More quo warranto writ filings online

I've taken several days off from blogging. You know how it is, between taking care of practice and family, paying attention to the Florida primary (prediction: there will be a lawsuit about those not counted Democrat delegates before it's all over), and the fact that there isn't much news about dependency defense in the past few days, I have stuck to the rule of not blogging if I don't have anything useful to say.

There are filings to read in the FACDL quo warranto action, though.

Here is a link to the State's initial brief.

Here is a link to the appendix to that brief.

Initial thoughts, not having read it all yet, is that even though the lower court's order encompassed whether or not the Regional Counsels should continue to provide not only criminal defense counsel, but dependency defense counsel, Chapter 39 is not included in the cites in the State's brief.

Stepchildren we remain. One would think that the power granted to state actors to break families apart would be at least almost as high on the list of concerns as whether or not someone might do jail time, but alas it is not so.

co-bloggers wanted

It's been my experience through trying to build an attorney directory (future of that: up in the air) and trying to get a message board going (present of that: not going so much) that attorneys are information sponges and participation pet rocks.

I can say that. I'm an attorney.

As we have about six weeks before the next event in the FACDL quo warranto case (oral arguements -- I'm going to spell it that way anyway, spell check), I'd love to know how things are going around the state.

Are the Regional Counsels taking dependency cases where you are? Do you have a point of view you'd like to add to this blog? Do you disagree with the tone of this blog but want to contribute to solutions to problems of providing defense to the indigent in dependency cases? Do you want to start a statewide organization of dependency defense attorneys?

Or rather, do you want to write for this blog?

If so, and I reserve the right to say "no thanks" (how's that for a pitch?) use this link to find the contact information for DependencyDefense.com. It would be great to have more writers here with different perspectives than mine and more information than I can gather.

The Daytona Beach News Journal weighs in

"Fiendishly short time frame". That's a nice choice of words in the editorial that you can read at this link.

Here's an excerpt:

From the start, the system seemed troubled. The Legislature set a fiendishly short time frame to have the offices up and running -- the session ended in spring, and the offices were supposed to be up and running by October 2007. They weren't. In fact, there was much dispute over who was actually meant to pay the overhead costs of operating the new system -- the state budgeted $50 million for the new regional counsels (a sum that probably wouldn't have been enough to hire the skilled attorneys necessary to handle complex cases) but didn't include the roughly $20 million needed to provide office space, equipment, furniture and other essentials. Neither sum contemplates the increased risk of expensive appeals while the kinks are ironed out of the new system.

Compare the cost of the new system with the $90 million spent annually on conflict counsel under the court-appointed system and the notion that the state was getting a bargain becomes even more suspect. It makes more sense to return to the system that works.

And my favorite part:

The fees for conflict attorneys are usually capped at a rate below the market average for private attorneys.

I hope that the public and the legislature keep that in mind now that everyone seems to be agreeing before the Supreme Court that the services the Regional Counsels were meant to do are, in fact, quite valuable indeed.

Are you keeping track?

Speaking of the post below, I have a question for you private defense attorneys who are keeping the dependency courts of the State of Florida running smoothly as the Regional Counsel offices litigate with FACDL and operate at various levels of readiness:

Are you keeping track of how many indigent parents are not getting counsel at their initial shelter hearing?

If not, you should be. If you'll pass it on to this website, we'll make sure that the data gets to the legislature when it next considers what to do about the Regional Counsel system.

Does Aisha Bowen have a lawyer?

This weekend I saw something remarkable. I remember back to when the national media got some mileage out of a client of mine, accusing her of putting her baby in the oven and turning it on. Nancy Grace of CNN got all over it.

The problem was, and is, that it never happened. She never put her baby in the oven and turned it on. Didn't happen. Since then the family has been successfully reunited and the dependency case closed to the satisfaction of everyone, including DCF and the judge.

My client didn't give interviews. You want to know why? She had a lawyer -- me. There was no good reason to give interviews to the media. We had work to do -- to prove our case and get on with what it would take to get her kids back to her, and that's what we did.

So this weekend I saw on the local news a story out of Ocala. It seems that there is cell phone video footage of, as the news says, the following:
According to authorities, on Jan. 13, a resident went to the Ocala Police Department with a Sprint Treo cell phone that he recently had purchased and showed them a video clip of the woman hitting the child. The police report notes that the video shows the child being struck multiple times while being picked up by his arm, and shows him being carried to a bedroom and placed in a playpen, where he was again hit before being forced to lie down.

