Predictions after the arguments

Wow. I don't have any good feelings about the argument. I am troubled however by the suggestion that they may in essence amend the statute by disregarding (deleting) the words public defender so that the statute is constitutional or alternatively interpreting (adding language) to suggest that the intent of the legislature was to include regional counsel as public defender for funding purposes only. The only advantage to the latter argument is that the counties should then pounce and argue that there is a problem with the legislature redefining the words "public defender" in the state constitution years after that provision was drafted and adopted.

I guess it depends on what school of thought you align yourself concerning to what extent the judiciary can legislate in order to preserve the legislation.

Now we wait.

[NOTE: I'm editing this even though it is TheReader's post to add a post title and to weigh in with my own prediction. I respect any who saw something else in the oral arguments, but to me it is very clear that the Regional Counsel law will be upheld to the letter, and probably praised in the opinion as bold and innovative. What happens to the budget of the RCs afterward is the topic of future speculation -- ArrMatey]

Liveblogging the oral arguments

The Crist v. FACDL case is up for arguments this morning before the Florida Supreme Court. I'll be blogging about it in semi-real time. If you are watching/listening (or attended), please leave your impressions in the comments below.

ALL THE BELOW ARE PARAPHRASES WRITTEN ON THE FLY

0856: You can use either windows media player or real player. Waiting for connection to open.

0902: Proceedings begin. Counsel for the Governor, Mr. Hubener opens. Two sentences in Chief Justice Lewis asks to confirm that there is no constitutional challenge to the lack of a requirement that the Regional Counsels themselves be lawyers before them. Mr. Hubener confirms that..

0903: (Ouch) Justice Pariente immediately follows with a blanket statement that the civil side of the Regional Counsel setup "seems like a rational system", and that there is no argument at all that they will not be fully competent to provide services in civil cases. Mr Hubener agrees that such argument isn't before the court.

0909: Justice Anstead: Isn't this law just about a reorganization; isn't the legislature just trying to save money? (the question is answered in the affirmative)

0910: Justice Wells: Isn't this really about the legislature making adjustments subsequent to Article 5 funding requirements? (the question seems answered in the affirmative)

Justice Pariente: The problem of partial county funding for the RC offices is not at issue today, right? (answer: correct)

0913: Justice Quince: (Did I say OUCH?) In civil cases, there is no difference at all between the regional counsel offices and having private counsel represent people, other than the structure of how those services are delivered, right? Answer: There is no difference.

0918: Mr. Hubener reminds the justices of the severability of the law if the Court finds the criminal side unconstitutional.

0919: Mr Hubener wraps up, Ms. Rudenstine for FACDL takes over. Justice Cantero starts with question: if the RC law is unconstitutional, then why wasn't the appointment of private counsel unconstitutional, since they are doing the exact same thing? The answer to the question doesn't seem to impress Justice Cantero.

0922: Pariente repeating that the counties down the road may have an arguement that the RC offices are unconstitutional for funding reasons, but that issue is not before us today.

0924: Justice Cantero: if the legislature simply removed the RCs from the definition of a public defender, wouldn't everything be copasetic? Ms. Rudenstine seems to concede the point.

0926: Justice Pariente: so if the heads of the offices were elected, there would be no problem?

0931: (game over) Justice Wells: "There is a real need to solve the problem of conflict counsel". "The legislature has taken a very constructive step in trying to solve that problem." The Constitution doesn't prohibit that...We've got a solution now that comes within the boundaries of the Constitution.

0934: Justice Wells says he can't find anything in Section 18 that prohibits this new structure. Asks for a cite.

0937: Justice Pariente: Is there one duty that the RCs are performing that would otherwise go to the public defender? 0938: Justice Cantero isn't satisfied with the answer, asks again whether the one and only problem is whether the legislature CALLS the RCs public defenders.

0940: FACDL concludes. The Court asks if there is rebuttal. The Governor's counsel declines. There are no further questions, and Court adjourns.

[I'll let this sit out here in raw form before commenting/analyzing to give some of you a chance to leave comments below first]

I apologize for my absence / Supreme Court oral arguement

It's not good form to let a blog lay dormant for a couple of weeks. I apologize. In a nutshell, I've been quite sick the past few weeks, and just haven't had the time to post dependency news.

I'd originally planned to go to Tallahassee today to watch the oral arguements in the FACDL case in person, but as I said, I've been sick, so I'll be watching it with you on the internet.

You can use this link at 9:00 a.m. tomorrow to watch the proceedings.

Upcoming Oral Argument

FYI:

If you are interested in watching the oral argument in the FACDL case visit:

http://www.floridasupremecourt.org/pub_info/summaries/index.shtml

The oral arguments are currently scheduled for Feb. 27, 2008 at 9:00 a.m.

Reply brief posted in FACDL case

First, let me apologize for my absence. Even when there is no news on the state level, there is plenty to say about dependency defense. The fact is, I've been wiped out with what seems to be the flu for over a week.

Second, welcome to co-blogger TheReader, appearing for the first time in the post below. It's great to have a contributor!

Now on the post. The reply brief of the State has been posted in the FACDL quo warranto action set for oral arguement before the Florida Supreme Court in just fifteen days.

You can read the reply brief at this link.

I don't see much there that is new after the initial brief, except perhaps for a new emphasis on the arguement that the civil responsibilities of the RCs are severable from the criminal side if the criminal part is found unconstitutional.

