Petition — Brummer v. Florida ex rel. Smith

Office - Supreme Court, U.S.

82-1989 FILED

Jue a 1983

ALEXANDER L. STEVAS.

CLERK

In the Supreme Court of the United States

October Term, 1982

No.

THE HONORABLE BENNETT H. BRUMMER. Public

Defender of the Eleventh Judicial Circuit of Florida. and

BARRY WEINSTEIN and WILLIAM PLOSS., Assistant

Public Defenders of the Eleventh Judicial Circuit of

Florida

Deora oner

VS

STATE OF FLORIDA, ex rel. JIM SMITH, Attorney

General of the State of Florida, PUBLIC HEALTH TRUST

OF DADE COUNTY db‘a JACKSON MEMORIAL

HOSPITAL, THOMAS J. KELLY, JOSEPHINA PEREZ,

JAMES SUSSEX, and ARMANDO MERINO,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Counsel of Record

PARKER D. THoMson

Paut & THOMsoN

1300 Southeast Bank Buildin

Miami, Florida 33131

(305) 371-2000

RicHArp J. OvELMEN STEVEN M. KAMp

200 S.E. 15th Road Pau & THOMSON

Miami. Florida 33129

JA

Ittornere for Petitioner

June 1, 1983

E. L. Menpennate, Is 024 Cherry Street

QUESTION PRESENTED FOR REVIEW

Whether the decision of the Florida Supreme Court to

prohibit Florida public defenders from filing any class

action suits on behalf of their clients violates the rights

to independent counsel and access to courts guaranteed

indigents by the Sixth and Fourteenth Amendments.

II

PARTIES TO THE PROCEEDINGS BELOW

The following is a list of all parties appearing in the

proceedings before the Supreme Court of Florida:

Relators

The State of Florida

Jim Smith, Attorney General of the State of Florida

Public Health Trust of Dade County [Florida] doing

business as Jackson Memorial Hospital

Thomas J. Kelly

Josephina Perez

James Sussex

Armando Merino,

Employees of Public Health Trust of Dade County

d/b/a Jackson Memorial Hospital

Respondents

The Honorable Bennett H. Brummer,

Public Defender of the Eleventh Judicial Circuit

Court of Florida (Dade County )

Barry Weinstein,

William Ploss,

Assistant Public Defenders of the Eleventh Ju-

dicial Circuit Court of Florida

Ill

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...........0.00.00.0..

PARTIES TO THE PROCEEDINGS BELOW ...............

ee Ce I visser sk cesinsacssanencsnnsroescnsonssneonesen

TABLE OF AUTHORITIES .. anne

RP EE Nad yp ho ah wo 2p id 1 |

Be ini serceenrcsnetennnssncnsensensicicones somes

STATEMENT OF THE CASE .................

A. The Involuntary Commitment Proceeding ......

B. The Decision To Bring The Class Action Suit

C. The Petition For A Writ Of Quo Warranto

To Prohibit The Class Action Suit ....................

