IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff,

vs. GREGORY MARTIN, Defendant. / CRIMINAL DIVISION CASE NO.: F11-003648 JUDGE: SIGLER

MOTION TO DECLARE SECTION 27.5304, FLORIDA STATUTES (2012), UNCONSTITUTIONAL Defendant, by and through undersigned counsel, respectfully requests this honorable Court to declare Section 27.5304, Florida Statutes, effective July 1, 2012 unconstitutional and as grounds in support states: 1. The recently amended Section 27.5304, Florida Statutes (2012), restructures the payment scheme for private court-appointed counsel. 2. Previously, criminal court-appointed counsel fees, including those above the flat fees established by the Justice Administrative Commission, were paid by the Justice Administrative Commission from the Criminal Conflict Appropriation Category. Over the last several years the costs of criminal conflict counsel have exceeded the original appropriations and the legislature has had to transfer funds from other due process categories in the Justice Administrative Commission and make supplemental appropriations from unallocated general revenue to resolve projected deficits. See STATE

OF FLA., 7120 BILL

ANALYSIS

AND FISCAL IMPACT STATEMENT, Senate Budget

Committee, Reg. Sess., at 3 (2011). 3. Now, fees in excess of the established flat fees incurred by criminal conflict counsel shall be paid first by the Justice Administrative Commission in a special category in the General Appropriations Act designated for attorney payments over the flat fee, and if the $3,000,000 appropriated to that special category is expended, then the rest of the payments shall be made from the due process funds, or other funds as necessary, appropriated to the state court system in the General Appropriations Act. See 27.5304(12), Fla. Stat. (effective July 1, 2012) (emphasis added). 4. Section 27.5304, Florida Statutes (2012), is unconstitutional because: 1) the session law amending Chapter 27 violates the single subject rule; 2) Section 27.5304 creates a conflict of interest between the judiciary and the indigent defendant; 3) Section 27.5304 violates the Sixth, Eighth, and Fourteenth Amendment rights of capital defendants; and 4) Section 27.5304 violates the separation-of-powers doctrine. I. The Session Law Amending Chapter 27, Florida Statutes (2012), Violates the SingleSubject Rule. 5. Section 27.5304 was one of multiple sections of the Florida Statutes amended by the passage of Senate Bill 1960. Senate Bill 1960 became session law Chapter 2012-123, parts of which were ultimately codified as Section 27.5304 of the Florida Statutes. See Ch. 2012-123, 8, Laws of Fla. 6. Chapter 2012-123 violates Article III, Section 6 of the Florida Constitution because it contains several subjects, including civil and criminal provisions that are not logically connected; the underlying senate bill was hastily amended and passed in the waning days 2

of the legislative session; and the legislature identified no crisis necessitating broad reform of the matters addressed in the chapter law. 7. Commonly known as the single-subject rule, Article III, Section 6 of the Florida Constitution provides, in pertinent part, that "[e]very law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title." 8. While generally a law may be as broad as the legislature chooses, the Florida Constitution requires that the matters included in the act have a natural or logical connection. Chenoweth v. Kemp, 396 So. 2d 1122 (Fla. 1981); see also State v. Thompson, 750 So. 2d 643, 644 (Fla. 1999) (statute violated the single subject rule because the law improperly addressed two different subjects: domestic violence and career criminals); Heggs v. State, 759 So. 2d 620, 626 (Fla. 2000) (a law "violate[d] the single subject rule because it, too, embraces civil and criminal provisions that are not logically connected. The two subjects are designed to accomplish separate and dissociated objects of legislative effort."). 9. Chapter 2012-123 amends and creates sections of the Florida Statutes regarding subject matters that are not properly connected. a. Section 1 of the chapter law substantially amends Section 27.40, Florida Statutes, giving circuit courts the option to create a limited registry of attorneys to accept indigent defendants in cases requiring court appointment of private counsel. b. Section 2 of the chapter law amends Section 27.511, Florida Statutes. The section addresses the manner in which an appointed regional counsel may be replaced by the Governor, and requires the Florida Supreme Court Judicial Nominating 3

