MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT. MY NAME IS WILLIAM SHEPPARD, OF THE FIRM OF SHEPPARD AND WHITE AND THOMAS, ON BEHALF OF THE PETITIONER IN THE FIRST OF THESE TWO CONSOLIDATED CASES. AT COUNSEL TABLE IS KEVIN SHIRLEY, WHO REPRESENTS THE PETITIONER RESPONDENT IN THE SECOND AND THIRD CONSOLIDATED CASES. WE ARE HERE ON A CERTIFIED QUESTION FROM THE FIRST DISTRICT COURT OF APPEALS. IS THE FIXED RATE OF $50 PER HOUR, FOR APPELLATE ATTORNEYS FEE, CONFISCATORY, WHEN APPLIED IN AN APPELLATE CASE REQUIRING 550 HOURS AFTER ATTORNEY'S TIME.
LET ME ASK YOU THIS. THAT IS THE FEE SET FOR ANY APPELLATE CASE IN JACKSONVILLE?
YES, MA'AM. AT THE TIME OF THE APPOINTMENT, IT WAS $40 AN HOUR. DURING THE PROCEEDINGS IN THE FIRST DISTRICT COURT OF APPEAL, THE ADMINISTRATIVE ORDER WAS AMENDED TO $50 AN HOUR, IN THE FIRST DISTRICT, APPLYING THE SUPREME COURT OF THE UNITED STATES PRECEDENT, FOUND THAT THAT WAS RETROACTIVELY APPLIED, SO THE END RESULT WAS FIFTH AN HOUR, AND AS WE SPEAK, IT IS FIFTH AN HOUR FOR ALL APPELLATE --
HOW ABOUT PARALEGAL FEES?
THEORDER SILENT.
THE ADMINISTRATIVE ORDER IS SILENT?
AS TO PARALEGALS. HOWEVER, IT WAS LITIGATED IN THIS CASE, UNDER THE PARALEGAL STATUTE, AND THE TRIAL COURT FOUND THAT THE PARALEGALS WHO WERE IN THE RECORD WERE LAW CLERKS. THEY WERE LAW STUDENTS. WERE ENTITLED TO THE SAME $40 AN HOUR THAT THE 32-YEAR EXPERIENCED LEAD COUNSEL WAS WORTH.
AND IS THERE A STANDARD -- I AM SORRY.
I AM SORRY. GO AHEAD.
IS THERE A STANDARD FEE, IN THE COMMUNITY, FOR APPELLATE WORK?
I WOULD SAY YES, MA'AM.
AND WHAT IS THAT?
WE HAD THREE AFFIDAVITS SUBMITTED. ONE WAS BY SANDY D' ALEMBERTE, AND HE OPINED THAT THIS CASE'S FEE WAS IN EXCESS OF 100,000.
WAS THAT APPELLATE FEES IN THIS CASE OR JACKSONVILLE?
THIS CASE. AND THERE WERE TWO LOCAL LAWYERS WHO OPINED THAT THE REASONABLE FEE IN THIS CASE WOULD BE IN EXCESS OF 90,000.
BUT NOT AN HOURLY -- WAS IT BASED ON A PARTICULAR HOURLY RATE?
NO. IF YOU CALCULATED OUT THE HOURLY RATE, IT WOULD BE APPROXIMATELY $140 AN HOUR IN THIS CASE, BUT THERE IS NO SET FEE FOR APPELLATE PRACTICE IN JACKSONVILLE. WHAT I FIND, WITH RESPECT TO ALL FEE SITUATIONS, EXCEPT IN CAPITAL POINTS --
WHAT WOULD BE THE DIFFERENCE NOW? IN OTHER WORDS YOU HAVE GIVEN AN ESTIMATE OR AFFIDAVITS ABOUT FEES. IS THE D' ALEMBERTE ESTIMATE OR THE FEES -- WHAT WORKS OUT TO IN EXCESS OF $140,000?
THE OTHER TWO SAID IT WORKS OUT TO WHICH, AND THAT WAS 90-SOMETHING THOUSAND.
AND THAT WORKS OUT --
FOR ALL OF THE LAWYERS, IT WOULD BE 144. FLETCHER BALDWIN, MYSELF, AND A COUPLE OF LAWYERS FROM THE UNIVERSITY OF FLORIDA, AND A COUPLE OF LAWYERS NOW UNDER MY SUPERVISION.
DO WE UNDERSTAND THAT THE COUNTY RATE HAS BEEN IN EXCESS OF $75 AN HOUR?
THAT IS MY UNDERSTANDING. SOME OF THEM ARE IN EXCESS OF 100, AND AS THIS COURT IS, PROBABLY, AWARE, WITH REGARD TO THE STATUTE, WITH REGARD TO REGISTRY COUNSEL, THE LEGISLATURE HAS SET IT AT $100 AN HOUR. THESE ARE FOR CONFLICT --
JUSTICE SHAW HAS A QUESTION.
I AM SORRY.
THE ADMINISTRATIVE LAW, WHEN YOU CONTRACTED TO UNDERTAKE THE CASE --
JUDGE, IT WAS IN PLACE. IT HAD BEEN IN PLACE FOR TWELVE YEARS. I, REALLY, TAKE ISSUE WITH THE FACT THAT I CONTRACTED. THE RECORD WOULD REFLECT, UNDISPUTED, THAT COUNSEL WAS CONTACTED BY JUDGE BROOKE, WHO WAS THE TRIAL JUDGE, AND REQUESTED THAT COUNSEL UNDERTAKE THE REPRESENTATION. COUNSEL SAID NO, SIR. I AM NOT INTERESTED AT $40 AN HOUR. THEREAFTER, THE RECORD WOULD REFLECT THE TRIAL JUDGE CONTACTED COUNSEL, QUOTE, SEVERAL TIMES. COUNSEL CONTINUED TO REFUSE TO ACCEPT THE APPOINTMENT. IN FACT, SAID WHY DON'T YOU CONTACT HOLLAND & KNIGHT, AND IF THEY ARE TOO BUSY, I WILL TAKE IT, AND WHEN HE CALLED ME BACK OR CALLED COUNSEL BACK AND SAID THEY ARE TOO BUSY, COUNSEL UNDERTOOK TO TAKE IT. NOW, IF THAT IS ENGAGING IN A CONTRACT, I DON'T BUY THAT. I DID WHAT I THINK ANY LAWYER, AN OFFICER OF THE COURT, SHOULD DO, AND THAT IS HONOR A REQUEST OF A JUDGE. I DID IT WITH PROTESTATION. PROTESTED AS MUCH AS I KNEW ON YOU. -- KNEW HOW. COUNSEL FOR THE RESPONDENT WILL SAY, WELL, I SHOULD HAVE GONE TO COURT AND CONTESTED IT. WHEN YOU ARE ACCEPTING THE APPOINTMENT OF A DEATH PENALTY CASE, AFTER YOUR CLIENT HAS BEEN SENTENCED TO DIE, YOU HAVE ONE PRIORITY, AND THAT IS YOUR CLIENT, AND I FELT THAT THE RECORD WAS PRESERVED, THAT THIS WAS NOT A WILLING ACCEPTANCE OF AN APPOINTMENT. I DON'T ACCEPT POINTS, BECAUSE OF THAT RATE, AS 28 OTHER LAWYERS HAVE ATTESTTED TO IN THIS RECORD.
TELL ME ABOUT THOSE LAWYERS. IS THERE ANY INDICATION, IN THE RECORD, THAT THOSE LAWYERS DO NOT MEET AN ACCEPTABLE STANDARD OF REPRESENTATION OF DEFENDANTS IN THESE CIRCUMSTANCES?
WELL, I THINK, FROM KNOWLEDGE OF SOME OF THE LAWYERS, SUCH AS AL DATZ, YES, THEY ARE VERY CAPABLE OF IT, AND MANY OF THEM ARE. NOW, WHAT THE RECORD WILL NOT SHOW IS EXACTLY WHAT YOU SAY IT WON'T SHOW, AND THAT IS THERE IS NO SHOWING ABOUT THE QUALIFICATIONS OF ANY OF THESE LAWYERS WHO SUBMITTED AFFIDAVITS. AT THE HEARING, COUNSEL FOR THE CITY, THE RESPONDENT, MADE AN OBSERVATION. IT WASN'T EVIDENCE. I WOULD SAY IT WAS MORE IN THE WAY OF ARGUMENT. THAT THE VAST MAJORITY, 75% OF THESE LAWYERS AREN'T CAPABLE. NOBODY WOULD APPOINT THEM. I WOULD TAKE ISSUE WITH THAT, AND THE RECORD IS ALREADY --
I AM SORRY. COUNSEL SAID WHAT? THAT THE VAST MAJORITY OF THESE LAWYERS --
WOULD NOT BE CAPABLE OF HANDLING A CAPITAL APPEAL AND NO JUDGE WOULD APPOINT THEM. THERE WAS NO EVIDENCE OF THAT. IT WAS MR. MALTZ'S OBSERVATION. THERE WAS NO ARGUMENT BY COUNSEL, AND I DISPUTE THAT, BUT THE RECORD DOES NOT SAY THAT AL DATZ WAS ON THIS CASE FOR 20 YEARS AND DOESN'T TAKE INTO ACCOUNT ANY EVIDENCE BEFORE THE COURT. IT DOESN'T TAKE INTO ACCOUNT THAT SOME OF THESE ARE BOARD BOARD-CERTIFIED CRIMINAL LAWYERS AND IT DOESN'T TAKE INTO ACCOUNT THAT THE VAST MAJORITY OF THEM ARE CIVIL ATTORNEYS.
