Appendix — Brummer v. Florida ex rel. Smith
Supreme Court brief1983
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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,
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
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
Counsel! of Record:
PARKER D. THOMSON
Pau, & THOMSON
1300 Southeast Bank Building
Miami, Florida :
(305) 371-2000
RICHARD J. OVELMEN STEVEN M. KAmMp
200 S.E. 15th Road PauL & THOMSON
Miami, Florida 33129
Attorneys for Petitioners
June 1, 1983
E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
ee le. A IO
TABLE OF CONTENTS
Opinion of the Supreme Court of Florida rendered De-
cember 16, 1982 in State ex rel. Jim Smith v.
Bremmer, Case Iie. Gig... Al
Rehearing denied by the Supreme Court of Florida on
March 3, 1983 in State ex rel. Jim Smith v. Brummer,
Cee Te, Ol ae 8 A5
Petition for a Writ of Quo Warranto filed November 6,
1981 in State ex rel. Jim Smith v. Brummer, Case
Pe a ee A6
Response to Order to Show Cause filed December 14,
1981 in State ex rel. Jim Smith v. Brummer, Case
No. 61,376 ...... HOLL ne SUMCEe Calas MUR n ie Neate cer Ue Al7
Notice of Filing, together with Affidavit of William
Reece Smith, Jr., Esq. filed December 28, 1981 in
State ex rel. Jim Smith v. Brummer, Case No. 61,376 .. A38
Appendix to Response to Order to Show Cause filed
December 14, 1981 in State ex rel. Jim Smith v.
Brummer, Case No. 61,376 .......... EEN A aS CUR oe A42
Reply to Response to Order to Show Cause filed De-
cember 29, 1981 in State ex rel. Jim Smith v.
Brummer, Case No. 61,376 ....... seen ee ey tie
Motion for Rehearing or Clarification of Decision filed
January 3, 1983 in State ex rel. Jim Smith v.
mrammer. (ieee No. G12... A118
Letter dated January 6, 1982 from Parker D. Thomson
of Paul & Thomson to Sid J. White, Clerk of the
sperms Court of Flerids Al24
Polk County v. Dodson, 50 U.S.L.W. 4077 (Case No.
SOen8, Cecemier 6 ie) A128
Complaint for Declaratory and Injunctive Relief filed
October 28, 1980 in G.A. v. Public Health Trust of
Dade County, et al., Case No. 80-2924 in the United
States District Court for the Southern District of
ee LL ee
Al
APPENDIX
STATE of Florida ex rel. Jim SMITH,
etc., et al., Relators,
V.
Bennett BRUMMER, etc., et
al., Respondents.
No. 61376.
Supreme Court of Florida.
Dec. 16, 1982.
Rehearing Denied March 3, 1983.
Relators filed an original proceeding seeking a writ
of quo warranto. The Supreme Court, Adkins, J., held that
the attorneys appointed to represent a minor in an invol-
untary commitment proceeding could not file a federal
class action alleging violations of constitutional rights and
seeking declaratory and injunctive relief; the attorneys,
however, were not precluded from seeking relief in federal
court on an “individual”’ basis.
Writ of quo warranto granted.
1. Attorney and Client (Key) 132
Attorneys appointed to represent minor in involuntary
commitment proceeding could not represent class repre-
sented by minor and minor’s mother in federal class action
alleging violations of constitutional rights and seeking dec-
laratory and injunctive relief; attorneys, however, were
not precluded from their representation in seeking federal
relief on ‘‘individual” basis.
2. Criminal Law (Key) 641.13(3)
Public defender’s principal responsibility is to serve
undivided interests of his client; indeed, indispensable ele-
A2
ment of effective performance of his responsibilities is abil-
ity to act independently of government and to oppose :.t in
adversary litigation.
Jim Smith, Atty. Gen. and Anthony C. Musto, Asst.
Atty. Gen., and Melinda S. Thornton, Asst. County Atty.,
Dade County, Miami, for relators.
Parker D. Thomson of Paul & Thomson, Miami, for
respondents.
ADKINS, Justice.
Respondents were appointed to represent a minor,
G.A., in a chapter 394 involuntary commitment proceeding.
Although he was committed at the conclusion thereof, G.A.
was later ordered released by the Dade County Circuit
Court and has remained at liberty ever since.
In addition to respresenting him in the above proceed-
ings, respondents filed suit on behalf of G.A. and all others
that were similarly situated in the United States District
Court alleging violations of constitutional rights and seek-
ing declaratory and injunctive relief. The suit was in-
stituted by R.A., G.A.’s mother. A motion for class certifi-
cation was additionally filed as well as a motion for leave
to proceed in forma pauperis. The latter motion was init-
ially granted but later, on a motion by the opposing parties
was vacated.
Subsequent to the above, G.A. and R.A. filed an
amended complaint, seeking damages, in the federal pro-
ceeding. That pleading was signed by two of the respon-
dents and by Eugene Zenobi, a private practitioner not em-
ployed by the public defender’s office. Relators then
brought this quo warranto proceeding to challenge respon-
dents’ authority to institute the federal proceedings in the
form of a class action suit.
A3
It is the petitioners’ contention in this case that the
public defender is not authorized to bring a class action suit,
particularly when there is no showing that each member
of the purported class is indigent and when there is no
showing that the public defender was ever appointed to
represent in any proceeding, any member of the class
other than the named plaintiff.
Respondents counter by arguing that the bringing of
a class action suit was the most efficient way to represent
these individuals with the limited resources of the office of
the public defender.
We hold that a writ of quo warranto should be issued
by this Court divesting the respondents of the authority to
represent the plaintiffs in a class action.
{1] Pursuant to the Supreme Court ruling in Branti
v. Finkel, 445 U.S. 507, 519, 100 S.Ct. 1287, 1295, 63 L.Ed.2d
574 (1980), we understand that “[t]he primary, if not the
only, responsibility of an assistant public defender is to
represent individual citizens in controversy with the State.”
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 such addi-
tional persons. He therefore cannot undertake representa-
tion of a class.
Our reasoning in the case at bar parallels that which
was used in our decision of Graham v. State, 372 So.2d
1363 (Fla.1979). There, we concluded that the state of
Florida is under no obligation to provide the counsel or
costs in federal proceedings.
The decision to file this federal complaint as a class ac-
tion suit is said to be a tactical move on the part of the
respondents. Respondents have based their decision on
the likelihood of obtaining relief for both G.A. and other
individuals. The mere fact that a decision is tactical is
A4
of no import. Invariably the respondents must still have
the authority to act and here they simply do not.
This does not mean, however, that state-appointed coun-
sel could not continue their representation and seek fed-
eral relief on an “individual” basis. A lawyer’s professional
responsibility may dictate this action. It is, however, our
view that a state court could not mandate this action.
The state is constitutionally obliged to respect the pro-
fessional independence of the public defenders whom it
engages. The decision in Gideon v. Wainwright, 372 U.S.
335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established the
right of state criminal defendants to the “[g]uiding hand of
counsel at every step of the proceedings against [them].”
Id. at 345, 83 S.Ct. at 797 (quoting from Powell v. Alabama,
287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932)),
[2] The United States Supreme Court opinion in
Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70
L.Ed.2d 509 (1981), concisely summarizes this Court's view
concerning the primary purpose of the public defender.
Quoting from Ferri v. Ackerman, 444 U.S. 193, 204, 100
S.Ct. 402, 409, 62 L.Ed.2d 355 (1979), the Court agreed
that
His [the public defender's] principal responsibility is
to serve the undivided interests of his client. 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 liti-
gation.
102 S.Ct. at 450 n. 8 (emphasis supplied).
The petition for writ of quo warranto is hereby granted
by this Court.
It is so ordered.
ALDERMAN, CJ., and BOYD, OVERTON, Mc-
DONALD and EHRLICH, JJ., concur.
AS
(Filed March 3, 1983)
SUPREME COURT OF FLORIDA
THURSDAY, MARCH 3, 1983
CASE NO. 61,376
STATE OF FLORIDA ex rel. JIM SMITH, etc., et al.,
Relators,
Vv.
BENNETT BRUMMER, etc., et al.,
Respondents.
Upon consideration of the Motion for Rehearing or
Clarification of Decision filed in the above cause by at-
torney for Respondents,
IT IS ORDERED that said Motion be and the same is
hereby denied.
A True Copy TC
TEST: cc: Parker D. Thomson, Esquire
Richard J. Ovelmen, Esquire
Steven M. Kamp, Esquire
Anthony C. Musto, Esquire
Mindy Thorton, Esquire
Sid J. White
Clerk, Supreme Court
By: /s/ Tanya Carroll
Deputy Clerk
A6
(Filed November 6, 1981)
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61-376
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,
Relators,
Vs.
BENNETT 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,
Respondents.
PETITION FOR A WRIT OF QUO WARRANTO
Relators hereby petition this court for the issuance of
a writ of quo warranto divesting Respondents of the author-
ity to represent the plaintiffs in the case of G.A. et al. v.
Public Health Trust of Dade County et al., case no.
80-2924-CIV-EBD, presently pending before the United
States District Court for the Southern District of Florida.
In support thereof, Relators state the following:
I
JURISDICTION
This court possesses original jurisdiction to issue writs
of quo warranto to state officers and state agencies. Florida
Constitution, Art. V, § 3(b) (8); Florida Rule of Appellate
Procedure 9.030(a) (3). Respondent Brummer is the Pub-
AZ
lic Defender of the Eleventh Judicial Circuit of Florida.
Respondents Weinstein and Ploss are Assistant Public De-
fenders of the Eleventh Judicial Circuit of Florida. Thus,
Respondents are state officers. Florida Constitution, Art.
V, § 18; Florida Statutes $§ 27.50, 27.53. Quo warranto is
the appropriate manner by which to challenge the author-
ity or power of state officials to exercise some right or
privilege. See Winter v. Mack, 142 Fla. 1, 194 So. 225
(1940); State ex rel. Merrill v. Gerow, 79 Fla. 804, 85 So.
144 (1920); State ex rel. Shevin v. Weinstein, 353 So.2d
1251 (Fla. 3d DCA 1978). This is precisely the nature of
the challenge being made in the present case.
IT
FACTS
Respondents, as attorneys for the plaintiffs, instituted
a civil proceeding in the United States District Court for
the Southern District of Florida by the filing of a complaint
seeking declaratory and injunctive relief in a case styled
“G.A., a minor, on his own behalf and by R.A., his mother
and next of friend on behalf of her son and all others
similarly situated, Plaintiffs, vs. PUBLIC HEALTH TRUST
OF DADE COUNTY, d/b/a JACKSON MEMORIAL
HOSPITAL, THOMAS J. KELLY, JOSEPHINA PEREZ,
JAMES SUSSEX, AND ARMANDO MERINO, individually
and in their official capacities, Defendants.” (Appendix
{hereinafter referred to as “A”] 1-16). The complaint
challenges the constitutionality of certain policies, prac-
tices and procedures allegedly employed by the defendants
in providing psychiatric treatment to adolescents. Filed
in addition to this complaint was a motion for class cer-
tification, (A 17-21), a memorandum of points and authori-
ties in support of that motion (A 22-32) and a motion for
leave to proceed in forma pauperis. (A 33-34). The pro-
ceeding was given case no, 80-2294-CIV-EBD.
A8
Prior to the filing of the complaint, plaintiff G.A. had
been hospitalized in the adolescent unit of the psychiatric
institute of Jackson Memorial Hospital. He had initially
been admitted as a voluntary patient, at the request of his
mother, plaintiff R.A. As time passed, R.A. became dis-
satisfied with the manner in which her son was being
treated and sought to remove him from the hospital. Be-
lieving G.A. to be committable under Florida’s Baker Act,
Florida Statutes § 394, the hospital officials, rather than
releasing G.A., sought to have him involuntarily com-
mitted.
The Public Defender was appointed to and did repre-
sent G.A. in the commitment proceeding. (A 35). The
order appointing the Public Defender did so only “in all
pending matters under Chapter 394-Part I, Florida Stat-
utes.” (A 35). The commitment proceedings resulted in
the issuance of an order committing G.A. (A 36). Sub-
sequently, however, a petition for a writ of habeas corpus
was filed on G.A.’s behalf. (A 37-52). Acting on this peti-
tion, the circuit court ordered G.A.’s release. (A 53-55).
G.A. was in fact released from custody and has remained
at liberty since then.
The defendants in the federal case responded by op-
posing class certification, (A 56-76), suggesting that the
case was moot due to G.A.’s release (A 77-93) and moving
for the entry of an order denying leave to proceed in forma
pauperis and disqualifying the Public Defender from rep-
resenting the plaintiffs. (A 94-102). The motion to dis-
qualify was denied, as the federal court concluded that it
was a matter that should properly be presented to the state
courts. (A 103-105). Although it had previously granted
the plaintiffs’ motion to proceed in forma pauperis, (A
106), the court, acting on the defendants’ motion vacated
the prior order and did deny plaintiffs the right to proceed
A9
in forma pauperis. (A 103-105). To the best of Relator’s
knowledge, none of the other matters have been ruled on.
