Confusion in the Court

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| 6:00 p.m. April 2, 2004
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House Republicans pick a tough budget year to try to create another state appeals court district in Florida.

By Francis X. Gilpin

Associate Editor

Judges apparently don't rate much better treatment by the Florida Legislature than ordinary citizens.

Chris W. Altenbernd, chief judge of the Second District Court of Appeal, sat for about seven hours at a March 26 legislative hearing in Tallahassee. The chief judge says he patiently waited his turn to address a proposal to reconfigure the jurisdiction of his court. His wait was in vain.

And so it has gone. House Speaker Johnnie Byrd, R-Plant City, and the rest of his Republican leadership are redrawing the boundaries of the state's appellate districts, with little input from the judges who preside in those courts.

The House Appropriations Committee approved the legislation, 24 to 11, largely along party lines. The committee bill would, among other things, create a sixth appeals court district in Lakeland and move the district that exists there today to Tampa. Rep. Bob Henriquez, D-Tampa, was the only Gulf Coast committee member to cast a vote against the bill.

The proposal next goes directly to the House floor, where it could be taken up in early April.

Altenbernd says the House leadership is evidently working under the illusion that the Second DCA's space at the Stetson University law school's new Tampa campus is adequate. For now, says the chief judge, it is not.

There is no clerk's office, no file storage, and no security for the case records that would have to be lugged over from Lakeland. The Stetson courtroom in Tampa was primarily intended for mock trials staged by students, not for a regular docket of oral arguments before appellate judges.

"If we're really, really, really fortunate, we might be ready by Aug. 1," says Altenbernd, contemplating the renewed lease negotiations with Stetson and the remodeling work that would be required to meet such a deadline. The effective date of the bill voted out of the appropriations committee last month is July 1.

The preamble to the bill seems to blame the state judiciary for the Legislature's perceived need to act. The bill claims the judiciary neglected to adopt a 1998 recommendation by a management council that new appeals courts be considered.

Rep. Bruce Kyle, who chairs the appropriations committee, authored the bill. Kyle didn't return a GCBR call seeking comment. The fact that the Fort Myers lawyer's panel originated the bill, rather than the judiciary committee, has been one of several puzzling aspects of the proposal.

Another is the timing of Kyle's bill. Florida lawmakers are trying to find the money for full funding of state courts for the first time, pursuant to a voter-mandated shift of that responsibility from county government. House staffers estimate that another appellate district would add an extra $7.2 million to the state's court tab in fiscal 2005.

"It's a little ironic," says Timon V. Sullivan of Tampa's Ogden & Sullivan PA, who sits on The Florida Bar's Board of Governors. "While we're struggling to fund our existing court system, somebody is creating a whole new district court of appeals. You'll need a building. You'll need new judges."

That's not all.

"The uncertainties for the judges created by this bill are enormous," Altenbernd wrote in a March 29 letter to Kyle.

Gov. Jeb Bush's three most recent appointments to the Second DCA, including his former general counsel, are among five judges on the court who must stand for merit retention before voters this fall. Kyle's bill appears to call for only three of the current 14 Second DCA judges to stay in Lakeland. The other 11 would presumably transfer to Tampa. As Altenbernd pointed out to Kyle, however, half of the current complement of judges resides in the Lakeland area.

If reassignments are based on seniority, that might mean the governor's own one-time counsel, former U.S. Rep. Charles T. Canady, would be without a judicial seat in Lakeland when the legislative game of musical chairs stops.

"This seems particularly unfair to Judge Canady whose family has long lived in Polk County," Altenbernd wrote. Another recent Bush appointee, Craig C. Villanti, moved from Pasco County to Polk at his own expense, with the expectation that he would work out of the Lakeland courthouse for years to come.

The situation is complicated by last month's discovery of asbestos in the older half of that courthouse by a remodeling crew. "Even if I didn't have asbestos in half of my building in Lakeland, I don't think we could implement this by July 1," says Altenbernd.

Altenbernd doesn't necessarily oppose the legislative revamping of the appellate districts. In fact, Stetson law professors might welcome a full-fledged appeals court on the Tampa campus - one of the few arrangements of its kind in the nation.

But give the judiciary more time to deal with the ramifications, the chief judge pleaded with Kyle. A July 1, 2005, deadline - one year later than what is in the current bill - would be reasonable, he says.

Altenbernd would like legislators to put the judicial circuit that includes Citrus, Hernando, Lake, Marion and Sumter counties in a new Lakeland-based Sixth DCA. As proposed now, that circuit would be part of a reconstituted Tampa-based Second DCA that would also take in the circuits serving Hillsborough, Pasco and Pinellas counties. The chief judge argues that this alteration would even out appellate caseloads for the two districts and perhaps save some jobs at the clerk's office in Lakeland.

For sentimental reasons, Altenbernd would prefer that the Lakeland district retain the Second DCA designation. "I will confess that I have spent my entire career in the Second District," Altenbernd wrote Kyle, "and it pains me personally to think of being a judge on any other court, but it is truly senseless to designate a new facility in Tampa with the name of a court that has served southwest Florida well for more than 40 years."

A new appellate court map is far from becoming the law of Florida just yet. There is no companion piece of legislation in the state Senate, says Florida Bar General Counsel Paul Hill. The Bar hadn't taken a position on Kyle's bill, as of late March.

Even if both chambers pass the bill and Bush signs the proposal into law, the Florida Supreme Court may weigh in on the constitutionality of it all.

The vote

Here's how Gulf Coast members of the House Appropriations Committee voted March 26 on adding a sixth appellate court in Florida

LegislatorPartyHometownVote

Gus Michael BilirakisRPalm HarborDid not vote

Nancy C. DetertRVeniceYes

Frank FarkasRSt. PetersburgYes

Carole GreenRFort MyersYes

Bob HenriquezDTampaNo

Kenneth W. LittlefieldRWesley ChapelYes

Sandra MurmanRTampaYes

Jerry PaulRPort CharlotteDid not vote