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S. Court finds CCCRCs are constitutional.

A unanimous Florida Supreme Court has held that Florida's five regional offices for handling conflict public defender cases and some civil matters are constitutional.

The court on March 13---two weeks and a day after it heard oral arguments in the case---overturned an earlier circuit court ruling that held the five Offices of Criminal Conflict and Civil Regional Counsel violated the Florida Constitution because they created de facto public defenders who were not elected as required by Art. V, [section]18.

The Florida Association of Criminal Defense Lawyers had filed the quo warranto action challenging the constitutionality of the new agencies.

"We conclude that the creation of the five regional offices to handle representation in criminal cases where a public defender has a conflict does not implicate Article V, section 18, which requires that the public defender in each circuit be elected," Justice Barbara Pariente wrote for the court. "The legislative scheme is an organizational structure that supplants the prior system of private registry counsel and does not establish de facto public defenders in violation of the constitution."

"We are pleased that the high court agreed with our position," said Sandi Copes, a spokeswoman for Attorney General Bill McCollum, who represented Gov. Charlie Crist and the five conflict counsel offices in the case. "The question before the court was on the very narrow issue of whether conflict counsels must be elected, as public defenders are elected, and we appreciate that the Supreme Court has affirmed our position that the answer is no."

Gainesville attorney Sonya Rudenstine, one of the attorneys who represented the FACDL in the action, acknowledged that the court had decisively answered the association's concern about the constitutionality of the executive branch appointing counsel for indigent defendants, as opposed to the elected public defenders or court-appointed private counsel.

"I respect the court's decision and am sure that the membership of FACDL will throw its full support behind the five regional counsel and their clients," Rudenstine said. "Our concerns about the underfunding of these offices also remain, of course, so I am heartened that the court chose to highlight its long-standing commitment to ensuring that counsel, in whatever form, be paid adequate fees and provided with adequate resources necessary to protect the Sixth Amendment right to counsel, regardless of what the legislature has allocated."

FACDL President A. Russell Smith said it was unlikely the association would pursue any further appeal and that it will work with those employed by the CCCRCs.

"Obviously, since this is a case of the Florida Supreme Court construing the Florida Constitution, our avenues of appeal are extremely restricted and it's unlikely we will take an appeal," he said. "We've always welcomed the regional counsel offices as part of the criminal defense community. We have offered employees of the regional counsels' offices opportunity to join the FACDL at public defender rates."

In the current legislative session, Smith said the FACDL will focus its energies on getting adequate funding for public defenders, who like state attorneys, the courts, and related agencies, face massive budget cuts.

"You can't compromise the quality of due process," he said.


Joseph George, the CCCRC for the area covered by the Third District Court of Appeal, said the court's action removes a cloud hanging over the agencies and lets the five regional counsel finish the job of getting their offices up and running.

He said some people in his office were ready to resign because of the uncertain future. "I had felt so good about it after reviewing the constitutional issue involved, I felt strongly we would prevail," George said.

The court found the legislature had the authority to create the five regional conflict counsel offices. Its opinion also noted that the law creating the CCCRCs in no way changed the qualifications or duties of elected public defenders; nor did it remove cases from public defenders that they would have otherwise handled.

"[T]hough the types of criminal cases handled may be the same, the fact that the CCCRC only step in when the public defender has a conflict is key to our determination that the CCCRC are not in fact public defenders," Pariente wrote for the court. "[T]he CCCRC are an essential safety net that are only utilized when the public defender has a conflict."

While the FACDL raised concerns that defendants' Sixth Amendment rights could be impacted if the legislature fails to adequately fund the CCCRCs, the court said an attorney's duty to the client is the same whether the attorney works for a public defender, is a court-appointed private counsel, or is employed by one of the conflict counsel.

"FACDL has cited no evidence or case law to support the proposition that the creation of a separate 'appointed' office to handle a public defender's conflict cases implicates the independent professional responsibilities of the attorneys who work in those offices or other constitutional rights to effective counsel under the Sixth Amendment or the Florida Constitution," Pariente wrote. "In the context of the Sixth Amendment, effective representation does not depend upon the office structure from which the attorney came or for whom the attorney works, but the actual legal representation provided to the individual client."

While most of the opinion dealt with the criminal conflict cases, the court did note that the regional counsel are also charged with representing indigents in a wide range of civil matters, including guardianship, juvenile dependency, and other cases. In a footnote, Pariente wrote, "[I]n the context of civil cases, there is no argument that the legislature has created a second-tier 'appointed' public defender system in violation of the Constitution."

The court ruled in Crist et al. v. Florida Association of Criminal Defense Lawyers, case no. SC08-02.

The controversy started last spring when the legislature became concerned over the rising costs of providing private conflict counsel, as well as attorneys for indigent parents in dependency cases. Lawmakers created the five regional counsel--one for each of the state's five district court of appeal jurisdictions--to handle those cases. The five offices were projected to cost $50 million annually (plus some additional startup costs), as opposed to the about $95 million needed for private counsel to handle criminal conflict cases. The law still provides for hiring private counsel if the regional counsel has a conflict.

Last fall, after the five regional counsel were appointed by Gov. Crist, the FACDL filed for a writ of quo warranto with the Supreme Court, claiming the five conflict counsels were in fact public defenders. The association pointed to sections of the law creating the counsels which said for financial purposes they were to be treated as public defenders, including that counties must provide office space, telephones, computers, and other support services. And under the constitution, that meant the regional counsel had to be elected and live in the circuit they served, the association argued.

(The Supreme Court's opinion said those sections applied only to financial arrangements and did not make the regional counsels into public defenders.)

The court sent the petition to the Second Judicial Circuit. Judge P. Kevin Davey ruled on December 20 the CCCRCs were in effect public defenders and hence the legislature and Crist exceeded their authority. The effect of his ruling was delayed, however, when the state immediately appealed.

That prompted the FACDL to ask Davey to lift the stay, and in effect shut down the regional counsel offices while the judge's order was appealed. On January 11, Davey partially granted that request, and banned the CCCRCs from accepting any new cases, hiring any new employees, signing new office leases, or making major new purchases. However, he said existing employees should be kept on the payroll and the offices could handle any cases they had already accepted.

His order proved short-lived. The First District Court of Appeal certified the case as one of great public importance and passed it through to the Supreme Court, which accepted jurisdiction on January 15. Two days later, the court reinstated the stay while the appeal was pending. It also set up an expedited briefing schedule, culminating in oral arguments on February 27.

George, the Third DCA CCCRC, said he hopes the Supreme Court's decision helps the regional counsels with another problem--the reluctance of some counties to provide office space and other support services. Some county officials have been upset at the mandate to provide support services at the same time the legislature successfully put on the ballot a constitutional amendment which cut local governments' property tax income.

The court's opinion, George said, called on "the various agencies and organizations that consist of the judicial system assist in the transition [of getting the CCCRCs up and running]. I hope and pray that our county fathers will join hands with me and the other regional counsels and help us serve poor people."

By Gary Blankenship

Senior Editor
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Title Annotation:Criminal Conflict and Civil Regional Counsel
Author:Blankenship, Gary
Publication:Florida Bar News
Geographic Code:1USA
Date:Apr 1, 2008
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