Litigating the ghost of Gideon in Florida: separation of powers as a tool to achieve indigent defense reform.

• Author: Logan, Wayne A.
• Position: Broke and Broken: Can We Fix Our State Indigent Defense System?

Today, the promise long ago heralded by Clarence Gideon's successful appeal (1) goes unfulfilled, as public indigent defense systems nationwide operate in perpetual crisis mode. (2) A key difficulty has been that Gideon, while surely deserving of landmark status for its recognition that "lawyers in criminal courts are necessities, not luxuries," (3) failed to provide any guidance on how states should afford such assistance. (4) This deficit has only worsened over time, as the right to counsel has been extended to less serious criminal offenders, (5) resulting in the infusion of yet more indigent clients, magnifying the importance of what Anthony Lewis justly termed an "enormous social task." (6)

In Florida, the difficulty has been in evidence since Gideon was decided, (7) prompting the state's supreme court almost thirty years later to condemn the "woefully inadequate funding of the public defenders' offices, despite repeated appeals to the legislature for assistance." (8) In the Sunshine State, however, the standard saga of underfunding and case overloads has come with a twist. Dating back to the 1970s, Florida courts, including its supreme court, have repeatedly sought to remedy the situation. After condoning Gideon's plight, (9) only to have its position repudiated in Gideon and rejected by twenty-two other states that filed an opposing amicus brief with the Court, (10) the Florida judiciary subsequently distinguished itself, forcefully insisting upon the representational rights of accused indigents in the face of chronic public defender underfunding and case overloads. (11)

This judicial assertiveness did not go unnoticed by the Florida Legislature, which in 2004, without fanfare or notice, took the unusual step of expressly prohibiting courts from granting public defender motions to withdraw on the basis of a conflict of interest deriving from excessive caseload or underfunding. (12) The legislative shot across the judiciary's bow, while not unprecedented in the recent annals of Florida lawmaking, (13) constituted a provocative challenge to the inherent authority of Florida courts to regulate attorney conduct and ensure satisfaction of the Sixth Amendment right to effective assistance of counsel.

The provocation went unchallenged until 2008, when public defenders in Miami-Dade County filed suit in state court. (14) The litigation, emboldened by a 2006 ABA Formal opinion advising defenders to refuse or withdraw from cases when excessive caseloads interfere with their capacity for effective representation, (15) was pursued on a pro bono basis by the Miami office of the law firm Hogan and Hartson and has justifiably attracted national media attention. (16) In this Article, I will discuss the Miami-Dade "excessive caseload" litigation, which continues to unfold in Florida's appellate courts. In doing so, I will offer some thoughts on the separation of powers implications of the aforementioned statute, which, other than a similar provision adopted in Colorado (17) that has gone unchallenged, stands alone in the nation.

1. FLORIDA JUDGES AND LEGISLATORS CLASH

   The Florida Legislature created the Office of the Public Defender in 1963 to comply with the mandate of Gideon. (18) In 1972, the office assumed constitutional status as a result of an amendment to the Florida Constitution, (19) and today public defender offices are located in each of Florida's twenty judicial circuits. (20)

   The issue of insufficient public defender funding and excess workload has been litigated in Florida courts for decades. In 1980, the Florida Supreme Court consolidated two court of appeals cases reaching divergent results on the authority of trial courts to grant public defender motions to withdraw, based on assertions that excessive caseload precluded their capacity to provide effective client representation. (21) In Escambia County v. Behr, the court held that trial courts faced with such motions enjoyed the unfettered discretion to appoint substitute private counsel at the county's expense, without having to specify a lawful ground or special circumstance. (22)

