY CORRECT. THEY DO NOT AEAR IN THE SECOND DISTRICT DECISION. WHERE I GOT THOSE FACTS F ROM IS THE AEAL REFEREE 'S DECISION, W HICH IS IN THE RECORD ON AEAL.

CHIEF JUSTICE: IN OTHER WORDS , THAT SORT OF SETS UP AN ESTOEL OR A , SOME EQUITABLE ARGU MENTS . IT DO ESN'T AEAR TO HAVE BEEN RAISED BE LOW, SO ARE WE HERE, REALLY, ON A STRICT QUESTION OF STATUT OR Y CONSTRUCTION WITHOUT REGARD TO THE FACTS?

THE FIRST QUE STION THAT I KNOW YOU WILL AD DRESS IS STATUTORY CONSTRUCTION. BEYOND THAT, BECAUS E WE ARE TALKING ABOUT W HETHER THE STATUTE, THE STATU TORY SCHEME, PROVIDED ADE QUATE NOTICE. WE BELIEVE THAT THOSE FACTS ARE IMPORTANT , BECAUSE OVER AND ABOVE THE LIMITED BUT STRICT QUESTION OF STATUTORY CONSTRUCTION, WE , S TILL , NEED TO LOOK TO WH ETHER THE UNEMPLOYMENT COMPENSATION SCHEME PROVIDES FOR THE FILING OF THAT , AND I M AYADD , YOUR HONOR , THAT THE POSITION THAT THE AELLEE HAS TAKEN , ALSO RELI ES ON THINGS THAT ARE NOT IN THE SECOND DISTRICT DE CISION. WHICH I WILL AD DRESS, BUT YOU ARE ABSOLU TELY RIGHT. THE FIRST QUESTION, I THIN K, NEEDS TO BE ADDRESSED IS WHETHER THE STATUTES , THEMSELVES, OR ANY OF THE MATERIALS THAT ARE REFERENCED IN THE S TATUTE, PROVIDES FOR THE FILING DURING THE AEALS PERI OD. OUR POSITION IS , FIR ST OF ALL, THE ST ATUTE DOES NOT PROVIDE FOR THAT . WE ARE T ALKING , A GAIN , ABOUT THE 2002 VERSION OF THE STATUTE.I AM SURE WE WILL ADDRESS --

THE STATUTE DOES REQUIREA NEW ALI CATION O R SOMETHING ON A BIWEEKL Y BASIS , CORREC T?

YES. THE STATUTE REQU IRES, WE ARE TALKING AT THIS POINT , ABOUT 443.091.THERE ARE OTHER STATUTESTHAT PLAY INTO THAT, BUT UNDER 443.091 , PARAGRAPH A THAT SAYS THAT ESSENTIALALLY THE CLAIMANT NEEDS TO FILE CLAIMS IN ORDER, IT DOES N'T EVEN USE THE WORD ELIGIBLE BUT NEEDS TO FILE CLAI MS. B, THEN , SAYS THAT , IF Y OUARE GOING TO FILE CLAIMS , YOU HAVE GOT TO, FIRST , FILE IN PERSON , AND THEN AFTER YOU DO THAT , THEN YOU HAVE TO FILE BIWEEKLY R E PORTS .

IT SAYS WHE THER THAT REMAINS TRUE ON AEAL OR NOT. LANGUAGE TO THAT EFFECT.

THAT'S CORRECT.

ARE THERE ANY FLORIDA ADMINISTRATIVE CODE PROVISIONS THAT WE SH OULD ADDRESS , FLORIDA STATUTE , TO GET TO CON STRUCTION AS MAY BE CONTAINED IN THE ADMINISTRATIVE REQUIREMENTS?

THE TWO R ULES FOR ADMINISTRATIVE PROCEDUR E, UNDER THE FLORIDA ADMINISTRATIVE PROCEDURE ACT , WHICH ARE REFERENCED IN THE THREE CASES , T HERE ARE ESSENTIALLY THREE C ASESBEFORE YOU. THE RULES THAT ARE MENT IONED IN THE THREE CASES , WE ARE TALKING ABOUT COMES TALL RELY AND TWO OTH ERS, ARE THE FLORIDA ADMINISTRATIVE PROCEDURE RULE 0.313 AND 0.315, WHICH OBVIOU SLY W E ARE TALKING ABOUT THAT. THAT, THE SAME AS THE 2002 VERSION, THERE IS NO MENTIONON WHAT HAENS TO CASES ON AEAL. WHAT WE HAVE HERE IS THAT --

IT DOES SAY THAT A CLAIMANT IS REQUIRED TO REPORT BY MAIL , BIW EEKLY .

YES. THAT'S CORRECT. THAT IS WHAT THE STATUTES AID.

IT DOESN'T SAY ANYTHING , PERIOD, I MEAN , THAT THERE IS ANY CON DITION TO THAT BEING THE REQUIR EMENT .

IT, I F I UNDERSTAND YOU R QUESTION, YOUR HONOR , IT DOES NOT SAY ANYTHING ABOUT THE AEALS PERIOD. IT DOESN'T QUALI FY ANYTHING OTHER THAN YOU ARE TO REPORT BIWEEKLY .

THAT INSTRUCT ION IS , ALSO , GIVEN TO CLAIMANTS IN WRITING .

THIS IS A PROBLE M, A NDTHIS IS A PROBLEM WIT H THE RECORD THAT WE HAVE BEFORE YOU. THE RE CORD DOES NOT SHOW THAT THIS CLAIM AND THE WAS ADVISED THAT HE WAS -- THIS CLAIMANT WAS ADVISED THAT HE WAS TO REPORT DURI NG THE AEALS PERIOD , UNTIL AFTER THE AEALS PERIOD HAD GONE BY FAR. THAT IS THE FIRST TIME T HAT THE RECORD SHOWS THAT HE WAS ADVISED BY ANYTHI NG, BY ANY OTHER MATERIALS, THAT --

I THOUGH T THERE WAS INFORMATION IN THE RECORDTHAT INDICATES YOU CAN GO ONLINE AND GET THESE FORMS , AND THAT THE FORM AC TUALLY SAYS THAT YOU ARE TO REPORT , EVEN DURING THE TIME WHEN THERE IS A DISPUTE AND T HEREIS A AEAL PE NDING . ONLINE.

