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The Florida Bar Journal
March, 2018 Volume 92, No. 3

Page 8

Mental Health, Wellness, and Compassion
Maybe it takes getting old to see the picture as clearly as it’s becoming to me. Maybe it takes 34 years of meals, cups of stale coffee, and late nights shared with colleagues and “adversaries” in small-town dives across the country to gain perspective. Or maybe it takes the tragic suicides of two shining lights in our profession this past summer — men who, by all outward appearances, “had it all” both personally and professionally — to bring the issue into stark focus. I’m not entirely sure why I feel compelled to write this letter; I only know that I do.

For at least the past 10 years, bar associations, committees, courts, commentators, and legal educators have issued a clarion call for greater “civility” in our profession. In the process, lots of ink has been spilled and countless hours have been devoted to articulating rules and guidelines aimed at minimizing, if not eliminating behaviors that, at best, could be characterized as boorish and, at worse, disgraceful. The resulting creeds, codes, initiatives, and administrative orders are highly commendable and, one would like to think, have had some impact on the way we as lawyers behave. However, I believe we owe ourselves and each other more. I believe we’re better than the bare minimum when it comes to how we conduct ourselves and our level of concern for each other’s well-being.

Simply put, I believe it’s time we move beyond mere civility and fully embrace our shared humanity. It’s time we act in a manner consistent with the inescapable reality that we are human beings, mothers, fathers, spouses, partners, siblings, friends, etc., first and lawyers a distant second. It’s time we stop shying away from the truth: That, while we put on a brave face in the morning, at the end of the day, we are all fragile and flawed. We bleed just like the next person. We struggle, get depressed, and we feel anxious. We suffer from addictions. We have hard days — lots of them. We are over-stressed. And, sometimes, we need help. We need patience, empathy, and understanding. We need each other. Breathing that in and making it the touchstone for how we conduct ourselves is where real change resides.

I applaud the Journal for devoting its January issue to shining a bright light on our profession’s darkest secrets. But, winning the battle against the insidious monster that is mental illness depends on each of us. If you know a colleague who’s struggling, take a moment to let them know you’re in their corner. If you’re the one struggling, reach out and keep reaching out until you get the support you need. The time has come for us to stop using the “zealous representation of our clients” as a justification for attitudes and conduct that only serve to add to an increasingly impersonal and insensitive world. The time has come for a new standard of civility — compassionate professionalism. In short, the time has come to put down the flame throwers and put up our heart antennae.

There, I said it!

Don Blackwell, Miami

President Higer’s message in the January issue of the Journal along with the staggering statistics regarding substance abuse in our profession should not come as a surprise to any of us. Remember, we’re the profession that promotes “bar at the bar” get togethers on one page of The Florida Bar News and a hotline for confidential calls “if you have a substance abuse problem” on the next page.

The most encouraging articles in this issue, however, are the ones where lawyers themselves get transparent and vulnerable. Self-help articles afford nice, clinical concepts but you will never hear a person who has come face to face with the reality of substance dependency and dysfunction tell you that a self-help book saved them. Just like the open, transparent, vulnerable authors in this issue, they were saved by first admitting that their lives had become unmanageable, i.e., that they were powerless and then admitting that a power greater than themselves could restore them to sanity — steps one and two of the time honored 12-step program. These are tough action steps for self-promoting, self-sufficient, problem solvers like us to take but when we get to the point of losing ourselves we are ready. Even the decision to be open, honest and vulnerable with others is found in the 12 steps because the ultimate goal is to become healthy ourselves and then to be available to help others.

I applaud the focus of this issue and suggest that a follow-up article be published setting out the 12 steps with an explanation and history of the program. Perhaps when more and more of those suffering see that the first step to real help is to admit the reality that their lives have become unmanageable and then to submit to the second step, which is to admit that a power greater than themselves can restore them to sanity, we will see more and more of our friends get healed.

William C. Davell, Ft. Lauderdale

Marriage Dissolution Provisions and Privacy
Attorney Ronald Kauffman offered a splendid review of the Florida constitutional right to privacy (art.1 §23) role in one aspect of F.S. Ch. 61, (dissolution of marriage), i.e., parental rights and grandparent visitation (“Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation,” Jan. 2018). He recited Florida courts’ efforts to parse, slice, dice, dissect, cut, chop, wedge words, and concepts to hammer the square peg of part of Ch. 61 into the round hole of the right to privacy. He then points out the now obvious inevitability that federal law trumps state public policy.

The alimony provision (61.08) of the dissolution of marriage chapter has endured similar judicial verbal legerdemain attempts to make it work. The judiciary should now recognize the obvious inevitability that the state constitution right to privacy trumps the alimony statute.

Alimony is a statutory grant, it is not common law. Because 61.08 is part of Ch. 61 that regulates marriage, divorce, separation, and personal decisions relating to marriage, to survive it must pass through the right to privacy filter. It can’t. Federal and other state caselaw lay the foundation that state and federal constitutional amendment rights to privacy must trump the alimony statute.

Marriage is a recognized fundamental privacy-protected zone. Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Divorce and separation are recognized fundamental privacy-protected zones.​

“Given the ‘associational interests that surround the establishment and dissolution of [the marital] relationship,’ such ‘adjustments’ as divorce and separation are naturally included within the umbrella of protection accorded to the right of privacy.” Little John v. Rose, 768 F.2d 765, 768 (6th Cir. 1985).

Personal decisions relating to marriage (i.e., to enter and exit marriage) are also recognized fundamental privacy amendment protected zones.​ “...[I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage….” Carey v. Population Serv. Int’l., 431 U.S. 678, 684-685 (1977).

To survive the right to privacy amendment​, the Florida alimony statute must serve a compelling state interest, minimally applied. There is no compelling state interest for the alimony statute. T​here is not even a rational state interest ​for the alimony statute. ​

The Florida Legislature failed to revive the doctrine of necessaries after Connor v. Southwest Fla. Med. Ctr., Inc., 668 So. 2d 175 (Fla. 1995). Also, coverture was abolished, Merchant’s v. Cain, 9 So. 2d 373, 375 (Fla. 1942).

We should not forget....

“The Constitution protects individuals, men and women alike, from unjustified state interference, even when the interference is enacted into law for the benefit of their spouses.” Parenthood v. Casey 505 U.S. 833, 896 (1992).

Steve Martyak, Austin, TX

[Revised: 02-26-2018]