IF THE CHIEF JUSTICE WOULD NOT BE ABLE TO OBTAIN LAWYERS TO REPRESENT THESE DEFENDANTS, IS THERE ANY EMPIRICAL EVIDENCE TO THAT EFFECT, OR -- SUCH AS COMMON KNOWLEDGE, OR DOES THE RECORD SHOW, I GUESS, IS THERE SOME RECORD THAT WOULD --
THE ONLY THING THIS RECORD WOULD REFLECT IS THAT THE TRIAL COURT HAD GONE TO OTHER LAWYERS, IN THIS PARTICULAR CASE, ALL OF WHOM -- NONE OF WHOM WOULD ACCEPT THE APPOINTMENT, AND THEN HE CAME BACK TO COUNSEL, AND APPOINTED COUNSEL, AFTER SEVERAL REQUESTS. NOW, I SUBMIT, AND AS I STAND HERE, I REFLECT BACK ON ALL OF THE DEATH CASES THAT I HAVE COME IN HERE ON, AND I SUGGEST TO YOU THAT MY EXPERIENCE IS NO DIFFERENT THAT BE YOURS. THERE IS A -- THAN YOURS. THERE IS A SHORTAGE OF COMPETENT LAWYERS TO HANDLE THESE APPEALS. YOU SAID, AS RECENTLY AS JUNE, THAT IT IS A PROBLEM, AND YOU, ALSO, SAID, IN JUNE, IN AN AMENDMENT TO THE CRIMINAL RULES, AND IT IS LINKED TO COMPENSATION, TAN IS A PROBLEM, AND WE CAN'T CONTINUE TO PUT A BLIND EYE TO THIS PROBLEM, AND I THINK THAT, WHEN WE STAND UP BEFORE SIX JURORS OR TWELVE JURORS AND SAY APPLY YOUR COMMON SENSE, THAT IT IS ONLY FAIR THAT THE SEVEN JUSTICES OF OUR SUPREME COURT APPLY THEIR COMMON SENSE AND EXPERIENCE, AND IT IS A SERIOUS PROBLEM. SINCE I HAVE BEEN IN THE COURTHOUSE HERE, JUST TALKING THIS MORNING WITH OTHER LAWYERS, WHAT IS YOUR CASE ABOUT? ABOUT INADEQUATE PAY FOR CAPITALLY-CHARGED CLIENTS. THAT IS WHY I AM NOT ON THE LIST. IN MY JURISDICTION, THEY DON'T PAY ANYTHING. IN THE SECOND DCA CASE, JUDGE SALCINA HIT IT RIGHT ON THE NOSE. HOW CAN IT BE THAT, IN EVERY OTHER AREA OF LAW, WHEN WE GO BEFORE TRIAL JUDGES AND LITIGATE THE VALUE OF A REASONABLE FEE, IT IS NEVER, EVER, BELOW $100 AN HOUR FOR ANYTHING, AND TYPICALLY FAR MORE THAN THAT, BUT WE HAVE THESE EXPARTE --
MR. SHEPPARD, YOU KNOW, WE HAVE GOT WHAT HAS HAPPENED IN THIS STATE, QUITE OBVIOUS, I MEAN, IT IS JUST A MATTER OF LAW AND FACT, IS THAT, BY REASON OF THE DEVELOPMENT OF THE WAY OF THAT CONFLICT COUNSEL ARE PAID, IS THAT THIS HAS, TRADITIONALLY, GONE BACK TO THE COUNTIES TO BE PAID, WHEREAS YOU HAVE INSTITUTIONAL REPRESENTATION OF THE PUBLIC DEFENDANTER'S OFFICE FOR NON-CONFLICTED COUNSEL. WE ARE IN A TRANSITION IN FLORIDA, BECAUSE OF THE 1998 AMENDMENT TO THE CONSTITUTION. WE ARE GOING TO HAVE TO DEAL WITH THE LEGISLATURE, ONSETING UP THESE FUNDS TO DO THIS. NOW, YOU KNOW, IT SEEMS TO ME THAT WE ARE CERTAINLY IN NEED OF COMING UP WITH SOME TYPE OF SOLUTION THAT CAN GET REASONABLE AMOUNT PAID FOR COUNSEL TO TAKE IT THAT ARE WELL-QUALIFIED, SUCH ASSURE SELF. I THINK THAT IS A SELF-EVIDENCE -- AS YOURSELF. I THINK THAT IS A SELF-EVIDENT FACT, BUT THE PROBLEM IS COMING UP WITH A METHOD BY WHICH THIS CAN BE ACCOMPLISHED.
SURE.
I DON'T THINK YOU HAVE TO CONVINCE ANY OF US IT NEEDS TO BE ACCOMPLISHED. IT IS HOW IT IS GOING TO PRACTICALLY WORK IS THE ISSUE.
AND THIS COURT HAS, ALREADY, DONE THAT, IN ANOTHER AREA OF THE LAW, AND RECONCILED THE REQUIREMENT OF US LAWYERS TO PERFORM OUR ETHICAL DUTY, AND WE, ALL, DO THAT, AND TO BE CONCERNED ABOUT THE FISCAL RESPONSIBILITY OR WHATEVER YOU WANT TO CALL IT OF THE GOVERNMENT. BUT THIS COURT, IN MAKINSON, SAID IT RIGHT. IF THERE IS A DIRECT CONFLICT, THE CONSTITUTIONAL RIGHTS OF THE ACCUSED OVERRIDES THE BUDGETARY CONCERNS. NOW, WHAT THIS COURT DID, IN THE INTEREST OF DB AND DS, IN 1980, I THINK, WHEN THEY WERE -- WHEN THIS COURT WAS GRAPPLING WITH THE REALITY. WE HAVE GOT TO COMPENSATE THESE LAWYERS THAT, NOW, HAVE TO BE APPOINTED FOR THESE INDIGENT PARENTS WHOSE PARENTAL RIGHTS ARE BEING TERMINATED, YOU DID A FORMULA, AND THE FORMULA WAS ADOPTED FROM THE SUPREME COURT OF NEW JERSEY, AND THIS CASE IS DISCUSSED IN MY REPLY BRIEF, AND WHAT THE COURT HAS SAID IS IT SHOULDN'T BE MARKET VALUE, AND I WILL BUY. THAT MY MARKET VALUE IS FAR MORE THAN $140 AN HOUR, AFTER 33 YEARS. WHAT THE COURT SAID WAS 60 PERCENT OF MARKET VALUE. THIS COURT HAS, ALREADY, COME UP WITH A FORMULA.
HAVE YOU, IN THIS RECORD, PROVIDED THE COURT WITH WHAT IS DONE IN OTHER STATES THAT HAVE THE DEATH PENALTY FOR CONFLICT COUNSEL AND WHAT IS BEING PAID?
NO, I DID NOT. I WOULD BE HAPPY TO DO THAT, WITH A POST-ARGUMENT BRIEF. I DID DO THIS. I GATHERED THE TWENTY CIRCUIT COURT ADMINISTRATIVE ORDERS DEALING WITH THIS TOPIC. DO -- THE FOURTH CIRCUIT, WITH THE ABSOLUTE LOWEST, AT FORTE HOUR, AND THEY RANGE FROM 40 TO IN EXCESS OF $100 AN HOUR, AND THERE IS NO RHYME NOR REASON TO IT. EXPARTE. THERE IS NO RECORD FOR YOU TO BE ABLE TO DETERMINE HOW ACHIEVE JUDGE COMES UP WITH A FEE IN -- HOW A CHIEF JUDGE COMES UP WITH A FEE IN PERSON.
I WOULD WOULDN'T TAKE A CASE FOR $40 AN HOUR.
THANK YOU -- A CASE FOR $140 AN HOUR.
THANK YOU.
BUT ISN'T THE PROBLEM IN THIS THE ISSUE THAT PRIMARILY WHAT WE ARE CONCERNED ABOUT IS THE DEFENDANT GETTING ADEQUATE REPRESENTATION? AND WE HAVE A STATUTE INVOLVED THAT SAYS THAT THE CHIEF JUDGE CAN DETERMINE THIS. HERE, THE CHIEF JUDGE HAS SAID THAT $40 IS ADEQUATE, AND I AM GETTING LAWYERS TO REPRESENT DEFENDANTS, AT THIS PRICE, SO THAT MAKES FOR A PRETTY HARD CASE TO GET AROUND, THAT THE CHIEF JUDGE IS SAYING THAT, OKAY, I AM NOT HAVING A PROBLEM GETTING LAWYERS FOR $40. I AM GETTING THEM.
WELL, WE DON'T HAVE THAT IN THIS RECORD. I DON'T KNOW WHAT THE CHIEF JUDGE SAID, WHEN HE WROTE THIS ORDER, WHAT WE FIGURE.
THAT IS THE ONLY THING HE IS GIVING IS THE $40, SO IT IS IMPLICIT THAT --
ALL I AM SAYING IS, EXPARTE, WHAT THE RECORD WILL SHOW IS THAT THERE WAS ONE BOARD-CERTIFIED LAWYER, TERESA SOPP, WHO TOOK A COUPLE OF APPEALS, AND THAT IS IN THE RECORD SUBMITTED BY THE CITY. ALSO, ON THE FLIP SIDE OF THAT, IS A AFFIDAVIT SUBMITTED BY THE SAME LAWYER, SAYING THAT $40 IS INADEQUATE.
BUT IT SEEMS THAT THIS ARGUMENT IS GOING DOWN A TRAIL THAT, IF WE WERE THE ONES MAKING THE RULES, THAT MAYBE WE WOULD ACCEPT YOUR ARGUMENT.
THAT'S RIGHT.
WE HAVE A CERTAIN APPELLATE STRUCTURE THAT WE MUST WORK WITHIN. WE HAVE GOT CERTAIN STATUTES THAT WE MUST WORK WITHIN.
SURELY.
AND THERE IS NO EVIDENCE, HERE, AS WE LOOK AT THE RECORD, THAT, IN YOUR COUNTY, THAT WE CANNOT OBTAIN COMPETENT COUNSEL. MAYBE NOT EXCELLENT COUNSEL. MAYBE NOT PERFECT COUNSEL, AS YOU MAY BE, SIR, BUT WE ARE TALKING ABOUT CONSTITUTIONAL ISSUES AND MEETING THAT CONSTITUTIONAL THRESHOLD, AND WE LOOK AT, I GUESS, THE ZELLMAN, DOWN IN THE THIRD DISTRICT, WE HAD AN ADMINISTRATIVE ORDER, AND WITH THE INSTRUCTION WE HAVE AND WITH THE APPELLANT RESTRICTIONS WE HAVE, SHOULD WE NOT FOLLOW AND GO THROUGH THAT STRUCTURE, AND IF WE HAVE A PROBLEM WITH THE ADMINISTRATIVE ORDER, WE SEEK REVIEW OF THOSE ADMINISTRATIVE ORDERS, SO THAT WE DON'T FACE A SITUATION SUCH AS YOU ARE DEALING WITH TODAY, AND THAT IS NOT TO DEMEAN YOUR EFFORTS AT ALL, SIR.
I APPRECIATE THAT.
FROM THIS COURT, THAT APPRECIATE THAT YOU TAKE CASES SUCH AS THIS AND REGRET THAT YOU ARE NOT COMPENSATED AT THAT LEVEL, BUT WE HAVE THE STRUCTURE, YOU SEE.
WELL, THE -- HERE -- I AM GOING TO PREDICT THE FUTURE AND THEN I AM GOING TO SIT DOWN. I PREDICT THAT THIS COURT WILL REQUIRE CERTAIN MINIMUM STANDARDS FOR LAWYERS ACROSS THE BOARD, TO HANDLE CAPITAL CASES, AND YOU ARE NOT GOING TO GET THEM. YOU ARE NOT GOING TO GET THEM, BECAUSE NOBODY WILL STAND UP AND SAY, YOU KNOW, ECONOMIC REALITY DOES HAVE TO PLAY SOME PART OF OUR JUSTICE SYSTEM, AND IT DOES HAVE SOME IMPACT ON THE ACCUSED, AND I WILL FOLLOW JUSTICE SHAW'S LEAD. I, TOO, WILL NEVER ACCEPT ANOTHER APPOINTMENT. AND THAT IS A SAD STATE OF AFFAIRS, BECAUSE I HAVE STOOD IN THIS COURT, IN DEATH CASES, MORE IN A PRO BONO CAPACITY THAN I HAVE IN A PAYMENT CAPACITY, BUT I WILL DO THEM PRO BONO, BUT I WILL NOT ACCEPT CHUMP CHANGE ANYMORE. THANK YOU.