MY READING OF THE RECORD , YOUR HONOR, IS THAT FIRST OF ALL WHAT HAENED IS THAT MR . COSTARELL IN ITIALLY WENT ONLINE. THERE IS NOTHIN G IN THE RECORD TO SAY WHAT THE FORMS ARE. HE AARE NTLY DOWNLOADED ORAT LEAST ACCE SSED SOME FORMS ONLINE AND THEN , O NCE HE D IDTHAT, HE WAS, THEN , SEPTEMBER, AND THIS IS IN THE RECORD, THIS IS IN T HETRANSCRIPT BEFORE THE AEALS REFEREE, ON CE HE D IDTHAT, HE WAS, THEN, SEPTEMBER CHEC KS INITIALLY , FOR, WITHOUT LO OKING I CAN'T REM EMBER THE NUMBER O F WEEKS. LIKE SIX WEEKS.

ARE YOU SAYING THAT THOSE FORMS DO NOT SAY THAT YOU HAVE TO CONT INUE TO FILE YOUR REQUEST DURING AN AEAL PERIOD?

TO BE QUITE HONEST W ITH YOU , I DON'T KNOW THE ANSWER TO THAT. WHAT I DO KNOW IS THAT , WHAT WAS, I DO K NOW THAT MATERIALS THAT WERE CONSIDERED BY THE LOWER COURT AND BY THE UNEMPLOYMENT AEALS COMMISSION, THE RE WAS NO REFERENCE AT AL L TO THE FORMS , OTHER THAN IN T HETRANSCRIPT BEFORE THE AEALS REFE REE. HE SAID , "I WAS ABLE TO GO AND ACCESS SOME FORMS ." BUT, AG AIN , THE FORMS WERE NOT THE BASIS FOR THE SE COND DISTRICT DECISION.

CHIEF JUSTICE: LET'S G O BACK TO WHAT WAS THE BA SIS. WE ARE HERE ON DECI DING WHETHER 443 .091 PL AINLY REQUIRES THAT , IN ORDER TO BE ELIGIBLE , THAT THERE MUST BE A CLAIM MA DE. IS THAT --

THAT IS THE INITIAL DETERMINATION.

CHIEF JUST ICE: SO AS I READ IT, IT IS HARD TO R EAD IT AS SAYING OTHER THAN THAT YOU SHALL BE ELI GIBLE TO RECEIVE ONLY IF THE DI VISION FINDS SHE OR HE HAS MA DE A CLAIM FOR BENE FITS. I DON'T KNOW , THE THIRD DISTRICT SEEMS TO TAKE SHALL AND PUT IT TO MAY , BUT TELL ME HOW THAT DOESN'T SQUARELY ADDRESS THE FACT THAT THEY DID THEIR DUE DILIGE NCE OR NOT , S INCE WE ARE NOT HERE LOOKING AT THE FACTS. BUT THAT CLEARLY SHOWS THE LEGISLATIVE INTENT TO M EAN THAT IT IS TO BE FILED FOR WHATEVER PERIOD THAT THE PERSON IS CLAIMING UNEMPLOYMENT COMPENSA TION.

LET ME REVI EW , FIRST OF ALL, THAT THE STATUTE IS A NOTIFICATION STATUTE. 443.091 IS A NOTIFICATION , SO WHETHER WE LOOK, IF I MAY ANSWER THIS, WHETHER W E LOOK TO THAT, I THINK WE ARE CONSTRUING WHETHER THIS STATUTE ADEQUATELY NOTIFIESTHE PEOP LE THAT ARE GO ING TO BE LOOK ING AT THE STATUTE. THEN PROCEEDING PRO SE , WHETHER IT ADEQUATELY NOTIFIES THEM THAT YOU H AVE TO AEAL DURING THE AEALS PERIOD. THEN I THIN K AT THAT POIN T, WE LOOK AT WHAT THE WO RDING OF 443.091 IS. 443.091 AND THE SAME THING WITH 1 11 AND THE SAME THING WITH 1 A 1, ALL, SAY YOU HAVE TO - - 1 51 , ALL SAY YOU HAVE TO REPORT, BUT AGAIN , THERE IS NO ME NTION AFTER AEALS PERIOD, AND IRONICALLY, THE SEC OND DISTRICT, THEN, CITE D TO THE 2003 MAGISTRATE , WHICH S AID YOU HAVE TO ALY DURING THE AEALS PERIOD . IRONICALLY THAT WAS CI TED BY THE SECOND DISTRICT A S SUORTING AUTHORIT Y THAT THIS WAS THE LEGISLATION , AND ON THE OTHER HA ND, WHAT I BEL IEVE IS THE CORRECT WAY OF LOOKING AT 2003 AMEN DMENT , IS THAT THE LEGIS LATURE REALIZED THAT IT HADN'T SUFFICIENTLY PUT IN THE 2 002 VERSION OF THE STATUTE , ANYTHING ABOUT THE AEALS PERIOD!

CHIEF JUSTICE: IS THE , HOW LONG WAS THE LANGUAGE THAT WE ARE NOW INTERPRETING IN THE STATUTE ?

THE , WELL , I KNOW THAT IN SAVAGE AND IN DI ME S , IT GOES BACK TO THE 19 96 VERS ION.

CHIEF JUSTICE: IT IS IMPORTANT, BECAUSE YOU HAVE GOT A STATUTE, THEN , THAT HAS BEEN INTERPRETED SINCE 1999 AS SAYI NG IT IS NOT MANDATORY NOTIFICATION. YOU LOOK AT THE HARMLESS-ERROR ANALYSIS AND THE CHANGE IS NOT MADE BY THE LEGISLATURE , UNTIL 2003. SO AS FAR AS THE TI MING OF THIS, I WAS INTERESTED I N KNOWING HOW LONG THE STATUTE HAD BEEN --

I DO KNOW THAT THERE IS , OF COURSE, A BODY OF LAW THAT SAYS , WHEN A STATUTE IS CHALLENGED AND THEN WHEN THE LEGISLATURE COMES BA CK IN THE NE XT SE SSION AND CHANGES THE STATUTE IN S OME WAY , THAT I T CAN BE LOO KED AT UNDER THE F I NY CASE AND OTHER CASES, THAT IT CAN BE LOOKED AT AS THE LEGISLATURE'S ORIG INAL INTENT WHEN EN ACTING T HESTATUTE.OF COURSE THIS ISN'T THE NEXT LEGISLATIVE SESSION. IT DOESN'T MUCH MA TTER , WITH ALL DUE RESPECT, BECAUSE ITHINK THAT WHAT W E NE ED TO LOOK AT WHEN WE ARE INTERPRETING 443.091 AND T HESTATUTE, IS HOW IS THE REASONABLE CLAIMANT, MANY OF WHOM ARE PRO SE , HOW DO THEY INTERPRET THAT STATUTE IN THE LIGHT OF, DOES IT GIVE THEM ADEQUATE NOTICE?

