Opinion
No. 1D21-2583.
12-08-2022
Jessica J. YEARY, in her official capacity as Public Defender for the Second Judicial Circuit, Petitioner, v. CHIEF JUDGE OF the SECOND JUDICIAL CIRCUIT, Respondent.
John Knowles , Assistant Public Defender, Tallahassee, for Petitioner. Howard L. Dimmig, II , Public Defender, Tenth Judicial Circuit, Bartow, for Amicus Curiae The Florida Public Defender Association, Inc. Benjamin Eisenberg , Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for Amicus Curiae The Florida Association of Criminal Defense Lawyers. Ashley Moody , Attorney General, Trisha Meggs Pate , Bureau Chief, and William H. Stafford III , Special Counsel, Tallahassee, for Respondent.
John Knowles , Assistant Public Defender, Tallahassee, for Petitioner.
Howard L. Dimmig, II , Public Defender, Tenth Judicial Circuit, Bartow, for Amicus Curiae The Florida Public Defender Association, Inc.
Benjamin Eisenberg , Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for Amicus Curiae The Florida Association of Criminal Defense Lawyers.
Ashley Moody , Attorney General, Trisha Meggs Pate , Bureau Chief, and William H. Stafford III , Special Counsel, Tallahassee, for Respondent.
Roberts, J.
The Office of the Public Defender for the Second Judicial Circuit filed a petition for writ of certiorari seeking an opinion that quashes Administrative Order 2021-06, which was entered by the Chief Judge of the Second Judicial Circuit. Administrative Order 2021-06 authorizes a pre-bond mental health screening assessment. This Court finds it lacks jurisdiction and dismisses.
The Florida Supreme Court has recognized that certain administrative orders have been challenged via a petition for writ of certiorari. 1-888-Traffic Schs. v. Chief Cir. Judge, Fourth Jud. Cir., 734 So.2d 413, 415-16 (Fla. 1999). To the extent Administrative Order 2021-06 is an order that can be challenged this way, it must meet the requirements of a common law petition for writ of certiorari. Id. at 415. To be entitled to a writ of certiorari, the Office of the Public Defender must show that it will suffer irreparable harm, which means it has no adequate remedy on appeal. Jimenez v. Rateni, 967 So.2d 1075, 1076 (Fla. 2d DCA 2007). Irreparable harm is jurisdictional. Id. at 1077. If the jurisdictional prong is met, we must decide if the administrative order departs from the essential requirements of law. Id. After review of the petition, the response, and the reply, we find that the Office of the Public Defender failed to demonstrate irreparable harm to itself. Accordingly, we lack jurisdiction.
DISMISSED.
Tanenbaum, J., concurs in result with opinion; Makar, J., dissents with opinion.
Tanenbaum, J., concurring in result.
This petition never should have been filed. The public defender—for herself and herself alone—asks this court to intervene in an apparent spat between her and the chief judge over how the latter administers the internal operations of the Second Judicial Circuit. She asks that we do this by issuing a writ of certiorari. To a student of ancient prerogative writs, this attempted use of certiorari should seem silly. The writ developed as a means by which the Crown had the record of a proceeding before a lower tribunal brought up to be reviewed for gross irregularities. The key here is the highlighted term, "proceeding": There must be one in the lower tribunal before this type of writ can issue. Our supreme court echoed this age-old common-law limitation on the use of certiorari more than a century ago, as follows:
The office of the common-law certiorari... is to have the entire record of the inferior court brought up for inspection, in order that the superior court may determine therefrom whether the inferior court had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law, where no appeal or other direct means of reviewing the proceeding is given.
Jacksonville, T. & K.W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290, 291 (1894). Put more simply, "certiorari is a discretionary writ bringing up for review by an appellate court the record of an inferior tribunal or agency in a judicial or quasi-judicial proceeding." De Groot v. Sheffield, 95 So.2d 912, 915-16 (Fla. 1957) (emphasis supplied); see also Sirmans v. Owen, 87 Fla. 485, 100 So. 734, 735 (Fla. 1924) (explaining that the writ "lies only to review the actions of courts, boards, or officers exercising functions clearly judicial or quasi judicial").