D. The Response To The Petition ce

E. The Decision Of The Florida Supreme Court

REASONS FOR GRANTING THE WRIT—

I. The Decision Of The Florida Supreme Court

To Prohibit Public Defenders From Filing

Class Action Suits Conflicts With Decisions Of

This Court Guaranteeing Indigents’ Rights To

Effective, Independent Counsel And Access

To The Courts oo SECM incenn

A. The Decisions Of This Court Explicitly

Hold That The Right To Counsel Guar-

anteed By The Sixth And Fourteenth

Amendments Requires Counsel To Be

Independent Of State Control .............. coe

10

11

12

14

IV

B. The Decision Of The Florida Supreme

Court To Prohibit Public Defenders From

Filing Class Action Suits Inherently Con-

flicts With The Right Of Florida Indigents

To Counsel Independent Of State Control 15

C. The Decision Of The Florida Supreme

Court To Prohibit Public Defenders’ Class

Action Suits Conflicts With Decisions Of

This Court Which Guarantee Indigents

The Right To Meaningful Access To The

Oe 18

II. Review Of This Case Is Of Fundamental Im-

portance Because All Florida Public Defen-

ders Are Now Prohibited From Filing Class

Action Suits On Behalf Of Their Clients 21

Cte ......... 2 EA HERO EOE EEE 22

Cami ica OF SERVICE ............... ATC Nap Ose MELE ANTES 23

Pp ge STIS Ot osu rs RS aT Al1-A174

TABLE OF AUTHORITIES

Cases

Addington v. Texas, 441 US. 418 (1979) 9,20

Bounds v. Smith, 430 U.S. 617 (1977) _............. 19

Craw ©. Boren, 423 Us. 0 (976) _........... 12

Eisenstadt v. Baird, 405 U.S. 438 (1972) 00000. 12

Ex Parte Hough, 24 Cal.2d 522, 150 P.2d 448 (1944)... 21

Ferrs ©. Ackerman, 444 US. 193 (1979) .......... 15

Gerstem v. Pugh, 420 U.S. 103 (1975) ................. it 33

Gideon v. Wainwright, 372 U.S. 335 (1963) 14

Humphrey v. Cady, 405 U.S. 504 (1972) ow. 21

Jackson 0. Indiana, 46 US. 715 (1972) ...... 21

Jonnson vo. Avery, 300 US. 463 (1069) _............ 19

Polk County v. Dodson, 454 U.S. 312 (1981) ....12, 13,14,

15, 16

Shuman o. State, 356 So.2a 1333 (Fla. 1978) ..... 9

moe ©. 100k, 419 US gee Civ) 13

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

CIRCE) w. PORE ESE ONDE EE In EET 13

Speckt v. Patterson, 306 U.5. GOS (1967) 21

Spring v. Constantino, 168 Conn. 563, 362 A.2d 871

SS... LL... 21

State v. Evans, 129 Ariz. 153, 629 P.2d 989 (1981) ........ 22

State ex rel. Fulton v. Schannen, 224 Ind. 55, 64 N.E.2d

—os...!.hl,rLhmr,r CC... 21

Wolff ». McDonnell, 418 U.S. 539 (1974) 19

Constitutional Provisions, Statutes, and Rules

TS Copmitition, 4neeoaet i 8

TS Constitution, Amendment VI... 2,8, 12

VI

Uo. Comstiition, Amendment Vir...

US, Consttvien, Amencament Tt

U.S. Constitution, Amendment AlV .......................... ra

eee

Oe eee 8 2.9.3

Wee Oe 2.

Florida Constitution, Article V, § 3(b) (8) ...00..u.....

Proriae Constiviion, Articie V, 5 18 ...............

wae. eee, ee 4.7, 16, 11,)

Pa, Cee, Be etc, oe i

Fla. Stat. § 394.451-4785 ...... LO AUR aioe Moon Oy

Fis, Seat. § See: ..................... Se MEMO ie Bled 1G teeta We RO

Other Authorities

ABA Code of Professional Responsibility, Disciplinary

Rule 5-107(B) (1976) Sen EC

Developments in the Law—Class Actions, 89 Harv.

L.Rev. 1318 (1976) .. OEE GUESS, Peas

Florida Jurisprudence, Volume 27 ee

L. Tribe, American Constitutional Law (1978) .

Yeazell, Interest, Class, and Representation, 27 UCLA

L.Rev. 1067 (1980)

3,16

No.

In the Supreme Court of the United States

October Term, 1982

THE HONORABLE BENNETT H. BRUMMER, Public

Defender of the Eleventh Judicial Circuit of Florida, and

BARRY WEINSTEIN and WILLIAM PLOSS, Assistant

Public Defenders of the Eleventh Judicial Circuit of

Florida,

Petitioners,

VS.

STATE OF FLORIDA, ex rel. JIM SMITH, Attorney

General of the State of Florida, PUBLIC HEALTH TRUST

OF DADE COUNTY d/b/a JACKSON MEMORIAL

HOSPITAL, THOMAS J. KELLY, JOSEPHINA PEREZ,

JAMES SUSSEX, and ARMANDO MERINO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

OPINION IN THE COURT BELOW

The opinion of the Supreme Court of Florida appears

at 426 So.2d 532 (Fla. December 16, 1982; rehearing de-

nied, March 3, 1983) and is reproduced at A. 1-4.

JURISDICTION

The opinion of the Supreme Court of Florida was en-

tered on December 16, 1982. A Motion for Rehearing or

Clarification of Decision was timely filed 15 days later on

January 3, 1983 pursuant to Rule 9.330(a) of the Florida

Rules of Appellate Procedure (A. 118-123). which mo-

tion was denied by the Supreme Court of Florida on March

3, 1983. (A. 1,5). This petition has been filed and docketed

within the period established by Supreme Court Rule 29.1.

The Court has jurisdiction to review the judgment of the

Supreme Court of Florida under 28 U.S.C. § 1257 (3).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in part:

“In all criminal prosecutions, the accused shall en-

joy the right .. . to have the assistance of counsel for

his defence.”

The Fourteenth Amendment to the United States Con-

stitution provides, in part:

“No State shall . . . deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jursidiction the equal

protection of the laws.”

Title 42, § 1983 of the United States Code provides, in

part:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

. subjects, cr causes to be subjected, any citizen of

the United States or other person within the juris-

diction thereof to the deprivation of any rights, privi-

3

leges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress.”

Rule 23 of the Federal Rules of Civil Procedure pro-

vides, in part:

‘“(a) Prerequisites to a Class Action. One or

more members of a class may sue or be sued as repre-

sentative parties on behalf of all only if (1) the class

is sO numerous that joinder of all members is im-

practicable, (2) there are questions of law or fact

common to the class, (3) the claims or defenses of the

representative parties are typical of the claims or de-

fenses of the class and (4) the representative parties

will fairly and adequately protect the interests of the

class.

(b) Class Actions Maintainable. An action may

be maintained as a class action if the prerequisites of

subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or

against individual members of the class would create a

risk of

(A) inconsistent or varying adjudications with

respect to individual members of the class which would

establish incompatible standards or conduct for the

party opposing the class, or

(B) adjudications with respect to individual

members of the class which would as a practical mat-

ter be dispositive of the interests of the other members

not parties to the adjudications or substantially impair

or impede their ability to protect their interests; or

(2) the party opposing the class has acted or re-

fused to act on grounds generally applicable to the

class, thereby making appropriate final injunctive re-

4

lief or corresponding declaratory relief with respect

to the class as a whole... .”