LET ME ASK YOU A QUESTION. THE REASON ABLE PERSON SEEKING BENEFITS UNTIL THEY CAN BECOME REEMPEMPLOYED. I THINK ANY BODY GOING IN THERE KNOWS THAT THIS IS A STOPGAP BENEFIT AND THAT IF YOU LOSE EMPLOYMENT , THATYOU HAVE A LI MITED ENTITLEMENT TO SOME BENEFITS , UNTIL YOU CAN GET REEMPLOYED. DO YOU A GREE WITH THAT?

YES.

AND DURING THAT PERIOD OF TIME, YOU HAVE TO CONT INUE TO SEEK EMPLOYMENT AND FILE THESE REGU LAR REPORTS A ND, AS SOON AS YOU GET EMPLOYED, THE BENEFIT ST OP. IS THAT RIGHT ? SO IF A PERSON IN THAT CIRCUMSTANCE COULD READ THE STATUTE AND IT SAYS AN UNEMPLOYED INDIVIDUAL SHALL BE AB LE TO REC EIVE BENEFITS WITH RESPECT TO WEEK TO WEEK ENTITLEMENT, ONLY IF THE DIVISION FINDS THEY HAVE MADE A CLAIM FOR THAT WEEK . HOW IS THAT UNAMBIGUOUS?

IT IS UNAMBI GUOUS , BECAUSE THIS, OF COURSE, TAKES US BACK TO WHAT W ASTHE DI CTUM FIRS T IN THE SAVAGE CASE AND THEN BECA ME A HO LDING IN THE DI NES CASE, HOW DO WE INTERPRET T HAT PROVISION THAT SAYS YOU HAVEGOT TO REPORT E ACH WEEK, ONCE YOUR CLAIM HAS BEEN DENIED. WOULD THE REA SONABLE CLAIMANT IN THIS SITU ATION, MANY OF WHOM ARE PRO SAYS SAY, WOULD A REAS ONABLE -- PRO SE , WOU LD A REASONABLE CLAIMANT INTERPRET THAT ON AEAL, ONCE THE CLAIMS HAVE BEEN DENI ED? IF WE GO TO A ST RICT CONSTRUCTION OF THE STATUTE,IT DOES NOT SAY ANYT HING ABOUT CLAIMS, PERIOD. I UNDERSTAND IT HAS GOT GEN ERAL LANGUA GE IN T HEREBUT IN 2003 IN RESP ONSE TO THE DINES AND THE SA VAGE CASE, IT WAS INTERPRETED .

ONCE YOU HAVE MADE A CLAIM FOR A THREE-WEEK PERIOD, IT IS DENYING AN AEAL AND YOU ACCE PT THE CLAIM, THEN THERE IS NOTHING THAT PERSON NEEDS TO DO FOR THE NEXT NINE WEE KS , A S FAR AS FILING THE REG ULAR CLAIM , SEEKING EMPLOYMENT , AND FILING FOR EMPL OYMENT AND SEEKING EMPLOYM ENT. NOTHING ELSE . FILING A AEAL , BASICA LLY, ENTITLES HIM TO --

I THINK SO.I THINK , WHILE THE AEAL IS GOING FORWAR D AND T HEDEPARTMENT OR THE AGENCY FOR WORK FORCE INNO VATION KNOWS THAT THE AEAL IS GOING FORWARD , I THINK THE PRESUMPTION SHOULD BE THAT THIS INDIVI DUAL IS SE EKING BENEFITS, AND HIS STATUS HASN'T CHAN GED .

LET ME ASK A QUESTIO N THIS WAY, WHAT IF THE UNEMPLOYMENT AEALS COMMISSION HAD RU LED I N YOUR CLIENT'S FA VOR , AND THE STATE WAS AEAL ING THE DETERMINATION THAT YOUR CLIENT WAS ENTITLED TO UNEMPLOYMENT BENEFITS . WOULD YOU AR GUE THAT, IN THAT I NSTANCE THEN , YOUR CLIENT NEED NOT FILE A C LAIM , EVERY T WO WEEK S?

I THINK SO .

IF THE UNEMPLOYMENT COMMISSION DETERMINES , AS OF SEPTEMBER 1 , YOUR CL IENT IS ENTITLED TO UNEMPLOYMENT BENEFITS, THEN FOR THE ENTIRE PENDEN CY OF THE AEALS PERIOD, IT COULD B E OVER A YEAR , YOUR CLIENT DOESN'T HAVE TO PROVE THAT HE IS ST ILL SEEKING EMPLOYMENT AND HAS BEEN DENIED EMPLOYMENT. HE CAN JUST GET UNPLOIME NTD BENEFITS WITH OUT - - UNEMPLOYMENT BENEFITS WITHOUT SEEKING ANY JO B.

I THINK IN THE S E NSE, RATHER AL IKE A PRESUMPTION , I THINK AN ACCESS RES PONSE THAT THE INDIVIDUAL IS SUOSE -- AN ACT IVE RESPONSE THAT THE INDIVIDUAL IS SU OSED TO MAKE AND YOU HAVE A PASSIVE ONE. ONCE THERE HAS BEEN ACTIVELY SEEKING BENEFITS AND THE BENEFITS ARE NOT FORTHCOMING FOR WHATEVER YOUR SIT UATION , THEY WERE FORTHCOMING BUT NOW HAVE STOED BECA USE THE AEAL IS PENDING , I AM NOT SURE THAT CIRCUMSTANCE , WHETHER THE BENEFITS WILL HAVE STOP PED, OR IF THEY HAVEN'T STOED, THEN , O F COURSE, YOUR QUESTI ON HAS BEEN ANSWERED , BECAUSE IT IS STILL PENDING. IF THEY HAVE BEEN STOE D, I THINK AT THAT POINT THERE ARE PRESUMPTION THAT IS THERE IS A ACTIVE AEAL PENDING. THE INDIVIDUAL HAS NOT ACTIVELY P ULLED OR SOMEBODY -- ACTIV ELY TOLD O R SOMEBODY HAS REPORTED THAT HIS STATUS HAS CHANGED , I THINK THERE IS A PRES UMPTION THAT HIS ENTITLEMENT AND HIS REQUEST FOR CLAIMS IS STILL FORTHCOMING, YE S, YOUR HONOR.