The public defender, however, does not seek review of an order rendered in a judicial proceeding. Instead, the order she challenges is an administrative one setting policy for the entire judicial circuit. It authorizes pre-bond mental health screenings (perhaps even at court expense) in connection with bail determinations in yet-to-be-filed, future cases. The administrative order does not adjudicate a present dispute between parties, determine disputed facts looking retrospectively, or make an interlocutory ruling in a pending case. Moreover, the chief judge issued the order pursuant to the administrative authority given to him by the Florida Constitution. See Art. V, § 2(d), Fla. Const. ("The chief judge shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit."); see also § 43.26, Fla. Stat. (setting out the administrative powers of the chief judge). This is hardly a judicial or quasi-judicial act; the order is quasi-legislative or administrative action. See Fla. R. Gen. Prac. & Jud. Admin. 2.120(c) (defining "administrative order" as a "directive necessary to administer properly the court's affairs"); Fla. R. Gen. Prac. & Jud. Admin. 2.215(b)(2) (tasking the chief judge with "direct[ing] the formation and implementation of policies and priorities for the operation of all courts and officers within the circuit"); cf. Bd. of Cnty. Comm'rs of Brevard Cnty. v. Snyder, 627 So.2d 469, 474 (Fla. 1993) (describing "legislative action [as] the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy"); see W. Flagler Amusement Co. v. State Racing Comm'n, 122 Fla. 222, 165 So. 64, 65 (1935) (contrasting a judicial or quasi-judicial act, which "determines the rules of law applicable, and the rights affected by them, in relation to past transactions"; with "a quasi legislative or administrative order," which "prescribes what the rule or requirement of administratively determined duty shall be with respect to transactions to be executed in the future"). We, in turn, cannot reach or affect that order through a writ of certiorari. See W. Flagler Amusement Co., 165 So. at 65 (explaining that certiorari "is a remedy limited solely to judicial or quasi judicial determinations," so it will not lie to address administrative or quasi-legislative action); see also Sirmans, 100 So. at 735 (noting that certiorari "will not lie to review administrative acts"); cf. De Groot, 95 So. 2d at 914 (quasi-legislative decisions are not reviewable by the courts except on the sole ground of lack of jurisdiction). Because supervision of chief judges is not within our jurisdiction, there also is no other writ we could issue to review the administrative order. Cf. Wild v. Dozier, 672 So.2d 16, 18 (Fla. 1996) (noting that "there is nothing in our Constitution to indicate that district courts are to share in the administrative supervision of our trial courts"); Art. V, § 4(b)(3), Fla. Const. (limiting a district court's writ authority to that which is "necessary to the complete exercise of its jurisdiction").
Notwithstanding these clear limitations on the use of certiorari, the public defender (understandably) relies on an odd, passing reference by the supreme court to "common law certiorari" being used in the district courts of appeal as a "long-standing mechanism for challenging routine administrative orders." 1-888-Traffic Schs. v. Chief Cir. Judge, Fourth Jud. Cir., 734 So.2d 413, 415 (Fla. 1999). I say odd because the court does not provide any analysis to explain how such a use could comport with its well-established jurisprudence regarding certiorari. Still, the court's reference in the case should be of no moment, for it was dictum at best.
The 1-888-Traffic Schools case came before the supreme court as "a petition for writ of certiorari seeking review of an administrative order issued by" a chief judge. Id. at 414. The petition had been transferred there by this court. As the supreme court noted, though, it did not have certiorari jurisdiction, so it did not have authority to adjudicate the petition. See id. at 417. In other words, this court improvidently transferred a petition for certiorari to the supreme court, and the only judicial action taken by that court in 1-888-Traffic Schools was to transfer the petition back to this court.
The Florida Supreme Court's authority to issue a writ of certiorari was eliminated by a 1980 amendment to the Florida Constitution. In re Emergency Amends. to Rules of App. Proc., 381 So.2d 1370, 1374 (Fla. 1980) ("Under the earlier constitution, this jurisdiction was exercised by writ of certiorari. Constitutional certiorari is abolished under amended Article V.").
This court had transferred the petition based on the supreme court's decision in Wild (just mentioned above), which held that the supreme court "has exclusive jurisdiction to review judicial assignments." See id., 672 So. 2d at 17. The order before the court in 1-888-Traffic Schools, however, was not an order dealing with a judicial assignment, so this court's reading of Wild to include all administrative orders, as it so happened, was incorrect. See 1-888-Traffic Schs., 734 So. 2d at 415. The supreme court, in turn, spent most of the opinion in 1-888-Traffic Schools explaining the limited reach of the holding in Wild and why it was declining to use its so-called "`all writs' power" to review the administrative order where it otherwise lacked jurisdiction to consider the petition. See id. at 415, 417.
This is not the stuff of which definitive pronouncements on points of law are made, and I do not read 1-888-Traffic Schools as upending the clear limitations that the supreme court historically placed on the use of certiorari. See Pell v. State, 97 Fla. 650, 122 So. 110, 112 (1929) ("That part of court's opinion which is not essential to decision of case is mere obiter dictum and without force as precedent."). As the supreme court itself has explained, it "does not intentionally overrule itself sub silentio." Puryear v. State, 810 So.2d 901, 905 (Fla. 2002). When we, as an inferior court, "encounter[] an express holding from [the supreme court] on a specific issue and a subsequent contrary dicta statement on the same specific issue," we are "to apply [the] express holding in the former decision until such time as [the court] recedes from the express holding." Id. The much older decisions from the supreme court that I mention above are definitive on the use of certiorari: It is not to be used to review administrative or quasi-legislative action (i.e., an order that is not issued in a judicial or quasi-judicial proceeding). This suffices to support our dismissal of the petition out of hand (i.e., without exploring whether there is irreparable harm).