Commission to take certain timely action upon the vacancy of an appointed regional counsel position. c. Section 3 of the chapter law amends Section 27.52, Florida Statutes, by renumbering certain sections and providing clarifying language regarding the clerk of court's obligations in making indigent determinations. d. Section 4 of the chapter law amends Section 27.5304, Florida Statutes, by ordering all circuit judges to select only one judge per circuit to hear and determine motions to exceed fee limits in court-appointed cases, and providing that multi-county circuits and the Eleventh Circuit may have up to two such designated judges. Section 4 also amends the manner in which criminal court orders of payment in excess of flat fees shall be paid in relation to the General Appropriations act; the manner in which payment shall be made in the event that designated funds are exhausted; and creates a requirement that the Justice Administrative Commission provide certain monthly data concerning courtappointed cases, payments in excess of flat fees, and cases where compensation was waived. e. Section 5 of the chapter law amends Section 39.8296, Florida Statutes, and specifically allows a guardian ad litem to transport a child alleged to be abused, abandoned, or neglected, but specifies that the guardian ad litem may not be required to transport the child. f. Section 6 of the chapter law creates Section 39.8297, Florida Statutes, which allows a county and the Statewide Guardian Ad Litem Office to enter into an agreement for the purpose of the county providing funds to the local guardian ad 4

litem office in order to employ persons to assist in the operation of the guardian ad litem program in that county. Section 6 establishes the responsibilities of the Statewide Guardian Ad Litem Office and the counties under such agreements. g. Section 7 of the chapter law amends Section 318.18, Florida Statutes, by requiring that the Clerk of the Court submit its annual report on collected surcharges for traffic infractions in an electronic format as developed by the Florida Clerks of Court Operations Corporation; and adding the requirement that said report be submitted to the Florida Clerks of Court Operation Corporation in addition to the current requirement that it be submitted to the Governor, President of the Senate, Speaker of the House, and the board of county commissioners. h. Section 8 of the chapter law provides that the act shall take effect July 1, 2012. 10. The various sections in Chapter 2012-123 do not bear sufficient relationship to one another as required by the single-subject rule. There are essentially four unrelated

subjects: 1) the limited registry wheel; 2) regional counsel; 3) the Statewide Guardian ad litem office and individual guardians ad litem matters; and 4) clerks of court reporting procedures on traffic assessments. a. The limited registry provisions (section 1) have nothing to do with contracts between counties and the Statewide Guardian Ad Litem Office, or whether guardians ad litem may transport a child (sections 5 and 6). b. The nomination and replacement of regional counsel (section 2) has nothing to do with the contracts between counties and the Statewide Guardian Ad Litem Office or whether guardians ad litem may transport children (sections 5 and 6).

c. The guardian ad litem provisions (sections 5 and 6) have nothing to do with the clerks of court electronically reporting surcharges for traffic tickets (section 7). 11. Where, as here, two or more of the sections of a chapter law are not logically connected, a finding that one or more of the other sections are logically connected does not save the chapter law from invalidation on single subject grounds. Fla. Dept of Highway Safety and Motor Vehicles v. Critchfield, 842 So. 2d 782, 786 (Fla. 2003). The fact that civil and criminal elements of an act both fall under the broad umbrella of the state judicial system do not render them sufficiently related to survive a single subject rule challenge. See id.; Heggs, 759 So. 2d at 626. 12. The single-subject rule is violated where the subjects of an act "are designed to accomplish separate and dissociated objects of legislative effort," Heggs, 759 So. 2d at 626, as is the case with chapter 2012-123. Therefore, the unrelated subjects in the individual sections of chapter 2012-123 render the chapter violative of the single subject rule and accordingly, unconstitutional. 13. Moreover, the Court has warned repeatedly that single-subject rule violations are the most likely to occur under the circumstances found in this case: the inclusion of both civil and criminal provisions, hastily-filed amendments, and voting at the end of the legislative session without time for thought and discussion regarding the amendments. See State ex rel. Landis v. Thompson, 163 So. 270, 283 (Fla. 1935). 14. The legislative history of Chapter 2012-123 reveals substantial last-minute amendments, title changes, and passage on the last day of session. a. The limited registry language and the title amendments were both introduced in the bill's third amendment on the single day prior to the vote on the bill. 6