IN YOUR EXAMIN ATION OF THE RECORD HERE , I SEE THAT , WITH THE UNEM PLOYMENT AEALS COMM ISSION ACTED IN THIS CASE THAT, THE ONLY PREVAILING LAW OUT THERE WAS THE LAW FROM THE THIRD DISTRICT. WHICH THE UNEMPLOYMENT AEALS COMMISSION IN THIS CASE, AARENTLY RULED CONTRARY TO THE LAW FROM T HE THIRD DI STRICT. CAN YOU EXPL AIN OR I S THERE ANY EXPLANATION IN THE RECORD, HOW THE COMM ISSION FELT IT COULD IGNORE THE PREVAIL ING LAW FROM THE THIRD DISTRICT?

NO , I CAN 'T. I THINK THAT THE FIRST AELLATE COURT THAT I SAW THAT RULED ON A STATUTE OF THIS STATUTE , WAS THE THIRD DISTRICT IN SAVAGE AND DINES , AND I DI DN'T FIND ANYTHING IN BETWEEN, SO I THINK YOU HAVE THAT, AND IT SEEMS TO ME THAT THE , THAT I CAN'T EXPLOIN PLAIP TO YOU WHY IT WAS THAT -- EXPLAIN TO YOU WHY IT WAS THAT THOSE C ASESWEREN'T ON, OTHER THAN T O SAY THAT WE SI MPLY DON'T AGREE WITH THEM .

I NOTICE, TOO , THAT THE THIRD DISTRICT IN SUBSTANTIAL FOOTNOTES IN THEIR CASE , IN THE ORIG INAL ONE THERE , AARENTLY WAS VERY CONCER NED THAT THE COMMISSION WAS FO LLOW ING ITS DECISION.

I ABSOLUTELY AGR EE WITH YOU. I KNOW THAT THAT WAS SAVA GE, AND SAVAGE WAS THE FIRST THING THAT HAENED. THE DI VISION HAD DENIE D BENEFITS AND COM E UP FOR AEAL. THE THIRD DISTRICT RULES IN FAVOR OF THE CLAIMANT , AND ISSUES A MAND ATE, AND AT THAT POINT IT IS NOT THAT THEY DENI ED OR THEY PU T A LIMITATION ON IT. THEY SAID , W ELL , ESSENTIALLY YOU HAVE GOT BENEFITS BY T HETHIRD DISTRICT BUT WE ARE GOING TO SUBTRACT FROM THA T ALL OF THE TIME THAT YOU ARE AEAL, AND THIS IS E VEN WHAT IS IN THE FOO TNOTE , THE THIRD BECAME VERY CONCERNED ABOUT THAT, AND THAT BEC AME THE FIRST GROU ND IN THE SAVAGE CASE .

CHIEF JUSTICE: THE THIRD DISTRICT'S DECISION IS THAT THE 443. 091 A LIES , BUT THAT IT IS, IT IS NOT A MANDATORY , IT IS SUBJ ECT TO THE UNEMPLOYMENT COMPENSATION COMMISSION SHOWING PREJUDICE. YOUR ARGUMENT IS THAT I T DOESN'T ALY AT ALL. SO IT IS A DIFFERENT STATUTORY CONSTRUCTION ARGUMENT. DO YOU AGREE WITH THAT?

WHEN I READ THE D INESDECISION, THERE IS A SENTENCE IN THERE THAT SAYS THAT THE STATUTORY REQUIREMENT DOESN'T ALY, BECAUSE IT IS M ERELY ADVISORY AND THEN IT GOES O N TO TALK ABOUT HARMLESS ERRO R, BUT THE WAY I READ THAT IS NOT NECESSARILY ACKNOWLEDGING THAT THERE IS A STATUTORY REQU IREMENT. IT IS MORE LIKE , IF , I F THERE WAS A STATUTORY REQUIREMENT , IT W OULDN'T , IT WOULDN'T BE ENFORCEABLE F ORTHE FOLLOWING ROPES. AGAIN, I DON'T WANT TO STR AY TOO FAR FROM WHAT THE CR UX OF THE CASE IS. HOW DO WE INTERPRET T HELANGUAGE OF THE 2002 VERSIONAND WHAT HAENS TO THOSE CLAIMANTS WHO FALL WITHIN THE WI NDOW PERIOD , BETWEEN THE 2002 VERSION AND THE 2003? I BELIEVE THAT, CON TRARY TO THE CONSTRUCTION O F THE 2003 AMENDMENT THAT, THE SECOND DISTRICT GAVE TO IT , THAT ACTUALLY WHAT THE 2003 AMENDMENT PROPERLY SH OULD BE LOOKED AT, I S THE LEGISLATURE HAS , NOW , REALIZED, EITHER FOR THEFIRST TIME OR THE FIRST TIME IT I S BEING EXTRACTED, T HEREIS A PROBLEM THAT CLAIMANTS AND COURTS AREN'T UNDERSTANDING THAT THIS ISWHAT THE LEGISLAT URE WOULD LIKE TO SEE.

CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL. I KNOW YOU HAVE A SHORT TIME FOR REBUTTAL. I WANTED TO RE MIND YOU.

THANK YOU VERY MUC H. I AM NOT FAMILIAR WITH T HELIGHTS UNFORTUNATELY.

CHIEF JUSTICE: WE MAY WORK ON A BETTER LIG HTING SYSTEM HERE.

ACT UALLY I T WAS FI NE. IF I WAS UP HERE OF TEN ENOUGH, I WOULD BE FAMILIARWITH THAT. THE QUESTION IS WHAT HA ENS TO THOSE CLAIMANTS WHO ARE FILING THEIR CLAIMS DURING THE WIN DOW PERIOD. THE LEGISLATURE, I THINK, CORRECTED THE INADEQUA CY OF THE 2002 VERS ION OF THE STATUTE, SO THAT ANY C LAIMAPARTMENTS WHO ARE NOW FILING UNDER THE 2003 STATUTE, THERE IS NO QUESTION. THEY HAVE GOT TO FILE DURI NG THE AEALS PERIOD , BUT OUR CASE, JUST LIKE IN, I KNOW YOU HAVE AN OTHER CASE , THOSE CASES ARE STILL WITHIN THE WINDOW PERIOD , AND WHAT IS THE PROPER WAY OF CONSTRUING WAS THAT THE NOTIFICATION REQUIREMENT OF 443.091 ANDTHE OTHER STATUTES HAVE BEEN FULFILLED, AND I THINK THE PROPER WAY OF CONSIDERING THAT IS THAT THEY SIM PLY DON'T MEET THE NOTIFICATION REQUIREMENTS.

CHIEF JUSTICE: YOU WANTTO SAVE THE REST OF YOURTIME FOR REBUTT AL?