Even so, the public defender cannot use her own statutory duties as a basis for claiming irreparable harm on behalf of her potential, unidentified, future clients. The irreparable harm necessary for jurisdiction cannot be derivative or vicarious, and it cannot be theoretical or speculative. To the extent we are talking at all about rights here, those rights belong to the criminal defendants the public defender might be appointed to represent, not to her. Obviously, in an individual criminal prosecution, if a defendant's rights are implicated in some way by judicial action, she is duty-bound to raise that as an issue on behalf of the defendant, in the defendant's name. She cannot claim those rights for herself.
In her rush to take the fight to the chief judge, the public defender also perhaps has overlooked the fact that the mental health screenings that she opposes are conducted by or on behalf of the court for the benefit of the accused, potentially the same clients she will be appointed to represent in the future. I have been in similar pre-bail interviews. They are far from "prosecutorial"; the reports the screenings produce help both the court and counsel understand more about the accuseds' needs and determine whether there are conditions of release that can be developed that protect both the public and the accused while also assuring their appearances in court. It is simply reflexive or unfair to suggest that staff, when interviewing these individuals to determine their mental health needs and report back to the court, are doing so as subterfuge to obtain incriminating statements from arrestees that could be turned over to the State. If the State did somehow obtain and seek to use at trial such a statement— given outside the presence of counsel while in custody—there are exclusionary remedies available to address any constitutional infirmity.
I close by noting that the public defender is not without a legal remedy to challenge the scope or effect of an administrative order to the extent it affects her or her office. If she views an administrative order as improperly operating as if it is a court rule or a local rule, she may apply to the Supreme Court Local Rules Advisory Committee for a determination. See Fla. R. Gen. Prac. & Jud. Admin. 2.215(e)(2). If she instead views the chief judge as having exceeded his authority in issuing the administrative order at all, she may petition the supreme court directly. See Art. V, § 3(b)(8), Fla. Const. (giving the supreme court the authority to "issue writs of mandamus and quo warranto to state officers and state agencies"); see also Fla. R. Gen. Prac. & Jud. Admin. 2.215(b)(2) ("The chief judge shall be responsible to the chief justice of the supreme court."). In short, the public defender has more than one forum in which to air her official grievances regarding the chief judge and his administrative orders. This court is not one of them. Because we have no writ authority to review the administrative order at issue here, I concur in the dismissal of the public defender's petition for lack of jurisdiction.
This opinion was finalized on April 22, 2022; it has not been updated or revised since that date.
On July 26, 2021, the chief judge of the Second Judicial Circuit of Florida, which is based in Tallahassee and covers six contiguous counties, issued an administrative order (AO 2021-06) (see Appendix A) that formally adopted a decades-long circuit-wide practice of using a pre-bond mental health screening assessment consisting of an interview with a criminal detainee by a licensed clinical or forensic psychologist who thereafter prepares a report that assesses the detainee's mental status, reports the detainee's known mental health history, and makes recommendations for conditions of pretrial release and a possible mental competency exam. The stated purpose of the pre-bond mental health assessment is to assist trial judges presiding over bail hearings in deciding whether to release detainees on bail or impose other conditions; the circuit court pays for the services of the psychologist. The entire pre-bond mental health assessment process occurs before the detainee, if indigent, has been appointed a lawyer.
In response, the public defender for the Second Circuit, Jessica J. Yeary, submitted a letter objecting to the administrative order and thereafter initiated various legal proceedings to challenge the administrative order, including petitions for writs of habeas corpus in individual cases, as well as a petition for certiorari in this case. A common objection is that the administrative order interfered with her office's ability to provide a constitutionally adequate defense to their indigent clients, who were routinely subject to delays in their bond proceedings and denied constitutionally required legal counsel until after the pre-bond mental health assessment had already taken place. Other objections were that no legal authority exists for the administrative order and that it is an invalid local rule. See Appendix B.
