Public Defenders are Independent Constitutional Officers

A frequently asked question is, “How can you litigate against the state if you are paid by the state?” The answer is that a lawyer paid by someone other than the client has an ethical obligation to the client, not to the party paying for the lawyer’s services.

Rules regulating the Florida Bar: 4-1.8(6). A public defender is constitutionally obligated to act independently of the government and oppose it in adversary litigation.

Polk County v. Dodson, 454 U.S. 312 (1981). In this circuit, we represented the interests of clients, not the state. Florida’s Attorney General’s Office, however, fought to limit our representation of clients. This has resulted in litigation over the boundaries of our authority, as indicated by the following four cases.

In State ex rel. Smith v. Brummer, 426 So. 2d 532 (Fla. 1982), we filed a federal class action suit to resolve constitutional violations about involuntary civil commitment proceedings. The attorney general instituted a quo warranto proceeding in the Florida Supreme Court to challenge the public defender’s authority to pursue the class action. The Supreme Court did not allow the particular class action because the class included persons that were not indigent and whom the public defender did not previously represent. Nevertheless, the Supreme Court reaffirmed the public defender’s authority to continue to represent clients in federal court on an individual basis, and the public defender’s essential role of acting independently of the government. Id. 533.

In State ex rel. Smith v. Brummer, 443 So. 2d 957 (Fla. 1984), we accepted appointments by a federal district court to represent former clients in federal habeas proceedings. The attorney general filed a quo warrant to petition in the Florida Supreme Court to remove the appointments. The Supreme Court held that the public defender’s statutory authority was limited to appointments by state, not federal, courts. It noted, though, that its decision applied only to federal court appointments, and did not relate to the public defender’s authority to continue its representation of a state-appointed client in federal court.

In State ex rel. Butterworth v. Brummer, 680 So. 2d 424 (Fla. 1996), a state agency proposed rules governing the certification of domestic violence treatment programs. We filed a challenge to these rules before the Department of Administrative Hearings on the grounds that the proposed rules compelled speech, in violation of the first amendment, and promoted gender discrimination, in violation of the equal protection clause. The attorney general filed a quo warrant to petition in the Florida Supreme Court to contest our authority to challenge these rules. The petition was denied as moot because we withdrew our challenge to the rules.

In Mann v. State, 937 So. 2d 722 (Fla. 3d DCA 2006), we filed a petition for state post-conviction relief on behalf of a client serving a life sentence when a new witness came forward who would exonerate him. The appellate court ruled that we could not continue representing our client in post-conviction matters without the trial court reappointing our office for that specific purpose. We disagree with that decision and believes that it interferes with the professional responsibility of an attorney to continue pursuing relief in a case where the merits of the case justify it. We sought review of the Mann decision in the United States Supreme Court.

Fighting Chronic Underfunding and Excessive Caseloads

Chronic legislative underfunding caused a tremendous increase in our appellate backlog in the late 1970’s. Due to the huge backlog, many clients were denied their right to timely appeals. To ensure effective and timely representation of our clients, we sought to withdraw from excessive appeals in favor of private attorneys appointed by the court. Dade County v. Baker, 362 So. 2d 151(Fla. 3d DCA 1978), quashed sub nom Escambia County v. Behr, 384 So. 2d 147 (Fla. 1980). The appellate court would not permit withdrawal, but the Florida Supreme Court held that a trial court can choose to appoint a public defender’s office or private counsel on appeal.

Our litigation was what caused Miami-Dade County to agree, to compensate private counsel to handle some of the appeals. Attorneys were screened so that only qualified appellate counsel participated. Although the compensation was minimal, the program was effective in reducing the backlog to manageable levels. We also joined with the Dade County Bar Association in the mid-1980’s to implement an emergency, volunteer-appellate attorney program to further assist in handling the backlog.

We had filed amicus briefs on behalf of other Florida public defenders who faced excessive caseloads due to legislative underfunding. In In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1132, 1136 (Fla. 1990), the Supreme Court recognized that “the woefully inadequate funding of the public defenders’ offices, despite repeated appeals to the legislature for assistance” was “a statewide concern,” and chided the legislature to “live up to its responsibilities and appropriate an adequate amount” to fund the public defender offices. The appellate court litigation left a number of significant issues untouched, and in response to our suggestions as amicus, the Supreme Court addressed those issues and ruled in a favorable way.

On behalf of the Florida Public Defender Association (FPDA), we have pressed for courts to recognize the professional independence of public defenders to manage their own caseloads, free of judicial interference. We advanced this position in In re Certification of Conflict in Motions to Withdraw Filed by Public Defender of Tenth Judicial Circuit, 636 So. 2d 18, 22 (Fla. 1994), in which the Supreme Court held that, although an appellate court may make an objective inquiry to confirm the factual basis for a motion to withdraw due to excessive caseload, the court should not “attempt to interfere in the management of the Public Defender’s office, or attempt to instruct the Public Defender on how best to conduct his affairs.”