Subsequently, the plaintiffs filed an amended com-
plaint (A 107-121) in which, in addition to the relief previ-
ously requested, plaintiffs sought damages. Respondents
were joined by a private attorney, Eugene Zenobi, as coun-
sel for plaintiffs on that pleading. Plaintiffs also filed a re-
newed request to proceed in forma pauperis, which has
not yet been ruled upon. (A 122-125).
IV
ARGUMENT
The office of Public Defender ‘“‘did not exist at com-
mon law and is a creature of Article V, § 18, Florida Con-
stitution, with no authority outside of that provided by
statute.’ Graham v. Vann, 394 So.2d 176, 177 (Fla. Ist
DCA 1981). See also Office of the Public Defender v.
Baker, 371 So.2d 684 (Fla. 4th DCA 1979) (granting writ
of prohibition to prohibit circuit judge from appointing
Public Defender in a dependency matter when statutes
made no provisions for such representation); Attorney Gen-
eral Opinions 073-287, 073-111, 073-78, 072-197, 071-105,
071-67, 064-77 (consistently concluding that scope of Public
Defender’s authority is defined by statute). Indeed, the
principle that the authority of a Public Defender is defined
and limited by statute is a widely accepted one. See Hayes
v. State, 599 P.2d 569 (Wyo. 1979); Alaska Public Defender
Agency v. Superior Court, 584 P.2d 1106 (Alaska 1978);
Lee v. Superior Court in and for Maricopa County, 472 P.2d
34, 106 Ariz. 165 (1970); Norton v. State, 400 A.2d 801, 167
N.J.Super. 212 (1979); State v. Anonymous, 279 A.2d 574,
6 Conn.Cir. 555 (1971).
That the scope of the Public Defender’s powers is so
limited is in accord with the general principles applicable
Al0
to the powers of any public official. These powers are
prescribed by the Constitution or by statute, or both, and
are measured by the terms and the necessary implication of
the grant, McGahey v. McLeod, 135 So.2d 446 (Fla. 3d DCA
1961), and must be executed in the manner directed.
White v. Crandon, 116 Fla. 162, 156 So. 303 (1934); First
National Bank of Key West v. Filer, 107 Fla. 526, 145 So, 204
(1933). The authority to proceed in a particular way or
only upon specific conditions implies a duty not to proceed
in any manner other than that which is authorized by law.
White v. Crandon, supra; First National Bank of Key West
v. Filer, supra.
In Florida, the situations in which Public Defender is
authorized to represent an individual are set forth in Flor-
ida Statutes § 27.51(1):
(1) The public defender shall represent, without
additional compensation, any person who is determined
by the court to be indigent as provided in s.27.52 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 pun-
ishable 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.
a i ca aaa ‘i
All
Viewed within the framework of their statutory au-
thority, it is apparent that Respondents are acting in excess
of that authority in representing G.A. and R.A. in the
federal proceeding. Respondents are exceeding their au-
thority in several respects.
(a) The Public Defender has no authority to institute
proceedings in federal court, other than one particular and
narrowly defined set of circumstances not present here.
The four situations dealt with by Florida Statutes § 27.51(1)
contemplate solely state proceedings. The only situation
in which the Public Defender is statutorily authorized to
appear in federal court is that defined by Florida Statutes
§ 27.51(4), which allows for the Public Defender of cer-
tain specific circuits, including the circuit for which Re-
spondent Brummer is the Public Defender, to “handle
all felony appeals to the state and federal courts required
of’ a Public Defender within the same district. This pro-
vision is clearly inapplicable here. The obvious reason
is that it covers only cases involving felonies, which the
present case does not. Additionally, however, it refers
only to appeals, not the institution of original proceedings.
It is thus apparent that the statute is intended to provide
representation when an appeal is taken from a conviction
in a state prosecution removed to federal courts under
28 U.S.C. 1443 and when a person represented by the
Public Defender can appeal to the United States Supreme
Court. 28 USC. 1257.
When there exists no statutory provision allowing a
state official to appear in federal court, that official
cannot do so and quo warranto is a proper remedy to
preclude him from doing so. See State ex rel. Shevin v.
Weinstein, 353 So.2d 1251 (Fla. 3d DCA 1978) (holding
that in light of absence of statutory authorization, State
Attorney cannot represent State in federal court). This
reasoning is directly applicable here.
Al2
(b) The Public Defender has no authority to institute
a civil proceeding in either state or federal court. “The
Office of the Public Defender was created as a result of
United States Supreme Court cases requiring counsel for
all indigent defendants charged with crimes punishable
by incarceration.” Thompson v. Office of the Public De-
fender, 387 So.2d 541, 543 (Fla. 5th DCA 1980) (footnote
omitted). The money that the State of Florida utilizes to
fund its Public Defender’s offices is appropriated to meet
its constitutional obligations in this regard. It is not ap-
propriated for the purpose of allowing the Public De-
fender to engage in civil actions on behalf of private in-
dividuals can turn if they are indigent and are seeking an
attorney to represent them in such a manner. Even if
such programs did not exist, however, the facts would
remain that the Public Defender, in the absence of sta-
tutory authorization cannot handle such cases.
The opinion of the First District Court of Appeal in
Graham v. Vann, 394 So.2d 176 (Fla. lst DCA 1981) does
not alter the position taken here by Relators. In that
case, the court held that the Public Defender could prop-
erly be appointed to represent convicted felons in a civil
suit challenging the conditions of their confinement. That
case is inapplicable here since it was based on Florida
Rule of Criminal Procedure 3.111(b)(2) which provides
that counsel may be provided to indigent persons in all
proceedings arising from the initiation of a criminal action
against a defendant. No such action was initiated here
Moreover, here, the Public Defender was not appointed
to bring this action, but only to represent G.A. in the
commitment proceedings. Further, Graham v. Vann dealt
with a suit filed in the state court. There is no indication
that the rule of criminal procedure relied upon there is
intended to extend to cases in federal court. Finally,
Graham v. Vann dealt with circumstances in which the
Al3
conditions of confinement were actually affecting the
Public Defender’s clients, not one in which they had al-
ready been discharged.
(c) The Public Defender is not authorized to bring
a class action, particularly when there is no showing that
each member of the purported class is indigent and when
there is no showing that the Public Defender was ever
appointed to represent in any proceeding, any member of
the class other than the named plaintiff. ‘The primary,
if not the only, responsibility of an assistant public de-
fender is to represent individual citizens in controversy
with the State.” Branti vo. Finkel, ....... US. ...... af «...... :
100 S.Ct. 1287 at 1295 (1980) (footnote omitted). 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 representa-
tion of any such additional persons. He thus cannot
undertake representation of a class.
This conclusion is particularly applicable when, as
here, there has been no showing that the class members
which the Public Defender seeks to represent are indigent.
Florida Statutes § 2751(2) provides that the Public De-
fender may not be appointed even on a temporary basis
for any person who is not indigent.
Additionally, the reasons set forth in section IV(g)
of this petition regarding the Public Defender’s inability
to represer.t a person in a proceeding when no appointment
has taken place regarding that proceeding are even more
applicable to circumstances in which the individuals in-
volved are the members of a class.
(d) The Public Defender is not autherized to seek
damages. Even if it is said that the Public Defender can
institute a civil proceeding, it cannot be said that his
authority extends to the point of being allowed to seek
damages. In Graham v. Vann, the civil suit was filed for
Al4
the purpose of requiring that the conditions of confinement,
which were asserted as being violative of the prisoners’
rights, be changed so that the rights were no longer being
violated. Likewise, a post-conviction attack on a criminal
conviction also involves the rectifying of a presently exist-
ing alleged violation of an individual's rights. Damages
are of a different nature, however. They are sought not
to change existing circumstances, but to compensate a per-
son for a wrong which has already occurred. There is no
reasonable theory under which the Public Defender’s
authority can be said to extend to requesting such relief.
Such a role is in no way contemplated by any statutory or
rule provision for the Public Defender. Moreover, a case
in which damages is sought is one which can easily be
undertaken by a private practitioner on a contingency fee
basis and there exists therefore no rationale to allow the
Public Defender to proceed in such a manner.
(e) The Public Defender is not authorized to liti-
gate a moot case. It is apparent that, with the exception
of the claim for damages, the federal case is now moot as
regards the plaintiffs. There is no authority to allow the
Public Defender to litigate a case under such circumstances.
As noted previously in petition, the Public Defender
may not properly seek mages. Since no present issue
exists as to the other relief the plaintiffs are seeking, there -
is no interest in allowing the Public Defender to expend
resources on quixotic quests which in no way affect his
clients. Moreover, Florida Statutes § 27.51(1) clearly
contemplates only situations in which a case is pending
and the result of that case will have a direct impact on the
Public Defender’s client.
(f) The Public Defender is not authorized to rep-
resent a non-indigent client. Florida Statutes § 27.51(2)
provides that “{t|he court may not appoint the public de-
fender to represent, even on a temporary basis, any per-
Ald
son who is not indigent.” Here, the court before which
the case is pending has specifically determined that the
plaintiffs are not indigent. Respondents are therefore ex-
ceeding their authority in representing them.
(g) The Public Defender is not authorized to rep-
resent any person in any proceeding without a specific
appointment regarding that proceeding. It is apparent
that Florida Statutes § 27.51 contemplates representation
by the Public Defender in any given proceeding upon ap-
pointment by the court. Here, the Public Defender was
appointed to represent plaintiff G.A. for the competency
hearing, but not for the federal proceeding. (Indeed a
significant question exists at to whether a state court
even can appoint counsel to represent a person in federal
court. If it cannot, the argument previously set forth
that the Public Defender cannot proceed into federal court
would have to be deemed correct.) The appointment in
the competency hearing can in no way be said to extend
to the federal proceeding, since the federal case in no way
challenges the conduct or result of the competency hear-
ing. Since there has been no appointment here, Respon-
dents are exceeding their authority. This conclusion is
even more strongly compelled regarding plaintiff R.A., as
the Public Defender has never been appointed to represent
her in any proceeding.
V
ALTERNATIVE RELIEF
Should this court determine that quo warranto is not
the appropriate remedy to be requested, but that Rela-
tors’ claims may properly be reviewed by some other basis,
such as prohibition or mandamus, Relators would respect-
fully request that this court, pursuant to Florida Rule of
Appellate Procedure 9.040(c), treat this petition as a
request for the appropriate relief. and that this court ac-
cordingly grant such relief.
VI
CONCLUSION
It is apparent that in representing the plaintiffs in the
federal suit, Respondents are exceeding their authority in
several respects. The resources of the State of Florida,
through the Public Defender, are being improperly uti-
lized. The Public Defender, as a public officer, owes a
fiduciary duty to the people. Matter of Grand Jury Sub-
poena Duces Tecum, 397 A.2d 1132, 165 N.J.Super, 211
(1978). This duty is hardly being met by handling civil
cases in the federal court, particularly in light of the fact
that Respondent Brummer is presently under an order not
to accept any more appeals in capital cases due to his
protestations of insufficient resources. See In re Directive
to the Public Defender of the Eleventh Judicial Circuit of
Florida, ........ S0.2d ........ (Fla. 1981), case no. 60,513, opin-
ion filed April 28, 1981 [6 F.L.W. 328]. A writ of quo
warranto should thus issue, divesting Respondent of the
authority to proceed in the federal proceeding discussed
in this petition.
Respectfully submitted,
Jim Smith
Attorney General
/s/ Anthony C. Musto
Anthony C. Musto
Assistant Attorney General
Chief Counsel, Miami Division
Department of Legal Affairs
401 N.W. 2nd Avenue, Suite 820
Miami, Florida 33128
(305) 377-5441
Melinda S. Thornton
Assistant County Attorney
Of Counsel
Al7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of
the foregoing Petition For A Writ Of Quo Warranto was
furnished by mail to BENNETT BRUMMER, Public De-
fender of the Eleventh Judicial Circuit of Florida, BARRY
WEINSTEIN & WILLIAM PLOSS, Assistant Public Defen-
ders of the Eleventh Judicial Circuit of Florida, 1351 N.W.
12th Street, Miami, Florida 33125, on this 5th day of
November, 1981.
/s/ Anthony C. Musto
Anthony C. Musto
Assistant Attorney General
(Filed December 14, 1981)
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61-376
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,
Relators,
V.
BENNETT 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,
Respondents.
RESPONSE TO ORDER TO SHOW CAUSE
Respondents Bennett Brummer, Public Defender of
the Eleventh Judicial Circuit of Florida, and Assistant
Al8g
Public Defenders Barry Weinstein and William Ploss
(hereinafter referred to as “Public Defender’) hereby re-
spond to the Petition for a Writ of Quo Warranto (“Quo
Warranto Petition”) filed by the State of Florida through
its Attorney General (“Attorney General”). Respondents
assert that the Public Defender has full authority once
appointed by a court to represent a client in a state in-
voluntary commitment proceeding, to maintain a civil suit
(in state or federal court) on direct and collateral issues
which are substantially related to the purpose of the orig-
inal appointment.