Article V, § 3(b)(8) of the Florida Constitution pro-

vides:

“The Supreme Court ... [m]Jay issue writs of man-

damus and quo warranto to state officers and state

agencies.”

Fla. Stat. § 27.51 provides, in part:

“(1) The public defender shall represent, with-

out additional compensation, any person who is de-

termined by the court to be indigent .. . and who is:

(a) Under arrest for, or is charged with, a felony;

(b) Under arrest for, or is charged with, a mis-

demeanor, a violation of chapter 316 which is punish-

able by imprisonment, or a violation of a municipal or

county ordinance in the county court, unless the court,

prior to trial, files in the cause a statement in writing

that the defendant will not be imprisoned if he is

convicted;

(c) Alleged to be a delinquent child pursuant

to a petition filed before a circuit court; or

(d) Sought by petition filed in such court to be

involuntarily hospitalized as a mentally ill or mentally

retarded person.

* * &

(3) Each public defender shall serve on a full-

time basis and is prohibited from engaging in the

private practice of law while holding office. .

DR 5-107(B), CODE OF PROFESSIONAL RESPON-

SIBILITY, provides:

“A lawyer shall not permit a person who recommends,

employs or pays him to render legal services for

another to direct or regulate his professional judgment

in rendering such legal services.”’

STATEMENT OF THE CASE

In this case, the Attorney General of the State of

Florida responded to the filing of a federal class action

suit by the Public Defender for the Eleventh Judicial

Circuit of Florida (the “Public Defender”)! by seeking

and obtaining from the Florida Supreme Court the issuance

of a writ of quo warranto imposing a per se ban on the

filing of class actions on behalf of indigents in any court

by Florida public defenders. This action to review that

decision is brought in this Court as a petition for writ of

certiorari to the Florida Supreme Court, rather than as an

appeal, because the Petitioners have contended throughout

the course of this litigation that no Florida statute pro-

hibits their filing appropriate class action suits on behalf

of named plaintiffs they have been appointed to represent

and all similarly situated persons. Because the Florida

Supreme Court's purported construction of wholly un-

specified statutory provisions to prohibit such actions is

itself erroneous, as well as unconstitutional, no Florida

statute has been drawn into question and no appeal lies.

1. Petitioner The Honorable Bennett H. Brummer is the

Public Defender of the Eleventh Judicial Circuit of Florida, which

is comprised exclusively of Dade County, Florida. Petitioners

Barry Weinstein and William Ploss are Assistant Public Defenders

of the Eleventh Judicial Circuit of Florida. All three are col-

lectively referred to herein as the “Public Defender” or the

“Public Defender’s Office.” Respondents are the State of Florida,

Florida Attorney General Jim Smith (the “Attorney General”),

the Public Health Trust of Dade County doing business as Jack-

son Memorial Hospital, and the following employees of the

Public Health Trust of Dade County d/b/a Jackson Memoria]

Hospital: Thomas J. Kelly, Josephina Perez, James Sussex,

and Armando Merino. Respondents are referred to herein

either individually, or collectively as “the State” or “Respon-

dents.”’

ee

6

A. The Involuntary Commitment Proceeding

On September 17, 1980, “G.A.’”’, a 17-year-old minor

indigent was, at the request of his mother, voluntarily ad-

mitted for psychological and psychiatric treatment to the

Adolescent Unit of Jackson Memorial Hospital (the “fa-

cility”) which is operated by Respondent Public Health

Trust of Dade County. (A. 18). While in the “care” of

the facility, G.A. was subjected to a “treatment” program

characterized by an independent psychiatrist as utilizing

a form of adverse conditioning and punitive sanctions

. [which lack] any discernable standards or reason

. . that would medically and psychiatrically justify

their application to G.A.

(A. 46). Pursuant to this program, G.A. was (i) required

to ingest powerful mind-altering drugs without his con-

sent or that of his guardian in violation of Florida law,

(ii) forced to sleep in the halls of the facility on only a

mattress, (ili) denied any opportunity for exercise or

access to sunlight and fresh air, (iv) placed in solitary

confinement for prolonged periods of time, (v) absolutely

prohibited from communicating with his friends or mother,

(vi) confined for more than six days with no one other

than a psychotic adult male who spoke only Spanish,

and (vii) made to sit and stare at a wall for long pe-

riods of time. (A. 45-46). Consequently, G.A. and his

mother sought his discharge from the facility. (A. 18).

On September 29, 1980, the medical staff at the facility

responded to this request for release by initiating involun-

tary commitment proceedings against G.A. Florida law

provides that a person may be confined to a mental in-

stitution “if he is mentally ill and, because of his illness, is:

1. Likely to injure himself or others if allowed to

remain at liberty, or

7

2. In need of care or treatment which, if not pro-

vided, may result in neglect or refusal to care for

himself, and such neglect or refusal poses a real

and present threat of substantial harm to his well-

being.”

