Just passing it on

Some of this news article is not quite accurate, but it's something of interest anyway. An excerpt, if you don't want to hit the link and read the whole thing:

The newly created "conflict counsel" system, which is intended to serve as a second public defender's system in Florida, is unconstitutional and the conflict counsels and their lawyers should stop representing clients, a circuit judge ruled Thursday afternoon. The ruling could halt many criminal cases, as criminal defendants who had conflict counsel lawyers assigned to them would no longer have legal representation.

The system was set up this year by the Florida Legislature as a way to save money. Legislators said it cost too much to operate the previous system of paying private lawyers to represent indigent defendants when the public defender had a conflict in the cases.

The conflict counsel office represents defendants in cases where the Public Defender's Office would have a conflict of interest, such as when two or more people are charged in a case and the public defender represents one of them.

The state Attorney General immediately appealed Thursday's ruling, and the appeal creates an automatic stay. That means the conflict counsels and their lawyers can continue to represent clients, said Sandi Copes, press secretary for the attorney general.

There are five regional conflict counsels who are appointed by the governor for a term of four years and who oversee a staff of lawyers in a district that is the same area as the five district courts of appeal.

My prediction: the legislature will dig in its heels and bolster the law it only "reluctantly" passed, and within a year the system will cost at least twice as much as the worst projections under the old system, which actually had the feature of people getting quality representation on the cheap.

Bureaucracies never die, do they?

To square the circle on the post below

Here is the email sent out from JAC to the 5 Regional Counsels after the declaration by Judge Davey that the Regional Counsel law is unconstitutional:

Lou Hubener has provided guidance (see below) regarding continuing

operation of your offices.  Note it is recommended that you include in

any future leases or other long term contracts that your office may

terminate the contract (with a short notice period) in the event of an

adverse final decision.

Stephen M. Presnell

General Counsel

Justice Administrative Commission

P.O. Box 1654

Tallahassee, FL 32302

Tel.: 850-488-2415

Fax: 850-488-8944

E-mail: stephenp@jac.state.fl.us

-----Original Message-----

From: Lou Hubener [mailto:Lou.Hubener@myfloridalegal.com] 

Sent: Friday, December 21, 2007 10:58 AM

To: Victoria Montanaro; Stephen Presnell

Cc: Scott Makar

Subject: FACDL v Crist

Upon the filing of the notice of appeal the State gets an automatic

stay.

See Fla.R.App.P.  9.310(b)(2).  That means the Regional Counsel may

continue their operations, i.e., hire attorneys and staff, pay them,

enter

leases and contracts, etc.   However, I would advise that any leases or

contracts provide for termination  with a short notice period so that if

the ultimate decision is adverse the office can wind up its business.

The Regional Counsel law is unconstitutional

Merry Christmas. I mean that. Even if you don't celebrate that particular holiday, we at DependencyDefense.com wish you a Merry Christmas. Have a great day.

It's been a long, busy month, and there's much more to come. There won't be much blogging here in the next week or so, but I can pass this along:

The FACDL quo warranto writ has prevailed. An appeal has already been filed, so much is up in the air.

But the FACL quo warranto writ has prevalied, so Merry Christmas.

So, here's the lowdown. First, in case the link above doesn't work, here's a pdf of Judge Davey's order at this link.

Here are the emails that have been flying today. First, from FACDL:

I am pleased and proud to announce that FACDL has prevailed in its Quo Warranto action. In an Order released late yesterday afternoon, Judge P. Kevin Davey ruled that 2007-62 (commonly known as SB 1088) was an unconstitutional exercise of executive and legislative power. His Order specifically enjoins every aspect of the implementation of the Regional Conflict Counsel system.

I want to give my heartfelt thanks and special recognition to Sonya Rudenstine and Todd Doss, the two members who volunteered their time to spearhead this effort, and without whom victory would not have been possible. They are truly remarkable Constitutional lawyers, and we are fortunate that they feel so passionately about this effort and FACDL.

The Court’s Order will be posted on the website shortly, and we will advise you as soon as new developments occur.

I have often been proud of FACDL, but never as much as I am at this moment.