Proposed Legislation

Thanks to ArrMatey for letting me contribute. I thought for my first post I would let everyone know some of what is brewing in Talllahassee:

A quick check of proposed bills through www.myfloridahouse.gov reveals some interesting proposed changes to Chapter 39:

HB 271 - Sexual Battery, a bill proposed by Hooper, now in Committee on Constitutional & Civil Law - would create a new ground for termination of parental rights:

39.806(1) Grounds for termination of parental rights.--
(j) When the parent has pled guilty or nolo contendre to, or is convicted of, a sexual battery as defined in s. 794.011 or of an act committed outside this state which would be a sexual battery if committed in this state, which results in the victim giving birth to a child.

See also: CS/SB 638 - Sexual Battery/Termination of Parental Rights, a bill proposed by Children, Families, and Elder Affairs and Jones (CO-SPONSORS) Gaetz - this bill proposes the same grounds for termination but allows that ground to serve as a basis for expedited TPR and one-parent TPR.

HOW DOES THIS SIT WITH YOU?? I see some constitutional pitfalls built right into this proposed legislation.

____________________
There is also a proposed bill that appears to renew efforts to provide counsel for children:

SB374 - Child Dependency/Legal Representation, a bill proposed by Lynn, proposes the following amendments:

39.402 Placement in shelter.--
(8)(c) At the shelter hearing, the court shall: 1. Appoint a guardian ad litem to represent the best interest of the child, unless the court finds that such representation is unnecessary, and an attorney to represent the child if considered necessary by the court;

39.830 Attorney representation.--
(1) LEGISLATIVE INTENT.--In furtherance of the goals set forth in s. 39.4085, it is the intent of the Legislature that children in the dependency system receive needed legal representation.
(2)LEGAL REPRESENTATION.--Each circuit court shall establish a system for providing legal, client-directed representation for children taken into custody by the department and maintained in out-of-home care by court order pursuant to a hearing held under s. 39.402.
(a) At the hearing or at any time following the hearing, the court may appoint an attorney who has completed the training program under subsection (3) to represent the child upon motion of a party or upon the court's own motion, if the court considers such representation necessary. Upon the court's determination, the department shall provide to the attorney the name of the child, the location and placement of the child, the name of the department's authorized agent and contact information, copies of all notices sent to the parent or legal custodian of the child, and any other relevant information or records concerning the child.
(b)Once assigned, the attorney shll represent the child's wishes after consulting with and advising the child in a manner appropriate to the child's age. The attorney must in all circumstances fulfill the same duties of advocacy, loyalty, confidentiality, and competent representation which are due an adult client. The attorney shall represent the child until discharged by court order because permanency has been achieved or the court believes that the legal representation is no longer necessary.
(c) The judicial circuit may contract with a public or private entity having appropriate expertise and training to provide attorney representation.
[section 3 provides for the development of a training program]

WHO IS PAYING FOR THIS AND WILL THAT BE THE DOWNFALL OF THIS EFFORT?? Since there would be a contract with the circuit, I presume that would have to include reasonable compensation. The lack of funding for attorneys or attorneys-ad-litem for children has been a problem. In my circuit, representation of children is limited to Legal Aid or pro bono attorneys (of which , I submit, there are few). When Legal Aid has had a conflict or is otherwise not availalbe, representation of children has been overlooked because of the funding problem. Also, I like how this bill would resolve a debate that I have participated in and witnessed - whether the attorney for the child speaks on behalf of the child alone or with an eye on "best interest."

What do you think??

Zimmerman

I imagine most readers of this blog are already aware that DCF's press secretary (THE press secretary, the one in Tallahassee) has been arrested for producing child pornography.

You can click here and take your pick of news articles about it.

Here's an example:

A Department of Children and Families spokesman arrested on child pornography charges met one victim who was in state care through his job, Florida Department of Law Enforcement Commissioner Gerald Bailey said Monday afternoon.

Al Zimmerman, 40, allegedly offered at least two male teenagers, ages 16 and 17, money in exchange for photographing them in sexual acts. He wanted nude pictures of them so he could make child pornography, according to a probable cause affidavit.

To DCF's credit, they've fired Zimmerman, and DCF websites and the State 411 directory are already being sanitized of any mention of him.

But he's out on bail, which means he's free to do things like delete his myspace page.

But there's this thing called a cache.... Click here for Mr. Al Zimmerman's MySpace page, which he last logged into on 1/28/08, courtesy of DependencyDefense.com. Sorry, but the "view my pics" link is already deleted and no cache available.

This is a horrific story, and I pray that the kid he allegedly photographed in Orange County isn't from one of my attorney ad litem cases. I also pray that DCF is forthcoming, at least to the applicable judges, about who the victims are.

Beside the creepy citing of a youth camp in New Hampshire as one of his "groups", the cached myspace page has some other items of note:

1. "Status: Swinger"
2. "Occupation: Press Secretary State of Florida
Tallahassee, Florida US
Press Secretary
DCF"
3. Comment from a "friend": "how's the syphilis treating you?"
4. Comment from a "friend": "shouldn't you be at work?"
5. Comment from a "friend": "still flying around on the company dime?"
6. Exchange between DCF spokesman and a "friend" between December 3 and 5, 2007, seems to be setting up a "swap" between friend's girlfriend and DCF spokesman's sister. Just hanging it all out there on the internet and all.

It's a shame that the random "friends" of Mr. Zimmerman on his MySpace page are immortalized here. I suppose there's an object lesson there.

FACDL's answer brief is now available online

For those following along with the proceedings in the Florida Supreme Court, here is a link to the latest filing.

I find the portion about public policy considerations, starting on page 20, to be the most interesting part.