Fla. Stat. § 394.467(1)(b) [1981]. Thus, the only issues

material to an involuntary commitment proceeding are

(a) whether the individual is of such a mental state that

he would be dangerous to himself or others and (b)

whether he is in need of supervised treatment. In ac-

cordance with Fla. Stat. § 394.467(2) [1981],? G.A. was

temporarily confined against his will pending a hearing

to determine whether he should be involuntarily committed.

(A. 18).

Three days after the State had instituted proceedings,

the Public Defender was appointed by the State to repre-

sent G.A. pursuant to Fla. Stat. § 27.51(1)(d), which

provides in relevant part that “{T]he public defender

shall represent any person who is determined by the court

to be indigent .. . and who is. . . [s]ought by petition

filed in such court to be involuntarily hospitalized.

ss (88).

Shortly following his appointment, the Public De-

fender was advised by the independent psychiatrist that

it was likely that G.A. would be involuntarily committed

at the upcoming proceeding unless his “treatment” program

was terminated. (A. 45-46). The psychiatrist opined that

“the conditions under which G.A. was confined were con-

tributing to G.A.’s poor mental state” and that the ad-

2. Fla. Stat. § 394.467 was substantially rewritten by the

Florida Legislature in 1982. See Fla. Stat. § 394.467 (1982 Supp.).

However, this revision did not become effective until October

1, 1982.

8

ministration of this treatment would “lead to his continued

confinement under the Baker Act.’’* (A. 46).

B. The Decision To Bring The Class Action Suit

At this point the Public Defender was obligated to

exercise his independent professional judgment as to how

his office should represent G.A. Since the psychiatrist

had informed the Public Defender that the psychological

“treatment” to which G.A. was being subjected by the

State could itself lead to development of a mental state

necessitating involuntary commitment, the Public Defender

could not limit his representation of G.A. to an appearance

at a future involuntary commitment hearing. Such legal

representation would be “‘too little, too late” because the

issue at the hearing would be G.A.’s current mental state—

not whether his “treatment” had reduced him to that

state—and by the time the hearing occurred the “treat-

ment” might well have caused irreparable damage to G.A.’s

mental health. In addition, the Public Defender deter-

mined that confining G.A. under conditions posing a threat

to his future liberty itself violated G.A.’s constitutional

rights. (A. 51-52, 78).*

3. Fla. Stat. §§ 394.451 through 394.4785 govern care and

treatment of the mentally ill in Florida, including involuntary

civil commitment. Pursuant to Fla. Stat. § 394.451, these pro-

visions “shall be known as ‘The Florida Mental Health Act’ or

‘The Baker Act.’ ”

4. In the judgment of the Public Defender, the conditions

of G.A.’s confinement violated his rights under the First, Sixth,

Eighth, Ninth, and Fourteenth Amendments to the United States

Constitution. (A. 20). The significant liberty interest of the

individual in circumstances such as G.A.’s has recently been

reaffirmed by this Court:

This Court has repeatedly recognized that civil commitment

for any purpose constitutes a significant deprivation of lib-

erty that requires due process protection.

(Continued on following page)

9

The Public Defender had also to take into account

the severely limited resources available to his Office, the

fundamental need to allocate his resources among various

priorities, the fact that he had represented many other

persons threatened with involuntary commitment in the

past, and, finally, the existence of the statutory provision

requiring his office to represent in the future all indigents

facing involuntary commitment. (A. 47-50, 51-52). More-

over, it was the professional judgment of the Public De-

fender that he was more likely to obtain from the State

the relief he sought for G.A. if he filed the suit as a

class action claim. (A. 50, 52). Such a suit would force

the State to review the entire treatment program of the

facility, rather than simply to regard the case as relating

to G.A.’s need for confinement. In short, the class action

suit would force the State to take the case seriously and

would timely place at issue the etiology of G.A.’s condition,

thus opening the door for institutional reform.

Consequently, to ensure the protection of G.A.’s rights

and in the exercise of his independent professional judg-

ment, the Public Defender filed a class action suit in federal

court pursuant to 42 U.S.C. § 1983 and Rule 23(b) of

the Federal Rules of Civil Procedure on behalf of G.A.

and all similarly situated persons (a copy of the Complaint

in this federal civil rights action is reproduced at A. 158-174)

to halt the use of “treatment” at the facility which would

only increase the likelihood of involuntary commitment.

(A. 51-52, 78). The Public Defender believed this tactical

decision would increase both the likelihood of obtaining

Footnote continued—

Addington v. Texas, 441 U.S. 418, 425 (1979). See also Shuman

v. State, 358 So.2d 1333, 1335 (Fla. 1978) (recognizing that per-

sons confined pursuant to involuntary commitment proceedings

must be afforded same access to courts as persons confined pur-

suant to criminal charges).

10

relief for G.A. and the possibility of helping other similarly-

situated past and future clients of the Public Defender.

(A. 50, 52).

