Unintended Consequences

Unintended Consequences

Problems plague court and constitutional officers as the state assumes funding for the courts.

By David R. Corder

Associate Editor

On July 1, Hillsborough County Public Defender Julianne Holt watched in frustration as the court system changed. That day the state assumed responsibility for funding the courts under Revision 7 to Article V of the Florida Constitution. Holt saw her system of indigent representation change dramatically as acting Circuit Judge Walter Heinrich applied new guidelines to criminal defendants who appeared in his court.

Before that day, Holt says, Heinrich routinely approved indigent funding applications at first appearance hearings for about 95% of those accused of a crime. That changed considerably on July 1. Since then, she says, only about 40% of Hillsborough defendants have been certified as indigent.

Holt's experience over the past several weeks illustrates, perhaps, the most serious impact of Revision 7's enabling legislation. State lawmakers enacted the law earlier this spring following six years' research and debate over the 1998 voter mandate to shift funding of the courts to the state Legislature from country governments.

The goal of this constitutional amendment tackled the serious issue of judicial parity. Courts in tax-rich urban counties typically flourished over the years, proponents say, while more rural courts struggled with fewer available tax dollars.

But there may be unintended consequences of the funding switch on those businesses that employ the estimated 70,000 felony and misdemeanor indigent defendants who pass each year through Hillsborough's courts. Holt says that confusion over who receives indigent funding now requires defendants to miss more time from work to qualify for a public defender. And stricter rules over nonpayment of court fines, fees and costs now require revocation of driver's licenses, creating potential transportation hardships for those convicted of crimes.

"Statewide you'll find (each public defender) is having a difficult time in the implementation, because the paper flow in and of itself is a problem," Holt says. "To give you an idea what that means: Right now if you get arrested and bond out, a few days before court, between the bonding out date and your arraignment date, you get a notice that says if you want a public defender you need to come down and qualify for one. No. 1 you hope the people can read that notice and understand what that means. No. 2, what that means to people, they'll need to take off from work."

Some glitches

As always, acknowledges Hillsborough Clerk of the Court Richard Ake, it takes bureaucracy time to adapt to changes, especially since lawmakers didn't finish details of the new law until about 30 days prior to implementation. "You can't make this massive of change on this short of notice and have it in place on day one," he says.

Adds Pinellas Clerk of the Court Karleen DeBlaker: "It's causing some consternation, but over all the changeover was smooth."

The problems emerging now mean the Legislature simply must refine the changes enacted this year, DeBlaker says. "What's going to happen; everyone is going to have to keep lists and notes of where the hang-ups occur, and the Legislature will have to go back and clarify," she says.

Most of the problems in Pinellas center on arcane issues such as the disposition of forfeited bail bonds, DeBlaker says. When it cannot produce a fugitive, bail-bonding agencies lose the surety. Prior to July 1, that money went to the counties. She says estreatures are lucrative enough the county relied on an attorney to recover the money.

"The money now goes to the clerk to fund the court side of the operation," she says. "So the clerk is stuck with this. The question is: How do we get this money from the bail bondsmen?"

In the interim, DeBlaker signed an interlocal agreement with the Pinellas state attorney's office.

"We do the research, then the state attorney gets involved," she says about estreatures. "Over a period of time it's thousands of dollars, so it's worth it. But it's a convoluted mess."

Because money is at stake, DeBlaker also says the switch has created an atmosphere of suspicion among some officials, especially since the funding switch now delegates to the clerk of the court the sole responsibility for collection of court fines, fees and costs. That has created some friction between county officials and DeBlaker's office over county revenue spent on the clerk's non-court related duties such as recording of official documents, auditing and county commission records management.

"Everybody is suspicious of each other," she says. "The (Pinellas) county administrator is now asking whether we've divided the employees appropriately. The Legislature is now saying, 'Be sure you're don't have an (court) employee processing a deed.' Nobody is getting along. It's created an air of suspicion that didn't exist before."

Part of the problem, DeBlaker says, is institutional. Prior to July 1, the Pinellas clerk of the court operated primarily as a budget office, which means it received most of its revenue from the Pinellas County Commission. Now it operates mostly on revenue produced from fines, fees and costs.

"This office was operating as a budget office when I took over 24 years ago," says De Blaker, who retires at the end of this year. "Years ago they tried, but they couldn't make it on fees because we're not a growing county. Hillsborough is a growing county and they can make it on fees."

That may account for why Ake doesn't express as much angst over the funding switch.

"My people are in fact trained in collecting fees," Ake says. "That may be part of it here; where Karleen and her people may have a learning curve. But there is not a lot of difference. It's really about how much you can get your automated system to do for you."

And automation is the one area that poses the biggest problem for Ake and his staff. "The biggest challenge we're having is recalculating the (increased fee) amounts. Those (software) programs have to be changed, and we're still not there yet."

Fixing a problem

Prior to July 1, Holt and four members of her staff met monthly with representatives from Ake's office and the 13th Circuit. Problems such as indigent funding concerned them enough the representatives started meeting weekly in the beginning of July. In addition there were daily telephone calls and e-mails. There Holt aired her concerns about what happened to criminal defendants in Heinrich's court.