b. The third amendment was filed at 8:03 a.m. on March 8, 2012. c. Senate Bill 1960 was passed in the Senate the next day, March 9, 2012, at 3:17 p.m. d. Senate Bill 1960 was adopted in the House and passed in the House on March 9, 2012, at 8:39 p.m., the last day of the legislative session. 15. The legislative history of Senate Bill 1960 thus reflects late amendments, title changes, and passage in both houses on the final day of the regular session. It cannot be plausibly maintained that the individual legislators were provided with sufficient time to consider or discuss the amendments prior to the votes in both houses. No committee heard testimony or considered this amendment after it was filed. Nor can it be said that the public was provided with any notice whatsoever with which to allow for comment or debate on the amendments. "[I]t is in circumstances such as these that problems with the single subject rule are most likely to occur." State v. Thompson, 750 So. 2d 643, 644 (Fla. 1999) (quoting Thompson v. State, 708 So. 2d 315, 317 (Fla. 2d DCA 1998)). 16. Significantly, the legislature did not identify some specific crisis that it meant to address with Chapter 2012-123. Such identification might allow a chapter with disparate

statutory provisions to be found constitutional. See, e.g., Smith v. Dept of Ins., 507 So. 2d 1080, 1085-87 (Fla. 1987) (involving challenge to chapter 86-160, Laws of Florida, in which the legislature identified crisis in the availability of commercial liability insurance); Chenoweth v. Kemp, 396 So. 2d 1122, 1124 (Fla. 1981) (involving challenge to Chapter 76-260, Laws of Florida, in which the legislature identified crisis in the tort law/medical malpractice liability insurance system).

17. No such identification was made in this chapter, which solidifies the basis for a finding that Chapter 2012-123 violates the single-subject rule and is unconstitutional. 18. Furthermore, the title of this bill is another strong indication that it is overly broad and contains unrelated subject matter. The subject of an act is derived from the short title, which is the language immediately following the phrase, "an act relating to," and preceding the indexing of the act's provisions. Franklin v. State, 887 So. 2d 1063, 1076 (Fla. 2004). The short title must provide real guidance as to what the body of the act contains. Id. at 1076. An example of an overly broad short title is, "an act relating to the justice system." Id. 19. The title of Chapter 2012-123 is "an act relating to the state judicial system." Thus, as in Franklin, the title of Chapter 2012-123 is overly broad and provides no real guidance as to the subject of the act. 20. Based on the foregoing, Chapter 2012-123 is unconstitutional because it violates the Article III, Section 6 of the Florida Constitution. II. Section 27.5304, Florida Statutes (2012), Creates A Judicial Conflict of Interest That Violates an Indigent Defendants Right to Due Process. 21. Section 27.5304 puts the circuit court judge in the unconstitutional position of deciding whether to grant an indigent defendants due process costs in the form of criminal courtappointed counsel excess fees, with the knowledge that the courts budget will be affected once the special appropriations of $3,000,000 for attorneys fees in excess of the flat rate for indigent cases is exhausted. 22. The right of every litigant to appear before an impartial tribunal is a fundamental tenet of the constitutional guarantee of due process. U.S. CONST. Amend. XXIV. The law and 8