FACTS
The factual assertions herein are based on affidavits
or other documents filed as part of the appendix hereto.
1. The Quo Warranto Petition filed by the Attorney
General arises out of the Public Defender’s representa-
tion, pursuant to Section 27.51(1)(d), Florida Statutes
(1979), of G.A., a 17-year-old minor, in an involuntary
hospitalization proceeding. At the request of his mother,
R.A., G.A. was voluntarily admitted to the Adolescent Unit
of Jackson Memorial Hospital (“Jackson” or “JMH”) on
September 17, 1980. G.A. and his mother, R.A., became
dissatisfied with the treatment received by G.A., sought his
discharge. The medical staff at JMH responded by in-
stituting involuntary commitment proceedings against G.A.
on September 29, 1980. (App. 2).
2. On October 2, 1980, the Public Defender was ap-
pointed to represent G.A. in this proceeding. G.A. and
the Public Defender faced two basic issues in the involun-
tary commitment proceeding: (i) whether G.A. met the
criteria of the Baker Act, Chapter 394.45, et seq., Florida
Statutes (1979) for involuntary commitment, and, if so,
(ji) whether his condition required confinement in a men-
tal hospital for treatment.
Alg
3. In the course of his representation of G.A. in the
involuntary commitment proceeding, the Public Defender
found that from and after his voluntary admission to JMH
on September 17, 1980 (including the period after Sep-
tember 29, when the involuntary commitment proceeding
was instituted), G.A. had been subjected to a treatment
program which utilized “a form of adverse conditioning
and punitive sanctions . . . [which lack] any discernable
standards or reason... that would medically and psychi-
atrically justify their application to G.A.” (App. 3) The
program in question included the following practices:
(A) G.A. was stripped of his personal clothes, and was
forced to wear only a hospital gown for prolonged
periods of time;
(B) G.A. was absolutely prohibited from communicat-
ing with or visiting with his mother or friends,
and was not permitted the use of a telephone;
(C) G.A. was not able to write letters to his mother
or friends, and letters that he was permitted to
receive were opened and read by staff personnel;
(D) G.A. was not allowed to go outdoors for exercise
or to be exposed to the sunlight and fresh air;
(E) G.A. was made to sleep in the halls of the
Adolescent Unit on only a mattress;
(F) G.A. was forced to sit in a chair and stare at
the wall for long periods of time;
(G) On occasions, G.A. had access to bathroom fa-
cilities but at a specific time and no more than
once an hour; and,
(H) G.A. was locked in solitary confinement for pro-
longed periods of time. Indeed, on one occasion
he was locked in a seclusion area alone with a
A20
psychotic adult male who spoke only Spanish,
and remained so confined for six days.
(App. at 2-3). In addition, G.A. was forced to ingest pow-
erful mind-altering drugs without his consent or that of
his guardian, as required by Section 394.459 of Florida
Statutes (1979). (App. at 9). Dr. Stillman, after having
observed these features of the confinement and treatment
of G.A., informed the Public Defender that these conditions
“were contributing to G.A.’s poor mental state, and would
lead to his continued confinement under the Baker Act.”
(App. at 3).
4. In the opinion of the Public Defender, such con-
ditions also violated G.A.’s rights under the First, Sixth,
Eighth, Ninth, and Fourteenth Amendments to the United
States Constitution, Sections 2, 4, 9 and 17 of Article J
of the Florida Constitution, and Chapter 394, Florida Stat-
utes (1979) (App. at 33).
5. Therefore, on October 28, 1980, the Public De-
fender instituted litigation against the Public Health Trust
of Dade County under 42 U.S.C. § 1983 in the United States
District Court for the Southern District of Florida (the
“Civil Rights Action”) on behalf of G.A. and all others sim-
ilarly situated in the Adolescent Unit at JMH, seeking a
declaratory, injunctive, or other equitable decree finding
the conditions under which G.A. was confined violated his
rights under the above constitutional provisions and statute.
G.A. v. Public Health Trust of Dade County, S.D. Fla.
Case No. 80-2924-Civ-EBD. The decision to file the Com-
plaint as a class action was a tactical one. The Public
Defender believed that a class action approach would in-
crease the likelihood of obtaining relief for G.A. and other
past and future clients of the Public Defender who are
similarly situated. (App. at 4, 8-9). Since G.A. was a
minor at the time the suit was filed, suit was instituted
A21
through his next friend and mother, R.A., as required by
F.R.Civ.P. 17(c). Contrary to the assertion of the Quo
Warranto Petition, at 8, the Public Defender is not “repre-
senting R.A.” in this Action or seeking any relief on her
behalf. The Public Defender named R.A. in Civil Rights
Action solely because Rule 17(c) of the Federal Rules of
Civil Procedure requires that minors such as G.A. sue
through an adult next friend.
6. Hearings were held in the involuntary commit-
ment proceeding. In each hearing, the Public Defender
represented G.A. G.A. was found to meet the Baker Act
criteria for involuntary commitment. The Public De-
fender thereafter filed a habeas corpus petition, a civil pro-
ceeding in Circuit Court, challenging the validity of G.A.’s
confinement. In two Orders dated December 10 and De-
cember 17, 1980, the Circuit Court held that although G.A.
was in need of care and treatment, it was not proper to
confine him for the purpose of that treatment. G.A. was
temporarily released from JMH on December 10, 1980 pur-
suant to the state habeas corpus petition filed by the
Public Defender.
7. On September 1, 1981, an amendment to the corn-
plaint in the Civil Rights Action seeking damages on be-
half of G.A. was filed by Eugene Zenobi, a private attorney.
Contrary to the assertion of the Quo Warranto Petition,
at 8-9, the Public Defender is not seeking relief on behalf
of G.A. in damages, since the damage portion of the Com-
plaint is being handled exclusively by Eugene Zenobi, a pri-
vate attorney who is in no way affiliated with the Public
Defender. (App. at 4, 11). The Civil Rights Action is
pending. The Public Health Trust has filed a suggestion
of mootness and G.A. has responded in opposition. Con-
trary to the assertion of the Quo Warranto Petition, at 4,
the Civil Rights Action is not a “moot case” since the fed-
eral court has not yet ruled on the Public Health Trust’s
A22
suggestion of mootness. Paradoxically, in the Civil Rights
Action, the Attorney General has written a letter to the
Court requesting a stay of the federal proceedings so that
the Quo Warranto Petition would not be rendered moot.
Obviously, the letter would have been unnecessary if the
Civil Rights Action were moot. (App. at 18-19).
8. On November 20, 1981, G.A. became the subject
of another involuntary hospitalization petition, in which
the Dade County Circuit Court again declared him indigent
and appointed the Public Defender to represent him.
Pursuant to this petition, G.A was confined at JMH
from November 17 to November 29, 1981. (App. at 28-32).
The petition was dismissed when G.A. escaped from JMH.
9. The Quo Warranto Petition asserts, at 10, that
G.A. is a “non-indigent client.” The Public Defender has
been appointed to represent G.A. on five separate occasions
by Circuit Judges sitting in the Probate and Juvenile di-
visions of the Eleventh Judicial Circuit, Dade County,
Florida. (App. at 33). The Respondents believe G.A. to be
indigent. The Attorney General has at no time attempted
to set aside these Circuit Court determinations which are
binding on Respondents. While the judge in the Civil
Rights Action has vacated his order permitting G.A. to pro-
ceed in forma pauperis, it should be noted that the federal
standard for determining indigency differs from the Flor-
ida standard. In any case, G.A. has also renewed his mo-
tion for permission to proceed in forma pauperis and has
submitted additional evidence in support of his renewed
application. The federal judge has not yet ruled on the
renewed motion. Although it is irrelevant, the right of
G.A. to proceed in forma pauperis in federal court is there-
fore pending before a federal tribunal. (App. at 33).
10. The Quo Warranto Petition, asserts, at 8, that the
Public Defender, by bringing the Civil Rights Action as a
A23
class suit, is seeking to represent individuals he is not
authorized to represent. To the contrary, Respondent has
been repeatedly appointed to represent clients who were
confined in the Adolescent Unit at JMH. The bringing
of a class action was the most efficient way to represent
these individuals with the limited resources of the Public
Defender and is fully consistent with past practice by the
current Public Defender and his predecessor, Phillip A.
Hubbart, who is now Chief Judge of the Third District
Court of Appeal. (App. at 6, 8). Furthermore, as noted
above, this is a tactical litigation decision. (App. at 8).
11. Respondents have in the past in carrying out their
ethical responsibilities filed numerous civil proceedings in
State Court on behalf of their clients, including habeas
corpus and other types of civil proceedings. (App. at 5-6).
12. Respondents have in the past filed numerous
civil proceedings in federal courts on behalf of clients, in-
cluding habeas corpus, etc. These proceedings have been
brought in furtherance of the ethical responsibilities of
Respondents to diligently represent their clients’ interests.
(App. at 5-6).
13. The present Public Defender and his predecessor
in office have, in the past, filed federal actions comparable
to the Civil Rights Action brought under 42 U.S.C., Sec-
tion 1983 including:
(1) Ackies v. Purdy, 322 F.Supp. 38 (S.D.Fla. 1970)
(suit for declaratory and injunctive relief regard-
ing conditioning of pretrial release on master bond
list);
(2) Moss v. Weaver, 383 F.Supp. 180 (S.D.Fla. 1974)
(suit for declaratory and injunctive relief regard-
ing standard of probable cause for pretrial deten-
tion of juveniles) ;
A24
(3) Gerstein v. Pugh, 420 U.S. 103 (1975) (suit for
declaratory and injunctive relief leading to major
Supreme Court decision on standard of probable
cause for pretrial detention of adults);
(4) Cardenas v. Morphonios, (S.D.Fla. Case No. 77-
4649-Civ.-NCR, 1977) (suit seeking removal of
criminal action);
(9) Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978)
(en banc) (suit for declaratory and injunctive re-
lief relating to requirement of money bail from
indigents) ;
(6) G.R. v. Taylor, (S.D.Fla. Case No. 80-3021-Civ.-
EBD, November 14, 1980) (suit seeking relief
from illegal detention conditions in Dade County
Juvenile Center).
(App. at 5-6).
ARGUMENT
APPLICABLE STATUTORY, CONSTITUTIONAL,
AND ETHICAL STANDARDS AUTHORIZE AND
REQUIRE THAT A PUBLIC DEFENDER, ONCE AP-
POINTED BY A COURT “SHALL REPRESENT” A
CLIENT REGARDING BOTH DIRECT AND COL-
LATERAL ISSUES WHICH ARE SUBSTANTIALLY
RELATED TO THE PURPOSE OF THE APPOINT-
MENT IN THE PARTICULAR CASE.
A. The Statutory Duty Of The Public Defender To Repre-
sent Indigent Persons In Involuntary Hospitalization
Proceedings Necessarily Includes Authorization To
Maintain Federal Civil Litigation On Collateral Issues
Substantially Related To The Purpose Of Appoint-
ment.
A25
Upon appointment, the Public Defender is statutorily
required to represent indigents who are the subjects of in-
voluntary hospitalization proceedings. Section 27.51(1)
(d) of Florida Statutes provides as follows:
The public defender shall represent. .. any person who
is determined by the court to be indigent and who is
Sought by petition filed in such court to be invol-
untarily hospitalized as a mentally ill or mentally re-
tarded person.
As noted supra, the Public Defender was appointed to
represent G.A. in an involuntary hospitalization proceed-
ing. In the course of that representation, the Public De-
fender was advised by Dr. Stillman that the dehumanizing
conditions under which G.A. was confined (discussed
supra at 2) had greatly increased his chances of being in-
voluntarily hospitalized and had also violated several of his
constitutional and statutory rights.’ Accordingly, the Pub-
lic Defender found it necessary to institute the Civil Rights
Action seeking declaratory and injunctive relief against
the operators of JMH, the facility to which he was con-
fined. The Quo Warranto Petition presents the simple
issue of whether the institution of the Civil Rights Action
was within the statutory authority and discretion of the
Public Defender.
The statute quoted above is silent regarding the precise
method by which the Public Defender is to carry out his
duties. It is axiomatic that the imposition of the duty of
representation upon the Public Defender confers by im-
plication:
1. As the Baker Act provides:
{I]ndividual dignity and human rights [shall] be guaran-
teed to all persons admitted to mental health facilities.
Sections 394.453 Florida Statutes (1979). See also, Sections
394.459(1)(2)(3)(4) and (5) Florida Statutes (1979).
A26
... very particular power necessary or proper for the
complete exercise or performance of the duty that is
not in violation of law or public policy.