C. The Petition For A Writ Of Quo Warranto To

Prohibit The Class Action Suit

The State of Florida, through the Respondent Attorney

General, opposed the certification of the plaintiff class

in the federal suit. Not content, however, to allow the

certification question to be resolved by the federal court,

the Attorney General took the unprecedented step of filing

in the Florida Supreme Court an entirely independent

action, a Petition for a Writ of Quo Warranto (the “Quo

Warranto Petition’) (A. 6-17), invoking that court’s orig-

inal jurisdiction and seeking to divest the Public Defender

of his ‘authority to represent the plaintiffs in [the pending

class action]”.° The Attorney General argued that the

Public Defender should be prohibited from bringing the

class action because:

The office of Public Defender ... is a creature of

Article V, § 18, Florida Constitution, with no author-

ity outside of that provided by statute.

(A. 9). The Petition claimed that since Fla. Stat. § 27.51

does not specifically provide that the Public Defender is

authorized to file any class actions, the Public Defender

lacked such authority and was subject to an Order from

the court halting such representation:

5. Article V, Section 3(b)(8) of the Florida Constitution

grants the Florida Supreme Court jurisdiction to issue writs of

quo warranto. The quo warranto proceeding is employed where

it is charged that an individual officer is performing duties that

he does not have the authority to perform. Quo Warranto is an

extraordinary remedy, to be granted or refused only “as the cir-

cumstances and the interests of the public require.” 27 Fla. Jur.,

Quo Warranto § 11.

11

The authority to proceed in a particular way only

upon specific conditions implies a duty not to proceed

in any manner other than that which is authorized

by law.

(A. 10).

The Attorney General further argued that Petitioners

were “exceeding their authority in several respects” (A.

11) by, among other things, filing any civil action and

filing any federal action. (A. 11-13).

D. The Response To The Petition

The Public Defender initially offered three funda-

mental arguments in response to the Petition. First, he

argued that Fla. Stat. § 27.51 in no way prohibits the

filing of class action suits by public defenders. Uncontra-

dicted affidavits from members of the Public Defender’s

Office stated that the Office had filed federal civil] rights

class actions in the past without objection from the State,

listing by official style and case number some of those

actions. (A. 23-24, 47-51). One of these cases reached this

Court and was decided on the merits. Gerstein v. Pugh,

420 U.S. 103 (1975). In fact, the affidavits noted that

the Public Defender had received and used federal

grant money in the past for just this purpose. (A. 53-

04). Neither the literal language of Fla. Stat. 27.51,

nor its fair implications, had ever been construed to bar

the filing of appropriate class action suits in either state

or federal court. (A. 24-32). Second, the Response asserted

that constitutional, statutory, and ethical provisions require

that the Public Defender be permitted to bring actions

which in his judgment are necessary to effectively protect

the rights of his clients. (A. 24). With respect to his

ethical duties to his clients, the Response noted, the Public

Defender is under the same obligations to his client as

is a private attorney. (A. 35-37). Finally, the Response

12

argued that a prohibition against the Public Defender’s use

of appropriate class action suits would violate indigents’

right of access to the courts under the United States Con-

stitution. (A. 32-35).

Subsequent to the Response, this Court decided Polk

County v. Dodson, 454 U.S. 312 (1981), and the Public

Defender’s Office timely filed supplemental papers expli-

cating its second federal claim: State prohibition of class

action suits brought by public defenders would violate

Florida indigents’ federal right to independent counsel by

constituting direct State interference with the independent

exercise of the Public Defender’s professional judgment

and would amount to state control of his tactical decisions.

(A. 124-157).

Thus, the federal questions presented here were prop-

erly raised below (A. 32-35; A. 124-157), as is evident from

the opinion of the Florida Supreme Court itself. (See infra

at 12-13; A. 3-4).°

E. The Decision Of The Florida Supreme Court

On December 16, 1982, the Florida Supreme Court

issued its opinion holding that a writ of quo warranto

should be issued “divesting [the Public Defender] of the

authority to represent [G.A. and those persons similarly

6. The Public Defender here has standing to assert the

Sixth and Fourteenth Amendment rights of G.A. and all other

indigents. ‘Just as a litigant should always have standing to

claim that he is being penalized for asserting his own constitu-

tional rights, a litigant’s claim that complying with a duty im-

posed upon him would prevent another from exercising a con-

stitutional right presents a clearly justiciable issue about the

permissibility of the choice government seeks to impose upon

the litigant.” L. Tribe, American Constitutional Law 104 (1978);

see Craig v. Boren, 429 U.S. 190, 195 (1976) (beer vendor has

standing to assert right of male beer buyers because compliance

with legal duty would “result indirectly in the violation of third

parties’ rights’); see also Eisenstadt v. Baird, 405 U.S. 438

(1972) (distributor of contraceptives has standing to assert right

of unmarried users).

13

situated] in a class action.” (A. 3). Construing Fla. Stat.

§ 27.51 narrowly, the court specifically held that a public

defender “cannot undertake representation of a class.” (A.

3). Tactical considerations could not, according to the

Florida court, make up for the Public Defender’s lack of

explicit statutory authority to initiate class action suits.

(A. 3). Although the court noted the Polk County v.

Dodson decision, it did not respond to that decision’s char-

acterization of the Public Defender as an independent prac-

titioner free of state control. (A. 4). Following the denial

of a petition for rehearing, proceedings have been timely

initiated in this Court. (A. 1, 5).". This Petition for Writ

of Certiorari requests review of the issuance of the Writ

of Quo Warranto by the Florida Supreme Court which was

sought and secured by the Attorney General of the State

of Florida.