"My first impression was all the efforts at automating my system have gone away, and I'm back to manual counting," she says. "That was my very first impression, because I knew what that meant. That meant I was now going to have to go back and see every single person who was being arrested one by one to ensure that they understood what was happening to them."

The numbers tell the story, Holt adds.

"We were pretty much in the automatic mode that we were representing everybody," she says. "So we knew we would open a file. We knew we would start discovery. We knew we would worry about their adverse preliminary hearing. We just knew automatic, boom, boom, boom. So now we pull out the 40% and say, 'Great. What are we going to do about the other 60%?' "

It's the assessment of mandatory costs and fees on indigent clients that bothers Holt the most.

"That could, No. 1, lead to what we consider potential additional criminal charges in the future and/or substantial hardship on their financial condition on a day-in and day-out basis," she says. "The most minimum of criminal charges in the criminal justice system, a finding of guilt or a plea of guilt, results in a minimum of about $228 in court costs, period. Even if we were to move to convert those court costs to community service hours, as allowed by the statute, there is no monitoring provision in place. So therefore there appears to be a glitch in the new legislation that needs to be fixed in next year's session.

"Then we're all struggling with this mandatory you must pay these costs or it will affect your driving privileges," she says.

In Holt's opinion, the new law has created another unintended consequence through what is now known as provisional indigent appointments. The court may appoint the public defender or another private attorney on a provisional basis until the clerk's office determines whether the defendant truly is indigent. Prior to July 1, the court determined indigent status.

"What they wanted to do was ensure our resources are being used only for people who are truly indigent," she says. "Because last year, you had 70,000 cases, and you have to realize we're all operating under overburdened dockets and under speedy trial rules. You're put into a quandary under this provisional appointment vs. a potential finding of (non-indigent status) by the clerk's office as to what should you do from an ethical standpoint."

This is where time becomes a critical concern, Holt adds. It may not be until arraignment, days to weeks after booking, when the clerk advises the judge that a defendant is not indigent.

"What you are, of course, missing here is that front-end component that you need," Holt says. "Anytime anyone is arrested what you truly need is a front-end finding of (indigent) or not, right there at the front end. It really should occur at that booking process. Everyone will tell you that's impossible to do. But that would be the most true review of someone's status as to everything."

Prior to implementation of the new law, Holt says, a judge would determine whether a defendant was indigent within the first 24 hours of booking.

"Right now, as things are going, we've pretty much put that off for a little bit more of a period of time for this provisional appointment," she says. "In the past, you actually had (a) screening unit that came under the arm of the courts. Now this component is under the clerk's office with court review. So the courts have the ability to provisionally appoint, basically veto a finding of (non-indigent status). But it's the clerk's function to make that determination."

More friction

To complicate the problem, state law requires public defenders such as Holt to negotiate contracts with county commissions and city councils to represent indigent defendants who violate city and county ordinances. Likewise, the cities and counties also must contract with the state attorney's offices to prosecute ordinance violations.

Negotiations went well between Holt and the Hillsborough county attorney's office. The Hillsborough County Commission adopted an eight-month agreement on July 21 that authorizes disbursement of a $200 flat fee per case when the violator of county ordinances faces a possible jail sentence.

On the other hand, Holt hasn't fared as well in three months of negotiations with Tampa City Attorney David Smith. That poses a potential financial problem for Holt, whose staff continues to represent those indigents who violate city ordinances without an agreement.

"We have not been successful yet in entering into a contract with the city," she says. "Interestingly enough, in the first month of this new way of doing business, we handled substantially more violations of city ordinances than we did county ordinances. So putting that contract into place is essential for us."

The new law automatically covers indigent defendants who violate state statutes and city or county ordinances, Holt says. But her office must have an agreement with either the city or county to represent those who just violate an ordinance.

"Now since we're in a transition time, I've taken the position we will continue to do the work we've done in the past," she says. "And I believe the city in good conscience certainly will reimburse us if we're not able to enter into a contract.

"I have recently forwarded to the mayor a copy of the contract we entered into with the county," she adds. "I'm working directly with the mayor at this point. Negotiations between myself and David Smith didn't go as well as I thought they would, so I went ahead and met with the mayor. There was a huge gap between what we were seeking for reimbursement and what was being offered by the city. I don't think that there was an appreciation for how much work it takes to actually prepare a case. It's not just the courtroom time."

While Smith was unavailable for comment, Assistant City Attorney David Shobe Jr. says the gap between the two sides is a matter of different operating philosophies. He says the mayor has delegated all negotiations over the matter to Smith.

"The trouble we've been running into in terms of negotiations is the public defender has requested a flat fee per case rate," Shobe says. "Basically her argument is the public defender should be compensated (the same) for defending an ordinance violation as defending a felony case."

Instead, Shobe says, the city prefers billable hours at a rate much lower than the flat fee Holt negotiated with the county.

"We were just concerned about a flat fee per case," Shobe says. "We had proposed a time schedule based on what the individual attorney was working on, which would be fairly in line with what an attorney in private practice would do."