Now, the email from local Regional Counsel Jeffrey Deen to his people:
Folks;

No matter waht you hear, a stay has been issued. In the 5th, 7th & 18th Circuits I have already spoken to the Chief Judges and we are proceeding as is and as planned. I am sure the same applies in the 9th until further notice. The enclosed email is from the State advising me to continue. Until there is another order we are proceeding as planned everywhere, sorry for the confusion but personally I can tell you that I think this will be resolved by the legislature if not by the Courts. While obviously I cannot gaurantee anything I believe we will be here for the long haul. If you have any questions, don't stew on this Call Me. I'll be out until Wednesday but call, I'll call you back.

ps. The Miami Herald is wrong, the Supremes haven't done anything. It was some attention seeking Circuit Judge.

The bottom line is, for me, that I will be on station January 2d, and if the Regional Counsel isn't there and ready to both represent a parent and also to certify conflicts at shelter hearings, we'll be filing a writ of mandamus.

Merry Christmas. I'll be blogging again when I get around to it.

Why We Fight

1. The 4th Amendment.

Suppose a police officer wants to investigate a house because he believes that there is a meth lab there. Now suppose that the information upon which he relies is not sufficient for a judge to issue a warrant.

What happens, in light of the 4th Amendment?

Now suppose that the same police officer goes to DCF with the same information, only this time he or she adds the fact that there may be a child in the home.

What happens? Does the 4th Amendment disappear into thin air?

I challenge you dependency defense attorneys, particularly in Florida, to give me a good response to that question.

With that introduction, I direct your attention to this article: "Mom threatened with jail for teaching kids at home". This comes on the heels of schools threating jail for parents who do not precisely follow recommended vaccinations. I recognize that many readers won't cotton to the point of view of a WorldNetDaily article, and that's fine. The indisputable fact remains that child protection laws are, in fact, being used to threaten with prison those parents who do not behave in the very narrow approved ways approved of by their respective state governments.

Here's my point after mentioning the three topics above: Chapter 39 is powerful. There are criminal implications -- serious ones -- for obstructing a DCF investigation, which by definition requires entry without warrant into one's home and interviews without benefit of counsel with both parents and children.

Now, the fact that I represent parents in dependency cases does not mean that I don't take child abuse seriously. I do, and the people who know me in this business who work for DCF and its agents will be the first to tell you so.

I just wonder aloud, if you will allow me, what we're doing right now. Florida has already gutted dependency cases of its most experienced and passionate defense advocates. That has already happened. There is no sign that the Regional Counsels have any opinions about the power of Chapter 39 other than to argue that some counties disobey the law to the extent that they don't appoint defense attorneys at shelter hearings, therefore the rest of the counties ought not have any expectation that the new Regional Counsels will do so for anyone.

Let me be clear: I do not think that there is any kind of grand conspiracy to effect an extraordinary governmental power grab over what would otherwise by private behavior by families. On the other hand, I do think that we've created a perfect storm:

The Regional Counsel system will in the first place shove aside those who have become expert in defending in dependency cases. That's already happened. It will replace those defenders with attorneys who are not expected to present a defense at shelter hearings, thus leaving parents and their kids with no voice for literally months after a simple anonymous allegation that must be taken at face value in the absence of an initial defense. That is happening. Then the new system will provide these families with defenders who are, at best "part time" and who are at worst unprepared to handle the volume of cases in dependency court, at (eventually, as one elected public defender told me) more than the cost of the previous system of paying private attorneys a nominal hourly rate.

What does that mean for us, in light of the enormous power of Chapter 39? It means less people invested in checking the power of government. I've often said that I know personally and respect, and in fact like, most of the attorneys for DCF. I like their investigators and social workers, with some notable exceptions. Having said that, what is the public interest served by allowing DCF and its agents to get used to operating with no check, no balance, and no one worth preparing to face in court at the most critical moment: the shelter hearing itself.

Pardon my rant, but if just one of the five Regional Counsels had ever responded to my numerous inquiries about their philosophy of dependency defense and approach to shelter hearings, I'd feel better.

Chapter 39 is powerful. Since we've already lost the institutional knowledge of those who used to do this defense work, by and large, it is reasonable to ask about the quality of what will replace it.

We'll see

The headline in the latest Florida Bar News tells us, "Regional Counsels Open for Business".

Evidence of that seems to be somewhat lacking down here at the courtroom level. Still, we read:

Even with a pending legal challenge, Florida’s new Criminal Conflict and Civil Regional Counsels are pushing ahead to begin their operations and in some cases have begun taking conflict cases from public defenders.