Justice Harding concurred: “The public defender is a constitutional officer. Art. V, §18, Fla. Const. The public defender is charged not only with representing indigent defendants, but also in managing an office, directing personnel, and administering a budget. ... [Public defenders] should be accorded great independence in making the decisions to carry out their charge . . . Courts should be reluctant to get into the micromanagement of a public defender’s office.” Id. at 23.

We also has had to litigate excessive juvenile caseloads. In 1992, we filed motions to withdraw and to appoint outside counsel. These motions were granted in all of the juvenile divisions, leading to negotiations in which Miami-Dade County agreed to fund additional attorney positions for us to represent children in the delinquency system.

Beginning on July 1, 2004, expenses that were formerly paid by the County are now paid from state budgets given to the court system, the state attorney and the public defender. Soon after these changes, the public defender joined with the state attorney in challenging the trial court’s practice of ordering expert witness reports and then ordering the public defender and state attorney to pay the costs. The appellate court agreed that the trial court should pay the costs as “the party who requests the appointment of the expert must pay for the expert.” Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So. 2d 527, 532 (Fla. 3d DCA 2005).

We have made a long-term effort at the state and federal levels to get loan repayment assistance for its attorneys. We are pushing for legislative action, through the John R. Justice Prosecutors and Defenders Incentive Act of 2007, to try to increase the retention rate. We are urging congressional members to fund a loan repayment program for law school graduates who elect to work for our office. We have had no success at the state level, but in 2007, the bill passed both houses in Congress.

Our assistant public defenders are zealous advocates for their clients. In the few instances over the past three decades when a judge has charged one of our lawyers with contempt, we supported these lawyers and solicited pro bono representation for them by highly regarded attorneys. Vizzi v. State, 501 So. 2d 613 (Fla. 3d DCA 1986); Thaxton v. State, 525 So. 2d 1009 (Fla. 3d DCA 1988); Smith v. State, 954 So. 2d 1191 (Fla. 3d DCA 2007).

Another example is when an assistant public defender filed an appellate brief one day past a due date, both he and Public Defender Bennett Brummer were ordered to appear before the appellate court to answer a contempt charge. Chesterfield Smith, Esq., a renowned attorney and founder of Holland & Knight, assisted pro bono in their successful defense.

Improvement of the Court Appointment System—Creation of “The Wheel”

Prior to mid-1992, the court appointment system for criminal cases in the Eleventh Judicial Circuit of Florida was controlled by judges. Several judges distributed these court appointments at their whim to only a small number of private attorneys who would pay kickbacks in return for additional appointments. This practice resulted in federal prosecutions and convictions of several private lawyers and judges in “Operation Court Broom.” Numerous instances of fraudulent billing were also uncovered.

As a consequence of the scandal, a committee headed by a prominent private attorney recommended the creation of a new court appointment system to be run by us, without any judicial involvement. The new system came to be called “The Wheel,” because attorneys were assigned from a rotating computer-operated registry. “The Wheel” opened participation in the criminal justice system to 500 lawyers. Steps were taken to ensure that quality representation was provided to indigent defendants by court-appointed counsel. Participating attorneys were screened by a peer committee for bar and trial experience, and they were required to meet relevant continuing legal education requirements.

Attorneys who failed to provide effective assistance to their clients or failed to demonstrate a satisfactory level of professionalism were subject to discipline, including removal from the system. Finally, fees earned were subject to peer review for reasonableness by a panel of our representatives, the County Attorney and the FACDL.

We operated “The Wheel” from 1992 until 2004. During that period, 500 attorneys participated and 5,000 court appointments were assigned yearly. By contrast with its predecessor system that was abandoned in disgrace in 1992, “The Wheel” was operated scandal-free, while providing higher quality representation and saving millions in taxpayer dollars.

In Nov. 2006, The Miami Herald revealed that the state attorney’s office, in conjunction with the clerk’s office, had been falsifying the criminal records of defendants who had agreed to cooperate with the state. Dan Christensen and Patrick Danner, Bogus Dockets Shield Informants, The Miami Herald, Nov. 18, 2006, at A1. Shortly thereafter, the state attorney sought rules of procedure to legalize this behavior. Acting through the Florida Public Defender Association, we filed comments and argued in the Supreme Court of Florida, and worked through the rules committees to create procedures that will ensure the integrity of court files, while not revealing the identities of confidential informants. In re Amendments to Florida Rule of Judicial Admin. 2.420-Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007) (sending issue back to rules committees for further review).