justice demand that no judge preside in a case in which his or her neutrality is shadowed or even questioned, for a litigant is entitled to nothing less than the cold neutrality of an impartial, disinterested, and independent judge. State v. Steele, 348 So. 2d 398, 401 (Fla. 3d DCA 1977). 23. The question whether disqualification of a judge is required focuses on those matters from which a litigant may reasonably question a judges impartiality rather than the judges perception of his ability to act fairly and impartially. See Fla. Code of Jud. Conduct, Canon 3(E)(1). 24. The amended portion of Section 27.5304, Florida Statutes (2012), creates a reasonable question of a judges impartiality because the judge must decide between granting an indigent defendants due-process costs or protecting the due-process funds appropriated to the state courts system to fund the courts administration, a finding that, in turn, undeniably and personally affects the judge. 25. Furthermore, when looking at the legislative intent behind this recent amendment to Section 27.5304, Florida Statutes (2012), inarguably a financial interest for the judge was intended to be created by the legislature. 26. The Florida Senate Bill Analysis and Fiscal Impact Statement for Senate Bill 1960 (SPB 7064), the bill that passed and became Section 27.5304, Florida Statutes (2012), explicitly reveals the legislatures intent behind transferring the financial burden for attorney compensation in excess of the statutory caps from the Justice Administrative Commission and the legislatures unallocated general revenue to the Florida courts own due-process budgets. Section III of the Fiscal Impact Statement sets forth the Effect of Proposed Changes and states: 9

Section 3 amends s. 27.5304, F.S., to require the state court system to pay court appointed counsel fees ordered by the court above the flat fees set in the Florida Statutes and the General Appropriations Act once the funds appropriated for that purpose have been spent. This change is aimed at encouraging the courts to take a stronger role in governing the ordering of fees. If the court system is answerable for some of the costs associated with payments above the flat fee, judges may be less willing to order these fees. 27. Section V provides the Fiscal Impact Statement that anticipates that the bill may reduce the amount paid to court appointed counsel in certain circumstances. 28. The amended statute thus runs afoul of the third judicial canon which states that a judge must recuse him- or herself in instances where the judge knows that he or she individually has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding. Fla. Code of Jud. Conduct, Canon 3(E)(1)(c). 29. As Section II of the Florida Senate Bill Analysis and Fiscal Impact Statement for Senate Bill 1960 (SPB 7064) estimates that the total costs for payments exceeding the flat fees for fiscal year 2011-12 will be $6,798,189 an amount far exceeding the $3,000,000 appropriation made for this purpose, the economic interest of the judiciary is both wellfounded and anything but de minimis. 30. Essentially, the amended language to Section 27.5304, Florida Statutes, creates an impermissible fiduciary interest as to criminal circuit court judges and infringes on an indigent defendants constitutional right to an impartial tribunal because it places the circuit court judge in the untenable position in which granting a defendants right to due process costs in the form of attorneys fees impinges on the courts own budgetary scheme.

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III. Section 27.5304, Florida Statutes (2012), Violates The Sixth, Eighth, and Fourteenth Amendment Rights Of Capital Defendants. 31. Indigent defendants facing incarceration, and certainly those facing a death sentence, are guaranteed the right to the assistance of court-appointed counsel under the Sixth Amendment to the Constitution of the United States. Gideon v. Wainwwright, 372 U.S. 335 (1963), and under Article I, Section 16 of the Constitution of the State of Florida. It has long been recognized that, subsumed within the constitutional right to counsel, is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). 32. The right to effective assistance of counsel encompasses the right to representation free from actual conflict. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); Hunter v. State, 817 So. 2d 786, 791 (Fla. 2002). 33. External circumstances may justify a presumption of ineffectiveness, and a consequent Sixth Amendment deprivation, without inquiry into counsels actual performance, such as when counsel is operating under a conflict of interest. United States v. Cronic, 466 U.S. 648, 662 (1984). 34. The amendment to section 27.5304 will give rise to a conflict of interest when a capital defendant is represented by court-appointed counsel, and thus violates the defendants Sixth Amendment right to counsel, and the reliability, proportionality, and equal protection guarantees of the Eighth and Fourteenth Amendments and Article I, Sections 2, 9, 16, and 17 of the Florida Constitution. For under the statutes new constraints, court-appointed registry counsel will have a well-founded fear that their work, even if reasonable and necessary in an extraordinary and unusual case, will not receive anywhere 11