State ex rel. Martin v. Michell, 188 So.2d 684, 687 (Fla. 4th
DCA 1966). See also, Deltona Corp. v. Florida Public Ser-
vice Commission, 220 So.2d 905, 907 (Fla. 1969) (statutory
grant of power carries with it by implication everything
necessary to carry out the power and make it complete).*
The Quo Warranto Petition cites no case upholding the
Attorney General’s contention that the Public Defender
may not bring such collateral action. In fact, the law
fully supports the Respondents’ position. The only issue
on which there is no controlling Florida law supporting
Respondents’ position is the Respondents’ right to institute
federal civil rights actions collateral to the Public Defen-
der’s appointment. On that issue, one federal court, apply-
ing controlling Florida precedent cited below, held the
Public Defender had full authority to do so. Obviously,
Respondent Brummer’s predecessor, Public Defender (now
Chief Judge of the Third District Court of Appeal) Hub-
bart, was of the same opinion since he filed many such
actions.
This Court, as well as three District Courts of Appeal,
has specifically approved institution and maintenance of
civil litigation by the Public Defender. In Villery v.
Florida Parole and Probation Commission, 396 So.2d 1107
(Fla. 1981), this Court upheld the institution by the Public
Defender of a mandamus action against the parole com-
2. A California court has interpreted that state’s public
defender statute to allow the filing of a habeas corpus petition
arising from an involuntary commitment proceeding. The court
stated: ‘“[D]uties of the Public Defender include collateral and
incidental activities that promote the accomplishment of his
statutory duty.” In re Johns, 66 Cal.App.3d 343, 135 Cal.Rptr.
893, 896 (1977). Like the Florida statute, the California public
defender statute is silent on the issue of collateral civil litigation.
A27
mission. The authority of the public defender to file a
habeas corpus petition against the parole commission was
upheld by the Fourth District Court of Appeal in Florida
Parole and Probation Commission v. Alby, 400 So.2d 864
(Fla. 4th DCA 1981). The Third District Court of Appeal,
on its own motion, appointed the Public Defender to rep-
resent a prisoner-appellant in a pro se administrative ap-
peal from the determination by the parole commission of
his presumptive parole date. Roberson v. Florida Parole
and Probation Commission (Fla. 3d DCA Case No. 81-2171,
December 4, 1981). Finally, the First District Court of
Appeal in Graham v. Vann, 394 So.2d 176, 177, 178 (Fla.
lst DCA 1980) emphatically rejected the Attorney General’s
argument that:
. . . the public defender statute does not encompass
or contemplate civil representation by the Public De-
fender’s Office when convicted felons challenge the
constitutionality of their confinement.
Graham v. Vann, supra, is indistinguishable from the
instant case. Vann held that a public defender possessed
the authority to institute a civil proceeding on behalf of
state prisoners seeking “relief from prison conditions that
daily imperil their lives and safety.” 396 So.2d at 177.
Here, the Public Defender is instituting a civil proceed-
ing on behalf of an involuntarily hospitalized person who
seeks relief from conditions which not only violate several
constitutional and statutory rights, but also increase the
likelihood of his being so confined for the foreseeable
future.
This situation frequently occurs when a public de-
fender represents an indigent in an involuntary hospitaliza-
tion proceeding. Not only is the Public Defender the at-
torney best equipped to litigate these issues (due to his
familiarity with the particular facts involved), but he is
A28
in all likelihood the only attorney who will be able to
litigate them. The Director of the Governor’s Commission
on Advocacy for Persons with Developmental Disabilities
states that a study now in final draft form “has confirmed
that there is currently no effective system in Florida to
meet the legal needs of the mentally disabled.” (App. at
16). As John Powell, the Executive Director of Legal
Services of Greater Miami, Inc., states in his affidavit:
. outside of the Public Defender’s Office there are
few, if any, legal services programs to which indigent
individuals can turn for representation regarding men-
tal health claims and related matters. Even when
Legal Services of Greater Miami, Inc. was at full staff,
we did not have sufficient manpower or resources to
provide representation in the mental health area. We
... could not begin to address the need. Recent budget
cuts have resulted in the layoff of approximately 50%
of our personnel, and have reduced our meager ca-
pacity even further.... If the Office of the Public
Defender does not provide representation it is very
likely that no one will, and the legal rights of the
mentally ill will not be redressed.
(App. at 12-13). Therefore, the Governor’s Commission
has concluded that:
“. . + public defenders appointed to represent indigent
persons in civil commitment proceedings need to rep-
resent persons in all proceedings arising from the ini-
tiation of civil commitment proceedings, including
civil actions in the state or federal courts challenging
the conditions of an institutional confinement, when-
ever such representation is deemed necessary by the
public defender and his client. In our experience an
attorney representing an individual at risk of com-
mital or recommital to a custodial mental facility can-
A29
not isolate the issues in that proceeding from the
overriding issues surrounding the quality and nature
of the residential services in which the individual is or
may be confined.
(App. at 16-17).
This Court’s decision in Shuman v. State, 358 So.2d
1333 (Fla. 1978), requires that persons confined pursuant
to involuntary commitment proceedings be afforded the
same access to courts as persons confined pursuant to crim-
inal charges. Rule 3.111(b)(2) of the Florida Rules of
Criminal Procedure expressly provides for the appoint-
ment of counsel for indigent persons in “proceedings which
are adversary in nature, regardless of the designation of the
court in which they occur or the classification of the pro-
ceeding as civil or criminal.” The Attorney General’s
attempt to distinguish Vann on the basis of the language of
Rule 3.111(b)(2) is without merit.
The policy behind the Public Defender’s representa-
tion of criminal defendants pursuant to Rule 3.111(b) (2)
applies with even stronger force to persons subject to in-
voluntary commitment under the Baker Act. Persons
confined pursuant to involuntary commitment proceedings
are entitled to the vindication of their right of access to
courts on the same basis as persons confined pursuant to
criminal charges. Shuman v. State, supra. Public de-
fender clients who are inmates confined in mental institu-
tions have the same substantive rights as clients who are
inmates confined in penal institutions despite the non-
existence of a procedural rule tc implement the rights of
the mental patients. Rule 3.111(b)(2) recognizes rather
than creates a substantive right to effective counsel in
both state and federal proceedings. The express purposes
of the Baker Act reflect the only difference between the
criminal defendant and the person subjected to dehuman-
A30
izing conditions under that Act, is that one is alleged to
have engaged in criminal activity and the other is a victim
of mental illness. This illusory distinction has no force
when applied to the vindication of substantive constitu-
tional rights and the Baker Act patient is entitled to no
less protection than the criminal defendant. See, Adding-
ton v. Texas, 441 U.S. 418 (1979): In re Beverly, 342 So.
2d 481 (Fla. 1977).
The United States District Court for the Southern
District of Florida has relied upon Vann to hold that the
Public Defender has authority under Florida law to in-
stitute a civil rights action in federal court. G.R. v. Tay-
lor, supra. Taylor involved an attempt to remedy condi-
tions at the Dade County Juvenile Detention Center. See
also, Graham v. State, 372 So.2d 1363, 1365 (Fla. 1979).
G.R. was instituted with funds from a federal grant re-
ceived by the Public Defender, and approved by the State
of Florida, which grant was entitled “Legal Representation
of Mentally Ill Children and Adults” and was in effect
from January, 1980 through January, 1981. This grant
provided federal funds to pay for federal civil rights suits
which could be instituted by the Public Defender to en-
hance the right to treatment of mentally ill minors and
adults. It was awarded to the Public Defender by the
Florida Bureau of Criminal Justice Assistance on the basis
of a finding by the Office of the Governor that this project
was “in accord with State plans, policies, procedures and
programs.” The grant had been approved by the Florida
Council on Criminal Justice on July 16,1979. The Attorney
General is a member of this council pursuant to Section
23.152 of Florida Statutes (1979). (App. at 10).
Thus, while it is true, as the Attorney General states
(Quo Warranto Petition, at 4) that “[the] scope of [the]
Public Defender’s authority is defined by statute”, the
A3l
applicable statute places no limitations on the methods by
which the Public Defender may carry out his duty of repre-
senting indigents in involuntary hospitalization proceed-
ings. This is not a case like Office of the Public Defender
v. Baker, 371 So.2d 684 (Fla. 4th DCA 1979), in which
the Court was prevented from appointing the Public De-
fender to represent an individual within a certain class of
persons.’ Here, by contrast, the Public Defender has been
properly ordered to represent G.A., has uncontested stat-
utory authority to represent individuals such as G.A., and
the Attorney General is attempting to place limits on the
authority and discretion of the Public Defender in the lat-
ter’s representation of these individuals, when no such
limits exist in the statute. In the face of similar challenges,
many Florida courts have concluded that once the Public
Defender is appointed to represent someone he is re-
quired to represent, his discretion in choosing the means by
which this representation is to be carried out should not
be judicially limited.
In conclusion, Section 27.51(1)(d) Florida Statutes
(1979) requires the Public Defender to represent indigents
in involuntary hospitalization proceedings. Nothing in this
statute limits the representational authority of the Public
Defender. It is axiomatic that the establishment of the duty
to represent necessarily carries with it the inherent power
to initiate and engage in all litgiation necessary to the com-
plete exercise of this mandate which is not conflict with
another law or public policy. Accordingly, this Court, three
Florida District Courts of Appeal, and the United States
District Court for the Southern District of Florida have
all indicated that the Public Defender may maintain neces-
3. State ex rel. Shevin v. Weinstein, 353 So.2d 1251 (Fla.
3rd DCA 1978), which holds that the Attorney General, rather
that the State Attorney, is the proper official to represent the
state in federal! court, is inapposite.
A32
sary collateral litigation in any court in order to vindicate
the rights of indigents he is required to represent in state
proceedings. Such collateral litigation does not constitute
improper “civil actions on behalf of private individuals”
(Quo Warranto Petition, at 7).
Here the Civil Rights Action was necessary and ap-
propriate. G.A. sought to change the conditions of his con-
finement, because such conditions were significantly con-
tributing to the deterioration of his mental state. How-
ever, the issue here is not the wisdom or necessity of the
Civil Rights Action; the issue is the authority of the
Public Defender to make that judgment, as the subject of
the disciplinary rules requiring him to exercise independent
judgment, and to represent his clients competently and
zealously. (Canons, 6 and 7, Code of Professional Respon-
sibility).
B. Public Defender Clients, Like All Other Persons, En-
joy A Fundamental Right Of Access Under The Fed-
eral And State Constitutions To All Legal Remedies,
Without Regard To Whether Those Remedies Are
Designated As Civil.
The right of access to courts is one of the fundamental
legal rights protected by the United States and Florida Con-
stitutions, statutes, and rules of court. Without access to
courts, other legal rights are meaningless:
... [I]t is clear that unless an indigent inmate can
reach the very threshold of the courts, all of the normal
guarantees of due process do not come into play. Al-
though he may have a claim which would entitle him
to relief, absent the invocation of the judicial machin-
ery the potential relief is merely a hollow promise.
Hooks v. Wainwright, 352 F.Supp. 163, 168 (M.D.Fla.
1972).
A33
Both the United States and Florida Constitutions pro-
tect the right of access to courts. This right is expressly
reflected in Section 21 of Article I of the Florida Constitu-
tion and has been judicially held to be protected by the
due process and equal protection clauses of the Fourteenth
Amendment to the United States Constitution. See Bounds
v. Smith, 430 U.S. 817 (1977); Johnson v. Avery, 393 U.S.
483 (1969); Griffin v. Illinois, 351 U.S. 12 (1956). It is
enjoyed by persons subjected to involuntary commitment
proceedings. Shuman v. State, supra. More importantly,
this Court has held that such persons must be afforded the
same right of access to courts which is afforded persons
charged with criminal offenses:
The deprivation of liberty which results from confine-
ment under a state’s involuntary commitment law has
been, termed a ‘massive curtailment of liberty.’
Humphrey v. Cady, 405 U.S. 504, 509... (1972). Those
whom the state seeks to involuntarily commit to a
mental institution are entitled to the protection of
our Constitution, as are those incarcerated in our cor-
rectional institutions.
Shuman v. State, supra at 1335. It is therefore clear that
under Florida law, persons subjected to involuntary hos-
pitalization proceedings are entitled to the same right of
access to courts enjoyed by persons confined by the state
on criminal charges.
Florida Public Defenders have a long history of repre-
senting indigent criminal defendants in proceedings which
can only be characterized as civil. Florida Public De-
fenders regularly represent indigent criminal defendants
in proceedings such as habeas corpus [R.B.S. v. Capri, 384
So.2d 692 (Fla. 3d DCA (1980) }, prohibition [State ex rel.
Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978) ],
common law certiorari [Roberts v. State, 345 So.2d 837
A34
(Fla. 3d DCA 1977)], motions to vacate [State v. Weeks,
166 So.2d 892 (Fla. 1964)], and inspections under the
Public Records Act (Jackson v. Purdy, Fla. 11th Cir., Case
No. 77-14344, 1977). The Public Defender for the Eleventh
Judicial Circuit has sought relief in civil actions in state
and federal court at least since the days when the Office
of Public Defender was held by the Honorable Phillip A.
