Broken promises: the failure of the state to adequately fund a uniform state court system.

• Author: Copelan, John J., Jr.
• Position: Florida

One of the most critical issues facing the 1997-98 Constitution Revision Commission is the Adequate funding of the state's uniform court system under Art. V of the Florida Constitution. The failure of the state to adequately fund the court system has led to a financial crisis of a statewide proportion, with $561,479,607 being absorbed by counties.(1) County ad valorem taxpayers have had to underwrite these Art. V costs to keep the court system afloat, and now county contributions constitute more than half of the funds which keep the courts operational. Fourteen counties out of 66 have already reached the maximum millage 10 mill cap,(2) and a further increase in Art. V costs will cause further reduction of other programs that must be funded by ad valorem tax dollars. As a result, social service programs and other benefits to citizens will suffer asArt. V costs rise. This county bail-out of the courts is certainly not the uniform state court system envisioned by the Art. V revision approved at the ballot box in 1972.

The subject of adequate funding for Art. V costs has been studied in several forums, including the Art. V subcommittee of the Florida Judicial Council in 1991,(3) the Article V Task Force created by the Florida Legislature in 1994,(4) and the Article V Roundtable cosponsored in 1996 by The Florida Bar Government Lawyer Section and the Florida Association of Counties.(5)

This article will address those issues related to the Art. V funding crisis, tracing the legislative history of Art. V, setting forth legal arguments for state funding, and calling for the revision commission to solve the judiciary funding crisis with a plan shifting the burden from local ad valorem taxpayers to the state.

Funding Crisis

As the comparison of Art. V state versus county expenses shows in Chart I, the magnitude and level of the funding crisis continues to escalate each year. Interestingly, this chart shows that the burden for running the uniform state court system is being borne by local ad valorem taxpayers and not the state. When examining county judicial expenses for 1994-95, we see that the total expenses for the county were $561,479,607, and state appropriations were $473,074,645, for a total cost of $1,034,554,252. A breakdown reflecting the state and counties' spending categories for these amounts is shown in Figure 1. Of the statistics reported since 1988-89, the state-funded portion has never exceeded the county expenditures. The fiscal impact on county budgets can be seen in the next chart, which shows a list of the top seven counties by judicial expense for county year 1994-95.

[Chart 1 ILLUSTRATION OMITTED]

The statistics of county involvement show that since the 1972 revision of Art. V, the state has abdicated its constitutional duties to the county ad valorem taxpayer. In Dade County, for example, net Art. V-related costs incurred by the county have increased by 208 percent over the last 10 years ($37 million in 1983-84 to $114 million in 1994-95). During the same period of time, the Dade County general fund from which the costs are paid has increased by only 6.5 percent annually.(7)

The tax and revenue structure for counties under our current constitution is not designed to have county budgets underwrite the foundation of our court system and access to our court services. Art. V costs are absorbing larger amounts of county budgets at the expense of other local needs. In the larger counties, the numbers are staggering, while many of the smaller counties are already at the 10 mill cap. Simply put, we are in a financial crisis, and the Constitution Revision Commission needs to develop and mandate a plan for the state to directly fund and merge the state court system in a uniform manner as envisioned by the electors in 1972.

When we look at these areas of funding, one item that leaps forward as a staggering example of the state shifting its burden is that of special court-appointed private counsel when public defenders have a conflict or overload. According to a study compiled by the Advisory Council on Intergovernmental Relations in 1994,(8) state appropriations for conflict and overload cases have completely shifted to the counties; from an annual appropriation in fiscal year 1982-83 of over $3 million to $2 million for years 1983 through 1989, $189,000 in 1990, and $0 since 1991.(9) These special assistant public defender costs and fees are funded by each county depending upon the financing ability of a particular county and counsel are compensated in various ways depending upon the county. For example, in 1994-95, Dade County incurred expenses of roughly $3 million for 70 county-funded contracted special assistant public defenders (SAPDs), $8 million for private court-appointed counsel for conflict cases, and $2.9 million for public defender-related court costs such as court reporters, expert witnesses, and investigation fees.(10) In Broward County, it is estimated that special public defender costs alone for FY 1997 will be $4,310,620(11) while the statewide appropriation for special defender costs will be zero.

Historical Perspective

In 1968, the Constitution Revision Commission proposed important changes to Florida's executive and legislative branches of government but, because of fear of jeopardizing the passage of these and other constitutional reforms, Art. V of the state Constitution was left untouched.(12) However, state lawmakers, judges, lawyers, and Florida's citizenry realized the need to modernize the near century old judicial system.(13) In 1970, the Florida Legislature placed before the voters a revision to Art. V which for some went too far and for others fell short of expectations. The proposal sought to establish a court system consisting of two- or three-tiered trial courts, depending upon a county's population.(14) But this proposal did nothing to prohibit inherent conflicts of interests resulting from part-time practitioners serving as part-time judges, and it failed to provide a sound administrative framework for the courts.(15) As stated by then-state Rep. Talbot "Sandy" D'Alemberte, House Judiciary Committee chair, "[i]n November 1970, the forces which wanted to see no change joined those which felt the proposal did not go far enough, and the people of Florida rejected the judicial amendment."(16)

Judicial reform finally succeeded with the voter approval of Amendment 1, a complete revision of Art. V, on March 14, 1972.(17) The 1972 revision to Art. V reestablished the judiciary as a co-equal branch of Florida's government by abolishing the municipal court system.(18) In addition, the revision also established a more effective means of judicial administration, consolidated a "hodge-podge" of 14 different trial courts into a two-tiered uniform trial court system consisting of circuit courts and county courts, subjected all judges to the procedures of the Judicial Qualifications Commission and required judges to devote full time to their judicial responsibilities, and required the Governor to make judicial appointments from nominations made by judicial nominating commissions.(19)

In an effort to avoid another rejection by voters, the 1972 revision was presented as a measure...