near fair remuneration; that is, remuneration that is not confiscatory of his or her time, energy, and talents. See White v. Bd. Cnty. Commrs of Pinellas County, 537 So. 2d 1376, 1378 (quoting Makemson v. Martin County, 491 So. 2d 1109, 1115 (Fla. 1986)). 35. Indeed, the very intent of the amendment, as elucidated in the Florida Senate Bill Analysis and Fiscal Statement in support of the new statute, is to encourage judges to be less willing to order these fees [in excess of the statutory caps] and to reduce the amount paid to court-appointed counsel in certain circumstances. See State of Fla., 1960 Senate Bill (SPB 7064), Bill Analysis and Fiscal Impact Statement (2012). 36. The Supreme Court of Florida has recognized the direct relationship between attorney compensation and a defendants right to counsel. Olive v. Maas, 811 So. 2d 644, 652 (Fla. 2002). In Olive, the Court explained: The relationship between an attorneys compensation and the quality of his or her representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may not be reasonably compensated for the legal services provided due to the statutory fee limit. As a result, there is a risk that the attorney may spend fewer hours than required representing the defendant or may prematurely accept a negotiated plea that is not in the best interests of the defendant. A spectre is then raised that the defendant received less than the adequate, effective representation, the very injustice appointed counsel was intended to remedy. 811 So. 2d at 652 (quoting White v. Bd. Cnty. Commrs of Pinellas County, 537 So. 2d 1376, 1379-80). 37. The Supreme Court of Florida has also recognized that all capital cases by their very nature can be considered extraordinary and unusual, White, 537 So. 2d at 1378, and the Supreme Court of the United States has held that the Eighth and Fourteenth Amendments require that capital trials be conducted in a reliable, individualized. and proportionate manner. Parker v. Dugger, 498 U.S. 308 (1991); Tuilaepa v. California, 512 U.S. 137 12

(1987); Godfrey v. Georgia, 446 U.S. 420 (1980); Lockett v. Ohio, 438 U.S. 586 (1978); Gardner v. Florida, 430 U.S. 349 (1977); Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Zant v. Stephens, 462 U.S. 862 (1983). It is undeniable that to afford greater resources to some capital defendants, but deny them to others who are represented by court-appointed registry counsel, would deny equal protection as well as violate Eighth and Fourteenth Amendment requisites. 38. The new statutory scheme, promulgated to discourage the courts grant of reasonable and necessary fees to court-appointed registry counsel in the extraordinary and unusual capital case, therefore gives rise to a violation of the capital defendants Sixth Amendment right to counsel, Eight Amendment right to a reliable, individualized, evenhanded, and proportionate sentencing process, and Fourteenth Amendment right to Due Process and the Equal Protection of the Laws. IV. Section 27.5304, Florida Statutes (2012), Violates the Separation-of-Powers Doctrine. 39. Article II, Section 3, of the Florida Constitution provides that: No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. 40. Although the office of the state attorney and public defender are provided for in Article V of the Florida Constitution, neither the state attorney, nor the public defender, are considered to be part of the judiciary. See Office of the State Attorney, Fourth Jud. Cir. v. Parrotino, 628 So. 2d 1097, 1098-99 (Fla. 1993); Schreiber v. Rowe, 814 So. 2d 396, 398 (Fla. 2002).