Now that may or may not be child abuse rising to the level of needing both an arrest and the removal of the child to be placed in foster care. Let me be clear: I don't know. I haven't seen the actual video. I don't know if the mother was offered services to rehabilitate herself and still keep the family together. I don't know if this was her first case of this sort or if there had been previous reports. I don't know if she is someone who ought to be eventually reunified with her child or not. I simply don't know much, and neither do the news outlets who are reporting this.

I do know this: She gave interviews to at least three media sources from jail, one print, and two television. From the text of the various articles, it seems clear that she's not yet spoken to an attorney, and that is the point of this post.

From the news stories, we know that Ms. Bowen was arrested on Friday, January 20. The Marion County Clerk of Court website has not yet caught up to the event, so there is no online record of it there at the time of this posting. Assuming that the removal of the child by DCF took place at the same time as the arrest as reported by the news, there should have been a shelter hearing on Friday. It seems that there was not one, the matter was heard by a judge pulling weekend duty, and a shelter review hearing will be heard tomorrow, on the Tuesday after the MLK holiday.

Now that the Regional Counsel Offices have won their victory at the Florida Supreme Court and have had the stay reinstated and have the green light to do their jobs, my question is this: will Aisha Bowen have a lawyer from the 5th Regional Counsel tomorrow, to advise her about talking to the media, to argue about imminent harm, to argue about the non-punitive and rehabilitative nature of Chapter 39 (the alleged excessive spanking took place three months ago) and to argue about the harm to the child by being placed in foster care with an order allowing no contact with his mother?

Happy Martin Luther King Jr. Day, and other things as well

Happy MLK day.

There has been news about the Regional Counsels and the Florida Supreme Court in the past few days, and plenty to talk about. Jeffrey Deen (5th Circuit Regional Counsel) visited us last Thursday at a meeting between attorneys and the dependency judges in Orange County, and some of what he had to say was newsworthy, in my opinion.

But it's a holiday weekend, and DependencyDefense.com has taken the weekend off.

See the post above for some late-weekend thoughts about something more substantive.

Indigent Defense ping-pong continues

After court today I was going to delve into the details of the motion and response before the Florida Supreme Court in the FACDL case, but since the Court ruled on it today, that isn't so pressing To be specific, the FSC has ordered that Judge Davey's Order finding the Regional Counsel law unconstitutional is stayed pending further proceedings, and the RCs can will not have to cease taking new cases this month.

I'll get around to said details later, as they will still be relevant to the larger issues yet to be decided.

In the meantime, you can find the latest order at the FSC website at this link.


It is short and to the point. Since the stay was an automatic one and the Supreme Court does not find that FACDL showed compelling circumstances required to dissolve the stay, it is reinstated.

Preview of the emergency motion before the Florida Supreme Court

I haven't read Appellant's "Emergency Motion for (1) Review of Circuit Court Order Vacating Rule 9.310(B) (2) Stay of order under appeal (Circuit Court Order Granting Petition for Writ of Quo Warranto), and (2) Reinstatement of that Stay" in the FACDL lawsuit yet, but have heard from a source some of what it argues.

Since I haven't verified it yet, I'll leave that hanging for now. Let me just say that I hope it is as I've been told, because I expect the particular argument to be easily overcome.

Vague enough? Stay tuned.

Florida Supreme Court schedules argument on FACDL case

The Florida Supreme Court has issued a scheduling order in the Crist, et al v. FACDL appeal of Judge Davey's order (see posts below for background). If you want to read the order, click here.

Petitioner's brief is due January 25, 2008, and Respondent's reply brief is due February 4th, and finally Petitioner's reply brief February 11th.

Oral Argument is scheduled for February 27th at 9:00 a.m.

There is also pending an emergency motion to reinstate the stay of Judge Davey's order finding the RC system unconstitutional. Reply to the motion is due tomorrow, January 16th.

You can follow along with the docket at this link.

I'm just noting it for a laugh

It's in the newspaper, so it must be true.

In case anyone at the Associated Press wants to correct their story about the latest order in the FACDL case, I suppose they can read this blog.

Ironic:

By Bill Kaczor
Associated Press Writer

TALLAHASSEE, Fla. --
A judge ordered the closure Friday of five newly created state legal offices that lawmakers expected would save the state millions of dollars each year.

The offices were set up to provide private lawyers for indigents when public defenders cannot handle their cases, primarily due to conflicts of interest. Those conflicts often arise when more than one indigent defendant is charged with the participating in the same crime.