THANK YOU. WE APPRECIATE, MR. SHEPPARD, HAVING, THE FIRST WEEK OF THE NEW YEAR, YOUR PREDICTIONS. MR. SHIRLEY.
GOOD MORNING. MY NAME IS KEVIN SHIRLEY, AND I AM REPRESENTING MYSELF. AS YOU CAN SEE FROM THE ORDER THAT WE ATTACHED TO THE BRIEF, OUR ADMINISTRATIVE ORDER IS A LITTLE BIT UNIQUE, IN THAT THE ADMINISTRATIVE ORDER, BACK IN 1991, GIVES $50 AN HOUR FOR NONCAPITAL CASES, BUT THERE IS A LANGUAGE IN THERE THAT SEEMS TO INDICATE THAT JUDGE REESE, IN PROMULGATING THIS ORDER, DECIDED THAT, INSERT CAPITAL CASES, WHERE THERE IS EXTRAORDINARY AND UNUSUAL CIRCUMSTANCES, THAT COUNSEL BE AWARDED ADDITIONAL COMPENSATION.
IN LOOKING THROUGH THE CASES, WE DIDN'T SEEM TO FIND ANOTHER ADMINISTRATIVEORDER THAT CONTAINED, BOTH, THE HOURLY AND THEN THIS OTHER PHRASE, AND, CERTAINLY, THAT WAS THE CONCEPT THAT WAS APPLIED IN MACOMSEN AND THE WHITE CASES. ZELL MAN IS A LITTLE BIT DIFFERENT. IT IS ALMOST LIKE A REASONABLE FEE SITUATION, BUT IS THERE ANOTHER ONE OUT THERE, ANY ONE OF THESE CASES THAT YOU CAN POINT US TO THAT HAD THAT KICKER?
NO. I THINK THIS IS ABSOLUTELY UNIQUE, AND MY APOLOGIES TO THE COURT. I OBTAINED A COPY OF THE NEW ADMINISTRATIVE ORDER LATE. I FORWARDED IT TO THE COURT LAST WEEK, AND AS OF AUGUST 15 OF LAST YEAR, THE CHIEF CIRCUIT JUDGE, JUDGE BLACKWELL, HAS AMEND THAT ORDER. HE AMENDED IT BACK, I BELIEVE IT WAS JANUARY 13 OF 2000, BUT HE AMENDED, AGAIN, AUGUST 15, AND HE WENT THROUGH, AND SOME OF THE FEARS, THE RESPONDENT IN THIS PARTICULAR CASE THAT THEY BROUGHT OUT IN THEIR BRIEF, WAS THAT THE LANGUAGE, ADDITIONAL COMPENSATION, WAS MERELY THE CHIEF CIRCUIT JUDGE'S COMMENT, WITH REGARD TO EXCEEDING THE STATUTORY CAP, UNDER 925.036. WELL, I THINK THAT THIS NEW ADMINISTRATIVE ORDER HAS DEALT WITH THAT. THE VERY FIRST PROVISION, IN THAT NEW ADMINISTRATIVE ORDER, JUDGE BLACKWELL GOES THROUGH AND RECITES THE STATUTE, AND BASICALLY SAYS, BASED UPON THE SUPREME COURT'S DECISIONS, WE CAN'T GET COMPETENT COUNSEL TO REPRESENT PEOPLE, IF WE UTILIZE THESE STATUTORY CAPS. THEN HE WENT ON, AND HE GAVE US A BREAKDOWN, IN NONCAPITAL CASES, WHERE A NEW FEE SCHEME, WHERE IT IS $50 FOR OUT OF COURT TIME AND 75 FOR IN-COURT, AND $800 FOR TRIAL, WHICH KIND OF CONVERTS TO $100 AN HOUR, IF YOU ASSUME YOU ARE IN COURT FOR EIGHT HOURS ON THAT PARTICULAR DAY, BUT HE GOES BACK AND TURNS AROUND, AND IN THE LAST PARAGRAPH OF THAT PARTICULAR ORDER, GOES THROUGH AND REITERATES WHAT JUDGE REESE SAID, NINE YEARS AGO, IN CAPITAL CASES WHERE THERE ARE UNUSUAL AND EXTRAORDINARY CIRCUMSTANCES, COUNSEL IS ENTITLED TO ADDITIONAL COMPENSATION. WHERE IN LIES -- THAT IS WHERE THE PROBLEM IS, THOUGH, IS THAT THAT SEEMS TO SHIFT THE BURDEN, A LITTLE BIT, FROM THE CHIEF CIRCUIT JUDGE TO THE TRIAL JUDGE, IN ORDER TO DETERMINE WHAT THAT ADDITIONAL COMPENSATION COULD BE. OBVIOUSLY, IN CIVIL CASES, IT IS THE TRIAL JUDGE THAT MAKES THAT DETERMINATION AS TO WHAT IS A REASONABLE FEE. WE HAVE THE ROWE DECISION, WHERE WE USE IT. WE CAN USE ALL THESE MULTIPLIERS, IN ORDER TO ENHANCE OR DETRACT FROM THE FEE. WE DON'T HAVE THAT LUXURY, WITH REGARD TO COURT-APPOINTED CAPITAL CASES. AND I THINK THAT IS WHAT PART OF THE RESPONDENT'S PROBLEM IS, IN THIS PARTICULAR CASE, THAT IT SEEMS LIKE IT MAY BE AN UNLAWFUL SHIFT OF THE AUTHORITY TO DETERMINE WHAT THE FEE WOULD BE. IN THIS PARTICULAR CASE, JUDGE POLACKIE, TOOK THE BULL BY THE HORNS, AND HE SAID I HAVE THE LANGUAGE HERE, I HAVE THE AUTHORITY, AND I DETERMINE THAT $100 PER HOUR IS A REASONABLE FEE, UNDER THESE CIRCUMSTANCES, BASED UPON THE BURDEN TO ME, AS A SOLE PRACTITIONER, MY EXPERIENCE AND THE COMPLEXITY OF THE CASE, AND IT WENT UP FROM THERE. AS I HAD HEARD EARLIER FROM THE BENCH, WITHIN OUR CIRCUIT, WE HAVE KIND OF A DICHOTOMY GOING WITHIN OUR CIRCUIT THOUGH. YOU HAVE LEE COUNTY VERSUS STEPHENS. IN LEE COUNTY VERSUS STEPHENS, THE TRIAL JUDGE SAID, MR. STEPHENS, I NEED TO GIVE YOU MORE THAN $50 AN HOUR BUT I DON'T THINK I CAN. MR. STEPHENS TOOK IT UP TO THE SECOND DISTRICT COURT OF APPEAL. THEY RENDERED AN OPINION, IN 1996, THAT BASICALLY SAID WE THINK OUR HANDS ARE TIED BY THIS ADMINISTRATIVE ORDER. THEY NEVER GOT AROUND TO THE PHRASE "ADDITIONAL COMPENSATION". HOWEVER, IN CHARLOTTE COUNTY, OVER A PERIOD OF YEARS STARTING, I BELIEVE, IN 1995, WE HAVE SYSTEMATICALLY ERODED. THAT IT HAS GONE FROM FIFTH TO 60 DOLLARS AN HOUR, TO $75 AN HOUR AND NOW UP TO $100 AN HOUR, SO THE TRIAL COURTS HAVE INTERPRETED THAT PROVISION, WITHIN THE ADMINISTRATIVE ORDER, TO GIVE THEM THE AUTHORITY TO ENTERTAIN THOSE TYPES OF THINGS, SUCH AS THE EXPERIENCE OF COUNSEL AND THE COMPLEXITY OF THE CASE AND AWARD FEES THAT HAVE EXCEED THE $50.
LET ME, WHILE THOSE ARGUMENTS ARE VERY PERSUASIVE, FOR US TO GRANT THE RELIEF THAT YOU AND MR. SHEPPARD ARE SEEKING, WE WOULD HAVE TO FIND, WOULD WE NOT, THAT THIS SCHEME IS UNCONSTITUTIONAL, IN THAT IT DEPRIVES A DEFENDANT OF ADEQUATE REPRESENTATION IN A COURT. AM I CORRECT IN THAT?
I AGREE WITH ONE CAVEAT, THOUGH. IN MY PARTICULAR CIRCUMSTANCE, JUSTICE HARDING, THE THING IS I THINK THAT THE COURT HAS TO MAKE A DETERMINATION WHETHER OR NOT IT IS AN IMPROPER SHIFT FROM THE CHIEF CIRCUIT JUDGE TO THE TRIAL COURT JUDGE. IF THIS COURT DEEMS THAT IT IS AN INAPPROPRIATE SHIFT, THE AUTHORIZATION TO DETERMINE WHAT THE FEE SHOULD BE IN THOSE FEW TYPES OF CAPITAL CASES, THEN THE ADMINISTRATIVE ORDER IS WRONG. IT DOESN'T COMPLY WITH 925.036, AND THAT PARTICULAR PROVISION, WITH REGARD TO CAPITAL CASES, WHERE THERE IS UNUSUAL AND EXTRAORDINARY CIRCUMSTANCES, JUST THAT PROVISION SHOULD BE QUASHED, WITH DIRECTIVES TO JUDGE BLACKWELL TO, EITHER, SET A FIXED SCHEDULE OR A CAP. THAT WOULD CURE THE PROBLEM, EXCUSE ME, WITH -- THAT WOULD CURE THE PROBLEM, WITH REGARD TO OUR PARTICULAR ADMINISTRATIVE ORDER, AND WE CAN, ALREADY, SEE THE TREND THAT, NOT ONLY JUST -- DOES JUDGE BLACKWELL THINK THAT $50 AN HOUR IS LUDICROUS, IN CAPITAL CASES, BUT HE HAS ALREADY PROVIDED FOR ADDITIONAL FUNDS FOR NONCAPITAL CASES. IT JUST DOESN'T MAKE SENSE TO PAY SOMEBODY $50 AN HOUR, TO TRY A FELONY DRIVING-WHILE-LICENSE-SUSPENDED CASE, WHILE THIS COURT HAS COME UP WITH RULES AND REGULATIONS REGARDING WHAT IT EXPECTS OF ATTORNEYS WHO ARE GOING TO TRY CAPITAL CASES, DEATH CASES. HOW WE COMPENSATE THE TWO, EQUALLY, IS BEYOND MY COMPREHENSION.
EXCUSE ME. BUT EVEN SO, WHILE WE MAY WANT IT TO BE DIFFERENT, WE HAVE CERTAIN RESPONSIBILITY PLACED IN VARIOUS PORTIONS OF ON OUR GOVERNMENT, AND WE CANNOT CHANGE THOSE, UNLESS THEY ARRIVE -- THOSE DECISIONS RISE TO A POINT OF CONSTITUTIONAL INFIRMITY. AM I CORRECT ON THAT?