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41. While state attorneys are quasi-judicial officers, neither court-appointed counsel nor public defenders enjoy this status, and it is thus a given that court-appointed counsel are not part of the judicial branch. See Schreiber at 398-99; Olive v. Maas, 811 So. 2d 644, 655 (Fla. 2002). 42. The Florida Supreme Court has held that the judicial branch cannot be subject in any manner to budget oversight by the executive branch and that a statutory scheme establishing budget reduction of the judiciary through the executive was unconstitutional. See Chiles v. Children A, B, C, D, E, AND F, 589 So. 2d 260 (Fla. 1991). That Court has also held that the legislature cannot take actions that would undermine the independence of Floridas judicial . . . offices for such action would violate the doctrine of separation of powers. Parrotino, 628 So. 2d at1099. 43. By utilizing the budget for the court system as the default funding source for any excess fees over that appropriated by the legislature to pay court-appointed counsel, Section 27.5304, Florida Statutes (2012), gives the judicial branch, in effect, the power to appropriate funds for court-appointed counsel. As court-appointed counsel is not part of the judicial branch, this funding allocation violates the separation-of-powers doctrine. 44. One could posit the flawed argument that this is no different than the current system in which the courts determine the appropriateness of fees. However, this argument fails to recognize the subtle, yet significant, differences between the two. Traditionally, courts have determined whether the fees requested by court-appointed counsel are reasonable and necessary. Once that determination is made, if the fees requested are over the statutory cap, the court is required to determine whether the case is extraordinary and unusual and whether it would be confiscatory of court-appointed counsel's time, energy, 14

and talents not to grant the requested fees. This determination is a traditional judicial function of fact finding and then applying those facts to the law. 45. Under the new provisions of Section 27.5304, Florida Statutes (2012), the courts will have the added consideration of where fees granted are going to be appropriated from. This is strictly a legislative function, not a judicial one. Still v. Justice Admin. Commn, 82 So. 3d 1168, 1170 (Fla. 4th DCA 2012). To require that judges choose between the defendant's constitutional rights to counsel and due process, the attorney's fiduciary interest, and the fiscal well-being of the court is simply untenable, and violates the separation-of-powers doctrine and the judicial canons. 46. Additionally, Article V, Section 14 of the Florida Constitution states all justices and judges shall be compensated only by state salaries fixed by general law. Funding for the state courts system, state attorneys offices, public defenders offices, and courtappointed counsel shall be provided from state revenues appropriated by general law. 47. The Florida Legislature has historically granted separate appropriations to deal with judges salaries, the state courts system, the state attorneys offices, public defenders offices, and court-appointed counsel because part of the intent of Section 14 of Article V was that these categories should be funded separately and independent of each other. 48. The state attorneys budget is apportioned separately from the public defenders budget, the budget for judges salaries is apportioned separately from the court systems budget, and up until now, the appropriation for court-appointed counsel has been funded through its own appropriations bill. 49. By now including court-appointed counsel funding as part of the state court system budget, Section 27.5304, Florida Statutes (2012), runs contrary to Article V, Section 14 15

of the Florida Constitution, in which the state court system and court-appointed counsel are listed separately and must be funded as two entirely separate entities. CONCLUSION For all the foregoing reasons, Section 27.5304, Florida Statutes (2012), does not pass constitutional muster. The amendments pose a Constitutional threat to the rights of indigent capital defendants as well as to the integrity and independence of the judiciary. WHEREFORE, the Defendant respectfully requests that the Court grant this Motion to Declare Section 27.5304, Florida Statutes (2012), Unconstitutional.

I HEREBY CERTIFY that a copy of this Motion has been sent to the Office of The State Attorney, 1350 N.W. 12th Avenue Miami, Florida 33136 and the Justice Administrative Commission , P.O. Box 1654, Tallahassee, Florida and 32302 this 9th day of July, 2012.

Respectfully Submitted, _____________________ Terence Lenamon FL Bar No.: 970476 100 N. Biscayne Blvd. Suite 3070 Miami, Florida 33132 (305) 373-9911 Fax: (786) 425-2380 terry@lenamonlaw.com

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