7. Although G.A., the named plaintiff in the federal class

action brought by the Public Defender, was eventually released

from Jackson Memorial Hospital on a writ of habeas corpus, this

case is not moot for two reasons:

First, the dispute between G.A. and Respondents is ‘capable

of repetition, yet evading review.’ Southern Pacific Terminal

Co. v. ICC, 219 U.S. 498, 515 (1911). In fact, subsequent to

G.A.’s release, a second involuntary commitment proceeding

was brought against him by the State of Florida. (A. 73-77).

Although G.A. escaped from Respondents’ custody prior to this

second commitment hearing (A. 22) (which the state dismissed),

the State of Florida still remains free to bring another commit-

ment proceeding against G.A.

Second, even if this case were moot with respect to G.A,, it

would not be moot as to the other members of the class for the

reasons set forth in Sosna v. lowa, 419 U.S. 393, 399-400 (1975)

(holding that claims of unnamed members of the class continued

to present a live controversy which outlasted the mootness of

the named representative’s claim); Gerstein v. Pugh, supra at

110 n.ll. Although the class in Sosna had been certified by

the district court, the fact that such certification is not present

here does not moot the claims of unnamed class members, since

their ability to litigate the issue of class representation through

the Public Defender has been ended by the granting of the Quo

Warranto Petition.

14

REASONS FOR GRANTING THE WRIT

I. The Decision Of The Florida Supreme Court To

Prohibit Public Defenders From Filing Class Ac-

tion Suits Conflicts With Decisions Of This Court

Guaranteeing Indigents’ Rights To Effective, In-

dependent Counsel And Access To The Courts.

A. The Decisions Of This Court Explicitly Hold

That The Right To Counsel Guaranteed By

The Sixth And Fourteenth Amendments Re-

quires Counsel To Be Independent Of State

Control.

Less than two years ago, in Polk County v. Dodson,

supra (‘Polk County”), this Court reaffirmed “the consti-

tutional obligation of the State to respect the professional

independence of the public defenders whom it engages.”

454 U.S, at 321-22. In an opinion joined by eight Justices,

the Court observed that “implicit” in the right to counsel

guaranteed by the Fourteenth Amendment “‘is the assump-

tion that counsel will be free of state control.” Id. Follow-

ing principles established by Gideon v. Wainwright, 372

U.S. 335 (1963), and its progeny, this Court flatly held

that “[{T]here can be no fair trial unless the accused

receives the services of an effective and independent advo-

cate.” Id. As the Chief Justice wrote concurring, in estab-

lishing a public defender’s office the state provides “a

professionally qualified advocate wholly independent of

the government. It is the independence from govern-

mental control as to how the assigned task is to be per-

formed that is crucial.” Id. at 327.

In Polk County, this Court explicitly held that “a

public defender is not amenable to administrative direction

15

in the same sense as other employees of the State.” Id.

at 321. A “defense lawyer is not, and by the nature

of his function cannot be, the servant of an administrative

Superior .. .” because he is “held to the same standards

of competence and integrity as a private lawyer. . .”,

and these standards require that he “work under canons

of professional responsibility that mandate his exercise

of independent judgment on behalf of his client.” Id. In

so holding, this Court was following the mandate of Dis-

ciplinary Rule 5-107(B), ABA Code of Professional Respon-

sibility (1976) and the explicit language of Ferri v. Acker-

man, 444 U.S. 193, 204 (1979), which states: “the primary

office performed by appointed counsel parallels the office

of privately retained counsel. ,.. Indeed, an indispensable

element of the effective performance of his responsibilities

is the ability to act independently of the Government

and to oppose it in adversary litigation.”

The right to counsel means the right to an attorney

who is independent of tactical control by the State. Any-

thing less would render this great guarantee meaningless.

B. The Decision Of The Florida Supreme Court

To Prohibit Public Defenders From Filing

Class Action Suits Inherently Conflicts With

The Right Of Florida Indigents To Counsel

Independent Of State Control,

In exercising his independent professional judgment,

the Public Defender in the case at bar made the tactical

decision that the appropriate tool to employ in representing

his duly appointed client would be a federal class action

suit to halt the “treatment” being administered to him

and all similarly situated persons. The class action was

chosen because it was the appropriate procedural vehicle

for enjoining the “treatment” that was rapidly worsening

16

his client’s condition and seriously endangering his client’s

ability to maintain the mental state necessary to avoid

involuntary commitment; further, it provided the only

means for efficiently allocating the limited resources of

the Public Defender’s office, resources which the Public

Defender had to employ wisely if his future clients were

going to receive the representation that was their consti-

tutional due and if G.A. himself was to be assured ade-

quate protection of his rights. Moreover, the Public De-

fender chose this tactical approach because he believed

it was more likely to obtain from the State the relief

his client required.

The decision of the Florida Supreme Court to prohibit

public defenders from bringing any class action suits consti-

tutes a clear violation of “the constitutional obligation

of the State to respect the professional independence of

the public defenders whom it engages.” Polk County,

at 321-22. The Florida Supreme Court reasoned that the

public defender is strictly a “statutory creature” and may

employ only such tactics as are authorized by statute.