WELL, I AM NOT DISAGREEING WITH YOU. HOWEVER, IN THIS, WITH REGARD TO THIS PARTICULAR ADMINISTRATIVE ORDER, EVEN THE ONE AS AMENDED, AND I BELIEVE THAT THE AMENDMENT APPLIES BRADLEY VERSUS RICHMOND, SEEMS TO INDICATE THAT, BECAUSE THERE HASN'T BEEN A FINAL DETERMINATION, THAT THIS NEW ADMINISTRATIVE ORDER WOULD APPLY. IF THIS -- IF THIS SHIFTING FROM THIS CHIEF CIRCUIT JUDGE TO THE LOCAL TRIAL JUDGES IS IMPROPER AND VIOLATES 925.036, THEN I THINK THAT THIS COURT HAS THE DUTY TO TURN AROUND AND QUASH THAT PROVISION OF THE ORDER, WITH DIRECTIVES TO THE CHIEF CIRCUIT JUDGE.
OKAY. BUT WHEN WE TALK ABOUT REPRESENTATION AFTER DEFENDANT IN THE COURT AND ADEQUATE COMPENSATION FOR THAT ATTORNEY, WE CANNOT GET INVOLVED WITH THE DETERMINATION NALINGS AND -- WITH THE DETERMINATION AND SAY THAT IT IS WRONG, UNLESS IT ARRIVES AT A CONSTITUTIONAL INFIRMITY, AND MY QUESTION, TO YOU, IS WHAT IS -- WHAT, IN THE RECORD BEFORE US REFLECTS, TO A CONSTITUTIONAL CERTAINTY, THAT INADEQUATE REPRESENTATION IS BEING AFFORDED AT THESE RATES?
JUSTICE HARDING, UNFORTUNATELY I AM IN THE SAME POSITION THAT MY COLLEAGUE, HERE, IS. THERE ISN'T ANYTHING OF THE RECORD. UNFORTUNATELY IT IS GOING TO BE TOO LATE, BY THE TIME WE FIND OUT. THERE ARE ONLY TWO OR THREE OF US, IN CHARLOTTE COUNTY, THAT ARE EVEN REMOTELY QUALIFIED TO TRY DEATH CASES.
BUT HOW CAN WE MAKE A DETERMINATION, WITHOUT THAT?
WELL, I DON'T -- I, STILL, DON'T EVEN THINK THAT YOU NEED TO REACH THAT THRESHOLD IN THIS PARTICULAR ARGUMENT, BUT I THINK YOU HAVE TO DEAL WITH, FIRST OF ALL, WITH WHETHER IT IS AN UNLAWFUL DELEGATION OF AUTHORITY. IF YOU FIND THAT IT IS UNLAWFUL DEL -- DELEGATION OF AUTHORITY, THEN IT CONFUSES THAT, AND I ACCEPT THAT.
COULD YOU ADDRESS THIS QUESTION? WITHIN THE CONTEXT OF YOUR ARGUMENT, DO YOU ASSERT THAT YOU MUST MATCH YOUR FEES OR THE FEES IN THIS CONTEXT, WITH OTHER CONTEXTS? THAT IS THE CERTIFIED QUESTION THAT HAS COME UP IN YOUR CASE.
WELL, I WOULD LIKE TO BE ABLE TO SAY ABSOLUTELY. I THINK I AM HIM ENTITLE -- I THINK I AM ENTITLED TO $250 AN HOUR BECAUSE OF MY EXPERTISE. THAT IS NOT RIGHT.
IT IS NOT YOUR EXPERTISE BUT YOUR EXPERIENCE IN SOME OTHER AREA, RIGHT?
I AM NOT SAYING I AM ENTITLED TO FAIR MARKET VALUE UNIFORMITY I AM ENTITLED TO A REASONABLE FEE, AND THAT IS ALL I AM ASKING FOR.
THE QUESTION DOESN'T PERTAIN TO FAIR MARKET VALUE YOUTH. IT PERTAINS TO OTHER KINDS OF LITIGATION, AND I GUESS THAT IS WHAT I AM DIRECTING TO.
IT US FROM THATS -- IT FRUSTRATES ME THAT I SEE DEFAULT AND MORTGAGE FORECLOSURES THAT ARE BEING PAID $250 AN HOUR, AND $50 AN HOUR, BASED ON TRYING TO SAVE SOMEONE'S LIFE, DO YOU AGREE WITH THAT?
YES. YES.
I THINK JUSTICE SHAW HAD A QUESTION.
I HAVE THE ANSWER.
THANK YOU, MR. SHIRLEY, FOR YOUR REBUTTAL TIME. MR. MALTZ.
THANK YOU. GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS HOWARD MALTS. I AM HERE, TODAY, ON BEHALF OF THE CONSOLIDATED CITY OF JACKSONVILLE, THE SHEPPARD AND WHITE CASE. ALSO WITH ME AT COUNSEL TABLE IS JOHN COPELAN, WHO WILL SHARE OUR ARGUMENTS THIS MORNING. IT IS CAREFUL NOT TO FOCUS THAT, WHEN THE PETITIONER IN THE JACKSONVILLE CASE ACCEPTED THIS APPOINTMENT, HE AND HIS FIRM KNEW THAT THIS RATE WAS $40 AN HOUR.
BUT WHO IS GOING TO EVER RAISE THIS ISSUE? IT IS A CATCH-22. IF YOU TAKE THE CASE, YOU CAN RAISE IT. IF YOU DON'T TAKE THE CASE, YOU CAN'T RAISE IT. WHO RAISES IT?
THE PARTICULAR COUNSEL SAID I AM NOT GOING TO TAKE THIS CASE AT THIS RATE. IF THE PARTICULAR LAWYER IN JACKSONVILLE SAID THAT I AM NOT GOING TO TAKE THIS CASE AT THIS RATE, THEN, YES, THE ORDER DOESN'T BECOME CONSTITUTIONALLY QUESTIONABLE. THAT IS NOT THE RECORD BEFORE US. THE RECORD WE HAVE BEFORE US IS THAT, IN FACT, THERE ARE COMPETENT ATTORNEYS IN THE FOURTH JUDICIAL CIRCUIT WHO ARE WILLING TO TAKE THESE CASES AT THE ADMINISTRATIVE ORDER RATE.
BUT IS THAT THE STANDARD? THE DELEGATION FROM THE LEGISLATURE TO EACH CIRCUIT SAYS THE AMOUNT SHOULD NOT EXCEED THE PREVAILING RATE. FIRST OF ALL, WHAT IS YOUR INTERPRETATION OF WHAT PREVAILING RATE IS. IS IT REASONABLE? IS IT THE MARKET VALUE, OR IS IT IF WE CAN FIND SOME LAWYER, IN A CIRCUIT, THAT WILL TAKE A CASE AT THIS AMOUNT OF MONEY, THEN THIS IS OKAY? WHAT IS THE IDEA BEHIND PREVAILING RATE, FROM THE CITY'S POINT OF VIEW?
THE CHIEF JUDGE OF THE CIRCUIT IS CHARGED WITH THE OBLIGATION TO WEIGH, ON BOTH SIDES, NUMBER ONE, THE PUBLIC TREASURY OF THE JUDICIAL CIRCUIT. NUMBER TWO, THAT AMOUNT OF MONEY WHICH IS NECESSARY, IN ORDER TO ASSURE EFFECTIVE ASSISTANCE EVER COUNSEL, OF COURSE THE LATTER BEING THE PREVAILING POINT. AS THIS COURT STATED, IN THE WHITE DECISION, SOME TIME BACK, WHICH DEALT WITH THE CAPS ON 925.036-2, THIS COURT STATED THAT, IF THE CAPS ARE ELIMINATED IN EXEXTRAORDINARY AND UNUSUAL CASES, AND IF COUNSEL IS COMPENSATED AT THE LOCAL PREVAILING HOURLY RATE IN INDIGENT CASES, THEN THE LOCAL RATE BECOMES REASONABLE. THE QUESTION, THEN, BECOMES WHAT IS THE PREVAILING RATE FOR INDIGENT CASES? WHEN THIS COURT DECIDED WHITE, THAT, THEN, HAD TO HAVE BEEN THE RATE SET BY THE JUDGE JUDGE IN HIS ORDER, CONSIDERING THE ADMINISTRATIVE FACTORS, BECAUSE NUMBER ONE, THE PREVAILING ORDER WAS IN EFFECT AT THE TIME. I AM SORRY.
I UNDERSTAND THAT THERE ARE ECONOMIC AND FISCAL CONSEQUENCES TO THE REPRESENTATION OF ANY CONFLICT COUNSEL. BUT, FOR EXAMPLE, WHEN THE CITY OF JACKSONVILLE HIRES, AND THAT WE ARE NOT TO LOOK JUST INTO WHAT THE MARKET RATE IS, BUT WHEN THE CITY OF JACKSONVILLE HAS TO CONTRACT WITHOUT SIDE ATTORNEYS, FOR EXAMPLE, COULD THEY FIND ATTORNEYS THAT WOULD WORK FOR THEM AT $40 PER HOUR?
MAYBE. MAYBE NOT. FRANKLY I DON'T KNOW THE ANSWER TO THAT.
BUT DON'T WE KNOW, AS A MATTER OF COMMON SENSE, AND ESPECIALLY SEEING THAT THE RATES OF $40 AN HOUR IS WHAT WAS PAID PARALEGALS, THAT THEY WEREN'T CHANGED OVER A 12-YEAR PERIOD OF TIME, AND THAT OTHER SIMILAR SIRTION HAVE, EITHER, DOUBLED THE AMOUNT THAT THERE IS SOMETHING THAT IS OUT OF KILTER IN THIS SITUATION, AND I GUESS THE QUESTION -- I MEAN, THE CITY SAYS, WELL, DON'T TAKE IT OUT ON US. YOU KNOW, LET'S LOOK AT IT. BUT WE NEED TO LOOK AT THE LONG-TERM. CAN YOU HELP US WITH THE LONG-TERM LOOK AT HOW WE SHOULD APPROACH THESE CASES?
WELL, THAT IS WHY I THINK THE STATUTORY SCHEME, AS SET UP NOW, IS NOT PROBLEMATIC, THE REASON BEING, IF YOU LOOK BACK TO BEFORE MACOMSON AND WHITE, WHEN THOSE CAPS WERE IN PLACE, $3500 FOR CAPITAL REPRESENTATION AND $2,000 FOR APPEALS, WHATEVER THAT MIGHT BE, WHILE THAT MIGHT BE REASONABLE TO A LAWYER IN DUVAL COUNTY, IT MAY NOT BE REASONABLE IN DADE COUNTY. WHEN YOU TAKE IT OUT OF THE LEGISLATURE, WHICH IS DONE IN THE STATUTORY SCHEME, YOU GIVE IT TO THE CHIEF JUDGE, AND FOR THE CHIEF JUDGE OF EVERY JUDICIAL CIRCUIT TO SAY WHAT IS THE RATE THAT IS NECESSARY FOR ME AND FOR OTHER TRIAL JUDGES IN THE CIRCUIT, HANDLING FELONY CASES, WHAT IS THE RATE FOR US TO ASSURE ADEQUATE REPRESENTATION? THAT IS GOING TO BE A DIFFERENT RATE IN DUVAL COUNTY, A DIFFERENT RATE IN LIBERTY COUNTY AND A DIFFERENT RATE IN DADE COUNTY.