ABSOLUTELY .

CHIEF JUSTICE: MR. MA HER.

MAY IT PLE ASE THE COURT.I AM JO HN D MAHER AND I REPRESENT THE FLOR IDA UNEMPLOYMENT AEALS COMMISSION. I ALSO REPRES ENTED THE COMMISSION SEVEN YEARS AGO, WHEN THE SAVAGE CASE WAS DECIDED AND SIX YEARS AGO, WHEN THE DINES CASE WAS DECIDED.

CHIEF JUSTICE: IN T ERMS OF THE FACTS, CAN YOU TELL US IF HE HAD CONTINUED TO FILE, WOULD HE HAVE BEEN ELIGIBLE DURING THIS AEALS PERIOD? IN OTHER WORDS IS THIS A SITUATION WHERE , ON THE MERITS , HE WOULD, HE SUCCEEDED , BUT , WELL , YOU DON'T THINK IT IS A GOT CHA , BUT IT IS A SITUATION WHEREYOU WONDER THE BATTLE BUT YOU LO ST THE WAR, BECAUSE YOU FORGOT TO FILE DURING THIS PERIOD OF TIME ?

IF HE FILE D AND HE ME T THE REQUIREMENTS THAT HE MUST STARR -- ESTABLISH UPON EACH FILING , NAMELY SET FORTH IN 443.111 P AREN 1.8 , IT STAT ES THAT EACH CLAIM SHALL MOVE FORWARD IN THE MANNER PRESCRIBED - -

CHIEF JUSTICE: I UNDERSTAND THE REPORT FILING , BUT IN OTHER WORD S HE WAS FIRST, LE T ME JUST, SO WE GET THIS STRAIGHT. HE WAS RECEI VING CHEC KS , ANDHE WAS G IVEN CLAIMS FORMS , AND THEN AT SOME POINT , HEWAS TOLD HE WAS NO LO NGER ELIGIBLE, AND AT THAT POINT, IS WHEN HE AEALED . WOULD HE HAVE , IF HE HAD CONTINUED TO FILE THE CLAIMS FORM, WOULD HE HAVE ON THE MERITS OF ELIGIBILITY , HAVE WON THAT DE CISION , OR DID THEY NEVER REA CH THE IS SUE BECAUSE HE HADN'T FILED?

WELL , YES , IF HE H ADFILED AND HE HAD ATTEST TED TO THE FACT THAT HE HADN'T EARNED ANY MO NEY , THAT H E HAD SOUGHT EMPLO YMENT, IF HE HAD DONE AL L OF THOSE THIN GS UPON FILING, YES , HE WOULD HAVE QUALIFIED.

CHIEF JUSTICE: SO WHAT WAS THE REASON HE WAS DETERMINED TO BE INEL IGIBLE?

BECAUSE HE DIDN'T FILE. BECAUSE --

CHIEF JUSTICE: HE WAS ORIGINALLY GETTING CHEC KS.

CORRECT.

CHIEF JUSTICE: HE WASTOLD HE WASN'T EL IGIBLE.

CORRECT.

CHIEF JUSTICE: SO NOW YOU ARE SAYING THAT THE ONLY REASON HE DI DN'T WIN WAS BECAUSE HE DIDN'T CONTINUE TO FILE.

CHAERK.

CHIEF JUSTICE: WELL , DOESN'T THAT LE AD TO A POTENTIAL ABUSE OF THE SITUATION, WHERE SOME BODY , THE WAY YOU COULD END UP NOT GETTING THE MONEY IS TO S AYTHEY ARE REALLY ELIGIBLE BUT WE ARE GOING TO DENY IT, A NDTHEN DURING THE TIME THEY ARE AN AEAL -- THEY ARE ON AEAL, WE WILL LET THEM THINK THEY DON'T HAVE TO FILE ANYM ORE OR WORSE HERE , WE WILL TELL THEM THAT MAY BE THEY WERE SUBJECT TO FR AUD FOR OVERPAYMENT AND THEN WE DON'T HAVE TO PAY OVER T HAT PERIOD OF TIME, EVEN IF THEY WERE ELIGIBLE ON THE MERITS.

THE AEAL COULD T AKE MONTHS O R A DISTRICT COURT OF AEAL COULD TAKE MONTHS. DURING THAT TIME HE IS NOT GOING TO REPORT EVERY TWO WEEK PERIOD. THE STATUTE GIVE S HIM T HEABILITY TO CONTINUE TO REPORTING ON HIS CLAIM AND IT IS A MA TTER OF STATUTORY ENTITLEMENT.

CHIEF JUSTICE: YOU WOULD AGREE THAT IT PUTS A PETITIONER SU CH AS THIS PETITIONER, IN A DIFFI CULTSITUATION.NOW IT IS SPECIFICALLY SET FORTH THAT THIS M UST BE DONE , BUT THE QUESTION IS , WAS IT SPECIFICALLY SET FORTH UNDER THE 2002 VERS ION?

THAT IS WHY THEY ARE TOLD , WHEN THEY GET AN AD VERSE DETERMINATION , ON THE F ACE OF THE DETERMINATION, I T SAYS, IF YOU ARE ST ILL UNPLOIMD, YOU MUST CONT INUE REPORTING ON YOUR CLAIM UNTIL IT IS RESOLVED.

MR. MAHER , IF MR . CA TC H RELY COME TO ME -- IF MR . COSTARELL CAME TO ME AND SAID HE HAD TO FILE THE BENEFIT CLAIMS FORM S, I WOULD SAY I AM LOOKI NG AT THE THIRD DISTRICT DECISION AND, NO, YOU DON'T, SO I AM A LITTLE CONCERNED ABOUT HO W, WHEN THE ONLY LAW OF THE STATE THAT IS OUT THERE , IS SAYING THAT IT IS NOT NECESSARY, HOW DOES T HAT WORK IN THIS SITUATION , TO BRING THE PETITIONER RESIDENT TO THE CASE ?

IT DID LEAD TO THE 2 002 AMENDMENT, ADDRESSED SPECIFICALLY --

CHIEF JUSTICE: I AM TALKING ABOU T MR. COSTAR ELL . LET'S SAY HE GOES TO A LAW LIBRARY, AND HE READS THE DINES CASE .