Hubbart, now Chief Judge of the Third District Court of
Appeal. These civil actions have addressed the full panoply
of constitutional and other deprivations from inspection
of records under the Public Records Act (Jackson v. Purdy,
supra) to an action for declaratory and injunctive relief
which resulted in a leading U.S. Supreme Court decision
on the standard of probable cause for the pretrial deten-
tion of adults. Gerstein v. Pugh, 420 U.S. 103 (1975). App.
at 5-6. Other state and federal civil actions filed by the
Public Defender include:
(1) State v. Twyman (Fla. 17th Cir., Broward County,
Case No. 75-525 CRA, 1980) (suit seeking relief
from conditions of confinement in mental hospital
for Dade County inmates);
(2) Lowery v. Metropolitan Dade County, 43 Fla.Supp.
84 (Fla. 11th Cir., 1971) (suit for declaratory and
injunctive relief regarding conditions of pretrial
confinement in Dade County jail);
(3) Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978)
(en banc) (suit for declaratory and injunctive re-
lief relating to the requirement of bail money from
indigents) ;
(4) Moss v. Weaver, 383 F.Supp. 180 (S.D.Fla. 1974)
(suit for declaratory and injunctive relief regard-
ing standard of probable cause for pretrial deten-
tion of juveniles);
A35
(5) Ackies v. Purdy, 322 F.Supp. 38 (S.D.Fla. 1970)
(suit for declaratory and injunctive relief regard-
ing conditioning of pretrial release on master bond
list) ;
(6) Cardenas v. Morphonios (S.D.Fla. Case No.
77-4649-Civ-NCR, 1977) (suit seeking removal of
criminal action);
(7) G.R. v. Taylor, supra (suit seeking relief from
illegal detention conditions in Dade County Ju-
venile Detention Center).
(App. at 5-6). Despite this long tradition of civil actions,
such filings have not diverted the attention of the Public
Defender from his main caseload of criminal actions. Less
than 1% of the cases handled by the present Public De-
fender have been civil actions. (App. at 9). The Civil
Rights Action instituted on behalf of G.A. is no different
from the federal and state civil litigation regularly engaged
in by the Public Defender on behalf of indigents subjected
to criminal proceedings. This Court’s decision in Shuman
v. State, supra, requires that the instant case be treated
identically.
C. The Ethical Obligations Of The Public Defender Re-
quire That He Be Permitted To Bring Civil Suits On
Both Direct And Collateral Issues Which Are Sub-
stantially Related To The Purpose Of His Appointment
In An Involuntary Hospitalization Proceeding.
Once the Public Defender is appointed to represent a
person, he enjoys the same attorney/client relationship, and
incurs the same ethical obligations, as his counterpart in
private practice. As the Supreme Court stated in Ferri v.
Ackerman, 444 U.S. 193, 204 (1979):
A36
[t]he primary office performed by appointed counsel
parallels the office of privately retained counsel. Al-
though it is true that appointed counsel serve pur-
Suant to statutory authorization and furtherance of
the federal interest in ensuring effective representa-
tion of criminal defendants, his duty is not to the
public at large. .. [but] to serve the undivided interest
of his clients. Indeed, an indispensable element of the
effective performance of his responsibilities is the
ability to act independent of the government and to
oppose it in adversary litigation.
See also, Carr v. State, 180 So.2d 381, 382 (Fla. 2d DCA
1965) (parity between court-appointed and privately re-
tained counsel). A client who privately retains an attorney
expects that such attorney will pursue every legal remedy
available in furtherance of his objectives. See Disciplinary
Rule 7-101 (attorney shall not intentionally fail to seek
lawful objectives of client through reasonably available
means); Ethical Consideration 7-9 (attorney must “always
act consistent with the best interests of his client’). A
person represented by the Public Defender in a state-
instituted involuntary commitment proceeding should be
able to expect no less. As this Court stated in a similar
context:
. . State-appointed counsel . . . could continue their
representation and seek federal relief [since] {t]heir
professional responsibility may dictate this action .
Graham v. State, 372 So.2d at 1365 (Fla. 1979). GA.
needed to institute federal civil litigation on the collateral
issue of his treatment conditions because such treatment
materially affected his chances of winning or losing the
involuntary commitment proceeding. The Attorney Gen-
eral, however, would limit G.A. to being represented at
A37
the involuntary commitment proceeding and any appeals
therefrom, and would require G.A. to forego any litigation
of the constitutional and statutory rights of which the
conditions of his confinement had deprived him. For-
tunately, the Attorney General’s proposed limitation on
the Public Defender’s authority has no support in Florida
law.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of
Quo Warranto filed by the State of Florida through its
Attorney General should be denied.
Paul & Thomson
/s/ Parker D. Thomson
Parker D. Thomson
1300 Southeast First National
Bank Building
Miami, Florida 33131
(305) 371-2000
Attorney for Respondents
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of
the foregoing Response to Order to Show Cause was fur-
nished by mail to ANTHONY MUSTO, Assitant Attorney
General, Office of the Attorney General, Miami Division,
401 Northwest Second Avenue, Miami, Florida, on this
llth Day of December, 1981.
/s/ Parker D. Thomson
A38
(Filed December 28, 1981)
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61-376
STATE OF FLORIDA ex rel. JIM SMITH, Attorney Gen-
eral of the State of Florida, PUBLIC HEALTH TRUST
OF DADE COUNTY, d/b/a JACKSON MEMORIAL HOS-
PITAL, THOMAS J. KELLY, JOSEPHINA PEREZ,
JAMES SUSSEX and ARMANDO MERINO,
Relators,
if
BENNETT 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,
Respondents.
NOTICE OF FILING
COMES NOW Respondents, Bennett Brummer, Public
Defender of the Eleventh Judicial Circuit of Florida, and
Assistant Public Defenders Barry Weinstein and William
Ploss, and file the attached Affidavit of William Reece
Smith, Jr., in support of Respondents’ Response to Order
to Show Cause heretofore filed in this action.
Paul & Thomson
/s/ Parker D. Thomson
Parker D. Thomson
1300 Southeast Bank Building
Miami, Florida 33131
(305) 371-2000
Attorney for Respondents
A39
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
of the foregoing was furnished by mail to ANTHONY
MUSTO, Assistant Attorney General, Office of the Attor-
ney General, Miami Division, 401 Northwest Second Ave-
nue, Miami, Florida, on this 24th day of December, 1981.
/s/ Parker D. Thomson
AFFIDAVIT OF WILLIAM REECE SMITH, JR., ESQ.
BEFORE ME, the undersigned authority, personally
appeared WILLIAM REECE SMITH, JR., who upon first
being duly sworn, deposes and says that:
1. I am a member of The Florida Bar and have
practiced law in Florida for 28 years. From 1972 to 1973
I was President of The Florida Bar. From 1980 until
1981, I was President of the American Bar Association.
In these capacities I have become intimately familiar with
many issues involving the ethical responsibilty of attorneys
to fully and fairly represent their clients.
2. From 1976 to 1978 I was Chairman of the State
Human Rights Advocacy Committee created under Sec-
tion 20.19(6), Florida Statutes. From 1977 to 1979 I was
Chairman of the Governor’s Commission on Advocacy for
Persons with Developmental Disabilities. In these capac-
ities I have become intimately familiar with the problems
of and the need for advocacy for the mentally disabled.
3. From 1973 to 1976 I was President of Florida
Legal Services, Inc., and since that time I have remained
involved in and knowledgeable about legal delivery sys-
tems to the indigent through legal services programs and
public defenders.
A40
4. There is only one ethical code of legal representa-
tion. This is so regardless of whether an attorney is pri-
vately retained or court-appointed, and regardless of the
nature of the professional activities of the attorney. ABA
Standards Relating to the Defense Function 1.1(e), 3.9
Approved Draft (1971); Preliminary Statement, Code of
Professional Responsibility. The Supreme Court of Fior-
ida, in creating The Florida Bar, charged it with the
responsibility of maintaining “the highest standards and
obligations of the profession of law.” Integration Rule,
Florida Bar, Preamble (a). This standard is applied to
all members of The Florida Bar, whether public or private,
5. The Code of Professional Responsibility requires
that an attorney “exercise independent professional judg-
ment on behalf of a client.” Canon 5. A lawyer must
represent a client competently and zealously within the
bounds of the law. Canons 6, 7. Canon 7 is implemented
by DR 7-101 which explicitly mandates that a lawyer
shall not intentionally fail to seek the lawful objectives
of his client through reasonably available means provided
by law. An attorney must “always act in a manner con-
sistent with the best interest of his client.” EC 7-9. This
does not mean that every issue that could be litigated
on behalf of a client must be litigated. The attorney has
a professional responsibility to exercise his judgment con-
sistent with the best interests of his client.
6. A lawyer must always be free to exercise his
professional judgment without regard to the interests or
motives of any third person EC 5-23. Lawyers who are
state officials owe a duty to their clients which is certainly
no less than that which private lawyers owe to their
clients. A lawyer should not accept employment from an
organization designed to provide legal services unless there
A4l
is no interference in the relationship of the lawyer and the
individual client he serves. All lawyers, public and pri-
vate, have a constant responsibility to maintain profes-
sional independence in exercise of judgment. EC 5-24.
7. The degree of public confidence in our judicial
system will depend on its ability to deliver legal services
of sufficient breadth and competence. There is a well-
recognized need for improvement of the delivery of legal
services to the poor and in the area of mental health.
Satisfaction of that need will require both increased repre-
sentation and new and innovative approaches to repre-
sentation.
FURTHER AFFIANT SAYETH NOT.
/s/ William Reece Smith, Jr.
William Reece Smith, Jr.
SWORN TO AND SUBSCRIBED
before me this 22 day
of December, 1981.
/s/ Rita C. Osborne
Notary Public, State of Florida
at Large
My Commission Expires: Oct. 24, 1982
A42
(Filed December 14, 1981)
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61-376
STATE OF FLORIDA, ex rel. JIM SMITH, Attorney Gen-
eral of the State of Florida; PUBLIC HEALTH TRUST
OF DADE COUNTY, d/b/a JACKSON MEMORIAL HOS-
PITAL; THOMAS J. KELLY; JOSEPHINA PEREZ:
JAMES SUSSEX; and ARMANDO MERINO,
Relators,
v.
BENNETT BRUMMER, Public Defender of the Eleventh
Judicial of Florida; and BARRY WEINSTEIN and WIL-
LIAM PLOSS, Assistant Public Defenders of the Eleventh
Judicial Circuit of Florida,
Respondents.
APPENDIX TO
RESPONSE TO ORDER TO SHOW CAUSE
TABLE OF CONTENTS
Page
Letter from Ruth Alchin to Dr. Kelly
dated October 15, 1980 l
Affidavit of Dr. Arthur Stillman 2
Affidavit of Public Defender
Bennett H. Brummer
Affidavit of William Ploss
Affidavit of Mark Weinstein 10
Affidavit of Eugene Zenobi, Esq. 11
Affidavit of John Powell, Esq. 12
Affidavit of Jonathan P. Rossman 14
A43
Letter from Anthony C. Musto to
Judge Edward B. Davis dated
November 6, 1981 18
Order entered June 18, 1981 in G.R
v. Taylor, United States District
Court Southern District of Florida,
Case No. 80-3021-Civ-EBD 20
Petition for Involuntary Placement
and Placement Certificate filed
November 20, 1981 In Re: Gerald
Alchin 28
Notice of Petition for Involuntary
Placement filed November 20, 1981
In Re: Gerald Alchin 29
Notice of Hearing on Petition for
Involuntary Placement served November 23,
1981 In Re: Gerald Alchin 30
Order Appointing Counsel entered
November 23, 1981 In Re: Gerald
Alchin 32
Affidavit of Barry A. Weinstein 33
[App. 1)
October 15, 1980
To Dr. Kelly,
I was very anger to find out last Tuesday that my
child was taking medicine and that this medicine makes
him very dizzy and interferes with his studies and well
being
I had never given my consent to give him any med-
icine. I demand that no medicine be given to him unless
A44
I am told what kind of medicine and on what dosage
it is to be given, and I can supervise the effects of this
‘ ‘ :
medic ine On Iriy child
I must add that on Tuesday I saw a marked dete-
. » as , _ bot 7
> *) . ‘ : 77 ! sooalth eT roll *«
ation on Geraids physical health, as well as
. ' P ™ 7 3 —
emotional! and mental health
During intake he was in power of all his judgment
arr — ; . Tt oe, secnerd . ; Ly 7, ahaa tate tL: "
and could answer every question quick and without hesi-
. s *
~~ : , . .
* + * a3 te t ¥ * ; “> vn |
ta LION ] ‘ Tur lay ne vy cid iUPBPISI nervou seemed
. 1 ?