DO WE HAVE TO WAIT FOR THE SYSTEM TO CRASH BEFORE, IT SEEMS WHAT YOU ARE SAYING AS THE TRIGGERING MECHANISM IS THE CHIEF JUDGE FINDING THAT I CAN NO LONGER FIND LAWYERS TO REPRESENT DEFENDANTS. AM I CORRECT? IS THAT YOUR POSITION?
CORRECT. CORRECT.
AND YOU HAVE GOT A SKRIZ SITUATION AT THAT POINT -- -- AND YOU HAVE GOT A CRISIS SITUATION AT THAT POINT, AND ARE YOU SAYING THAT NOTHING CAN BE DONE UNTIL THIS CRISIS IS REACHED, AND THE CHIEF JUDGES AROUND THE STATE ARE SAYING WE JUST CAN'T GET PEOPLE AT $40, AND WE HAVE GOT ALL THESE CAPITAL CASES, HERE, THAT ARE, NOW, WARRANTS BEING SIGNED AND NOBODY CAN REPRESENT THE PEOPLE. DO WE HAVE TO WAIT FOR THAT TYPE OF CRISIS?
FIRST OF ALL, I DON'T THINK WE WOULD EVER REACH THAT CRISIS, BECAUSE BEFORE WE GOT TO THAT POINT, THE COUNSEL IN JACKSONVILLE WOULD SAY WE ARE NOT TAKING THEM AT $40. THE CHIEF JUDGE CAN, THEN, BY THE STROKE OF A PEN, RAISE IT TO $50 OR WHATEVER THE CASE MAY BE. WHAT HAPPENS THEN, BEFORE THE COURT CAN STEP IN AS A STATUTE UNREASONABLY APPLIED, IT CAN LOOK TO THE MACOMSON CASE, WHICH SHOWS THE INHERENT POWERS OF THE DOCTRINE OF THE COURT, THE JUDICIARY HAS THE INHERENT POWER TO ASSURE EFFECTIVE ASSISTANCE OF COUNSEL, BUT BEFORE THE APPELLANT COURTS CAN STEP IN AND DECLARE A STATUTE OR PARTICULAR ADMINISTRATIVE ORDER, AS APPLIED, TO BE UNCONSTITUTIONAL, IT MUST BE NECESSARY. IF WE LOOK AT OUR PARTICULAR RECORD HERE --.
BUT SEVERAL COMMISSIONS AND THEIR FINDINGS ARE THAT THERE IS A PROBLEM IN THE STATE OF FLORIDA, GETTING PROPER REPRESENTATION. WE HAVE HAD STUDIES DONE ON IT. THESE COMMISSIONS HAVE COME BACK. THERE IS A PROBLEM. HOW DOES THIS FACTOR IN? DO WE IGNORE THIS?
I DON'T THINK WE IGNORE THIS, BUT WE LOOK AT THE RECORD OF THE INSTANT CASE, AND THE RECORD OF THE INSTANT CASE INDICATES THERE IS NO PROBLEM, IN THE JACKSONVILLE CASE AND IN THE CHARLOTTE COUNTY CASE AS WELL. THERE IS NO PROBLEM. IN THE JACKSONVILLE CASE, YOU HAVE THE MOTION AND ORDER FROM ABOARD-CERTIFIED CRIMINAL ATTORNEY THAT INDICATES THAT SHE TAKES CAPITAL APPEALS AT THE ADMINISTRATIVE ORDER RATE. YOU HAVE TWO AFTERWARD ASTS ATTACHED TO THOSE MOTIONS AND ORDERS, INDICATING THAT RATE IS REASONABLE, AND, ALSO, ON THE VERY LAST FEW PAGES OF THE RECORD, FROM THE HEARING BELOW, IN VOLUME V OF THE RECORD, YOU HAVE THE TRIAL JUDGE SAYING I HAVE SIGNED MILLIONS OF DOLLARS' WORTH OF ORDERS AT THE ADMINISTRATIVE RATE. IT WAS FORTY. CLEARLY THERE WAS NO PROBLEM GETTING EFFECTIVE COUNSEL.
ARE YOU FAMILIAR WITH THE STANDARDS FOR CAPITAL COUNSEL THAT THIS COURT HAS IS ADOPTED BY OPINION?
FRANKLY, YOUR HONOR, I AM NOT. THAT IS NOT AN AREA OF LAW THAT I PRACTICE.
YOU DON'T KNOW HOW MANY OF THE PEOPLE THAT ARE ON THAT LIST WOULD QUALIFY, UNDER THOSE STANDARDS?
THAT I DO NOT KNOW, BUT I DO KNOW IN JACKSONVILLE --
YOU DO KNOW, AND I WILL REPRESENT TO YOU FROM THE BENCH, THAT THERE IS GOING TO COME A TIME PRETTY QUICK, WHETHER THERE IS NOT GOING TO BE REPRESENTATION IN CAPITAL CASES, EXCEPT FOR PEOPLE THAT MEET THAT STANDARD. NOW, I WOULD ASSUME IT WOULD AND GREAT CONCERN TO YOUR CLIENT, IF PEOPLE WHO WERE CHARGED WITH CAPITAL MURDER WERE RELEASED BY REASON OF SPEEDY TRIAL CONCERNS, SPEEDY TRIAL RULE VIOLATIONS, BECAUSE THE CITY OF JACKSONVILLE WAS PROVIDING THEM WITH COUNSEL. WOULDN'T IT BE?
ABSOLUTELY.
WE ARE GOING TO HAVE TO CONFRONT THAT PROBLEM PRETTY RAPIDLY. WOULD YOU AGREE WITH THAT?
ABSOLUTELY.
IF YOU CAN'T GET COUNSEL AND THEIR PEOPLE THAT ARE CHARGED WITH CAPITAL MURDER, AND SO IT SEEMS TO ME THAT, UNTIL THIS IS TRANSITIONED TO THE STATE, AND ASSUMING THE STATE DOES PICK IT UP, BY REASON OF THE CONSTITUTIONAL PROVISION, THAT IT IS A PROBLEM WITH THE CITY OF JACKSONVILLE. IT IS GOING TO HAVE TO BE ADDRESSED, BECAUSE OF THE ADOPTION OF THESE RULES. THAT, BY THIS COURT, AS TO THE STANDARDS FOR COUNSEL. NOW, THE SECOND THING THAT IS OF CONCERN TO ME IS THAT THE QUESTION, HERE, THAT IS POSED BY THE FIRST DISTRICT IS NOT, REALLY, AS TO THE -- WHETHER THE CHIEF JUDGE IN THE FOURTH CIRCUIT HAS THAT POWER. THE QUESTION IS WHETHER, IN THE PRESENT, 2001 TERMS, THAT, IN THE OPERATION OF THE LAW OFFICE, IN DUVAL COUNTY, BY SOMEONE THAT IS ATTEMPTING TO PRACTICE LAW IN AN A-RATED LEVEL, WHETHER AT $50 AN HOUR, IT IS A CONFISCATORY RATE. NOW, I HAVEN'T BEEN AWAY FROM THE PRACTICE OF LAW FOR THAT LONG, TO NOT BE ABLE TO TAKE JUDICIAL NOTICE THAT $50 AN HOUR IS NOT A SOUND RATE TO PAY SOMEONE TO TRY THE MOST SOPHISTICATED CASE. NOW, YOU ARE NOT SERIOUSLY CONTENDING THAT, FOR PEOPLE THAT WOULD BE HANDLING CASES FOR THE CITY OF JACKSONVILLE, IN BONDING MATTERS, THAT YOU COULD GET THEM TO DO IT FOR $50 AN HOUR, ARE YOU?
I SERIOUSLY DOUBT THAT WE CAN.
RIGHT. AND CERTAINLY, WHEN SOMEONE IS IN TRIAL FOR THEIR LIFE, THAT IS AN EQUALLY IMPORTANT MATTER, AS SOMEONE WHO IS REPRESENTING THE CITY OF JACKSONVILLE ON A BONDING MATTER. WOULD YOU NOT AGREE WITH THAT?
ABSOLUTELY.
SO WE HAVE GOT TO CONTEND WITH THIS PROBLEM, DON'T WE?
YES, BUT I DO NOT BELIEVE THAT THIS CASE IS THE PLACE TO ATTEND TO THE ENTIRE PROBLEM. -- TO TEND TO THE ENTIRE PROBLEM.
YOU KEEP TALKING ABOUT THIS CASE, AND OBVIOUSLY IT IS NOT "THIS CASE" THAT WE ARE DEALING WITH HERE. THE VERY FACT THAT WE HAVE LAWYERS FROM ALL OVER THE STATE, WE ARE DEALING WITH A STATEWIDE POLICY ISSUE, AND YOU NEED TO HELP WAS THAT STATEWIDE POLICYISH DWLU -- POLICY ISSUE, NOT WITH THAT PARTICULAR CASE. AS THE LAWYERS HAVE SAID HERE, THEY HAVE, ALSO, APPEARED IN THIS COURT MANY TIMES, AS PRO BONO LAWYERS. I AM CONFIDENT THAT THERE ARE LAWYERS OUT THERE, FROM THROUGHOUT THE STATE OF FLORIDA, THAT WILL CONTINUE TO SERVE IN A PRO BONO CAPACITY, WHEN CALLED UPON TO DO SOMETHING. IS THAT THE KIND OF SYSTEM THAT WE WANT, THOUGH, THAT IS THAT WE ARE GOING TO HAVE TO, NOW, RELY, ENTIRELY, IN ESSENCE, ON A PRO BONO SYSTEM, IN CAPITAL REPRESENTATION, WHEN, AT THE SAME TIME, WE HAVE RECOGNIZED A VERY, VERY SERIOUS PROBLEM OUT THERE, WITH REF RAINES TO COMPETENCY -- WITH REFERENCE TO COMPETENCY OF COUNSEL IN ENACTING STANDARDS NOW? THAT IS THAT IS WHY WE ENACTED STANDARDS, IS BECAUSE WE HAVE SEEN RECORDS WHERE APPOINTED COUNSEL, AT THESE RATES THAT WE ARE TALKING ABOUT HERE, DIDN'T KNOW WHAT TO DO, AND COULDN'T HANDLE THOSE CASES, SO THERE IS -- WE DO HAVE EVIDENCE, IN THE RECORDS OF ESTABLISHING STANDARDS, THAT THERE ARE PROBLEMS AND HAVE BEEN, FOR MANY, MANY YEARS, AND IT IS A SIGNIFICANT PROBLEM, ALSO, IN THE SENSE THAT THIS IS PART OF THE REASON WHY THESE CASES BUILD UP AND WHY THERE ARE SO MANY POSTCONVICTION RELIEF MATTERS PENDING, YOU KNOW, THAT THEY JUST FEED UPON ONE ANOTHER, AS LONG AS YOU DON'T ADDRESS THE FRONT END PROBLEM THAT EXISTS THERE. THE CITY OF JACKSONVILLE, IF IT TAKES SOME OF THE RIGHT-OF-WAY OF SOMEBODY'S PLOT OR WHATEVER, HAS TO PAY -- OF SOMEBODY'S PROPERTY OR WHATEVER, HAS TO PAY THEIR ATTORNEYS FEES, DO THEY NOT?