As a threshold matter, the chief judge says that jurisdiction is lacking and that the public defender's petition should be dismissed. Our supreme court, however, has made clear that appellate certiorari jurisdiction exists to review administrative orders of the type at issue here. The court in 1-888-Traffic Schools v. Chief Circuit Judge, Fourth Judicial Circuit, 734 So.2d 413 (Fla. 1999), held that this court had jurisdiction over a petition for writ of certiorari seeking review of an administrative order issued by a chief circuit judge. In that case, the "core of the petitioner's challenge is that the administrative order exceeds [the chief judge's] authority concerning driver improvement courses," usurping the statutory authority of the state motor vehicle department charged with overseeing such courses. Id. at 415. The supreme court held that this court had erroneously concluded that it lacked jurisdiction, transferring the case back to this court for its review. Id. 416-17. This court subsequently processed the merits of the petition and denied relief. 1-888-Traffic Schs., Inc. v. Chief Cir. Judge, Fourth Jud. Cir., Duval Cnty., 737 So.2d 613 (Fla. 1st DCA 1999) ("Having considered its merits, we DENY the petition for writ of certiorari."). This was not an anomalous or one-off result. As our supreme court noted, "challenges to administrative orders ... routinely have been made by petition for writ of common law certiorari in the district courts of appeal." 1-888-Traffic Schs., 734 So. 2d at 415 (emphasis added) (citing multiple cases). The supreme court noted that certiorari review is the "long-standing mechanism for challenging routine administrative orders" such as the one in this case. Id. (emphasis added). As in 1-888-Traffic Schools, our sibling districts have held that a petition seeking a writ of certiorari is the correct remedy where a chief judge's administrative order exceeds his authority, and that jurisdiction exists to review such matters. For example, the Third District in Valdez v. Chief Judge of Eleventh Judicial Circuit of Florida, 640 So.2d 1164, 1165 (Fla. 3d DCA 1994), held that where a "petition alleges that the chief judge exceeded his jurisdiction in promulgating the instant administrative order, certiorari is an appropriate remedy and we have jurisdiction." The petition at issue in Valdez alleged an administrative order modifying eligibility for court-ordered release into a county program was a nullity because it exceeded the chief judge's authority under Florida's rules of judicial administration. Id. (citing Fla. R. Jud. Admin. 2.050(b) (now codified as Fla. R. Gen. Prac. & Jud. Admin. 2.215(b))).
Another example is the Second District's decision in Holt v. Chief Judge of Thirteenth Judicial Circuit, 920 So.2d 814, 815 (Fla. 2d DCA 2006), which involved a public defender's challenge to an administrative order containing "a comprehensive plan providing for the use of electronic recording for judicial proceedings as a substitute for traditional stenographic court reporting in various divisions" of the circuit court. Id. The Second District, citing 1-888-Traffic Schools, held that it had "jurisdiction to review by certiorari a claim that a chief judge has exceeded his or her authority by issuing an administrative order." Id. A year later, the Second District reviewed a local rule involving the assignment of county court appeals to circuit judges, concluding that it had certiorari jurisdiction based on "cases in which certiorari has been recognized as an appropriate vehicle for challenging administrative orders of circuit courts," again citing 1-888-Traffic Schools. Jimenez v. Rateni, 967 So.2d 1075, 1077 (Fla. 2d DCA 2007) (Canady, J.). The Second District in Jimenez went so far as to conclude that "[a]lthough Jimenez did not institute this proceeding as a challenge to an administrative order and the circuit court's order makes no reference to an administrative order, Jimenez in effect challenges an administrative practice which is based on an administrative order." Id. Here, the public defender directly challenges an administrative order, thereby establishing jurisdiction.
Despite acknowledging that indigent detainees are subject to the pre-bond mental health screening process without appointed legal counsel, the chief judge asserts that the public defender and her attorneys have not alleged or shown irreparable harm or material injury. But the petition, as supported by the public defender's letter to the chief judge, sets forth an adequate basis for concluding that the delays inherent in the pre-bond mental health screening process and the denial of counsel during such times establish sufficient harm to invoke this court's original jurisdiction.
Public defenders are constitutional officers with the responsibility to provide legal counsel to indigent criminal defendants; it is their reason to exist. See Fla. Const. art. V, § 18; § 27.51, Fla. Stat. (2022) (entitled "Duties of public defender"); Fla. R. Crim. P. 3.111 (entitled "Providing Counsel to Indigents"). They have legal obligations to all such clients as established by statute and court rules, including access to prisoners to whom they may have a duty to provide "advice and counsel at any time[.]" § 27.59, Fla. Stat. (2022). By rule, a public defender has a duty to provide counsel to persons held in custody even prior to formal appointment. Fla. R. Crim. P. 3.111(c)(4)(A) ("If the defendant is in custody and reasonably appears to be indigent, the public defender shall tender such advice as is indicated by the facts of the case, seek the setting of a reasonable bail, and otherwise represent the defendant pending a formal judicial determination of indigency." (emphasis added)). As highlighted, the legal duty to provide counsel includes representation in the process that determines the setting of bail and its terms.