, , eon tiy ed |
to have trouble holding his concentration and had lost
**% ;
m=} ‘F " — hie; ’
Gil @oSuUTanCe OF NAiImMseit
P » | +) . bea 4 ? +}. , 7 1. ; -
I also demand that his ciotnes and shoes be given
r >. . . ‘* > y +7 : . Mr "4 + . ‘h led’
AON LO TL ITMediateiy Ou are bore aking my cnids
emotional stability and morale by forcing him to wear
, : = . ’ '
sts? the ae » 7. ; > +, ‘ re rese ¢ ad , . — me
| ial resembit “a JUNE Gess, and naving him
Vaik Dareiooted, and | Go Ddellieve that is your design
~ ‘ . { i thea ht #¢r ' ,
For all this reasons I demand the right to visit my
alyi? ‘ } “4 of — |
chia, and be participant and observant of his well being
and progress
aiits Ve! x, 4 ;
s
~ ‘ } ; . | ++) . ~
2O tar ' i nave deen treating nim without my‘ consen
; 7 * * ay eal od . ++} 53? - ~s +
ang against My Wul, and without informing me of the
os f «} ; "
kind Ji LKHerTapy ne . rece iving
1) #} + 1] .
All this must cease, till I give my consent
Yours truly,
s/ Ruth Alchin
A45
[App. 2]
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61,376
STATE OF FLORIDA ex rel. JIM SMITH, etc., et al.,
Relators,
Vv.
BENNETT BRUMMER, etc., et al.,
Respondents.
AFFIDAVIT OF DR. ARTHUR STILLMAN
BEFORE ME, the undersigned authority, personally
appeared DR. ARTHUR STILLMAN, who upon first being
duly sworn, desposes and says that:
1. My name is DR. ARTHUR STILLMAN. I am a
medical doctor licensed in the State of Florida. I have
specialized in the practice of psychiatry for thirty years.
2. At the request of the Public Defender’s Office,
I evaluated G. A. with regard to the petition for invol-
untary hospitalization filed against him on September 29,
1980.
3. As part of my evaluation of G. A., I took the oppor-
tunity to assess his mental state and the conditions under
which he was confined in Jackson Memorial Hospital.
4. The “treatment” program operative in the Adoles-
cent Unit of Jackson Memorial Hospital to which G. A.
was subjected to included the following practices:
A. G. A. was stripped of his personal clothes, and
was forced to wear only a hospital gown for prolonged
periods of time:
A46
B. G. A. was absolutely prohibited from communi-
cating or visiting with his mother or friends, and was
not permitted the use of a telephone;
C. G. A. was not able to write letters to his mother
or friends, and letters that he was permitted to receive
were open and read by staff personnel;
[App. 3] D. G. A. was not allowed to go outdoors
for exercise or to be exposed to the sunlight and fresh air;
E. G. A. was made to sleep in the halls of the Unit
on only a mattress;
F. G. A. was forced to sit in a chair and stare at
the wall for long periods of time;
G. On occasions, G. A. only had access to bathroom
facilities at a specific time no more than once an hour;
and
H. G. A. was locked in solitary confinement for pro-
longed periods of time. Once, when I saw G. A. for eval-
uation, he was locked in a seclusion area alone with a
psychotic adult male who only spoke Spanish. He re-
mained so confined for six days.
9. This “treatrnent” program utilizes a form of ad-
verse conditioning and punitive sanctions. I was not able
to ascertain any discernable standards or reason for these
practices that would medically and psychiatrically justify
their application to G. A
6. My evaluation led me to the conclusion that the
conditions under which G. A. was confined were contrib-
uting to G. A.’s poor mental state, and would lead to his
continued confinement under the Baker Act. I so in-
formed the Office of the Public Defender
FURTHER AFFIANT SAYETH NOT
s/ Dr Arthur Stillman MD.
Dr. Arthur Stillman
A47
SWORN TO and subscribed before me
this 10th day of December, 1981.
/s/ Linda S. Baracas
Notary Public, State of Florida
at Large
My Commission Expires: April 7 1985
[App. 4]
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61,376
STATE GO: FLORIDA, ex rel. JIM SMITH, etc., et al.,
Relators,
v.
BENNETT BRUMMER, etc., et al.,
Respondents.
AFFIDAVIT OF PUBLIC DEFENDER
BENNETT H. BRUMMER
BEFORE ME, the undersigned authority, personally
appeared BENNETT H. BRUMMER, who upon first being
duly sworn, deposes and says that:
1. My name is Bennett H. Brummer. I am the duly
elected Public Defender for the Eleventh Judicial Circuit
of Florida. I was officially commissioned as Public De-
fender in January, 1977. I have been employed in the
Office of the Public Defender since 1971.
I am an attorney, having been admitted to practice
by this Court in November, 1965. I have also been ad-
mitted to practice before the New York and federal courts.
2. The Office of the Public Defender does not now
represent and has never represented G. A. with regard
A48
to the damage claim included in the amended complaint
filed in G. A. v. Public Health Trust. Eugene Zenobi,
Esquire, now represents and has always represented G. A.
with regard to that damage claim.
The relators have never discussed the issue of which
attorney was representing G. A. with regard to the damage
claim with any of the respondents or Eugene Zenobi,
Esquire, prior to subsequent to filing their petition.
3. I have determined that the filing of civil cases
in state and federal court is consistent with the statutory,
constitutional, and ethical obligations of the Office of the
Public Defender to its clients.
[App. 5] 4. I did not initiate the practice of filing
civil actions in state and federal court on behalf of the
clients of this office. My predecessor, the Honorable
Phillip A. Hubbart, who is now Chief Judge of the Third
District Court of Appeal, engaged in that practice while
I was an Assistant Public Defender.
o. My office has handled over 20,000 cases per year
for the last few years. I have exercised my independent,
professional judgment as to the need to file civil pro-
ceedings in state and federal court on behalf of our clients.
I estimate that my judgment has resulted in the filing of
civil proceedings in state court in less than 1% of our
cases, and in federal court in less that 1/10th of 1% of
our cases.
6. To the best of my recollection, the following are
the civil actions filed by my predecessor and me in state
and federal court:
A. Lowery v. Metropolitan Dade County, 43 Fla.
Supp. 84 (Fla. 11th Cir. 1971), requesting declaratory
and injunctive relief regarding conditions of pretrial con-
finement in the Dade County Jail;
A49
B. Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978)
(en banc), seeking declaratory and injunctive relief re-
lating to the requirement of money bail from indigents;
C. Gerstein v. Pugh, 420 U.S. 103 (1975), seeking
declaratory and injunctive relief regarding the standard
of probable cause for the pretrial detention of adults;
D. Moss v. Weaver, 383 F. Supp. 180 (S.D.Fla. 1974),
seeking declaratory and injunctive relief regarding the
standard of probable cause for the pretrial detention of
juveniles;
E. Ackies v. Purdy, 322 F. Supp. 38 (S.D.Fla. 1970),
seeking declaratory and injunctive relief relating to con-
ditioning pretrial release on a master bond list;
F. Jackson v. Purdy, (Fla. 11th Cir., Case # 77-14344,
1977) seeking information under the public records act
to be used as evidence;
G. Cardenas v. Morphonios, (S.D.Fla, Case #
77-4649-Civ-NCR, 1977), seeking removal of a criminal
action;
{App. 6] H. State v. Twyman, (Fla. 17th Cir., Case
# 75-525 CFA, 1980), seeking relief from conditions of
confinement in a mental hospital for Dade County inmates,
with the Broward Public Defender;
I. G.R.v. Taylor, (S.D.Fla., Case # 80-3021-Civ-EBD,
1980), seeking relief from illegal conditions of detention
in the Dade County Juvenile Detention Center.
J. Additionally, over the last ten years, the Office
of the Public Defender has found it necessary to file
numerous petitions for extraordinary relief on behalf of
its clients. For example, during the two years from
November, 1979, to November, 1981, the office filed 7
A50
habeas corpus petitions in federal court, and 51 habeas
petitions in state court.
Included among the cases filed as class actions by
this office are: Lowery, Pugh, Gerstein, Moss, Ackies,
and Taylor. One purpose for filing cases as class actions
is to avoid mootness problems arising from the transitory
nature of the confinement of particular clients. See
Gerstein v. Pugh, supra at n. 11.
7. It is the policy of my office that we attempt not
to accept the responsibility for an additional client, before
we are able to adequately represent each of those clients
whom we have already been appointed to represent. Our
ability to adequately represent our clients is severely
limited by the resources allocated to this office.
It is consistent with this policy to allocate to each
client the resources necessary to adequately represent him.
It is also consistent with this policy to attempt to limit
our appointment to new capital appeals, because those
cases are especially time-consuming and would have an
extremely debilitating effect on our ability to represent
current clients.
This office represents approximately twelve individ-
uals on capital appeals in this Court. We have success-
fully attempted to comply with a very stringent briefing
schedule established by the Court in nine cases. We are
now in the process of presenting oral argument before
the Court in those cases.
[App. 7] My office continues to accept capital “cases”,
and was appointed in 76 capital felony cases in FY 1980-81.
FURTHER AFFIANT SAYETH NOT.
/s/ Bennett H. Brummer
Bennett H. Brummer
AS1
SWORN TO and subscribed before me
this 10th day of December, 1981.
/s/ Linda S. Baracas
Notary Public, State of Florida
at Large
My Commission Expires April 7 1985
[App. 8]
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61,376
STATE OF FLORIDA ex rel. JIM SMITH, eic., et al.,
Relators,
Vv.
BENNETT BRUMMER, etc., et al.,
Respondents.
AFFIDAVIT OF WILLIAM PLOSS
BEFORE ME, the undersigned authority, personally
appeared WILLIAM PLOSS, who upon first being duly
sworn, deposes and says that:
1. My name is William Ploss. I am an Assistant
Public Defender.
2. In my capacity as Assistant Public Defender, I
was the attorney of record for Plaintiff, G. A. in the civil
commitment action (case # 80-7931). The mistreatment
to which my client was subjected and its impact upon
the involuntary commitment proceeding served as the
impetus for the filing of the federal civil rights action
against te relators.
A52
3. During my representation of G. A. for the civil
commitment action, he informed me that on several occa-
sions he had been refused access to a telephone when
he had expressly stated that he wanted to call me re-
garding his case.
4. I verified with the staff of the Adolescent Unit
the fact that G. A. had indeed been refused access to a
telephone to call me regarding his case. The staff explana-
tion for such refusals was that G. A., because of inappro-
priate behavior, had been placed on restriction and there-
fore was not allowed to initiate or receive telephone calls
while so restricted.
5. In my capacity as Assistant Public Defender, I
have also represented other clients in civil commitment
proceedings who were held in the Adolescent Unit and
who were under the care of relators Kelly and Perez.
I was refused access to two of these [App. 9] clients
(D. W. and P. P.) by relator Kelly. Client D. W. was
also refused telephone access to me and the staff of the
Adolescent Unit explained this restriction on telephone
communications as a “punishment” given to D. W. “because
he wouldn't become a voluntary patient”.
6. G. A. was forced to ingest powerful mind-altering
drugs without his consent or the consent of his guardian
as is required by Florida Statute § 394.459.
7. The federal suit was filed as a class action because
in my judgment the class action approach increased the
likelihood of obtaining relief for G. A. and other past
and future clients of the Office of the Public Defender
who were similarly situated.
FURTHER AFFIANT SAYETH NOT.
/s/ William Ploss
William Ploss
A53
SWORN TO and subscribed before me
this 11th day of December, 1981.
/s/ Linda S. Baracas
Notary Public, State of Florida
at Large
My Commission Expires April 7 1985
[App. 10]
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61,376
STATE OF FLORIDA ex rel. JIM SMITH, etc., et al.,
Relators,
Vv.
BENNETT BRUMMER, etc., et al.,
Respondents.
AFFIDAVIT OF MARK WEINSTEIN
BEFORE ME, the undersigned authority, personally
appeared MARK WEINSTEIN, who upon first being duly
sworn, deposes and says that:
1. My name is Mark Weinstein. I am the Business
Manager of the Office of the Public Defender for the
Eleventh Judicial Circuit.
2. On January 9, 1980, the Public Defender was
awarded a Law Enforcement Assistance Administration
grant entitled, “Legal Representation of Mentally Ill Chil-
dren and Adults”. The grant was in effect from January,
1980, to January, 1981, and provided federal funds to pay
for federal civil rights suits which could be instituted
by the Public Defender to enhance the right to treatment
of mentally ill minors and adults.
A54
3. The grant was awarded by the Florida Bureau of
Criminal Justice Assistance. The Office of the Governor
had found the project to be “in accord with State plans,
policies, procedures and programs”. The grant had been
approved by the Florida Council on Criminal Justice on
July 16, 1979. The Attorney General is a member of
that council pursuant to Florida Statutes § 23.152.
FURTHER AFFIANT SAYETH NOT.