That Court did not contend that any statutory provision

specifically prohibited the initiation of a class action suit

by the Public Defender;* instead, it held that the ‘Florida

Statutes remind us that the public defender does not

owe any responsibility to persons other than those

whom he is appointed to represent and he is not authorized

by statute to undertake representation of any additional

persons. He therefore cannot undertake representation

of a class.” (A. 3). The court opined that “the mere

fact that a decision is tactical is of no import. Invariably

8. Chapter 27 of the Florida Statutes contains no such

prohibition. The position of the State was based on the statu-

tory provisions limiting the Public Defender’s “duties” only to

indigents he has been appointed to represent (A. 10, 15); Fla. Stat.

§ 27.51(1).

17

the respondents must still have the authority to act and

here they simply do not.” (A. 3).

This decision is especially disturbing when viewed

in the context of the circumstances presented here. The

named plaintiff was an indigent whom the Public Defender

had been duly appointed to represent and whom the Public

Defender was required to represent. The Public Defender

was therefore appearing in the federal civil rights action

to protect substantive rights guaranteed the class by the

United States Constitution. Moreover, the Florida Su-

preme Court’s prohibition was issued at the behest of

the Attorney General, the highest legal officer of the

Public Defender’s traditional opponent, and was the result

of a Quo Warranto Petition filed to prevent the Public

Defender from continuing with a specific federal class

action suit against the State. The Attorney General

contended in his Petition, and the Florida Supreme Court

agreed, that “‘the office of Public Defender . .. is a creature

of Article V, § 18, Florida Constitution, with no authority

outside of that provided by statute” and that “the authority

of a Public Defender is defined and limited by statute

.’ (A. 9). Since the relevant Florida Statutes do

not specifically authorize the filing of any class action

suits by the Public Defender, the Attorney General argued

and the Florida Supreme Court held such suits may not

be filed even where, in the independent professional judg-

ment of the Public Defender, filing such a suit is proper

or necessary. Thus, the Quo Warranto Petition was a

direct attempt by the State to control, and restrict the

tactical decisions of the Public Defender litigating against

the State, and it has so far succeeded.

The decision of the Florida Supreme Court conflicts

with the decisions of this Court construing the right to

counsel secured for indigents under the Sixth and Four-

18

teenth Amendments because it does not respect and pre-

serve from state control the independent professional judg-

ment of the Public Defender. It does not permit him

to represent indigents using the same procedural tactics

that a private attorney would employ in representing his

clients. It reduces him to a “statutory creature” and

his representation to activity that must be explicitly au-

thorized by statute. It constituted invasion and control

of his tactical judgment by the Attorney General through

the issuance of a Writ of Quo Warranto halting a specific

class action against the state and absolutely prohibiting

the filing of any future class action suits by Florida public

defenders. This decision is contrary to this Court’s hold-

ings: the State may not control the otherwise legitimate

litigation tactics of the Public Defender by absolutely with-

holding from the stock of tactical options available to him

in serving his indigent clients those legitimate litigation

tools a private attorney would use in representing his

indigent or nonindigent clients.

C. The Decision Of The Florida Supreme Court

To Prohibit Public Defenders’ Class Action

Suits Conflicts With Decisions Of This Court

Which Guarantee Indigents The Right To

Meaningful Access To The Courts.

The Public Defender’s Office enjoys the benefit of

only limited resources (which are themselves controlled

by the State); consequently, the Florida Supreme Court’s

decision to deprive the Public Defender of the most ef-

ficient means of adjudicating the claims of large groups of

indigents poses a serious threat that some indigents who

qualify for representation by the Public Defender may

not receive adequate legal assistance, or any representation

at all. Thus, the decision would infringe their rights to

19

effective assistance of counsel and meaningful access to the

courts. Under these circumstances, the decision of the

Florida Supreme Court is in clear conflict with decisions

of this Court.

The Florida Supreme Court decision conflicts with

a line of this Court’s decisions which “. . , have consistently

required States to shoulder affirmative obligations to assure

all prisoners meaningful access to the courts.” Bounds v.

Smith, 430 U.S. 817, 824 (1977) (emphasis added). Accord.

Johnson v,. Avery, 393 U.S. 483 (1969); Wolff v. McDonnell,

418 U.S. 539, 577-80 (1974). In Bounds v. Smith, supra

at 430 U.S. 828 & n.17, this Court held that the funda-

mental right of access to the courts required prison au-

thorities in the State of North Carolina to provide inmates

with law libraries or trained personnel necessary for the

effective litigation of their federal civil rights actions. In

Wolff v. McDonnell, supra at 577-80, this Court unani-

mously held that Nebraska prison authorities were con-

stitutionally required to provide inmates with legal as-

sistance for the preparation of federal civil rights actions,

noting the importance of actions under 42 U.S.C. § 1983

to those confined pursuant to state authority.

Here, the Florida Supreme Court has gone much

further in denying access to the courts than did either

North Carolina or Nebraska. To allow the State to define

by statute the persons the Public Defender must represent,

to limit by appropriations the resources he has available to

conduct this representation, to restrict by writ the legal

tactics he may use in representing his clients, affords too

much power to the State. It threatens to place an intoler-

able obstacle in the path of indigents seeking meaningful

access to the courts through an effective, independent

counsel, This threat has become reality in this case.

