News & Notes
SB 1088, Regional Conflict Counsels Declared Unconstitutional
In September 2007, the Florida Association of Criminal Defense Lawyers ("FACDL") filed for a writ of quo warranto ("by what authority") in the Florida Supreme Court. The FACDL asked the Court to declare Chapter 2007-62, Laws of Florida, which created the five Criminal Conflict and Civil Regional Counsel offices by appointment of the Governor and confirmation of the Senate, to be unconstitutional. These offices were created during the 2007 legislative session to handle the large majority of the criminal conflict cases previously handled by private counsel and to represent indigent clients in certain civil proceedings. The offices are located in the geographic boundaries of the five district courts of appeal.
The counsels are appointed by the Governor based on recommendations from the Supreme Court Judicial Nominating Commission. The appointees are then confirmed by the Florida Senate. The Legislature defines these counsels to be a part of the public defender offices in two places: (1) section 29.008(1), Fla. Stat. ("[T]he term 'public defender offices' includes the offices of criminal conflict and civil regional counsel."); and (2) section 29.001(1), Fla. Stat. ("For the purposes of implementing s. 14, Art. V of the State Constitution,... the offices of public defenders and state attorneys are defined to include the enumerated elements of the 20 state attorneys' offices and the enumerated elements of the 20 public defenders' offices and five offices of criminal conflict and civil regional counsel."). The Legislature created 384 FTEs in the 2007-08 state budget and appropriated $2.2 million to help mitigate the counties' funding obligation. The total magnitude of the fiscal impact on the counties was uncertain but anticipated to be substantial.
The FACDL argued that Ch. 2007-62, Laws of Florida, was unconstitutional because it violates Article V, section 18 of the Florida Constitution, which requires public defenders to be elected and reside in their districts, not be appointed. On December 20, 2007, the circuit court declared Ch. 2007-62, Laws of Florida, to be unconstitutional on those grounds. The court, in a footnote, also inferred that the counties' funding obligation for these offices, as created by Ch. 2007-62, Laws of Florida, might also have constitutional concerns; but the court expressly stated it was not deciding the funding issue.
FAC will try to learn more about whether the state expects to appeal over the holidays and bring that information to you.