   Thereafter, Florida public defenders filed motions to withdraw in capital and non-capital cases alike, focusing on appellate clients in particular, and achieving varied degrees of success. (23) The matter came to a head in 1990 with the Florida Supreme Court's decision in In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender. (24) The court stated that "[w]hen [an] excessive caseload forces the public defender to choose between the rights of various indigent criminal defendants he represents, a conflict of interest is inevitably created." (25) The court, however, hastened to add that,

   while it is true that the legislature's failure to adequately fund the public defender's offices is at the heart of this problem, and the legislature should live up to its responsibilities and appropriate an adequate amount for this purpose, it is not the function of this Court to decide what constitutes adequate funding and then order the legislature to appropriate such an amount. Appropriation of funds for the operation of government is a legislative function. (26) Eight years later, in 1998, with excessive caseloads unabated, the Florida Supreme Court referred to the situation as a "major crisis" and ordered "on an emergency basis" that the Tenth Judicial Circuit's public defender accept no additional appellate cases, pending further direction from the trial court and the appointment of substitute counsel. (27) The court observed that the "problem of substantial delays [was] ... not a new issue," but rather that it had come before the court on "multiple occasions" over the last eighteen years. (28) The record of delay (more than 640 cases at the time of oral argument) represented "a significant problem of constitutional magnitude that must be immediately addressed." (29)

   The court recognized that its order, combined with a request that the legislature allocate an emergency fund to pay for such counsel, only represented an "immediate short-term solution" to the crisis. (30) As a long-term solution, the court "encourage[d] ... creation of a special committee or commission by the legislature to examine the structure and funding of indigent representation in criminal cases." (31) The court concluded by offering that it "firmly believe[d] that this type of delay in the criminal justice process ... can be eliminated by a joint effort of all interested parties" and expressed its willingness to help "develop a viable solution to this ongoing problem." (32)

   The Florida Legislature, however, made clear its disinclination to work with the courts. Only one year later, in 1999, legislators abrogated existing caselaw to provide that courts need not accept public defender certifications of conflict at face value. (33) More importantly, in 2004, the legislature significantly altered provisions controlling motions to withdraw, enacting Florida Statutes section 27.5303(1)(d) in the wake of a voter-approved state constitutional amendment that both transferred the obligation of funding indigent defense from Florida counties to the state, (34) and expressly denied Florida courts authority "to fix appropriations." (35) The new law specified that "[i]n no case shall the court approve a withdrawal by the public defender ... based solely upon inadequacy of funding or excess workload of the public defender... ." (36) The only permissible bases for finding a conflict of interest are those contained in the Uniform Standards for Use in Conflict of Interest Cases, which themselves do not mention overload-based conflicts stemming from underfunding or workload. (37)

   The legislature also revamped the state's system for handling indigent defense appointments in instances of public defender conflicts. In May 2007, Florida legislators created five Offices of Criminal Conflict and Civil Regional Counsel (OCCCRC) to be located within the geographic boundaries of the five Florida district courts of appeal, (38) authorized to hire lawyers under the auspices of the Judicial Administration Commission (JAC) in instances of conflict. (39) The law further provided that if the OCCCRC itself had a conflict, the trial court would appoint counsel from a registry of eligible private attorneys. (40)

   The change in approach was in part motivated by the July 2004 constitutional amendment noted earlier, which shifted the burden of funding indigent defense from Florida counties to the state. (41) If public defenders were to prevail on a withdrawal motion, OCCCRC counsel would be appointed to the cases. (42) Because the OCCCRC lacks sufficient funding to accept appointments on a mass scale, (43) however, the courts would need to appoint private attorneys at significantly greater cost. From the state's perspective, the upshot of a successful motion by a public defender office very possibly would be that the public indigent defense system would grind to a halt, with the individual public defender office, OCCCRC, and JAC (also due to insufficient funding) all potentially being in a position to decline cases. II. Miami-Dade Excessive Caseload Litigation

   The modern era of Florida's excessive caseload litigation dawned in late June 2008 when the public defender for the state's Eleventh Judicial Circuit (PD-11), encompassing Miami-Dade County, sought to decline appointment in all non-capital felony cases due to a conflict of interest between previously and newly appointed clients, arising out of excessive caseload created by chronic underfunding. (44) After an evidentiary hearing, the trial court granted the PD-11's motion as to individuals accused of third-degree felonies, based on its finding that the office's excessive caseload provided only minimally competent representation. (45) The court concluded that the evidence clearly established that the PD-11 was in need of relief in order for its...