Lawsuit delays conflict counsel facilities request

The Florida Bar News - November 15, 2007

Lawsuit delays conflict counsel facilities request

By Jan Pudlow
Senior Editor

The October 18 letter from Miami-Dade County’s budget director hit Joseph George like a punch to the gut.

Scurrying around trying to get the new Criminal Conflict and Civil Regional Counsel’s Office for the Third District fully up and running by the January 1, 2008, deadline, George read these discouraging words:

“In response to your inquiry about funding for facilities, security, and operating expenses for the Regional Conflict Counsel Office in Miami, the FY 2007-08 adopted budget does not include funding for a facility and/or operating expenses for such an office,” wrote Jennifer Glazer-Moon.

The letter went on to say that Article V of the Florida Constitution states that no county is required to fund court-appointed counsel and that the state is “wholly responsible.”

Furthermore, the letter cited the pending petition for writ of quo warranto — Florida Association of Criminal Defense Lawyers v. Gov. Charlie Crist, et al. — asking the Florida Supreme Court to declare the whole legislative scheme unconstitutional.

“While the lawsuit is pending, we do not intend to consider funding for facilities and other expenses related to the Regional Conflict Counsel’s Office in Miami,” Glazer-Moon wrote.

George — who has been cramming the fledgling operation in his own law office — said: “Candidly, my visceral reaction was surprise and discouragement. But I’ve never allowed myself to stay down in the valley of discouragement. My whole life, I have been keeping people away from symptoms of depression and moving forward. I felt I had been handed a big lemon. Because of my love of fruit trees, it was a Ponderosa Lemon. Now, let’s make lemonade.”

On this November 1 morning, George was squeezing optimism out of the challenging situation — on his way to check out some vacant space at the Joseph Caleb Center the county had just offered after further negotiations.

A lawyer who said his “heart and soul has been representing guardianship cases,” George said: “You know what? The rumors of this office’s death are greatly exaggerated. We hit a speed bump, but we are now going forward on cruise control.”

But if the FACDL wins its case, all five criminal conflict and civil regional counsel offices will be derailed as unconstitutional. They argue that they are second-tier public defenders, yet are not elected and do not live in the area where they have been elected, as required by Article V, Section 18 of the Florida Constitution.

“The Act, by largely eliminating the role of private, court-appointed attorneys for criminal conflict cases and establishing second-tier public defender offices that are to be directed by appointed officers, wholly undermines the independence this court has deemed critical to the preservation of an indigent defendant’s Sixth Amendment right to counsel. If the OCCCRCs are to be the chosen vehicle for handling the large majority of criminal conflict cases in Florida, they must be directed by elected officials,” wrote Sonya Rudenstine and D. Todd Doss in the petition for writ of quo warranto.

On October 18, the Florida Supreme Court (with Justices Peggy Quince and Barbara Pariente dissenting) transferred the case to Second Circuit Judge P. Kevin Davey.

On October 30, Davey issued the writ of quo warranto, finding the petitioner has made a prima facie showing for relief, and he directed the respondents — Gov. Crist; Senate President Ken Pruitt; Secretary of State Kurt Browning; and the five regional conflict counsels Jeffrey Lewis, Jackson Flyte, George, Philip Massa, and Jeffrey Dean — to show cause, in writing, by November 16 as to why such relief should not be granted.

“Obviously, the most direct defense is to acknowledge that the conflict counsel officers are not public defenders according to the Florida Constitution,” said A. Russell Smith, president of FACDL.

“But if the defendants take that position, it creates a substantial funding shortfall, because the counties will not be obligated to provide them with facilities, services, infrastructure, and equipment. And that could add as much as $20 million to the price tag statewide. In the current budget climate, it would be difficult for the governor and legislature to find that $20 million. And we are concerned that the conflict counsel will have to absorb that shortfall from their existing budgets.

“We believe that conflict counsel offices are already woefully underfunded. And if they are made to absorb those costs, within these existing budgets, I cannot imagine they will be able to hire enough lawyers with enough experience to competently represent the clients they will be assigned to represent.”

Doing it on the cheap will take a human toll, said Second Circuit Public Defender Nancy Daniels.

“What it comes down to, and what might happen if it all goes as bad as we fear, is that innocent people are going to be defended improperly and convicted. I hope that doesn’t happen, but with all the challenges here, it’s something we all will have to be watching for,” said Daniels, speaking on a panel at The Florida Bar Media & Communications Law Committee’s Reporters’ Workshop October 23.