“We’ve got our footing, we’ve got real direction and now that we’ve started taking cases. That’s started to level us out. I’m real pleased with how it’s going and so are the judges,” said Jeffrey Deen, the CCCRC for the circuits covered by the Fifth District Court of Appeal, of what has been a hectic late summer and fall....

As for "so are the judges", our local dependency judges still haven't met with the Regional counsel, and the dependency court coordinator still has no idea whether or not to assign rotation attorneys for January 2d.

Dependency defense still falls by the wayside. If you read the entire linked article, you get the impression that even if the FACDL lawsuit fails, it is just fine that criminal conflicts will continue to operate under the old system, while the new $50 million dollar system which is already paying salaries to attorneys who are not doing anything (at least from our experience locally) will take over dependency and guardianship cases at a bloated cost and with what seems to be no particular desire to meet the statutory mandate that parents be represented by counsel and able to present evidence at each stage of a dependency case, including the initial shelter hearing.

At least one of the Regional Counsels seems to be taking the position that, as the public servant tasked with providing defensive legal services to the indigent, we should take comfort that some counties are not in the practice of providing counsel as required by law

Just today, this very day, I had a shelter review hearing, after a weekend shelter hearing in which a judge placed three children in foster care without either the parents or their attorneys being heard. Today, after two solid hours of in-court litigation, two of the children were returned to the parents and the third was placed temporarily with a grandmother pending a more formal hearing. In the meantime the parents can have unsupervised contact.

That is a far cry, both in terms of the emotional damage done to the kids by being separated and placed in foster care, and in terms of the cost to Florida's taxpayers of having to pay foster parents and others, from what was the ultimate outcome. The difference was experienced and prepared dependency defense attorneys who were on the spot at the shelter review hearing.

I don't get the impression from the Florida Bar News article linked above that any of the Regional Counsels are making it a priority to provide that defensive firewall at shelter hearings, and I don't get the impression from the lack of responses to my inquiries and from what I hear from local court personnel that the Regional Counsels "get" that complying with that statutory duty actually saves taxpayer money over time as well as avoiding worlds of hurt to kids and parents from time to time.

It's two days until the FACDL lawsuit is finally heard

Hearing is scheduled for December 19th before The Honorable Judge Davey in Tallahassee.

FACDL response to AG's response filed

You can read it on the web. The second circuit now lists the case as a high profile one, so the documents can be read online.

For background, start here (it has links to earlier posts).

Here's the link to the FACDL response.

FACDL lawsuit set for hearing

To be heard in two weeks in the 2nd Circuit (the courthouse is in Tallahassee).

NOTICE OF HEARING Event: NOTICE OF HEARING Date: 12/19/2007 Time: 10:30 am Judge: DAVEY, P KEVIN Location: CHAMBERS

Honestly, if I could get my several hearings for that day covered I'd drive up there and sit in myself. As it is, I can't go, but welcome any reports from anyone who either attends or otherwise gets word of how things went.

For more information on the lawsuit from this blog, try this link and this link, and this link.

No news is no news

I recognize that there hasn't been a new post here in recent days. That is a function of a couple of factors. First, that life is good, I'm busy, and family comes first.

Second, that there just isn't much news to pass on.

Sure, there is the Orlando Sentinel article that brings home the point that an unprepared conflict counsel/regional counsel office is not the solution to big crime prosecution problem with too little resources lately. But that's not really news.

Here's what I can tell you. Remember that "baby in the oven" case that made national news not too terribly long ago?

That case closed today. DCF's supervision and the Court's jurisdiction over the family is terminated, as the children and parents were reunified half a year ago.

I can't get the Orlando Sentinel interested in that aspect of the story, or that the original reporting about it was simply not true.

So you have a national news story about a dependency case that is resolved with reunification, and the attorney for the mother (me) gets paid a grand total of $750 for the effort. I'm not complaining; my only problem is that my State's legislature thinks that was way, way, way too much money to pay a lawyer for a high profile case like that, and has decided that private dependency defense attorneys need to be done away with for good and replaced with underpaid employees of the State to oppose the underpaid attorneys of the State on the other side.

I feel good today. The baby was never put in the oven, by the way.