Here's the order on the stay

You can read it at this link.

[a commenter found the link not working. Here is another link to the order on the Dependency Defense server]

Key findings:

1. It has not been demonstrated that the Respondents (the Governor, Senate, and Regional Counsels) have a likelihood of prevailing on appeal.

2. The Court finds the constitutional deficiences in the Regional Counsel law to be substantial.

3. Allowing the RC system to continue in the near-term would waste money, be confusing, and the problem will grow with time.

4. If the stay is not lifted, unacceptable harm will come to indigent defendants and civil litigants.

5. The harm of keeping the stay is greater than the harm of lifting the stay.

6. (see paragraph I) Appointing private counsel under the pre-existing system will save public money.

7. A blanket lifting of the stay in all respects would harm those who already took employment with the RCs.

Therefore:

A. The stay is dissolved.

B. The RCs can continue to represent criminal clients assigned before January 18, 2008, and civil clients assigned before January 31, 2008.

Update on where dependency stands after Judge Davey's ruling

Note/Update: This post previously contained email from someone privy to the proposed (and competing) orders for Judge Davey to consider. I've removed the email quote at the request of its author. There was noting inaccurate about the rest of what was previously posted here; it is simply wise to leave this post as it is now until Judge Davey issues his order.

The bottom line remains that Judge Davey did (at the moment orally pending written order) dissolve the stay of his order finding the Regional Counsel law unconstitutional.

Why it matters, part 743

While we are all paying attention to what is happening in the courts with regard to SB1088, let's not lose so sight of why we care in the first place.

As I know those of you who read this blog won't tend to do.

A Garfield County man contends sheriff's deputies barged into his home and forcibly took his 11-year-old boy to a hospital after he refused to allow paramedics to examine a bump on the boy's head....Someone called for an ambulance, but before paramedics arrived, Tom Shiflett said he picked his son up, brought him inside, put him on a couch and applied an ice pack to his head.

When paramedics arrived at the home, Shiflett said he let them look at his son, but refused to let them treat the youngster.

"I told them I didn't call for an ambulance. We're taking care of it," Shiflett said. "I want you people to leave. I didn't call you."

That led to a visit on Friday morning from two social workers. Shiflett said when he rebuffed them, they vowed to come back with a court order.

Deputies returned to serve the order later that evening. Shiflett contends he would have let them in if they said they had a warrant.

He claims they gave no such notice and barged in with a battering ram.

Shiflett said deputies temporarily handcuffed him and his wife and their oldest daughter and left with the boy.

Here's the link to the story.

Here's another take on the story.

The moral of the story: Child dependency laws are extraordinarily powerful. It is in the interest of everyone that there be a check on that kind of governmental power.

Period.

Regional Counsel shutdown confirmed

In the post below, we broke the news that the Regional Counsel offices will stop taking dependency cases by the end of the month and are directed to stop expending their budgets, at least on new matters.

It's now been confirmed.

First, from the absolutely wonderful court liaison for Orange County, I get this reply to my email breaking the news:

I got word from Regional Counsel—it is true. They will stop accepting dependency cases as of 1/31/08.

Then I got the following to my law firm's email address from someone in the know:

I posted the information on your blog earlier today about Judge Davey's ruling yesterday. I am a legal consultant working with FACDL in the 1088 challenge. The parties are working on a proposed order to reflect Judge Davey's ruling lifting the stay. As soon as it is finalized and signed, which I expect to be later today, I will let you know.

[thank you, sir]

This all raises a couple of questions, of course. First, the forms I've prepared and posted at various places on this blog and on the DependencyDefense.com website are pretty much moot, but to the extent that the RCs will be accepting new cases between now and January 31st, it's not a bad idea to keep using them. That is, it can't hurt.

Second, one wonders what will become of the employment of the various attorneys who have been hired by the RCs. I have no idea; I'll send out some emails and try to find out. I get no pleasure in what is at best an uncertain situation for them. I know that several of them are very well qualified and care about dependency defense and don't deserve to be in this situation. I also know that it is the fault of nobody in particular. I'm just noting it. If I get any good information, I will pass it on.

Third, it seems to me that the next step is to make sure that the testimony of experts in dependency defense are a part of the next time the Florida legislature revisits this whole thing. I've noted in earlier posts that there is a no such thing as a "Family Preservation Legal Services Association" or anything akin to the FACDL specifically for dependency defenders, but there ought to be. Let's talk to each other more and be better prepared to give competent expert information to the legislature when they look to fixing SB1088.