Also speaking on that panel was Jeff Lewis, First District regional counsel, who said he is “close to being open in Pensacola” and is still working on the Jacksonville, Gainesville, and Tallahassee offices in his huge 32-county region that calls for hiring 108 positions, of those, 74 are lawyers.

“It’s very difficult, because I sense there’s some recalcitrance about really charging forward on giving me office space,” Lewis said.

“Candidly, one of the things I’ve encountered, and it’s human nature by virtue of the lawsuit, some of the counties I go to, that are required to provide the infrastructure of the offices, are understandably questioning it internally. Nobody has out and out said, ‘We’re not going to help you,’ but I can sense that they will wait and see what will transpire with the lawsuit. At a time counties have dealt with the property tax rollback and are being asked to trim their local budgets, they are thinking, ‘Why would I want to spend $200,000 in renovating space for this new agency that may or may not be in existence by Christmas?’”

The petition seeks the reversal of Gov. Crist’s appointments and prohibition of Senate confirmations of the five criminal conflict and civil regional counsel, who are paid $80,000 a year. The legislature, with CS/SB 1088, created the new offices to handle criminal conflict cases, as well as Baker Act, Jimmy Ryce, death penalty appeals to the Supreme Court, dependency and termination of parental rights cases, termination of pregnancy cases, tuberculosis control, substance abuse confinement, adult protective services, removal of disabilities for minors, guardianship, children and families in need of services, appeals on the preceding civil cases, and all county court appeals.

The statewide budget for the criminal conflict and civil regional counsel is $50 million. In the past three years, the state had watched conflict counsel costs grow from $38 million to $98 million — with one Florida lawyer, Lewis noted, making more than $567,000 a year on conflict cases. Sen. Victor Crist, R-Tampa, chair of the Senate Criminal and Civil Justice Appropriations Committee, and sponsor of the bill, said he would have preferred the work remain with private attorneys, but the state simply didn’t have enough money in a tight budget year.

Daniels said it is “widely agreed” it won’t be enough.

“We’re just worried the state is going to do something, and whose hide is that going to come out of? Us?” asked Daniels.

According to a power-point presentation by Greg Smith of the Office of the State Courts Administrator: “Regional counsel is designated as a part of the public defender’s office for the purposes of accessing county funded facilities and services. The legislature provided regional counsel with additional monies in the first year for things the county usually pays for, like office space, furniture, and computers, but regional counsel should consult the counties to ensure compatibility.”

Jess McCarty, in-house attorney for Miami-Dade County, said, “When this law was passing, I spent a third of my time in Tallahassee lobbying the legislature that this is unconstitutional. This is not consistent with Article V. We are not responsible as counties for conflict counsel.”

In Monroe County, he said, office space is only required for four people.

“But for a 47-person law office in downtown Miami? It’s not cheap,” McCarty said. “Then, with the uncertainty concerning the lawsuit, we would have to rent office space, and sign a year’s lease, and what if we got two or three months down the road and the whole thing was struck down?”

Calling it a “tricky situation,” McCarty said they are continuing to look for county-owned space for George to set up shop.

“The legislature set aside $2.2 million to help with the counties’ costs (for equipment, computers, and rent). We estimate it will be over $1 million just for one county. We are responsible for computers and everything else.”

Former Supreme Court Justice Major Harding, who moderated the panel at the Bar’s Reporters’ Workshop, said this debate has significant implications to a point of constitutional law originally labeled Gideon.

“What we are dealing with today is part of the fabric of weaving together a tapestry of how to deal with the constitutional issue of providing adequate counsel to those who under law are entitled to have,” Harding said.

Meanwhile, George said he is optimistic about this new public service mission. He has hired retired Judge Bruce Levy as his chief assistant and Richard Joyce, formerly with the Justice Administrative Commission, who’d recently argued a dependency case before the Third DCA. The next day, he was interviewing a law student graduating at the top of her class at St. Thomas who told him she “believes in defending and protecting the vulnerable.”

Trying to work cooperatively with the county and follow the new law in the midst of uncertainty, George said: “I’ll be honest. The only way this office and the entire law to be to effectively implemented is if we have working relationships and open lines of communications with every county. Ultimately, this will benefit the counties throughout the state. We can’t have down phone lines forever.”