Nonetheless, the pre-bond mental health screening process is done without indigent criminal detainees having been appointed legal counsel to advise them on whether to accede to a mental health interview/report/recommendation and, if so, what rights they have in the process, such as whether to answer questions that might violate their constitutional or statutory rights or compromise their defense or entitlement to pretrial release. Prior to the first appearance hearing, the pre-bond mental health screening process plays itself out without, and prior to, any involvement by appointed counsel ... or even a judge. The decision whether to require a pre-bond mental health screening assessment is not made by a judge; it is made by a pretrial release officer, a Second Circuit criminal case manager, or a booking officer. Under the administrative order, these individuals are "delegated authority to request a mental health screening assessment... prior to the detainee's first appearance hearing." See Appendix A. A mental health screening report—if completed in less than a day before a first appearance hearing—is given to the presiding judge and counsel (if appointed yet); if the report is not yet complete, the judge is told that one was requested and she "may order a brief continuance of the first appearance hearing" to allow for its completion. Id. As such, the critical portions of the pre-bond mental health screening process —the decision to conduct mental health screening, the detainee's interview with a psychologist, and the written report/recommendation— all occur without judicial involvement and, critically, without an indigent detainee having even been appointed legal counsel so that he might seek legal assistance at this step in the criminal proceeding. Time is of the essence, see § 907.041(4)(e), Fla. Stat. (2022) ("When a person charged with a crime for which pretrial detention could be ordered is arrested, the arresting agency may detain such defendant, prior to the filing by the state attorney of a motion seeking pretrial detention, for a period not to exceed 24 hours."), yet a detainee is subject to the delays inherent in the administrative order's requirements without the advice of legal counsel.
On this basis alone, the public defender's office has shown irreparable harm in its ability to perform its constitutionally compelled obligation to provide legal counsel to indigent criminal defendants. That's because the right to appointed counsel attaches at the earliest of "when the accused is formally charged with a crime via the filing of an indictment or information; as soon as feasible after custodial restraint; or at first appearance." Williams v. State, 38 So.3d 188, 193 (Fla. 5th DCA 2010) (quoting Smith v. State, 699 So.2d 629, 638 (Fla. 1997)); Fla. R. Crim. P. 3.111(a) ("A person entitled to appointment of counsel as provided herein shall have counsel appointed when the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at the first appearance before a committing judge, whichever occurs earliest."); see also id. 3.111(c) (A booking officer has duty to "immediately advise the defendant: (A) of the right to counsel; (B) that, if the defendant is unable to pay a lawyer, one will be provided immediately at no charge.").
In addition, the "Sixth Amendment guarantees a defendant the right to have counsel present at all `critical' stages of the criminal proceedings[.]" McMillian v. State, 214 So.3d 1274, 1285 (Fla. 2017). A "critical stage" is a "step of a criminal proceeding" that has "significant consequences for the accused." Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). One of the most critical steps in the criminal process is the judicial determination of pretrial release and its conditions, absent which the accused remains incarcerated pending trial, losing his freedom and often his job, family relationships, and the ability to work effectively with his lawyer. The right to pretrial release is so critical that Florida's constitution establishes it as a fundamental entitlement other than for those charged with the most serious crimes or where detention is necessary, such as to protect the community from physical harm:
Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.
Fla. Const. art. I, § 14 (emphases added); see also Fla. R. Crim. P. 3.131(a) (same). Given the strength of its constitutional protection, it is clear that the determination of a detainee's fundamental constitutional right to pretrial release on reasonable conditions is a critical step in a criminal proceeding for which the right of assistance of counsel is mandated; the administrative order departs from this requirement, enfeebling all in the public defender's office from providing a constitutionally adequate defense. As the public defender asserts, she "has alleged sufficient harm to show irreparable harm as she is unable to carry out her duties as a constitutional officer by representing her clients."
Buttressing this conclusion is that the United States Supreme Court long ago established that a criminal detainee has a constitutional right to the assistance of counsel before submitting to a psychiatric examination of the type that the administrative order requires, the examination being a "critical stage" of the proceedings against him. See Estelle v. Smith, 451 U.S. 454, 469, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) ("The Court of Appeals concluded that [the detainee] had a Sixth Amendment right to the assistance of counsel before submitting to the pretrial psychiatric interview. We agree." (citation omitted)). Notably, in Estelle an attorney was appointed to represent the detainee but was not notified in advance that a psychiatric examination was set and would involve the detainee's future dangerousness. Id. at 470-71, 101 S.Ct. 1866. The failure to notify appointed counsel resulted in the detainee being "denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed." Id. at 471, 101 S.Ct. 1866. Here, the effect of the administrative order is worse because indigent detainees haven't even been appointed legal counsel when the pre-bond mental health screening process takes place; it is only afterwards that counsel is appointed, effectively denying detainees their constitutional right of assistance of counsel at a critical stage of the proceedings against them. To the extent irreparable harm is necessary, it is readily apparent; jurisdiction is likewise apparent.