Fourth, today's blog traffic is at least quadruple what it normally is. Cool. As always, I invite you to leave comments or join the message board.

Breaking -- Regional Counsels ordered to shut down

That is, if my unsourced and unverified source is correct.

From the comments to an earlier post:

Regional Counsel cannot take any new criminal cases after 1/18, and they can't take any new civil cases after 1/31. They can't hire new staff or spend any $$ except to maintain existing caseload. The judge ruled from the bench late yesterday at the hearing, and the order hasn't even been signed yet.

January 10, 2008 8:04 AM

In other news...

...if you are following the posts below in order...

The 1st DCA issued an order today (I don't yet have a copy) that is summarized on its website as follows:

Appellants' emergency motion to require stay of all further proceedings in the trial court is denied. This disposition is without prejudice to the right of either party to seek review pursuant to Florida Rule of Appellate Procedure 9.310(f) of the trial court's order on motion to vacate the automatic stay.

What this means is that Judge Davey in Leon County can rule on the motion to lift the stay (of his own, earlier order) that was described in posts below.

Chaos

Let me start with a bit more from todays email. From a dependencydefense.com reader:

Hi Again:

What a mess!

Our Court Administrator sent an email to the Court's saying that the Regional Counsel was not to take ANY cases because Judge Davey lifted the Stay.

Wow.

To make it even more frustrating, it took me days to get the JAC to respond to my request for a review of our Order of Appointment after January 1st. Last week appointments were made but the Regional Counsel was not operational. I finally heard from Attorney Presnell yesterday. He said:



Dear [helpful DependecyDefense.com tipster]:

JAC has been informed by Philip Massa, Regional Counsel, Fourth District, that his office began accepting appointments to dependency cases in St. Lucie County (Fort Pierce) on January 7, 2008. Counsel appointed to a dependency case before that date are considered “properly” appointed and may be compensated.

Stephen

Stephen M. Presnell

General Counsel

Justice Administrative Commission

First let me talk about that. I've read the legislation creating the Regional Counsel offices, and it deals with appointments of private counsel, at least when the Regional Counsel office itself has a conflict. Please read the post at this link if you have not already. This is what we've been doing in Orange County since January 2nd. We're just trying to comply with the law, nothing more nor less.

The email cited above seems to suggest that JAC is taking the position that no private counsel appointed by a dependency court judge will be compensated, period, once a RC begins operation. Again, by simply reading the law creating the RCs, that cannot be true. Really, read this post.

As I said to my emailer, this website has been far more interested in keeping good dependency defense from becoming irrevocably gutted in the Great State of Florida than in preserving the practices of dependency defense attorneys like your author. I mean that; it would be far easier to recover and rebuild the latter than the former.

To sum up. Do I have this straight? 1) The Regional Counsels are not to accept any more cases, and at the same time 2) no private counsel is to be compensated for accepting any cases.

I am certain that is not the way it will work out, particularly if y'all consider using the forms. But still. Chaos.

Quo Warranto action certified to Florida Supreme Court

Judging by the web searches that are leading people to the blog today, this needs to be covered.

According to the Leon County Clerk's website, there was a hearing on FACDL's motion to dissolve the stay of Judge Davey's order declaring the Regional Counsel law (at least in part) unconstitutional (it's a long one, but you might find the exhibits interesting.). If you've not read Judge Davey's original order, you can click here.

The Respondents (The Governor and the Regional Counsels) moved for a continuance of the hearing on that motion (and also for a protective order regarding a subpoena of JAC) that was scheduled to be heard today, January 9, 2008. I do not know yet (I've been in court all day) if that hearing happened, but there was an order issued yesterday denying the motion to continue and denying the motion for a protective order.

Meanwhile, the 1st DCA has issued an order certifying the case to the Florida Supreme Court as one of great public importance and requiring quick resolution. You can read that order if you scroll down to page 7 at this link.

And confusion continues to flourish. This from today's email:

I just received a telephone call from the Regional Counsel in our County. He began taking cases on Monday. He was informed today that they are NOT to take any additional cases or spend any money.

Now what??

That's interesting. Part of the Respondent's response relies upon the fact that the RCs have already established attorney-client relationships in many cases. I wonder who has told at least one of the RCs to stop taking cases, and if they are not to spend any money, what about the current employees?

Up and running or not?

I've been surprised that no Florida news outlets that I've run across have written about the progress of the Regional Counsel offices since the official start date of January 2, 2008.