THE INFORMATION SPECIFICALLY BEING GIVEN BY THE AGEN CY SAYS YOU MUST CONTINUE REPORTING ON YOUR CLAIM, IN ORDER --

I AM VERY CONCERNED HERE , YOU TELL ME HOW YOUR COMMISSION HAD ANY AUTHORITY , AFTER BEING A PA RTY IN B OT H OF THE CASES I N THE T HIRDDISTRICT, THAT LED TO A CONTRARY RULING , HOW YOUR COMMISSION, THEN, HAD ANY AUTHORITY TO RUL E TO THE CONTRARY OF WHA T YOU W ERE TOLD THE LAW WAS BY T HETHIRD DISTRICT COURT OF AEAL, WHEN YOU PARTICIPATED IN THAT. YOU WERE A PARTY TO THAT , AND I ASSUME, I DON'T AS SUME , TELL ME WHAT AUTH ORITY THAT THE COMM ISSION HAD , THEN , TO IGNORE THE LAW THAT THE THIRD DISTRICT TOLD HIM WAS ALICABLE TO THESE SITUATIONS IN THIS CASE!

THEY ALIED THE LAW IN THE DINES CASE. THEY DIDN'T ALY THE LAW THAT IS WRITTEN BY THE THIRD DCA IN THIS CASE. THEY ALIED THE LAW AS THIS LEGISLATURE HAD PROVIDED , WHICH IS REQUIRED IN THIS VERSION.

IN YOUR CASE , THE UNEMPLOYMENT A EALS COMMISSION WAS A PARTY , CORRECT?

YES.

IN THE THIRD DISTRICT CASE IN DINES, THE UNEMPLOYMENT AEALS COMMISSION WAS A PARTY IN NOT ONE BUT TWO SUCCESSIVE AEALS.IS THAT CORRECT?

THAT'S CORRECT, YOUR HONOR.

ARE YOU TELL ING ME THAT, SOMEWHERE ELSE IN THE STATE , AFTER A DISTRICT COURT OF AEAL RULES , WITH THE UNEMPLOYMENT AEALS COMMISSION BEIN G A PART Y TO THAT AEAL , THAT THEY ARE NOT BOUND BY THE LAW OF T HAT DECISION AFTER THAT AND T HAT THEY CAN IGNORE IT ?

I CAN ONLY SAY WHAT HAENED, YOUR HONOR. I CAN'T --

IN OTHER WOR DS, TELL ME , YOU , NOW , H AVE SA ID THAT , IN YOUR INTRODUC TORY REMA RKS , THAT YOU WERE THE LAWY ER FOR THE COMMISSION IN BOTH O F THE THIRD DISTRICT, SO W E DON'T HAVE ANY PROBLEM ABOUT YOU KNOWING WHAT THE LAW IS. DID YOU ADVI SE THE UNEMPLOYMENT AEALS COMMISSION THAT THEY HAD THE RIGHT TO IG NORE THE THIRD DISTRICT DECISION?

NO , YOUR HONOR.

TELL ME HOW THAT CAME TO PASS, SINCE YOU HAVE BEEN THE LAWYER REPRES ENTING THIS COMMISSION THROUGHOUT THESE PROCEEDINGS?

I CAN' T TELL YOU H OW. THERE WAS TWO DIFF ERENT COMMISSIONS.

SO YOU TOLD THE COMMISSION THAT THEY WERE BOUND BY THE THIRD DISTRICT .

THAT IS NOT WHAT I SAID.

IS THAT R IGHT ?

YOU WOULD RECOGNIZE THAT THIS COURT HAS TOLD HE LD THAT THE LAW OF A DISTRICT COURT IS THE LAW AND THE DISTRICT COURT RULES THAT , IS THE LAW . IT DOESN'T MAKE ANY DIFFERENCE, CORRECT? IT DOESN'T MAKE A NY DIFFERENCE. THIS IS IN THE SE COND DISTRICT. THE THIRD DIST RICT WAS THE LAW OF FLORIDA.

THAT'S TRUE. I UNDERSTAND THAT PRINCIPLE , AND, BUT NEVERTHE LESS THE SECOND DISTRICT DID A GREEWITH THE COMMISSION AND DISAGREE WITH THE THIRD DISTRICT COURT OF AEAL.

THEY DID, ONLY AFTER THE AEALS COMMISSION HAD SE LF , IGNORED THE DECISION OF THE THIRD DISTRICT. IT WOULD BE A DIFFERENT STORY , IF THE AEALS COMMISSION HAD RULED CONSISTENT WITH WHAT HAD HAENED THERE , IT THOUGHTTHAT THE IS SUE , TO RULE CONTRARY, THEY HAVE BEEN A PARTY TO THAT CASE , THAT JUST , AND YOU A REREPRESENTING TO THIS COURT THAT YOU ADVISED T HECOMMISSION THAT THEY WERE BOUND BY THE THIRD DISTRICT DECISION.

I ADVISED THEM WHAT THE DECISION SA ID. I DIDN'T SAY --

I SEE .

THE CHAIRMAN OF THE COMMISSION IS A LAWYER. HE HAS THE QUALIFICATIONS OF A CIRCUIT JUDGE. HE CAN READ THE OPINION AS WELL AS I CAN.

I SEE . SO YOU PLA YED NO ROL E IN ADVISING THEM.

IT IS NOT A MA TTER OF ME TELLING THEM WHAT IT SAYS. THEY CAN DETERMINE THAT F ROM --

HOW MANY COMMISSIONS ARE THERE?

THERE ARE THR EE . DETERMINATIVE COMMISSION AND THE --

ONLY ONE COMMISSION WITH THREE COMMISSIONERS?

THERE IS A CHAIRMAN WHO IS A FULL-TIME OFFI CER. THE OTHER TWO ARE PART -TIME OFFICERS.

FOR THE E NTIRE STAT E?

FOR THE EN TIRE STATE . NOW, WHAT I WOULD REALLY LIKE TO GET BACK TO IS ADDRESSING THE DIFFERENCE BETWEEN THE SECOND DISTRICT COURT OF AEAL S AND O P INION AND THE THIRD DISTRICT C OURT OF AEALS OPINION, TO DEMONSTRATE THAT THE COURT WAS WRONG IN THE THIRD DISTRICT, WHEN IT DECIDED SAVAGE AND DINES.

WELL , THE STATUTE IS V ERY CLEAR , NOW , IS IT NOT? IT HAS AN EX PRESS PROVISION THAT, EVEN PE NDING AEALS , THIS FILING SHALL CONT INUE?

WHAT IS NOT CLEAR , TH OUGH , IS THE DINES - -.

I ME AN, THAT IN THE STATUTE NOW?

YES.

IS THAT CORRECT? NOW, THAT WASN'T IN THE STATUTE BEFORE, WAS IT?