The chief judge points out that jurisdiction may also exist to review the administrative order via an emergency petition for writ of habeas corpus in an individual defendant's case. But timely review of such petitions is highly unlikely to occur because (a) the harm arising from the administrative order will have already occurred; (b) the case is likely to have become moot due to the defendant's release or related circumstances; and (c) even if the case is moot, the state is unlikely to accede to jurisdiction and an assigned panel may balk at invoking the capable-of-repetition-but-evading-review exception. Indeed, the state in a related case has opposed the exception, saying the issues presented are unlikely to arise again and that no meaningful constitutional issue is presented. Even when the public defender and the prosecution agreed to consolidate a moot emergency petition (Case No. 1D21-3242) with this certiorari proceeding, the panel declined to do so, dismissing the case; I dissented in that case (see Appendix C) and dissent again here because the merits of the important legal issues presented ought to be adjudicated.
On the merits, it is clear that the administrative order is inconsistent with Florida statutes and rules as well as precedent governing pretrial release. Our supreme court long ago recognized that a detailed framework of statutes and judicial rules exist that govern the right to pretrial release on reasonable conditions.
The Legislature by statute has constructed a comprehensive and specific framework setting forth the multiple circumstances under which trial courts may act to deny bail and order pretrial detention. This scheme as set forth in section 907.041, Florida Statutes (1997), fully comports with the Florida Constitution and has long been the standard by which trial courts have been guided in determining whether to deny bail. The statute and the rules enacted pursuant to the statute incorporate the considerations required to balance the court's need to enforce its orders, the need for society to be protected from those posing a danger to the community, and the defendant's constitutional rights to bail based on the time-honored presumption of innocence.
State v. Paul, 783 So.2d 1042, 1052 (Fla. 2001) (emphases added). The administrative order in this case, though well-intentioned, exceeds the chief judge's authority. See Fla. R. Gen. Prac. & Jud. Admin. 2.120(c) (defining an administrative order as a "directive necessary to administer properly the court's affairs but not inconsistent with the constitution or with court rules and administrative orders entered by the supreme court.").
The administrative order interferes with the orderly process the legislature and supreme court have established by injecting delays in the pretrial release process through the requirement of a pre-bond mental health assessment, which has no substantive basis in Florida law. Much like the administrative order in Valdez, the order at issue here alters the legislative and rules-based structure for determining the terms of pretrial release. In quashing the administrative order in Valdez, the Third District stated:
Despite the legitimate purpose and goal of the chief judge in adopting the
administrative order, as amended, and the fact that the order was implemented upon the recommendation of the Pretrial Release Review Committee, the order is clearly beyond the chief judge's power to establish procedures for the uniform operation of the circuit under rule 2.050(b). While the order explicitly recognized and continued the magistrates' existing prerogative to determine the terms and conditions of pretrial release in accordance with sections 903.046 and 907.041(3) and rule 3.131(b), by the very terms of the order the trial judge's discretionary authority was limited by the criteria delineated and the list of offenses for which exclusion from the program was ordered as mandatory.
Valdez, 640 So. 2d at 1165 (footnotes omitted). Just as an administrative order cannot constrain a trial judge's discretion to make pretrial release decisions not authorized by the foundational pretrial release statutes and rules, nor can an administrative order impose a pre-bond mental health assessment process upon a detainee, particularly an indigent detainee who lacks appointed legal counsel. The administrative order, which results in delays exceeding state standards and imposes substantive mental health assessment protocols beyond those enacted by the Legislature and adopted by the supreme court to deal with mental health issues at the pretrial detention phase, is a clear departure from the essential requirements of law. Hatcher v. Davis, 798 So.2d 765, 766 (Fla. 2d DCA 2001) ("If a chief judge issues an administrative order which attempts to amend a statute or rule by adding terms and conditions, that administrative order is invalid because it limits judicial discretion and exceeds the authority granted under Florida Rule of Judicial Administration 2.050(b).").
APPENDIX
A.