THAT'S CORRECT.
AND WHEN THEY ARE SET, THEY HAVE TO PAY THOSE ATTORNEYS FEES, MARKET VALUE IS, REALLY, WHAT DETERMINES THAT MARKET VALUE. IS THAT RIGHT?
THAT'S RIGHT.
HOW CAN THE CITY OF JACKSONVILLE JUSTIFY PAYING FIVE OR SIX OR SEVEN TIMES THE RATE THAT IS SET FOR THE -- BY THE CHIEF JUDGE OVER IN JACKSONVILLE FOR TRYING TO TAKE SOMEBODY'S LIFE, WHEN THEY TAKE TEN FEET OF THEIR RIGHT-OF-WAY AND YET SAY, WHEN IT IS THIS VALUE THAT IS THERE, WE ARE ONLY GOING TO HAVE TO PAY YOU ONE-SEVENTH OR ONE-SIXTH OR ONE-FOURTH. NOW, WHAT KIND OF A MESSAGE DOES THAT SEND OUT, ABOUT THE VAM EW OF LIFE IN THIS STATE -- ABOUT THE VALUE OF LIFE IN THIS STATE?
WELL, I THINK WE HAVE GOT TO GIVE SOME CREDENCE TO CHIEF JUDGES AND WHAT THEY ARE DOING IN THIS STATE AND IN THIS CIRCUIT. ANOTHER CHIEF JUDGES DESERVE ALL OF THE RESPECT IN THE WORLD, BECAUSE THEY ARE THE ONES ON THE SPOT, IN HAVING TO DEAL WITH THIS PRACTICAL PROBLEM, OKAY, BUT AREN'T WE JUST BUILDING HYPOCRISY IN THE SYSTEM, WHEN WE ARE SAYING WE ARE VERY WILLING TO PAY A LAND OWNER, IF HE LOSES TEN FEET OF HIS RIGHT-OF-WAY, THE GOING RATE FOR THE LAWYERS OUT THERE AND PAY $250 AN HOUR, BUT WE ARE NOT WILLING, AND WE DON'T RECOGNIZE THE SAME VALUE IN THE LAWYER OR THE NEED TO HAVE THAT COMPETENT LAWYER, WHEN, OF COURSE, IT IS A TERRIBLE CRIME THAT IS IN QUESTION, WHERE THAT PERSON HAS TO BE DEFEND DD DEFENDED? ISN'T THAT JUST BUILDING HYPOCRISY INTO THE SYSTEM?
THERE IS NO DOUBT THAT THERE ARE RATES THAT ARE A BURDEN ON THE SYSTEM AND ON APPOINTED COUNSEL, BUT THE CHIEF JUDGES IN EACH CIRCUIT ARE CHARGED WITH THE RESPONSIBILITY OF DETERMINING WHAT IS THE RATE THAT THEY CAN SET TO ASSURE THE EFFECTIVE ASSISTANCE OF COUNSEL, WHICH IS WHAT WAS DONE HERE AND CERTAINLY SHOULD BE DONE IN EVERY JUDICIAL CIRCUIT. THOSE ORDERS COME UP WITH THE PRESUMPTION OF CORRECTNESS.
SO WHY SHOULD IT BE OVER $100 AN HOUR IN ONE COUNTY AND $40 IN ANOTHER COUNTY, IN A MODERN STATE LIKE FLORIDA, WHERE, HOPEFULLY, WE EXPECT THE SAME LEVEL OF COMPETENCY AND WE, NOW, PUT THAT IN WRITING, IN TERMS OF STANDARDS, OF REGARDLESS WHERE IT IS IN THE STATE?
IT MAY VERY WELL TAKE $100234 -- TAKE $100 AN HOUR TO GET EFFECTIVE ASSISTANCE.
SO AS LONG AS YOU CAN GET SOMEBODY, THAT IS IT.
NOT JUST SOMEBODY. IF THE RATE WAS SO LOW THAT THE ONLY PERSON YOU ARE GOING TO REPRESENT THESE INDIGENT ACCUSED IS SOMEBODY RIGHT OUT OF LAW SCHOOL, THEN YOU HAVE GOT A PROBLEM, BUT THAT IS NOT WHAT WE HAVE HERE. THAT IS NOT WHAT THE RECORD IS HERE. IF THE CHIEF JUDGE SETS A RATE THAT CAN ASSURE THAT HE HAS EFFECTIVE OR CAN HIRE EFFECTIVE ASSISTANCE OF COUNSEL FOR THE ACCUSED --
HOW ABOUT THE CHIEF JUDGE ASKED ABOUT THE ACTUAL QUESTION CERTIFIED. THE WAY I READ THE QUESTION THAT IS CERTIFIED, IT IS SORT OF A TONGUE IN CHEEK, BECAUSE IT LOOKS BACK AT WHITE AND MACOMSEN AND SAID, IF THE FLORIDA SUPREME COURT SET AN HOURLY RATE, AS IT WORKED OUT IN THOSE CASES, TEN OR 15 YEARS AGO, WHEN THOSE WERE DECIDED, WAS PATENTLY UNREASONABLE AND CONFISCATORY, THEN IS A FEW DOLLARS MORE AND THAT, 10 OR 11 OR 12 YEARS LATER, NOT CONFISCATORY? IT IS ALMOST TONGUE IN CHEEK. TO SAY THAT IS REASONABLE, WHAT WAS SET BACK THEN. HOW DO YOU PEEL DEAL WITH THAT?
OF COURSE -- HOW DO YOU FEEL WITH THAT?
OF COURSE THEY MAY NOT HELP WITH LAW OFFICE MANAGEMENT OR WHATEVER IT COMES TO SAY RUN A LAW OFFICE, IT IS THE RIGHTS OF THE ACCUSED THAT ARE IMPORTANT, AND SO LONG AS THE ADMINISTRATIVE ORDER IS ASSURED THAT THE ACCUSED, CAPITAL CASES OR NOT CAPITAL CASES, BUT ASSURE THAT THE ACCUSED CAN OBTAIN EFFECTIVE ASSISTANCE OF COUNSEL AND ASSURE THAT TRIAL COURTS SECURE THE EFFECTIVE ASSISTANCE FOR THE ACCUSED, THEN, AT THAT POINT, THE RATE IS NOT UNREASONABLE.
SO WE PAY LAWYERS THE SAME RATE AS PARALEGALS GET PAID. WHY DON'T WE JUST AUTHORIZE PARALEGALS TO REPRESENT THESE DEFENDANTS IN CAPITAL CASES AND WE WON'T HAVE A PROBLEM ANYMORE?
UNFORTUNATELY IN THIS CASE THE ADMINISTRATIVE ORDER WAS SILENT, AS TO THAT PARALEGAL ISSUE, AND THAT IS WHY WE LITIGATED IT AT THE LOWER LEVEL.
HAS ANYBODY DISPUTED THAT IT BE THAT WAY, WHEN LAWYERS AND PARALEGALS ARE PAID THE SAME?
IN THIS CASE, THAT WAS THE SITUATION THAT, THE PETITIONER WAS COMPENSATED AT THE SAME RATE. BUT, AGAIN, I AM RUNNING OUT OF TIME AND I NEED TO GIVE MR. COPELAN SOME TIME. AGAIN, I WOULD EMPHASIZE THAT, WHEN THE PETITIONER IN THE JACKSONVILLE CASE TOOK THE CASE, HE KNEW THE RATE. THE ONLY CONDITION WAS THAT HE HAVE HIS WHOLE FIRM AND PROFESSOR BALDWIN ASSIST HIM WITH THE CASE, WHICH I BELIEVE CAME TO SIX LAWYERS, THAT DOES NOT INDICATE THAT THE RIGHTS OF THE ACCUSED IN THE FOURTH JUDICIAL CIRCUIT ARE BEING AFFECTED. IT DOES NOT INDICATE THAT THE FOURTH JUDICIAL CIRCUIT CANNOT SECURE EFFECTIVE ASSISTANCE OF COUNSEL, AND THE ADMINISTRATIVE ORDER, AS WELL AS THE STATUTORY SCHEME 925.036-1 SHOULD NOT BE DECLARED UNCONSTITUTIONAL, AND THE DECLARATORY FOR CERTIORARI SHOULD BE WELL-DEFINED.
YOU ARE NOT SAYING THAT THE RATE OF $50 AN HOUR IS ANYTHING CLOSE TO THE PREVAILING RATE IN DUVAL COUNTY, IN 2000, FOR REPRESENTATION IN CRIMINAL CASES AND, IN PARTICULAR, CAPITAL CASES?
I DO NOT THINK IT IS ANYWHERE CLOSE TO FAIR MARKET VALUE UNIFORMITY I DO THINK IT IS THE SAME AS THE LOCAL PREVAILING HOURLY RATE FOR INDIGENT REPRESENTATION, BECAUSE THE ONLY WAY THERE IS COMPENSATION FOR INDIGENT REPRESENTATION IS THAT THERE IS A ADMINISTRATIVE ORDER, SO THAT EVERYBODY GETS PAID AT THAT RATE.
WHETHER IT WAS THE MOST SOPHISTICATED CAPITAL CASE?
YES.
IF THE CHIEF JUDGE COULD GET THAT RATE, THEN THAT WOULD BE THE LOCAL PREVAILING RATE, IS THAT CORRECT?
FOR INDIGENT REPRESENTATION. IF HE COULD SECURE EFFECTIVE ASSISTANCE OF COUNSEL AT THAT RATE, I DON'T THINK HE COULD, BUT IF HE COULD SECURE EFFECTIVE ASSISTANCE OF COUNSEL AT THAT RATE -- IF HE COULD GET THEM AT THAT RATE?
I BELIEVE IT WOULD BE CONSTITUTIONAL. THANK YOU.
THANK YOU, MR. MALTZ. MR. COPELAN.