/s/ Mark Weinstein
Mark Weinstein
SWORN TO and subscribed before me
this 9th day of December, 1981.
/s/ Linda S. Baracas
Notary Public, State of Florida
at Large
My Commission Expires: April 7 1985
[App. 11]
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61,376
STATE OF FLORIDA ex rel. JIM SMITH, etc., et al.,
Relators,
Vv.
BENNETT BRUMMER, etc., et al.,
Respondents.
AFFIDAVIT OF EUGENE ZENOBI, ESQ.
BEFORE ME, the undersigned authority, personally
appeared EUGENE ZENOBI, who upon first being duly
sworn, deposes and says that:
A55
1. My name is Eugene Zenobi. I am an attorney
admitted to practice before this Court, the courts of
Pennsylvania, and the federal courts.
2. I am engaged in the private practice of law, and
have extensive experience in civil rights cases.
3. In the case of G. A. v. Public Health Trust, I
represent G. A. with regard to the damage claim contained
in the amended complaint. The Office of the Public
Defender does not now represent and has never repre-
sented G. A. with regard to the damage claim.
4. I am representing G. A. at no charge to G. A.
or his family. If successful, I intend to seek attorney's
fees pursuant to federal statute.
FURTHER AFFIANT SAYETH NOT.
s/ Eugene Zenobi
Eugene Zenobi
SWORN TO and subscribed before me
this 8th day of December, 1981.
/s/ Linda S. Baracas
Notary Public, State of Florida
at Large
My Commission Expires: April 7 1985
[App. 12]
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61,376
STATE OF FLORIDA ex rel. JIM SMITH, etc., et al.,
Relators,
v.
BENNETT BRUMMER, etc., et al.,
Respondents.
AFFIDAVIT OF JOHN POWELL, ESQ.
BEFORE ME, the undersigned authority, personally
appeared JOHN POWELL, who upon first being duly
sworn, desposes and says that:
1, My name is John Powell. I am an attorney, and
serve as the Executive Director of Legal Service of Greater
Miami, Inc.
2. To the best of my knowledge, outside of the Public
Defender’s Office there are few, if any, legal services pro-
grams to which indigent individuals can turn for represen-
tation regarding mental health claims and related matters.
3. Even when Legal Services of Greater Miami, Inc.
was at full staff, we did not have sufficient manpower
or resources to provide representation in the mental health
area. We handled an extremely small number of such
cases, and could not begin to address the need. Recent
budget cuts have resulted in the layoff of approximately
50% of our personnel, and have reduced our meager
capacity even further.
4. To the best of my knowledge, Legal Services pro-
grams have regarded the mental health area primarily
AS7
as the responsibility of the Public Defender, in accordance
with state law.
5. Legal Services has very little professional expe-
rience or expertise in the mental health area. Virtually
no attorney or group of attorneys, outside of the Public
Defender’s Office, has much mental health experience
or expertise.
[App. 13] 6. There is a great need for the delivery
of legal services in the mental health area. If the Office
of the Public Defender does not provide representation
it is very likely that no one will, and the legal rights
of the mentally ill will not be redressed.
FURTHER AFFIANT SAYETH NOT.
/s/ John Powell
John Powell
SWORN TO and subscribed before me
this 7th day of December, 1981.
/s/ (Illegible)
Notary Public, State of Florida
at Large
My Commission Expires: May 25 1984
(App. 14]
City of Tallahassee )
; =
State of Florida )
AFFIDAVIT OF JONATHAN P. ROSSMAN
Jonathan P. Rossman, Director, Governor’s Commis-
sion on Advocacy for Persons with Developmental Dis-
abilities, being duly sworn, deposes and says:
A58
1. I am an attorney, member of The Florida Bar,
Vice-Chairman of the Florida Bar Committee on the Rights
of the Mentally Disabled, member of the Editorial Ad-
visory Board of the Mental Disability Law Reporter of
the American Bar Association and possess knowledge and
experience in the legal needs of mentally disabled citizens
residing in the State of Florida.
2. This statement has been authorized as an official
Statement made on behalf of the Governor’s Commission
on Advocacy for Persons with Developmental Disabilities.
The position of the Commission does not necessarily reflect
that of the Governor or any other agency of state govern-
ment. Its viewpoint is representative of the interests
of the developmentally disabled. Commission members,
who are appointed by the Governor, include handicapped
individuals, parents of handicapped individuals, physi-
cians, educators, local government officials, attorneys, and
other professionals.
3. The Governor's Commission on Advocacy for Per-
sons with Developmental Disabilities has responsibility
for implementing on behalf of the State of Florida the
protection and advocacy system established pursuant to
42 U.S.C.A., Section 6012, the Developmentally Disabled
Assistance and Bill of Rights Act. The Commission has
the authority to pursue legal, administrative, and other
appropriate remedies to insure the protection of the rights
of developmentally disabled persons who are receiving
treatment, services, or rehabilitation within the State and
is required to be independent of any provider of services
or habilitation to individuals with developmental disabil-
ities. Among its primary responsibilities is to assess the
[App. 15] protection and advocacy needs of developmen-
tally disabled persons within the State and to set priorities
among those needs. F.A.C. Rule 22N-1.04.
A59
4. Developmental disabilities are defined for the pur-
poses of the Commission's activities as including any
severe physical or mental impairment first occurring in
the early years of life which result in a substantial limita-
tion on the development of major life functions. These
include among other conditions; mental retardation, epi-
lepsy, autism, and cerebral palsy. Not all mentally dis-
abled individuals are developmentally disabled because
some mental illness does not arise until later life. But,
severe emotional disturbance or mental illness manifested
prior to age twenty-two is considered a developmental
disability. 42 U.S.C.A. 6001(7). F.A.C. Rule 22N-1.02.
G.A. the plaintiff in G.A. et al. v. Public Health Trust of
Dade County, et al. would, in my opinion, be considered
developmentally disabled as would numerous other indi-
viduals subject to involuntary commitment to a mental
hospital under Chapter 394, Florida Statutes. The Com-
mission has, in fact, during the course of its regular activ-
ities, dealt with many such individuals.
5. The Commission has considerable interest in the
issue raised by the Attorney General's Petition for a Writ
of Quo Warranto filed with the Florida Supreme Court
challenging the authority of the Public Defender of the
Eleventh Judicial Circuit to bring the proceeding refer-
enced above on behalf of G.A. In addition to individuals
such as G.A., many other developmentally disabled indi-
viduals are entitled to legal representation by public de-
fenders in Chapter 393.11 proceedings (involuntary admis-
sion to mental retardation facilities). Their right to full
and effective legal counsel is equally threatened by the
Attorney General's petition
6. There is a serious lack of legal services available
to mentally disabled persons in the State of Florida. The
Commission has identified as its principle objective the
A60
expansion of legal services to this population. The Com-
mission’s findings in this regard are confirmed by the
report - The Legal Needs of the Poor and [App. 16] Under-
represented Citizens of Florida; An Overview submitted to
the Florida Supreme Court in The Florida Bar v. Furman,
376 So.2d 378 (Fla. 1979) at 120-124 (1980). The Board
of Governors of the Florida Bar in recognition of this crit-
ical problem has authorized an additional study to be
conducted addressing specifically the delivery of legal ser-
vices to the developmentally and mentally disabled pop-
ulation. This study funded in part by the Governor's
Commission now in its final draft stages has confirmed
that there is currently no effective system in Florida to
meet the legal needs of the mentally disabled. Draft,
Study of the Legal Needs of the Mentally and Develop-
mentally Disabled, Nelson, Alice K., M.S.W., J.D., (1981).
7. Among the findings of the Legal Needs Study
referred to in paragraph 6 above, the following are sup-
ported by the experience of the Governor's Commission:
a). Significant Bar involvement in the representation
of mentally disabled persons is not possible at the present
time.
b). Pro bono efforts have had a limited impact on
meeting the legal needs of the mentally disabled.
c). The Legal Services Corporation definitely has
a role in the delivery of legal services to the mentally
disabled, but it alone cannot meet the present need. This
fact is made more acute by the Federal cutbacks in funding
of the Legal Services Corporation. (The Governor's Com-
mission has already received numerous refusals to accept
referrals on routine matters involving mentally disabled
clients from legal service programs citing their inability
to expand current case loads due to lack of resources. )
A61
8. The Governor’s Commission on Advocacy believes
that public defenders appointed to represent indigent per-
sons in civil commitment proceedings need to represent
such persons in all proceedings arising from the initiation
of the civil commitment proceedings, including civil ac-
tions in the state or federal courts challenging the condi-
tions of an institutional confinement, whenever such repre-
sentation is deemed necesssary by the public defender
and his client.
[App. 17] 9. In our experience an attorney repre-
senting an individual at risk of committal or recommittal
to a custodial mental facility cannot isolate the issues in
that proceeding from the overriding issues surrounding
the quality and nature of the residential services in which
the individual is or may be confined.
An attorney representing an individual in a civil com-
mitment proceeding must look beyond that proceeding to
ascertain whether or not there are any factors external
to his client which may increase the likelihood of his
client’s institutionalization or that will exacerbate his
client’s need for continued hospitalization. Inadequate
staffing, excessive psyscotropic medication, overcrowding
and abusive treatment are all conditions in which effective
treatment and habilitation cannot take place and are in
fact debilitating, distorted service delivery patterns which
thwart the development of community alternatives can
force clients unnecessarily into large institutions. If such
factors exist an atturney cannot effectively represent his
client in a civil commitment proceeding without also
seeking ways to remove or alleviate such external con-
ditions.
10. The Public Defender assigned to represent a
mentally disabled individual in a civil commitment pro-
ceeding is obliged to insure that the individual's constitu-
A62
tional rights are fully protected, otherwise it is inevitable
that these rights will be lost through inaction or incapacity.
/s/ Jonathan P. Rossman
Jonathan P. Rossman
Subscribed and sworn to before me
this 11 day of December 1981.
/s/ Charlotte R. (Illegible)
Notary Public
My Commission expires: (lIllegible)
[App. 18]
DEPARTMENT OF LEGAL AFFAIRS
Office of the Attorney General
The Capitol
Tallahassee, Florida 32304
JIM SMITH 401 N.W. 2nd Ave., Suite 820
Attorney General Miami, Florida
State of Florida (305) 377-5441
November 6, 1981
Judge Edward B. Davis
P. O. Box 013189
Miami, Florida 33101
Dear Judge Davis:
At a recent hearing in the case of G.A. et al. v. Public
Health Trust of Dade County, et al., case no. 80-2924-CIV-
EBD, I addressed the court as an amicus curiae to inform
you of the intention of the Attorney General's office to
institute proceedings in the state courts to challenge the
authority of the Public Defender to represent the plain-
A63
tiffs in the case pending before you. This letter is to advise
you that a petition for a writ of quo warranto, making such
a challenge, has been filed in the Florida Supreme Court.
A copy of that petition is enclosed for your information.
When I appeared before you, I also suggested that you
might wish to consider staying proceedings pending dis-
position of the state proceedings and you indicated a
reluctance to do so in the absence of a pending case. That
situation has of course now changed, so I wish to once
again offer the same suggestion. Clearly, the question of
whether the Public Defender has the authority to represent
individuals in a civil suit in federal court is a substantial
issue which should be determined by the courts of the
State of Florida. If you should proceed with the case
before you, it is possible that the case will be decided
before the Florida Supreme Court rules and that fact
could have the effect of rendering the state proceedings
moot. Thus, in the interest of enabling this significant
state issue to be litigated, a stay would seem appropriate.
In considering whether or not to stay proceedings, I
think it is also significant to realize that while the suit
before you challenges certain procedures utilized in pro-
viding psychiatric treatment, the plaintiffs are not cur-
rently being affected by the procedures, as plaintiff G.A.
is no longer receiving treatment and plaintiff R.A. has
never received treatment. Thus, the granting of a stay
would have no serious effect upon them and their claims
can be given full consideration after the state proceeding
is concluded.
{App. 19] I would also like to assure you that I am
of course aware of your need to expeditiously decide all
cases before you. In order to minimize whatever delay
might result from a stay, I am more than willing to seek to
expedite the case in the Florida Supreme Court. If you
A64
should decide to stay proceedings, I will, therefore, upon
notification of your decision, file a motion directed to
that end.
If I can answer any questions you might have or be
of assistance in any other manner, please be assured that
I am at your disposal. Thank you in advance for your
consideration of my suggestion.
Sincerely,
/s/ Anthony C. Musto
Anthony C. Musto
Assistant Attorney General
Chief Counsel, Miami Division
ACM/|g
cc: Melinda Thornton
Bennett Brummer \/
Barry Weinstein
William Ploss
Eugene Zenobi
A65
(App. 20]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 80-3021-CIV-EBD
G.R.,
Plaintiff,
VS.
ALVIN TAYLOR,
Defendant.
ORDER
Upon consideration of the memoranda of the parties,
the Court hereby rules on the following motions in this
action challenging conditions at the Dade County Juvenile
Detention Center.