ADMINISTRATIVE ORDER 2021-06 IN RE: PRE-BOND MENTAL HEALTH SCREENING ASSESSMENT IN THE SECOND JUDICIAL CIRCUIT OF FLORIDA
WHEREAS, section 903.046(2)(c) of the Florida Statutes provides, in pertinent part, "When determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court shall consider: ... (c) The defendant's ... mental condition"; and
WHEREAS, rule 3.131(b)(3) of the Florida Rules of Criminal Procedure provides, in pertinent part, "In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider... the defendant's ... mental condition."; and
WHEREAS, section 907.041 of the Florida Statutes, requires that defendants released under the supervision of a pretrial release program must first be subject to investigation or verification of the defendant's mental condition; and
WHEREAS, rule 3.131(b)(3) of the Florida Rules of Criminal Procedure, requires the presiding judge during first appearance to impose conditions of release that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; and
WHEREAS, judges are not required by Florida law to possess mental health licensure or credentials, a mental health screening assessment by a licensed clinical or forensic psychologist may provide meaningful information and professional judgment beyond a judge's qualifications to assist in satisfying the presiding judge's responsibilities to consider the defendant's mental condition and set reasonable conditions of pretrial release; and
WHEREAS, the Second Judicial Circuit of Florida (hereinafter Second Circuit), under the administrative supervision of the chief judge, has for decades provided a mental health screening assessment by a licensed clinical or forensic psychologist at the court's expense as a necessary method of obtaining reliable information to inform pretrial release decisions; and
WHEREAS, the mental health screening assessment interview and report of the licensed clinical or forensic psychologist is intended to contain only mental health information of:
• The methods used for the interview and assessment;
• Advise of rights including the right to refuse to participate in the interview;
• Description of the defendant's appearance, speech patterns and age;
• Mental health records reviewed and sources of information;
• Psychotropic medications previously prescribed;
• History of substance abuse offenses and treatment;
• Ideation of self-harm or harm to others; and
• Recommendations to the court; and
WHEREAS, pretrial release decisions must be made timely in recognition of the detainee's liberty interest as required by constitutions, statute and rule and the mental health screening assessment is necessarily limited in recognition of the time limits so imposed; and
WHEREAS, the mental health screening assessment by a licensed clinical or forensic psychologist is not a basis to obtain statements of the detainee related to criminal accusations or any waiver of the constitutional right to silence;
It is therefore ORDERED by the Chief Judge that:
I. The Second Circuit shall, if practicable and at the court's expense, provide a timely mental health screening assessment by a licensed clinical or forensic psychologist to detainees deemed to present behavior suggestive of serious mental illness.
II. The Pretrial Release Officer, Second Circuit criminal case manager, or Booking Officer is hereby delegated authority to request a mental health screening assessment by a licensed clinical or forensic psychologist prior to the detainee's first appearance hearing. If the mental health screening assessment report is complete before the first appearance hearing, such written report shall be provided to the presiding judge and counsel for the parties. If such report is not complete, the presiding judge and counsel for the parties shall be informed if the report was requested.
III. During first appearance, counsel for the detainee or the State may request a mental health screening assessment for purposes of pretrial release decisions.
IV. During first appearance, the presiding judge is authorized to order a mental health screening assessment at the request of counsel or on the judge's initiative.
V. The presiding judge may order a brief continuance of the first appearance hearing to permit time to complete the mental health screening assessment but in no event shall a continuance exceed the time from arrest permitted to determine probable cause as provided by rule 3.133 of the Florida Rules of Criminal Procedure, except upon a finding of extraordinary circumstances as permitted by the rule.
VI. The mental health screening assessment shall report the detainee's mental status, mental health history to the extent known, recommendations for pretrial release conditions and whether a full competency evaluation should be ordered. The mental health screening assessment is not for the purpose of investigating any alleged offense and the professional administering the mental health screening assessment is directed not to report the facts of any alleged offense.
VII. Recommendations for pretrial release conditions may include all available alternatives provided by rule or statute and shall consider release on recognizance, non-monetary release on condition of compliance with an established treatment plan, transfer to a mental health receiving facility and release to a willing, available, competent third party such as a parent or other family member.
VIII. Individuals conducting the mental health screening assessment shall be on the Second Circuit's existing list of approved and duly qualified experts.
DONE and ORDERED in chambers in Tallahassee, Leon County, Florida, this 26th day of July, 2021.
B.
Letter from Second Circuit Public Defender Jessica J. Yeary to Chief Judge Jonathon Sjorstrom
August 17, 2021.
To: Hon. Jonathon Sjostrom, Chief Judge.
Dear Chief Judge Sjostrom:
I am writing you regarding Administrative Order 2021-06 ("AO"). I greatly appreciate this effort to corral the "mental health screening assessment" process so that it comports with law.
While clearly an improvement over the past practices, the AO is still objectionable in three ways.
First, the AO conflicts with Florida Rule of Criminal Procedure 3.131(b)(2), which reads in pertinent part: "The judge shall at the defendant's first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant's appearance." There is no provision in that rule allowing for first appearance to be continued to gain better information. Section V of the AO, however, allows the presiding judge to "order a brief continuance of the first appearance hearing to permit time to complete the mental health screening assessment."