THANK YOU. MAY IT PLEASE THE COURT. MY NAME IS JOHN COPELAN, HERE, ON BEHALF OF CHARLOTTE COUNTY. I WOULD LIKE TO REFER THE COURT TO THE BRIEF THAT THE PETITIONER FILED IN MY CASE, IN APPENDIX C. THERE IS AN IMPORTANT SECTION, ON PAGE 8 OF THAT, WHERE YOU WILL SEE THERE WAS SOME DISCUSSION IN THE LOWER COURT BEFORE, AND THE DISCUSSION WENT ALONG THE FOLLOWING LINES. AFTER MY DISCUSSION WITH COUNSEL WHETHER WE SHOULD GO BACK TO DAY ONE OR THE DAY THAT THE APPOINTMENT WAS MADE, WHICH IS 17 MONTHS AFTER THE CASE STARTED, IT WAS JUST MY UNDERSTANDING THAT HE DIDN'T GET PAID ANY FEES FROM OVER THAT 15 MONTHS UNTIL HE WAS APPOINTED COUNSEL. THAT SETS THE STAGE FOR MR. SHIRLEY'S REPRESENTATION N THIS CASE HE HAD A PRIVATE CLIENT THAT HE REPRESENTED FOR 17 MONTHS AND HE DIDN'T GET PAID. HE, THEN, APPROACHED THE COURT. HE WAS APPOINTED COUNSEL, AFTER HE HAD THE CASE THAT WAS STARTED IN 1996, SO IT WASN'T A QUESTION OF HAVING THE COURT COME TO HIM AND SAY WILL YOU PLEASE REPRESENT THIS INDIGENT PERSON. IT WAS A PRIVATE CLIENT WHO DID NOT HAVE THE ABILITY TO PAY, ACCORDING TO THE RECORD, AND BASED UPON THAT, HE SAID I WANT TO BE APPOINTED. THE ORDER THAT WENT FORT APPOINTING HIM, APPOINTED HIM PURSUANT TO THE CHIEF JUDGE'S ADMINISTRATIVE ORDER, AND THAT IS HOW HE WAS TO BE COMPENSATED. I THINK THERE WAS A QUESTION ABOUT WAS THERE A CONTRACTOR NOT A QLT CONTRACT IN DISCUSSION ABOUT DID HE AGREE TO DO IT. HE BROUGHT THIS CASE TO THE COURT AS A PRIVATE LAWYER, AND THEN IT WAS CONVERTED, IN 17 MONTHS, TO A RATE UPON WHICH HE AGREED AT THE TIME, AND THERE WAS AN ADMINISTRATIVE ORDER. I WOULD LIKE TO TURN MY ATTENTION TO THE ROLE OF THE CHIEF JUDGE, HERE, BECAUSE THE CHIEF JUDGE, UNDER THE LEGISLATIVE SCHEME, IS VERY IMPORTANT. YOU ARE BEING ASKED BY MR. SHIRLEY TO THROW OUT THE ROLE OF THE CHIEF JUDGE AND TO LET EVERY TRIAL JUDGE IN THIS STATE BE ALLOWED TOM SET THE FEES AT WHAT SHOULD BE PAID TO INDIGENT COUNSEL.
WOULD YOU ADDRESS, THOUGH, THE ASPECT OF NOT ONLY THE HOURLY RATE BUT THE ADDITIONAL PHRASES AND THE ADDITIONAL ADDRESSING OF THAT, WHICH APPEARS, AT LEAST ON ITS FACE, TO GIVE US THE ADDITIONAL INTENT THAT THAT ASPECT OF THE HOURLY RATE BE INCREASED OR HAVE A KICKER TO IT, AS OPPOSEED TO JUST HAVING A STATUTORY CAP, UNDER THE OLD CASE LAW BE DIRECTORY, RATHER THAN MANDATORY, SO THAT IT APPEARS THAT THERE IS SOME FLEXIBILITY, DOES IT NOT, IN THIS ORDER?
YOUR HONOR, IN OUR ADDRESS TO IT, WE DO NOT BELIEVE THAT THERE IS FLEXIBILITY. IF YOU LOOK AT THE LANGUAGE OF THE ORDER, YOU WILL SEE THAT IT ATTRACTS THE -- THAT IT TRACKS THE LANGUAGE OF THIS COURT IN MACONSEN.
BUT THAT DID NOT HAVE TO DEAL WITH AN HOURLY RATE. IS IT NOT -- MAY I FINISH THE QUESTION. IS IT NOT A SITUATION WHERE YOU HAVE THE ADMINISTRATIVE ORDER SETTING FORTH THE HOURLY RATE AND THEN ADDING ADDITIONAL LANGUAGE FOR AN INCREASE? IS THAT NOT THE WAY THAT IT APPEARS?
YOUR HONOR, THE ORDER DOES NOT, ON ITS A FACE, PROVIDE THAT THE HOURLY RATE MAY BE EXCEEDED, IF THERE ARE EXTRAORDINARY AND UNUSUALLY CASES. AS WE HAVE ARGUED IN OUR BRIEF, WE BELIEVE THAT THE COURT ADDED THAT LANGUAGE IN THERE TO COMPLY YOUR RULE IN MACO 346789 SEN. IT SAYS -- IN MACOMSEN. IT SAYS THAT WE ALLOW IT IN UNUSUAL CASES TO DEPART FROM THE STATUTORY GUIDELINES. IT IS OUR POSITION THAT THAT LANGUAGE IS PLACED IN THE ORIGINAL ORDER AND REPEATED IN THE AMENDED ORDER AFTER THE RECENT RULING AND IN THE RULING AND ORDER WHICH COUNSEL FILED EARLIER THIS WEEK. THAT APPLIES TO THE STATUTORY GUIDELINES. THIS COURT CORRECTLY RULED THAT THE LEGISLATURE, BY SET AGO CAP AT $2500 OR $35004, IN EFFECT, EXCEEDED THE -- OR $3500, IN EFFECT, EXCEED THE CAP. THIS IS NOT PARTICULARLY THE LANGUAGE APPLY TO GET CAP, BUT THAT LANGUAGE DOES APPLY TO THE CAP, FROM THE STANDPOINT IT DOES NOT APPLY TO AN HOURLY RATE. IF YOU LOOK AT THE REVISED ORDER, THAT LANGUAGE IS IN THERE AND THEY HAVE BROKEN DOWN THREE HOURLY RATES THAT IS IN THE ORDER BEFORE YOU.
MR. COPELAN, IT SEEMS TO ME THAT WHAT IS GOING ON, HERE, IN REALITY, IS, BOTH, IN THE FIRST DISTRICT AND WITH THIS OPINION, NOW, OF THE SECOND DISTRICT, THAT THE CERTIFIED QUESTION IS MORE OF A QUESTION OF -- HELP US ADDRESS A PROBLEM, NOT GOING INTO THE RESTRICTIONS, HERE, OF TRYING TO DEAL WITH ADMINISTRATIVE ORDER, BECAUSE THE QUESTION IS WHETHER A LOCAL ADMINISTRATIVE ORDER SHOULD LIMIT THE ATTORNEYS FEES PAYABLE TO THE DEFENDANT'S LAWYER IN A CAPITAL CASE, TO AN HOURLY RATE SUBSTANTIALLY BELOW THE HOURLY RATE AWARDED BY THE COURT, IN OTHER FORMS OF LITIGATION? NOW, DO YOU SERIOUSLY CONTEND THAT THE -- THAT THERE SHOULD BE A LOWER HOURLY RATE IN A CAPITAL CASE THAN IN OTHER FORMS OF LITIGATION?
I BELIEVE, YOUR HONOR, THAT YOU LOOK TO THE STATUTE, WHICH GOVERNS HERE, AND THE STATUTE WAS SET FORTH BY THE LEGISLATURE, AND THE LEGISLATURE, AND THIS COURT HAS RECOGNIZED, I THINK, THAT THE LEGISLATURE, AND THEY STRUCK DOWN THE LIMITS, AND THE LEGISLATURE DOESN'T NEED, EACH YEAR, TO CHANGE THEIR RATES, BUT THE COURT HAS A LOT OF AUTHORITY AND A LOT OF POWER, RIGHT NOW, UNDER THE LEGISLATIVE GUIDELINES, WHERE THE CHIEF JUDGE SETS THE PREVAILING RATES, AND THOSE PREVAILING RATES HAVE BEEN LOOKED AT.
BUT IT DOES FOCUS, THEN, ON THE PREVAILING RATE. WELL, THE PREVAILING RATE, REALLY, CANNOT BE SIMPLY WHAT THE CHIEF JUDGE SETS, BECAUSE THE CHIEF JUDGE, THAT IS SORT OF, YOU BEGIN CHASING YOUR TAIL. WHEN YOU DO THAT, THE PREVAILING RATE HAS GOT TO BE WHAT A LAWYER THAT WILL MEET THE STANDARDS REQUIRED BY THIS COURT FOR CAPITAL CASES AND CAN PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL, UNDER STRICKLAND, WHAT THAT LAWYER'S LOANABLE VALUE -- REASONABLE VALUE OF AN HOURLY RATE IS, IN THE COMMUNITY, IF HE WERE -- IF THAT LAWYER WAS TRYING SOME OTHER TYPE OF CASE. ISN'T THAT WHAT IT OUGHT TO SOMEBODY.
YOUR HONOR, WHEN YOU GO TO DETERMINE PREVAILING RATE, I THINK IT IS DIFFICULT FOR THIS COURT TO DETERMINE A STATEWIDE RATE. I THINK THE LEGISLATIVE SCHEME HAS LET THE LOCAL CHIEF JUDGE MAKE THAT DETERMINATION.
BUT IN CHARLOTTE COUNTY, NOW.
YES, SIR.
THE PREVAILING -- WHAT IS THE -- WHAT DOES CHARLOTTE COUNTY PAY, IN TERMS OF, AS JUSTICE ANSTEAD ASKED, WHEN THE CIRCUIT JUDGE GOES AND SETS A FEE, IN A CONDEMNATION CASE, WHAT IS THE HOURLY RATE THAT IS DETERMINED TO BE AN HOURLY RATE FOR AN A-RATED LAWYER, IN THOSE CASES?
YOUR HONOR, I CAN'T TELL YOU SPECIFICALLY ABOUT CHARLOTTE COUNTY, BUT I CAN TELL YOU THAT THERE ARE DIFFERING RATES FOR DIFFERING KINDS --
YOU ARE FROM BROWARD COUNTY, RIGHT?
THAT'S CORRECT.
WHAT IS THE PREVAILING RATE IN BROWARD COUNTY?
IN BROWARD COUNTY, WHEN I WAS COUNTY ATTORNEY, FOR EXAMPLE, I COULD HIRE AN EMINENT DOMAIN LAWYER AT $175 AN HOUR TO REPRESENT THE COUNTY. I, ON THE OTHER HAND, WAS FACED WITH THE TOBY BRIGHAM AND OTHER CASES BEFORE YOU, THEY WERE DEMANDING INCREASED AMOUNTS 6 COMPENSATION -- OF COMPENSATION, BUT, REALLY, YOUR HONOR, IF WE FIND THAT THERE ARE PUBLIC DEFENDERS WHO WORK FOR $40 AN HOUR IN THOSE CASES, AND IT IS NOT TO SAY THAT THE DEFENDANTS, HERE, ARE NOT GETTING GOOD DEFENSE, FROM THE STANDPOINT OF HAVING THAT, IF I WANTED TO TAKE A CASE AS A PARTICULAR WAY OF REPRESENTING IT, I COULD VOLUNTEER TO BE ON THE LIST. THERE IS NO SHOWING, IN THE RECORD BELOW, THAT THERE WEREN'T ENOUGH ATTORNEYS THAT VOLUNTEERED TO DO THESE CASES --
I DON'T WANT -- IT STRIKES ME THAT, IF THE STATE MADE THE DECISION THAT WE WERE GOING TO INSTITUTIONALIZE THE REPRESENTATION OF CONFLICTED CAPITAL DEFENDANTS, WITH ANOTHER PUBLIC DEFENDER'S OFFICE, THEN WE WOULD BE DEALING WITH A DIFFERENT SITUATION, BUT WE ARE NOT. WE ARE DEALING WITH HOW DO WE PROVIDE FOR PRIVATE LAWYERS, IN THE COMMUNITIES IN WHICH THEY PRACTICE, TO PROVIDE THIS REPRESENTATION, ISN'T THAT RIGHT?