IT DIDN'T MENTI ON ON AEAL. IT MEN TIONED AL L THE TIME , THOUGH, SO THAT WOULD ENCOMPASS ON AEAL. THAT WAS THE WAY THE STATUTE WAS WORD ED. IT DIDN'T NEED TO SAY THAT. NOBODY DECIDEDED NEEDED TO SAY THAT UNTIL DINES C AME OUT.

CHIEF JUSTICE: DINES CAME OUT IN WHAT YE AR?

I THINK IT WAS - -

CHIEF JUSTICE: 1999?

YES. 1999.

CHIEF JUSTICE: WELL, IN 1999, THE COMMISSION KNOW S THAT IT NOW HAS AN ADV ERSE RULING , SO FOR THE , T HEY DON'T SEEK TO CHANGE THE L AWUNTIL 2003, AFTER THE SECOND DISTRICT SU ORTS WHAT , THEIR INTERPRETATION. NOW, THIS STATUTE WAS PA SSED ORIGINALLY IN WHAT YEAR ? THE WAY IT READ IN 2002. HOW LONG HAD IT READ THAT WAY?

AT LEAST '9 7.

CHIEF JUSTICE: HOW WAS THE I DEA THAT THEY HAVE NOW , IN 2003 , FOUR YEARS AFTER DINES , AND SE VEN YEARS AFTER THE ORIGINAL TIME THIS STATUTE WAS SE T, HOW WOULD WE INTERP RET THAT INDICATION OF LEGISLATIVE INTENT BA CK IN 1997, AS OOSED TO MR . SEPLER ARGUES , LOOKIN G AT IT AND SAYING YOU KNOW , I SEE HOW THE THIRD DISTRICT READ IT AND THE SECOND DISTRICT CAN BE CONFUSING. WE BE TTER MAKE CLEA R, OUR INTENT, THAT THIS SH OULD CONTINUE DURING THE AEALS PROCESS.

THE AMENDMENT TOOK PL ACE PRIOR TO C O STARELL BEING DECIDED BY THE D CA. AS FAR AS HOW SOON THE STATE SOUGHT AN AMEN DMENT , I CAN'T SAY FOR SURE. IT DIDN'T SUCCEED IN GETTING AN AMENDMENT UNTIL THE 2003 STATUTE.SOMETIMES THE PROCESS T A KES LONGER TO GET IMPLEMENTED AND WHAT IS GOING ON IN THE LEGISLATURE, IT IS NOT A SIMPLE MATTER. I THINK THIS COURT UNDERSTANDS THAT, THAT LEGISLATION IS NOT INSTANTANEOUS, AND THE UNEMPLOYMENT COMPENSATION MAY NOT BE THE HIGHER PRIORITY IN THE LEGISLAT URE AT A GIVEN POINT IN TIME .

CHIEF JUSTICE: SO, AGAIN , YOU ARE SAYING THAT DUR ING THE PERIOD OF TIME 1999 TO 2002, THE LEGIS LATURE , THE UNEMPLOYMENT AEALS COMMISSION, IS THAT WHO WAS THE ENTITY , IT WOULD --

THE AGEN CY THAT AC TUALLY IMPLEMENTS THE PROGRA M IS THE AGENCY FOR WORK FORCE INNOVATION.

CHIEF JUSTICE: THEY REALIZE THERE IS A PROBLEM OUT THERE, AND THEY REALIZE THE SOL UTION , IS TO G O TO THE LEGISLATURE .

EVENTUALLY .

CHIEF JUSTICE: I GUES S IS STILL AND I DON'T WANT TO BEAT DEAD HORSE ABOUT IT , IT STILL, THE IDEA THAT THEY WOULD, THEN , TELL THE COMMISSIONERS THAT THEY CAN , REALLY, IGNORE THE THIRD DISTRICT OPINION, IS , STILL , SOMETHING THAT CONC ERNS ME . WOULDN'T THAT BE THE REA SON TO SAY THERE IS REAL LY AN ESTOEL UNDER THESE CIRCUMSTANCES, THAT THE LEGISLATION ISN'T CLEAR , SOMEBODY IS , FI RST , GIVEN BENEFITS THEN IS TOLD THAT HE, THERE HAS BEEN AN OVERPAYMENT AND MAY BE SUBJECT TO FRA UD, AND THE ONLY REASON THAT THEY A REDENIED THE BENEFIT IS BECAUSE THEY DIDN'T REPORT , EVEN THOUGH THEY ARE TOLD THAT THEY WEREN'T ELI GIBLE ANYMORE?

WELL , EXCE PT THAT THAT WOULD IGNORE AND LEAVE UNRESOLVED THE CONF LICT BETWEEN THE SECOND DCA AND THE THIRD DCA , ON THE I SSUEOF WHAT THIS 2002 STATUTE MEANT.

CHIEF JUSTICE: THAT IS ONLY AS NAR ROW, THERE IS HOW MANY OTHER CASES DO WE HAVE THAT FIT THIS WI NDOW ?

I MEAN, AT WHAT LEVE L

CHIEF JUSTICE: YOU CAN'T SAY?

I KNOW THERE ARE C ASESOUT THERE , BUT BE YOND THAT, I COULDN'T SAY.

DOES THE REGU LATION SAY , CONTINUE TO SAY FOLLOW THE DINES DECISION , THAT A REPORT WAS TO B E MA DE?

THE REGULATION , AS FAR AS I KNOW, REMA INED UNCHANGED UNTIL THE 2003 AMEN DMENT . IT DIDN'T REQ UIRE THE CLAIMANT TO CONTINUE TO D O THAT AFTER THE DINES DECISION, IF I UNDERSTAND YOUR QUESTION, JUSTICE WELLS.

THAT IS CONTRARY TO THE LEGAL RULING OF THE THIRD DISTRICT.

YES.

WHAT IS , ABSENT AN EXTENSION OF BENEFITS , WHAT IS THE MAX IMUM CLAI M?

THE MAX IMUM CLAIM IS 26 WEEKS .

WITHOUT EX TENDED BENEFITS?

IF THERE ARE EXT ENDED BENEFITS, IT WOULD GO B E YOND 26 WEEK S, USU ALLY 13 MORE WEEKS FOR E ACH EXTENS ION.

SO 26 WEEKS IS THE ?