First appearance hearings are held within 24 hours of arrest. The information available to any judge presiding over such a hearing is always incomplete. A judge would always want more information. But the defendant has a constitutional right to reasonable conditions of pretrial release. Art. I, § 14, Fla. Const. Such a liberty interest cannot await more perfect information. The rule acknowledges this situation, and protects this constitutional right, by requiring the judge to make a decision based on the best information available. The AO, however, conflicts with that rule by allowing the judge to continue the hearing to await better information. "When an administrative order conflicts with a rule promulgated by the supreme court, it is null and void." Obando v. Bradshaw, 920 So.2d 198, 200 (Fla. 4th DCA 2006).
Second, the AO seems to contemplate that the "pre-bond screening" process will be done without the presence of counsel. In Florida, the right to counsel attaches "at the earliest of the following points: when he or she is formally charged with a crime via the filing of an indictment or information, or as soon as feasible after custodial restraint, or at first appearance." Traylor v. State, 596 So.2d 957, 970 (Fla. 1992) (footnotes omitted). The rules of procedure place a duty upon the Public Defender to provide counsel to persons held in custody even prior to formal appointment. Fla. R. Crim. P. 3.111(c)(4) ("If the defendant is in custody and reasonably appears indigent, the public defender shall tender such advice as is indicated by the facts of the case, seek the setting of reasonable bail, and otherwise represent the defendant pending a formal judicial determination of indigency."); see also § 27.59, Fla. Stat. (2020).
The AO contemplates this issue when it instructs that the mental health screening assessment "is not for the purpose of investigating any alleged offense and the professional administering the mental health screening assessment is directed not to report the facts of any alleged offense." Without the assistance of counsel, indigent clients are unlikely to observe any such boundaries, especially if they are suffering from acute mental illness. Even if the professionals omit such statements from their reports, no legal privilege protects them, and the state can always discover them by deposing the professional (or just calling them on the telephone). This scenario is a good example of why the right to counsel attaches after custodial restraint.
The AO contains no procedure to notify counsel that an agent of the government intends to interview the defendant so that counsel can be present to ensure that the interview does not cross the boundary into areas protected by the constitutional right against self-incrimination. Without such a provision, this AO results in a violation of the right to counsel because the court, by ordering a mental health screening assessment, "intentionally created a situation likely to induce [a defendant] to make incriminating statements without the assistance of counsel." Johnson v. State, 44 So.3d 51, 62 (Fla. 2010).
Third, the AO in question here meets the definition of a local rule because it "supplies an omission in or facilitates application of a rule of statewide application." Fla. R. Gen Prac. & Jud. Admin 2.120(b)(1). As the recital at the beginning of the AO makes clear, this is also a local rule because it "addresses other matters that are required by ... general law, rules of court ... to be adopted by or in a local rule." Fla. R. Gen Prac. & Jud. Admin 2.120(b)(2). Yet this AO was not submitted to the Supreme Court of Florida through the procedure described in Florida Rule of General Practice and Judicial Administration 2.215(e).
I thank you for your attention to these concerns and look forward to working with you to resolve these issues.
Jessica J. Yeary, Public Defender.
C.
21-3242, Wallace v. McNeil
Makar, J., dissenting mildly.
Our emergency panel was tasked with review of the habeas petition in this case, which urges that the pre-bond screening process ("PBS") recently formalize and implemented in the Second Circuit is invalid because it required that Wallace be further detained and subject to an uncounseled interview about his mental health over his attorney's objection in violation of article I, section 14, of the Florida Constitution, and principles of due process. Wallace argues that no provision of Florida law authorizes the PBS and that he ought to be released on bail without being subject to the additional layer of inquiry and the delay inherent in the PBS process.
Since filing his petition, Wallace has been released after PBS was completed and he has filed a notice of voluntary dismissal saying his claims are moot; the prior day, this Court issued an order to show cause why this case should not be consolidated with a related case, 1D21-2583.
In response, Wallace notes that the Court may retain jurisdiction despite mootness and he does not object to consolidation; the State objects to the cases being consolidated for all purposes, but notes that it may be "advisable for the issues to travel together and be determined by the same panel because the issues are somewhat related," citing J.M.B. v. State, 776 So.2d 353, 355 (Fla. 1st DCA 2001) ("A fourth form of consolidation is referred to by this court as `travel together', which simply means that the cases are assigned to the same panel of judges at the same time. This is employed when the cases are factually or legally related in some fashion but they remain separate for records and briefing, and is utilized to maximize this court's judicial resources and ensure consistent outcomes."). The State concludes by saying this Court "should consider consolidation for travel only and allow both cases to be determined by the same panel of judges."
Given the relatedness of this case with 21-2583, the obvious importance of the legal issues presented in both cases and the need for their timely resolution, the interests of judicial efficiency, and the parties' agreement that "travel-together" consolidation ought to be considered, retaining jurisdiction in this case and consolidating with 1D21-2583 is the better path, particularly since the two proceedings complement one another and present a better overall perspective to resolve the matters.