They are expending a budget as we speak. Public money is being spent. It is not in any way a bad idea to ask how the Regional Counsel offices, run by governor-appointed public officials, are doing. But there haven't been any news stories that I've found, save one.

First, lets revisit the email sent by the 5th Regional Counsel to employees after the ruling in the FACDL quo warranto action (it was first posted here):

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.

So what are we to make of this lone news story about what is happening?:

DAYTONA BEACH -- A new state-run office created to save public money while providing attorneys for poor people charged with crimes was supposed to be up and running already, but a lawsuit challenging its constitutionality and resistance by local governments to help pay has brought delays.

Jeffrey Deen, the Orlando-area lawyer who was appointed by Gov. Charlie Crist in August as criminal conflict and civil regional counsel for the local court district, said the process has been stalled by conflict but is working locally.

My only point is that this is all confusing, and frustrating. We need to start with answering the question, has the lawsuit delayed the start date for the RCs to perform their responsibilities, or hasn't it? The courts need to know how to approach this in the near term.

Incidentally, and as usual, the story linked above does not mention dependency cases at all, only the criminal side.

The first day

I'm happy to report that in Orange County we did have a Regional Counsel attorney attend shelter hearings, after being notified this morning to do so. I believe this is because courthouse staff has been proactive about trying to get information from the 5th Regional Counsel.

The Judge conducting shelter hearings today approved of my form (from the post below) and decided to use it. Thus a parent was spared from having to wait until later for counsel today.

I consider that a victory. Private (rotation or wheel) counsel will still get appointed when appropriate, though at a diminished rate than before, and parents will get lawyers at shelter, at least here in Orange County.

I've got no other reports except from Marion County, in which no Regional Counsel attorney showed up for shelter hearings (the Florida Bar News might want to rethink the headline "Regional Counsels Open for Business"). Reportedly the judge in Marion simply appointed private attorneys from the rotation list, which is risky in terms of those attorneys ever getting paid.

Either the Regional Counsel is going to perform its statutory duty or it is not. In Orange, it did; in Marion it did not. The offices are not "open for business" if they are not even appearing to represent dependency clients at shelter hearings.

How did it go in your county?

How we will keep parents represented January 2

I've noticed a spike in readership as the day (tomorrow) that the Regional Counsels take over dependency defense, despite no new posts here for a while.

Relax, we have a plan.

Here are two scenarios for January 2d, 2008, and days to follow.

1. An attorney from your Regional Counsel Office is present in court to attend shelter hearings. That would be a good thing. I also don't expect it to happen, based upon what I hear. It would be great if readers could comment here, on the message board, or send me email to let us know if that happened in your county.

That attorney will represent one parent per case. Since Chapter 39 requires that parents have representation at all hearings, including shelter, there must be a mechanism for the Regional Counsel attorney to quickly and efficiently certify a conflict to the Clerk of Court so that private counsel can be appointed before or at the shelter hearing.

I know that locally there is no plan or mechanism to do that yet, and that is likely to be the case throughout the state, which will result in a whole lot of people being denied the right to counsel.

All that may be needed is to have the right form on hand, and DependencyDefense.com has stepped up and made one for you.

This link is a pdf version if you just want to review it.
This link is a MSWord file if you want to modify it for your circuit and use it.

And I do invite you to use it.


Scenario 2: No attorney from your Regional Counsel Office shows up at shelter hearings. This is a certainty in at least several counties. It violates both Chapter 39 and Chapter 27. Hopefully you have thought ahead and there will be rotation (wheel) attorneys on hand tomorrow and in the coming days at shelter hearings.

Chapter 27 still allows your Judge, on his or her own motion, to find a conflict and appoint counsel. We have created a form for that as well for you to use if you'd like and haven't come up with something better (if you have, feel free to share).

This link is to the pdf version
This link is to the MSWord file version that you can modify.


Scenario2a: What I can't plan for is what to do about the situation where the RC attorney doesn't show, the Judge certifies a conflict and gives all but one parent counsel. The best we may be able to do in the short term is to request a continuance (The statute allows for one in this instance up to 72 hours) and make noise to the Regional Counsel.

If they still don't have anyone prepared to represent that parent, the only thing that comes to mind so far is a writ of mandamus.

Note 1: Hey, you say, what's the fuss if the whole RC thing was declared unconstitutional? Answer: 1) the order was stayed; 2) we don't know what the end result will be yet; and 3) the order may not ever apply to dependency cases, although setting up this whole system just for that will give the legislature fits.

Note 2: You're welcome. Feel free to leave comments.