Florida has allocated only limited resources to the Public

20

Defender, has required him to represent certain statutory

classes of persons defined by statute (including indigents

threatened with involuntary commitment), ard now would

prohibit his use of class actions which he neeus to litigate

effectively the claims of large classes of indigents.

The class action device is of special significance when

federal civil rights are at stake. Since class representation

makes it easier to bring claims on behalf of large numbers

of indigents which would otherwise be too expensive to

bring on an “individual” basis, the class action device

insures the fulfillment of national policy as set forth in

42 U.S.C. § 1983 and similar statutes. Moreover, the pres-

ence before it of a class with similar claims forces the

court to more carefully consider the scope and implications

of its decision, and forces the institutional defendant to

confront the institutional causes of those claims in a single

setting. See, Developments in the Law—Class Actions, 89

Harv.L.Rev. 1318, 1353 (1976). Indeed, the federal courts

have recognized the special importance of class actions

in civil rights cases and have accordingly made less strict

the class certification standard for such claims, realizing

that such suits under Rule 23(b)(2) are particularly

tailored to permit “the assertion of claims by sizable

groups seeking redress of social wrongs’. Yeazell, In-

terest, Class, and Representation, 27 UCLA L.Rev. 1067,

1114-1115 (1980). Despite this clear federal policy in

favor of civil rights class actions and the admitted obliga-

tion to respect the professional independence of the Public

Defender, the Florida Supreme Court has prohibited him

from maintaining such actions.

This decision is particularly disturbing where, as here,

there can be no question federal rights are at stake. As

noted in Addington v. Texas, 441 U.S. 418, 425 (1979),

21

“{t]his Court has repeatedly recognized that civil commit-

ment for any purpose constitutes a significant deprivation

of liberty that requires due process protection.” Accord,

Jackson v. Indiana, 406 U.S. 715 (1972); Humphrey v.

Cady, 405 U.S. 504, 509 (1972); Specht v. Patterson, 386

U.S. 605, 608 (1967). The decision of the Florida Supreme

Court to deny indigents the class action remedy under

these circumstances warrants the special attention of this

Court.

II. Review Of This Case Is Of Fundamental Im-

portance Because All Florida Public Defenders

Are Now Prohibited From Filing Class Action

Suits On Behalf Of Their Clients.

As the law in Florida now stands, no public defender

may bring a class action suit on behalf of his indigent

clients. Thus far, Florida is the only state to have con-

strued Polk County to allow for this unprecedented inter-

ference with the independence of the public defender. The

general rule among the states has been one of respect for

the professional integrity of the public defender. Almost

40 years ago, in Ex Parte Hough, 24 Cal.2d 522, 150 P.2d

448 (1944) the California Supreme Court ruled that

when the public defender is appointed to represent a

defendant accused of a crime, he becomes the attorney

for said defendant for all purposes of the case and to

the same extent as if regularly retained and employed

by the defendant. The judge of the trial court has no

more authority or control of him than he has of any

other attorney practicing before his court.

24 Cal.2d at 529, 150 P.2d at 451-52. Courts in both Con-

necticut and Indiana have reasoned similarly. See, e.g.,

Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975);

State ex rel. Fulton v. Schannen, 224 Ind. 55, 64 N.E.2d 798

22

(1946). Only Arizona has allowed the state to interfere

in a limited way with the public defenders’ representation

of indigents, see State v. Evans, 129 Ariz. 153, 629 P.2d 989

(1981) (state public defender may not represent indigents

seeking post-conviction relief in federal court pursuant to

28 U.S.C. § 2254 where federal court is authorized to ap-

point counsel), and then only where alternative legal

representation was available pursuant to statute in a

federal forum.

It is essential that this Court act now to reinstate the

authority of Florida public defenders to represent their

clients independent of state control and to prevent the

adoption by other states of similar violations of the right

to independent counsel.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari to the Florida Supreme Court should be granted.

DATED: Miami, Florida

May 30, 1983

Respectfully submitted,

PARKER D,. THOMSON

(Counsel of Record)

Pau. & THOMSON

1300 Southeast Bank Building

Miami, Florida 33131

(305) 371-2000

RICHARD J. OVELMEN

200 Southeast 15th Road

Miami, Florida 33129

STEVEN M. KAMP

PauL & THOMSON

23

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing Petition for

Writ of Certiorari was served June 1, 1983, in accordance

with Rule 28.1 of the Rules of the Supreme Court of the

United States by depositing three true copies in a United

States post office or mailbox, with first-class postage

prepaid, addressed to:

Carolyn M. Snurkowski

Assistant Attorney General

Bureau Chief, Miami Division

Department of Legal Affairs

401 N.W. 2nd Avenue, Suite 820

Miami, Florida 33128

Melinda S. Thornton

Assistant County Attorney

1626 Dade County Courthouse

Miami, Florida, 33131

The Honorable Jim Smith

Attorney General of the State of Florida

The Capitol

Tallahassee, Florida 32304

PARKER D. THOMSON