Court rules against 11th PD suit seeking to stop taking cases.

Dealing a blow to the beleaguered 11th Circuit Public Defender's Office, the Third District Court of Appeal reversed the trial judge who ruled overwhelmed lawyers could stop taking new third-degree felony cases.

"We understand the difficulties faced by PD11. With an ever-increasing quantity of cases and a tight budget, their important task is certainly made more difficult," Judges Frank Shepherd, Angel Cortinas, and Vance Salter wrote in their May 13 per curiam opinion.

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"The office-wide solution to the problem, however, lies with the Legislature or the internal administration of PD-11, not with the courts."

Rather than trying to withdraw from new cases en masse, the court said, determinations of inadequate representation and violations of rules of professional conduct must be done one attorney and one case at a time.

"Only after an assistant public defender proves prejudice or conflict, separate from excessive caseload, may that attorney withdraw from a particular case," the court said in consolidated cases 3D08-2272 and 3D08-2537.

Eleventh Circuit Public Defender Carlos Martinez responded: "It proceeds to say that even if you do it one by one, you can't withdraw, because there are too many cases. In reality, what the opinion is saying is there is no limit on the number of cases each assistant public defender can handle, because the Legislature has not said it is a conflict of interest for an assistant public defender to handle 1,000 cases."

Martinez said he will seek review with the Florida Supreme Court, where he had hoped to have the appeal from the 11th Circuit State Attorney's Office heard in the first place, and Hogan & Hartson is handling the appeal pro bono.

"This is definitely a statewide issue and a matter of great public importance because it affects the administration of justice of the entire state," said Martinez, outlining the following issues for the high court:

* Separation of powers: What authority does the court have to ensure individual rights and liberties, as well as the practice of law?

* Sixth Amendment right to effective assistance of counsel.

* The exclusive jurisdiction of the Supreme Court over the professional responsibilities of Florida lawyers and the ethical obligations of the supervisors of assistant public defenders.

"To put it in context, morale is at an all-time low," Martinez said of his lawyers who handle an average of 500 felonies a year.

Over the last two years, his budget has been cut by 11 percent, followed by a 2 percent pay cut for anyone making over $45,000, essentially all of his attorneys.

"Then on top of that, too bad about their ethical responsibilities; they have to accept and handle every case," Martinez said.

"This is about the fundamental principles of democracy. If you have a right to an attorney, it has to be a meaningful right to an attorney. The accused should be able to have justice like everyone else."

After a July 30-31 evidentiary hearing, Stanford Blake, 11th Circuit administrative judge of the criminal division, said the caseloads were excessive under any standard and granted partial relief, ruling PD-11 could stop taking new third-degree felony cases beginning September 15, 2008. The State of Florida and Office of Criminal and Civil Regional Counsel, which would have had to absorb the third-degree felony appointments, filed an emergency motion for stay with the Third DCA.

Withdrawing from representing indigent clients "in approximately 11,693 third-degree felony cases, which constitutes 60 percent of the post-arraignment cases handled by PD-11's 94 non-capital felony attorneys, is entirely disproportionate to the amount of the budget reductions. There is simply insufficient evidence to support such a drastic remedy," the Third DCA said.

The Third DCA distinguished this case from a 1998 Supreme Court approval of an order prohibiting prospectively the appointment of assistant public defenders in the 11th Circuit. In the earlier case, relief was granted "only after individual assistant public defenders had first been removed from representation and a backlog of cases had caused the delayed filing of appeals for almost all defendants in the public defender's office," the opinion said.

In this case, however, "there has been no initial attempt at individualized withdrawal. Instead, PD-11's first attempt at withdrawal was by way of a motion to withdraw en masse."

The court noted PD-11 even won a national award in 2007 and that was "no showing that individual attorneys were providing inadequate representation, nor do we believe this could have been proven in the aggregate, simply based on caseload averages and anecdotal testimony."

In a specially concurring opinion, Judge Shepherd called the case "nothing more than a political question masquerading as a lawsuit, and should be dispatched on that basis."

Comparing PD-11's plight to a case alleging inadequate funding for public schools a dozen years ago [Coal. For Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 408 (Fla. 1996)], Shepherd wrote "the gravaman of PD-11's complaint in this case is inadequate funding."

"I empathize with PD-11's argument that its attorneys are overworked and under-resourced. Such appears to be the natural condition of the public servants who serve clients before the judicial branch of this state," Shepherd wrote.

"Absent individual proof of constitutional injury to those clients, however, empathy or lack thereof is for the Legislature."