THAT'S CORRECT.
BUT IN A SITUATION WHERE WE ARE TALKING ABOUT A LAWYER SAYING I WILL TAKE IT FOR LESS, BECAUSE PART OF MINE IS PRO BONO --
WELL, YOUR HONOR, I TAKE PRO BONO CASES --
IN TALKING IN THOSE KINDS OF TERMS --
THE EXTENT TO WHICH I AM ABLE TO DO THAT, AND OTHER LAWYERS ARE TAKING PRO BONO CASES, TOO, BUT I THINK THE REAL QUESTION, HERE, IS ARE THEY GETTING ADEQUATE REPRESENTATION, AND I THINK THERE HAS NOT BEEN A SHOWING IN THE CHARLOTTE COUNTY RECORD AND, I THINK, IN THE JACKSONVILLE COUNTY RECORD, THAT THERE HAS BEEN ADEQUATE REPRESENTATION.
BUT ISN'T THE PROBLEM, REALLY, THAT WE ARE MIXING TOGETHER, IN ONE ONE ADMINISTRATIVE ORDER, CAPITAL CASES AND ALL OTHER CRIMINAL CASES, AND I WOULD IMAGINE AROUND THIS STATE, AND IF WE HAD HAD THE INPUT OF THE CRIMINAL DEFENSE LAWYERS OR SOME OTHER GROUP TO FILE AN AMICUS HERE, BUT AS TO THE RUN-OF-THE-MILL CASES, FOR YOUNG LAWYERS, SOMETIMES THESE ARE GOOD DEALS, TO GET ON THE LIST AND TO REPRESENT PEOPLE IN, DEFENDANTS, IN FELONIES OR MISDEMEANORS, AND THEY PLEAD THEM OUT, AND IT IS SORT OF A NICE WAY TO KEEP YOUR OVERHEAD GOING, BUT WE ARE TALKING, HERE, ONLY ABOUT A VERY LIMITED CLASS OF CASES, CONFLICT CASES IN CAPITAL CASES, THE MOST SERIOUS OF CASES, WHERE THIS COURT HAS TO DEAL, FOR YEARS AFTER, WITH THE AFTERMATH OF WHAT HAPPENS WHEN A LAWYER JUST DOES THE MINIMUM OR DOESN'T DO THE MINIMUM, SO WE GET BACK TO SAYING WHAT CAN THE COUNTIES DO, IN THE INTERIM, BEFORE THE STATE TAKES OVER, TO ASSIST IN WHAT APPEARS TO BE AN IMMINENT CRISIS, IF IT IS NOT, ALREADY, A CRISIS.
WELL, YOUR HONOR, I DON'T THINK THERE IS A CRISIS, AND IF YOU LOOK AT THE CASES THAT COME OUT IN THE DISTRICT COURT OF APPEALS, AS RECENT, I THINK THE MOST RECENT DETERMINATION WAS IN 1999, IN THE BOBBIT CASE, IN THE FIFTH DCA. EVERY DCA HAS UPHELD THE RIGHT OF THE CHIEF JUDGE TO DETERMINE WHAT THE PREVAILING WAGE TO BE. I AM SURE THAT THE CHIEF JUDGES GET TOGETHER AT CONFERENCES, AND THERE ARE THE POSSIBILITIES FOR THE CHIEF JUDGE TO RAISE THOSE IRBZ, AND IF -- ISSUES, AND THERE IS A CASE FOR THE STATE TO TAKE THIS OVER, AND THE LEGISLATURE CAN CREATE A FUND TO TAKE CARE OF THIS. I AM NOT SURE THAT PRIVATE DEFENDERS ARE THE WAY TO GO. I THINK CONTRACTUAL SITUATIONS OR, PERHAPS, ESTABLISHING A CASE IN CONFLICTS, A WOULD BE A BETTER WAY TO -- WOULD BE A BETTER WAY TO GO. WE ARE TALKING ABOUT CASES THAT NOW EXIST. I AM RUNNING A LITTLE OVER, YOUR HONOR, BUT IF I CAN ANSWER YOUR QUESTION ABOUT HOW CAN THIS, PERHAPS, BE ADDRESSED IN THE FUTURE, I THINK THAT THERE NEEDS TO NOT BE A SITUATION WHERE YOU ARE HAVING TRIAL JUDGES, IN ALL OF THE DIFFERENT COURTS, BEING ABLE TO SET THAT FEE, BECAUSE THE CURRENT CHIEF JUDGE, I THINK, IS BEST PLACED, AND I THINK THAT THE LEGISLATURE HAS LET THE COURTS, TLUL THEIR OWN JUDICIAL ADMINISTRATION, LET THE CHIEF JUDGE DETERMINE WHAT THE PREVAILING WAGE SHOULD BE. THEREFORE WE WOULD ASK THAT THE COURT UPHOLD THE DECISION OF THE SECOND DISTRICT COURT OF APPEALS.
THANK YOU. BEFORE YOU SET DOWN, JUSTICE LEWIS, DID YOU FINISH YOUR QUESTION? OKAY. REBUTTAL.
MAY IT PLEASE THE COURT. DEALING WITH DEATH CASES. DEATH CASES COME TO THIS COURT. IN THIS RECORD, WHEN WE SOUGHT RELIEF IN THE FIRST DCA, WE MOVED TO TRANSFER THIS CASE TO THIS COURT, BECAUSE THIS COURT IS VESTED WITH THE CONSTITUTIONAL RESPONSIBILITY THAT MAKES OUR DEATH PENALTY WITHSTAND A FEDERAL CONSTITUTIONAL ATTACK OF HANDLING ALL OF THESE APPEALS, ONE COURT, SO THIS ARGUMENT THAT -- I MEAN, THESE ARE ALL DEATH CASES. THEY ARE THE SAME, IF THEY ARE IN LEE COUNTY OR IN DADE COUNTY OR IN ESCAMBIA COUNTY, AND THE STANDARDS -- EXCUSE ME.
HOW DO WE GET A CONSTITUTIONAL GRIP ON IT, WHEN THE CHIEF JUDGES ARE SAYING WE CAN GET TO PEOPLE? THAT IS THE CONUNDRUM.
RESPECTFULLY, YOU CANNOT, AT PUBLIC EXPERIENCE -- EXPENSE, DO ALL OF THESE STUDIES AND ALL OF THESE COMMISSIONS AND IGNORE WHAT THEY SAY. THE CHIEF JUDGE HAS NOT SAID ANYTHING HERE. I WOULD LIKE TO GET HIM UNDER OATH AND DO THAT. BECAUSE I DON'T THINK IT WILL BEAR OUT WHAT EVERYBODY THINKS IT WILL BEAR OUT. HE HAS A HARD TIME FINDING HIM. ANOTHER INTERESTING EXERCISE, I STARTED TO DO IT, WOULD BE TO PLUG IN THE FOURTH CIRCUIT, AND INEFFECTIVE ASSISTANCE OF COUNSEL IN DEATH CASES. THAT WOULD BE AIN'T RESTING THING TO THROW UP HERE, WOULDN'T IT? BECAUSE YOU KNOW, AND YOU HAVE SAID IT, AS RECENTLY AS JUNE, THAT ALL OF THIS IS DRIVEN BY ECONOMIC REALITY. NOW, IF, IN 1988, THEY SAID A CAN OF BEER COSTS $1 AND IN 2001 IT, STILL, COSTS $1, YOU WOULD SAY THAT CAN'T BE, BUT YET THE $40 AN HOUR IS THE SAME, TWELVE YEARS LATER. EXCUSE ME.
AS A BOTTOM LINE PRACTICAL MATTER, WHAT IS IT THAT WE SHOULD DEL EITHER THE TRIAL COURTS, THE ADMINISTRATIVE JUDGE, THE DISTRICT COURTS OF APPEAL, TO DO ABOUT THESE FEE SCHEDULES?
I THINK THERE ARE TWO APPROACHES, AND I HAVE GIVEN? THOUGHT TO THIS. I THINK ONE APPROACH IS THE SAME APPROACH THAT THE COURT DID IN THE INTEREST OF DB AND DS, THIS PARENTAL DETERMINATION. THAT IT WILL BE A -- THIS PARENTAL TERMINATION. I THINK IT WILL BE AT A CERTAIN PERCENTAGE OF THE MARKET RATE.
I ASKED, AT THE BEGINNING, WHAT IS THE MARKET RATE. DO WE HAVE ANY INFORMATION AS TO WHAT IS THE MARKET RATE OF CRIMINAL CASES IN DUVAL COUNTY? CAPITAL CASES.
IN TERMS OF INDIGENT, I WOULD SAY IT IS EXACTLY WHAT WE ASKED FOR IN THIS CASE. THAT IS WHAT WE TRIED TO DO.
BUT BASED ON WHAT?
BASED ON THE TESTIMONY OF THREE LAWYERS, TWO OF WHOM WERE BOARD CERTIFIED CRIMINAL APPELLATE LAWYERS AND ONE OF WHOM HAS HANDLED A DEATH CASE IN THIS COURT AND THE SUPREME COURT OF THE UNITED STATES.
JUSTICE HARDING HAS A QUESTION FOR YOU.
I HAVE ONE QUICK QUESTION. IN REGARD TO FEDERAL, THE FEDERAL COURTS, THEY COMPENSATE COUNSEL FOR HABEAS IN THE FEDERAL COURT?
YES, SIR. IN 21 UNITED STATES CODE 848 IS THE NEW PROVISION, RELATING TO DEATH CASES IN THIS FEDERAL SYSTEM. THE MINIMUM IS 75 AN HOUR UP TO 125, AND CONTRARY TO THE FEAR OF RESPONDENT'S COUNSEL, THAT TRIAL JUDGES ARE NOT EQUIPPED TO DETERMINE FEES, THAT IS POPPY CONGRESS. THEY DO IT EVERYDAY, AND -- THAT IS POPPYCOCK. THEY DO IT EVERYDAY. AND THE APPELLATE SYSTEM APPROVES THE RATES FROM THE TRIAL COURTS.
BUT THEY ARE WITHIN THE RATE OF THE STATUTORY OF 75 TO 100?
FOR DEATH CASES, AND THIS IS WHAT IT NEEDS TO BE DEFINED TO, AND JUSTICE PARIENTE IS RIGHT. THESE ORDERS NEED TO BE SEPARATED AND SEGREGATED, AND I SAY IF YOU ARE GOING TO HAVE STANDARDS FOR US LAWYERS, YOU OUGHT TO PUT A STANDARD ON THE GOVERNMENT OF HOW WE GET COMPENSATED, BECAUSE IT DOES IMPACT THE RIGHTS OF THE CITIZENS.
THANK YOU. THANK YOU, COUNSEL, VERY MUCH, FOR HELPING US WITH THIS CASE FORM THE COURT WILL BE IN RECESS FOR THAT 15 MINUTES. THE MARSHAL: PLEASE RISE.¤