THE MAXI MUM REGU LAR CLAIM. THAT DEPENDS UPON THE PERSON 'S EARN ING , THE MAXIMUM CLA IM. I CANNOT READ THIS AT THIS TIME, INTERRED TE RMS O F WHERE IT STANDS, BUT I W OULDLIKE TO FINI SH UP BY SAYING THERE BASI CALLY ISN'T A LOT OUT THERE , BUT THE CONCERN IS WE HAVE THE DINES AND THE SAVAGE OPINIONS ON THE BOOKS THAT BASICALLY SAY THAT A CLEAR EXPRESSION BY THE LEGISLATURE IS ME RELY ADVISORY AND USELESSEXERCISE. A MEANING LESS , A SE RIES OF USELESS ACTS, A FAI LURE TO CLAIM IS AN ENTI RELY HARMLESS TECHNI CALITY . A NONESSENTIAL MODE OF PROCEEDING . IS T IS ADD RICERY OR DIRECT --

IT IS ADVISORY OR DIRECTORY ONLY. THE STATUTE SAYS IT IS CLEAR , IT IS MAND ATORY AND IT SHOULD BE ENFORCED. THE RESOLUTION OF THAT C ASE IS WHAT COMES FROM T HIS PROCEEDING.

I THINK THE COURT UNDERSTANDS OUR PO SITION. THE ONLY THING I REALLY CAN'T WANT TO ADD TO THIS AND I AM NOT GO ING TO ADDRESS , IS THE COMMISSION FOLLOWING DINES OR DIDN'T FOLLOW DINES , I THINK I --

WHAT DO YOU MAKE OF T HELANGUAGE IN DINES THAT JUSTICE PARIENTE REFERRED TO EARLIER , IT FO LLOWS THE STATEMENT THAT IT MU ST BE DEEMED TO BE ADVISORY OR DIRECTORY ONLY, BY SAYING IT IS ADMITTED PREJUDICE TO T HECOMMISSION, SEEMS TO B E THAT CONTRADICTORY .

THE WAY I INTERPRET THAT IS AS WHAT WAS BEING REFERRED TO EARLIE R, IS THAT THIS IS AN INDIVI DUAL WHO IS OTHERWISE ELIG IBLE , AS WAS THE CASE IN DINES , THE CASE IN SAVAGE, THE CASE H ERE.MR. CO STARELL IS OTHERWISE ELIGIBLE FOR BENEFITS DURING THAT AEALS PERI OD. THE ONLY QUESTION IS WHETHER HE REPORTED , SO HOW DO I INTERPRET THAT LANGUAGE?

HOW DO WE KNOW HE IS OTHERWISE ELIGIBLE?

IT HAS JUST BEEN CONCEDED TO YOU THAT HE IS OT HERWISE ELIGIBLE.

HOW DO WE KNOW , UNLESS HE IS ACTI VELY SEAR CHING FOR EMPLOYMENT AND BEING D E NIED EMPLOYMENT, AND REPORTS THAT, HOW DO WE K NOW THAT HE IS DOING THAT, UNLESS HE REPORTS THAT HE IS DOING THAT?

WELL, GENE RALLY, I M IGHT AGREE WITH YOU .

BUT WE ARE LO OKING AT ANOTHER CASE WHERE MR . S MITH IS DENIED AND AEALS AND TWO WEEKS AFTER THE AEAL, EITHER A JOB, BUT UNDER YOUR INTERPRETATION OF THE STATUTE, HE WOULD CONTINUE TO GET UNEMPL OYMENT BENEFITS DURING THE PENDEN CY OF THE AEAL.

THAT SAME THING WOULD B E TRUE BUT NEVER EVEN REACH ED THE AEALS COU RT. IF HE IS IN THE FIRST CLA IMS PERIOD AND HE FILES ON WEEK ONE, AND THEN ON WEEK THREE HE GETS A JOB BUT H E DOES N'T NOTIFY .

THIS DISTRICT, THIS WAS A MATTER OF STATUTORY CONSTRUCTION . REALLY, IT IS A MATTER IF THERE IS NO PREJUD ICE TO THE COMMISSION, THEN, THIS I S NOT SOMETHING THAT WAS THERE.

FIRST THERE IS MAND ATORY , AND I DON'T WANT T O R UNAFOUL OF TIME. THE MAND ATORY LAN GUAGE FIRST STARTED AS DI CTUM IN H O LDING IN DINES. I THINK THE ANSWER , I THI NK , WOULD BE , IT WOULD B E C LEARTO ALL OF US, I F THE THIRD DISTRICT HAD SAID WE F IND THAT THERE IS NO REQUIREMENT. IT DIDN'T SAY. THAT IT REFERR ED TO A REQUIREMENT . MY INTERPRETATION OF THAT LANGUAGE, IN L IGHT OF YOUR QUESTION, IS THAT , I F THERE WAS OR IF THERE WERE A STATUTORY REQUIREMENT , IT WOULDN'T BE ENFORCEABLE.

BUT THE HEAR T OF THAT GOES TO THE Q UESTION THAT YOUR OP PONENT WAS REPEAT ED LY ASKED -- REPEAT EDLY ASKED ABOUT WHY THE COMMISSION DIDN'T GIVE ADVOCACY TO THE THIRD DISTRICT'S OPINION, AND WHETHER IT WAS A MATTER OF EXPRESS CONSTRUCTION OF THE STATUTE OR A MATTER THAT THE PRO VISION COULD REASONABLY BE DEA LT WITH CASE BY CASE.

THERE ARE TWO AS PECT T O YOUR QUESTION. THE FIRST AS EFFECT IS WHAT DID THE -- THE FIRST AS PECT IS WHAT DID THE DEPARTMENT ADVISE THE LOWER COURTS , LOWER TRIBUNALS , AS RE LATES TO THE DINES CASE AND THE HOLDING OF THE THIRD, A ND IDON'T KNOW WHAT IT ADVISED. I THINK IF YOU HAVE A CONTRARY DECISION THAT IS OUT THERE, YOU NEED TO ADVISE WHATEVER TRIB UNAL Y OUARE BEFORE THAT THERE IS A CONTRARY DECISION, AND THAT IT IS DINEDING. BUT BEYOND THAT , I THINK THE OVER -- THAT IT IS B INDING. BUT BEYOND THAT , I THINK THE OVERALL QUESTION HERE IS WAS THE O VERALL READ ING OF THE STATUTE FULFILLED. READING THAT THE THIRD DISTRICT WERE CORRECT , YOU DON'T HAVE TO AGREE WITH THEIR RATIONALE BUT THE HOLDING IS CORRECT AND THE SECOND DISTRICT , W H ILE WELL-INTENTIONED, WAS NOT CORRECT. IN MY MIND , THE 2002 DECISION WAS SOMETHING THAT WASN'T CLEAR BEFORE, AND THIS GENTLEMAN AS IN DINES