Court hears arguments in CCCRC case.

When is a public defender really a public defender?

That riddle played out in Florida Supreme Court oral arguments February 27 in the case of Gov. Charles Crist v. Florida Association of Criminal Defense Lawyers, Inc. (Case No. SC08-02).

What's at stake has been certified by the First District Court of Appeal as a case requiring immediate resolution.

The state hopes to reverse a Tallahassee trial court judge and save the newly created five Offices of the Criminal Conflict and Civil Regional Counsel that the 2007 legislature passed as a purportedly less expensive way to handle multi-defendant criminal cases when the public defender has a conflict--rather than farming them out to a registry of private lawyers in each circuit. On top of that, the new offices were given the duty of representing indigents in an array of civil cases, including Baker Act, guardianship, dependency, and termination of parental rights cases.

The CCCRCs were supposed to be fully up and running by January 1. The five counsel, in varying degrees of progress, have hired some staff, begun taking cases, and were scrambling to secure office space which some counties have been reluctant to provide because of the lawsuit.

For purposes of funding, the language of the new law, in the amended sections of 29.001 and 29.008 of the Florida Statutes, adds the "offices of criminal conflict and civil regional counsel right" after the mention of public defenders' offices.

FACDL argued the plain language of the new law creates "second-tier public defenders" in violation of Art. V, Sec. 18, because they are not elected or required to reside in a circuit they represent. FACDL's argument prevailed when Second Circuit Judge P. Kevin Davey granted FACDL's petition for writ of quo warranto on December 20, striking down all five CCCRC as unconstitutional and saying the new law "amounts to an attempt to amend the constitution by legislative fiat."

At oral arguments at the high court, Justice Peggy Quince asked:

"I'm really trying very hard to try to grasp an argument that's being made about these people being public defenders. As I see them, they really stand in the same role as the private attorneys did, but now it's more of an organized system, as opposed to just having a registry where people are appointed. Now you appoint a particular office. Am I missing something?"

"No, that is essentially correct," replied Chief Deputy Solicitor General Louis Hubener, who defended the law and chose not to seize the opportunity for rebuttal after the justices were finished grilling FACDL's lawyer.

Gainesville lawyer Sonya Rudenstine barely got a chance to introduce herself as representing FACDL, when Justice Raoul Cantero jumped in with a barrage of questions:

"My major concern with your argument is that if you are correct and the statute is unconstitutional, then you also seem to be making a very good argument for saying that the system of registry counsel is unconstitutional, as well," Cantero said. "Because the new office is performing the precise duties that registry counsel were performing before. So why aren't registry counsel essentially public defenders as well?"

Rudenstine replied: "First of all, the legislature hasn't ever defined registry counsel as public defenders. And I think it's not a small point that [F.S.] [section]29.008 and [section]29.001 specifically say these offices and the regional counsel are defined as public defenders."

"That's for purposes of funding, though, isn't it?" Cantero persisted. "Isn't that the sole purpose for that definition?"

"Yes, your honor," Rudenstine acknowledged. "But the appellants haven't provided any case, nor can I find one, that suggests something can be defined as a specific type of entity for funding purposes under one provision of the constitution and not be beholden to the requirements of that constitutional office of another provision of the constitution. The legislature has defined these offices as public defenders. That's its intent. It's very clear from the language of the statute. It doesn't matter whether it's for purposes of funding or why they did it."

Cantero was not finished.

"So if the legislature said that, 'We are going to define public defender to include a registry counsel in conflict cases,' then we would have to find that--despite the fact that they're private counsel, despite the fact that they're not elected, despite the fact that they're not beholden to the state for anything other than the fact that they are representing defendants in conflict cases purely because another section of the Florida statutes defines public defender to include registry counsel--then for all purposes we must consider them as public defenders?" Cantero asked.

"I think as long as we conclude that that definition fulfills the intent of the legislature, and then yes, that would be the case," Rudenstine answered. "And I think it's important to look at the purpose behind the county funding provision, which is presumably to limit the extent to which the state can place the burden for funding indigent defense on the shoulders of the county. And that provision was specifically passed during the [Art. V, Rev. 7] shift to move funding for indigent defense to the state."

That led Justice Barbara Pariente to interject: "The counties may have a good argument at some point that they are not required to fund this system.... But that's not before us here."

What's before the justices, Rudenstine stressed, is the "plain language of the statute" where the legislature defined the offices as public defenders, but the heads of the offices are not elected, but appointed by the governor and therefore in conflict with Sec. 18 of the Florida Constitution.

"Are you saying that if the legislature had done everything as they did it, but provided that the person who's the head of the office is to be elected, that would be constitutional?" Pariente asked.

"I think that's also tricky because of Sec. 18, which requires that there be only one public defender. But that's just yet another reason why these offices are in violation of Sec. 18," Rudenstine replied.

Rudenstine went on to suggest that "the top person could be appointed by the independent judiciary as is done in the federal system. . . and in all but 13 of the states"--adding there is a Sixth Amendment right to "conflict-free counsel."

That answer sparked Pariente to retort: "But there is nothing to be said that somebody that is appointed by the governor or by the legislature isn't going to perform their duties in an independent manner. Otherwise, all of us up here, who are all appointed by a governor, you are saying we could not perform our duties in an impartial way because we're appointed by ... another branch of government?"

"You're all independent because you are not up for reappointment every four years, and that's the problem with this," Rudenstine answered. She said regional counsel could be put in a dilemma if they do not receive sufficient funding to adequately represent their clients, but they are up for reappointment.

Pariente asked if that meant post-conviction regional registry lawyers are less independent than private counsel.

"As you know, we've sort of looked at it and we said that's a better system. And I have to say that as I look at this system, I'm hopeful that this is going to be a better system for defendants," Pariente said.

Giving the historical perspective, Justice Charles Wells said, "What I've seen over the 14 years that I've been here is that there is a real need in this state to solve the issue of conflict counsel. And particularly what occurred during the 1990s, when we couldn't get conflict counsel in capital cases, and so many cases were just stopped in their tracks because the defendants could not get conflict counsel. Now, the fact is the legislature has taken a very constructive step in trying to solve that problem.

"And the constitution doesn't prohibit there being a resolution of conflict counsel. So I'm somewhat concerned that what is going on is that we're losing the forest for the trees in that we've got a solution now that comes within the boundaries of the constitution. I'd like to understand better how there is an argument that provides that there could not be, by the state, an organization provided for lawyers in conflict situations."

Even Rudenstine had to agree that "Yes, I think absolutely, they could create a structure and that's not a bad idea: economies of scale, enhancing expertise, all of that. The problem is, as you say, we have to give the legislature the benefit of the doubt that they've created something that's constitutional. I think that we're in a little bit of a box here because it's unconstitutional either way. If you say that they are public defenders, as the plain language dictates, it's unconstitutional with regard to Sec. 18. If you say they're not public defenders, then 29.008..."

Holding up Sec. 18 of the Florida Constitution, Wells said, "I was sitting up here studying it again. I can't find in Sec. 18 any prohibition against this type of resolution of the problem of conflict counsel. Point me out the language that you say prohibits."

"No, your honor, it doesn't prohibit the structure itself," Rudenstine responded. "It simply circumscribes the requirements of the office, the manner in which they're put in place." The conflict, she said, is that the law calls them public defenders, but they are appointed by the governor.

Chief Justice Fred Lewis said, "You keep calling them public defenders." But, he said, it's only for funding purposes, "only for where they get their office space and their desk and their chair."

"Well, counties may only be required to pay for public defenders, so it's our contention that if the counties are being required to pay for these offices, and these offices do exactly what public defenders do, then why aren't they public defenders?" Rudenstine continued.

After Rudenstine was questioned, and it was time for rebuttal, Hubener said: "Your honor, unless there are questions, we have nothing further to say to the court."

By Jan Pudlow

Senior Editor