I. DISQUALIFICATION
The defendants associated with the Florida Depart-
ment of Health & Rehabilitative Services (hereafter “the
HRS defendants”) moved for the disqualification of the
Dade County Public Defender’s office as counsel for the
plaintiff. The HRS defendants claim that the Public De-
fender is without authority to represent an indigent party
in a civil rights action such as this one.
Motions to disqualify counsel commonly are based on
ethical violations or conflicts of interest. E.g., Musicus v.
Westinghouse Electric Corp., 621 F.2d 742 (5th Cir. 1980).
No such violations or conflicts are alleged by the HRS
defendants, bringing into doubt the appropriateness of the
motion.
A66
The Court need not reach that issue, however, because
[App. 21] an authoritative Florida court has recently de-
cided a similar question about a public defender’s authority
to pursue civil rights actions such as this one. In Graham
v. Vann, 394 So. 2d 176 (Fla. lst DCA 1981 ), it was held
that a public defender could represent adult prisoners in
a habeas corpus action challenging prison conditions. The
District Court of Appeal, First District, found authority
for the public defender to act in the mandate of Fla.R.
Crim.P. 3.111(b) (2). 394 So. 2d at 178; see Fla. Const. Art.
V, § 18; Fla. Stat. § 27.51(1) (1979). Rule 3.111(b) (2)
authorizes public defenders to provide counsel to indigents
in adversary proceedings “regardless of the designation of
the court in which they occur or the classification of the
proceedings as civil or criminal.”
The compass of Rule 3.111 specifically includes juve-
nile proceedings. Id., (b)(1). Therefore, the holding of
Graham v. Vann applies to this action, and this Court fol-
lows that authority in denying the motion to disqualify.
Il. ANONYMITY
The plaintiff, a minor incarcerated at the Dade Juve-
nile Detention Center when this suit was filed. has moved
to proceed anonymously in this action to avoid embarass-
ment and possible humiliation. The defendants associated
with the School District of Dade County (hereafter “the
School Board defendants”) have opposed the motion, and
seek to require G.R. and his mother, E.W., to pursue this
suit under their full names.
There is no question but that all defendants have
actual knowledge of the complete identities of the defen-
dant and his mother. There is no question but that federal
courts have frequently permitted plaintiffs to proceed
anonymously to avoid embarassment when sensitive issues
A67
are raised. While actions such as Roe v. Wade, 410 US.
113 [App. 22] (1973), appear to have been brought by
plaintiffs of legal age, the policy considerations behind
allowing pseudonymous pleadings can only be stronger
where a minor is involved.
The motion to proceed anonymously is GRANTED.
See Fed. R.Civ.P. 11.
III. DISCOVERY
The HRS defendants have moved for a protective
order after their blanket refusal to comply with the plain-
tiff's first request for production. The plaintiff then moved
to compel production.'
The Federal Rules contemplate liberal discovery.
Therefore, the plaintiff's motion to compel is granted and
the defendant's motion for a protective order is denied,
except that the HRS defendants may permit inspection
of the requested documents at the defendant’s place of busi-
ness or other reasonable location. The defendants shall
produce the documents as they are kept in the usual course
of business or shall organize and label them to correspond
with the categories in the request. Fed.R.Civ.P. 34(b) (as
amended April 29, 1980).
IV. CERTIFICATION
The plaintiff moved to certify this cause as a class
action. The defendants oppose the motion, and have jointly
moved for a certification hearing.
On the present record, the Court is able only to de-
termine that the proposed class meets most of the pre-
1. Neither motion conformed to the Local Rules of this
Court. See Local Rule 10(1). The parties are cautioned that
any future discovery motions which fail to conform with the
Local Rules will be denied.
A68
requisites [App. 23] for a class action, as discussed below.
Additional briefing is required on the issue of adequate
representation. Thus, a ruling on the motion to certify
must be deferred and a decision on whether to hold a hear-
ing must also await supplementation of the record. The
Court today rules on most of the class issues to simplify
these proceedings and focus attention on the remaining
issues.
The plaintiff has moved for certification of two sub-
classes of persons at the Dade Juvenile Detention Center,
1) those incarcerated while awaiting trial and 2) those
imprisoned following adjudications of delinquency. Sub-
classes are necessary only when interests in one sub-
division conflict with the other, or when claims are so
greatly varied that management of the litigation will be
aided by certifying subclasses. See Manual for Complex
Litigation, Procedures § 1.42. There is no conflict be-
tween the interests of the proposed subclasses. The claims
of each putative class are nearly identical. Therefore,
the motion for certification will henceforth be considered
only as it applies to one general class encompassing both
of the plaintiff's proposed subclasses.
A. Numerosity
The plaintiffs have brought their action on behalf of
the approximately 160 inmates of the Dade Juvenile De-
tention Center and all future persons to be incarcerated
at the center. None of the defendants have challenged
that the inmate population usually consists of about 160
persons.
Membership of a class must be “so numerous that
joinder of all members is impracticable...” Fed.R.Civ.P.
23(a)(1). This numerosity requirement is interpreted
liberally when a class action is sought under section (b) (2)
A69
of Rule 23. Jones v. Diamond, 519 F.2d 1090, 1099 (Sth
Cir. 1975).
The focus is not on numbers alone, but on the practi-
cality [App. 24] of joinder. When persons to be affected
in the future are prospective plaintiffs, their joinder be-
comes inherently impracticable. Phillips v. Joint Legisla-
tive Committee, 637 F.2d 1014, 1022 (5th Cir. 1981). Given
the unchallenged size of the present population of the
Dade Juvenile Center, the inclusion of persons to be in-
carcerated in the future, and the policies favoring finding
a class action of this type, the Court determines that the
numerosity requirement has been met.
B. Common Questions
The School Board defendants have challenged whether
the plaintiff's complaint raises the common questions re-
quired by the Federal Rules. A class will not be certified
unless there are “questions of law or fact common to the
class...” Fed.R.Civ.P. 23(a) (2) (emphasis added). While
the School Board defendants argue that different inmates
may be exposed to different factual situations, they all
but ignore the disjunctive “or” of the Rule.
While there may indeed be varying questions of fact
depending on the circumstances of different members of
the alleged class, this action arises under policies prom-
ulgated by the defendants, which policies apply to all
inmates. The complaint alleges common conditions at the
Juvenile Center. Thus, common questions of fact pre-
dominate over individual questions, making class certi-
fication desirable. See 3B Moore’s Federal Practice
§ 23.45[2].
Common questions of law—whether or not the defen-
dants’ policies violate the plaintiff class’s constitutional
rights—certainly predominate. Id. The Court finds that
A70
the plaintiff has met both alternatives to the common
question prerequisite of Rule 23(a) (2).
[App. 25] C. Typicality
Neither group of defendants has challenged that the
claims or defenses of the representative parties are typical
of the class. Fed.R.Civ.P. 23(a) (3). The plaintiff points
out that the claims of all members of a class need not be
identical as long as they are based on the same theories,
and this Court agrees. A plaintiff who alleges violation of
his constitutional rights may bring an “across the board”
class action to represent all persons who have suffered
from the same policies, whether or not all class members
have had their rights infringed in exactly the same way.
See Phillips v. Joint Legislative Commission, 637 F.2d 1014,
1024 (Sth Cir. 1981) (alleging racial discrimination).
D. Advance Representation
The HRS defendants have challenged class certifica-
tion on the grounds that the plaintiff's counsel will be
unable to fairly and adequately protect the interests of the
class. The School Board defendants maintain that G.R. is
an inadequate representative of the class.
tive party be a person who will fairly and adequately
represent the class before certification may be granted.
An essential component of adequate representation is that
the party’s attorney be qualified, experienced and able to
conduct the litigation. Gonzales v. Cassidy, 474 F.2d 67, 72
(5th Cir. 1973); Eisen v. Carlisle & Jacquelin, 391 F.2d 555,
562 (2nd Cir. 1968) (subsequent history omitted); see 3B
Moore’s Federal Practice { 23.07[1]. While this Court has
denied the motion to disqualify the plaintiff’s counsel, see
Section I, supra, adequacy of representation is a narrower
Fed.R.Civ.P. 23(a)(4) requires that the representa-
A71
issue which is not governed by that ruling. See Phillips,
637 F.2d at 1023 n.14.
[ App. 26] The School Board defendants maintain that
23(a)(4) is not met because the named plaintiff is men-
tally retarded and cannot even respond to simple questions
at a deposition.”
Whether a named plaintiff and his counsel can ade-
quately represent their proposed class is a question of fact.
Guerine v. J&W Investment Co., 544 F.2d 863 (Sth Cir.
1977), and this Court has only the pleadings and memo-
randa of the parties (and a few scattered citations to un-
filed depositions) before it at the present time. There-
fore, it is hereby ordered that the plaintiff shall have
twenty days from the date of this Order in which to submit
evidence and a memorandum of law on the representation
issues. After submission, the defendants shall have an ad-
ditional ten days in which to reply. The Court defers
ruling on the motion for an evidentiary hearing until it
can be determined if there is any genuine doubt as to the
23(a)(4) issues. Satterwhite v. City of Greenville, 578
F.2d 987, 998 (5th Cir. 1978), vacated on other grounds,
100 S.Ct. 1334 (1980).
E. Class Relief
The plaintiff seeks certification of this action as a class
action maintainable under Fed.R.Civ.P. 23(b)(2). That
2. The School Board defendants also assert that this action
is moot because the named plaintiff is no longer incarcerated
at the Center. This, however, is an action where termination of
a class representative's claim does not moot the claims of the
class because the transitory nature of the alleged deprivations
are “ ‘capable of repetition, yet evading review.’” Gerstein v.
Pugh, 420 U.S. 103, 110 n.1l. As long as the named plaintiff
was a member of the class at the time the action was filed,
mootness is avoided. I[d.; Cruz v. Hauck, 627 F.2d 710 (5th
Cir. 1980).
A72
section provides only for class actions seeking injunctive or
declaratory relief. The complaint here seeks both injunc-
tive relief and money damages, and both sets of defendants
have challenged the claims for damages in their memoranda
opposing class certification.
{ App. 27] The Court finds that the claims for injunctive
relief are sufficient to meet the requirements of 23(b) (2).
The Court, however, gives the defendants leave to challenge
the damages claims by means of appropriate motions, if
done so within twenty days of the date of this Order.
V. SUMMARY
It is therefore
ORDERED AND ADJUDGED as follows:
1. The HRS defendants’ motion to disqualify is DE-
NIED.
2. The plaintiff's motion to proceed anonymously is
GRANTED.
3. The plaintiff's motion to compel is GRANTED
and the HRS defendants’ motion for a protective order is
DENIED, except as outlined above.
4. The plaintiffs’ motion for class certification and
the motion by all defendants for an evidentiary hearing
are DEFERRED, pending briefing on the issue of repre-
sentation,
DONE AND ORDERED at Miami, Florida, this 18th
day of June, 1981.
/s/ Edward B. Davis
United States District Judge
Copies To:
Counsel of Record
A73
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Placement CeraLea‘e
cc Patent
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First Representative } RICHAPT P GRIN"
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(By authonty of Chapter 94 467 (2), Fiomda Statutes) NOV20 1981
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App. 28
A7v74
STATE OF FLORIDA
DEPARTWENT OF HEALTH AND REHABILITATIVE SERVICES §/-7#¥9 $43)
PACILITY
2.4 Rita
18 Yio wie it Ss af) tes z
NOTICE OF PETITION FOR
INVOLUNTARY PLACEMENT *
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Court.
should be ordered
retarnet or confines fo: nvoluniar placement.
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sa16 Reanng % nor waved within five (5) Gays from the daie on the Peuuon fr involuntary Placement not
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App. 29
A75
Tore CIRCUIT COUAT oF Tut ELEVENTH __Juo1c rat CIRCUIT OF THE STATE
CF FLORIDA, IN AND FOR pape COUNTY
PROBATE, CUARSIANSES? AND TRUST DIVISION -- MENTAL MEALTH DEPARTMENT
Neo.
Geralc Alchia, Ruth Alchin
= Dor. Alchin, Adz. Designee s :
TO: Public Defencer, State Atty. IN RE: Gerald Alchin
Dr. Lerzo, Or. Moreno ee AT JACKSON MEMORIAL
“" PLACEMENT
NOTICE OF MEARING ON PETITION FOR INVOL-NTAR:S Btteseeuversi os
1 be held on the pending
(ly You are terety nocifted that s hearing wi:
Placement
Peririen fcr isvoluntary Mumxxexxkrurekemr! Gerald Alcoa
GEXERAL MASTER
. 4
wefcre t..¢ fsnoradle Lewis S$. Kizler
JACKSO!! MEMORIAL INSTITUTE, 16TH TERR. R. W. & 12TH AVE., MIA, FL.
SAAAAAMAKARTAAKAAARARRARR 2c che Pan fasenees » Freee °
on che_Jag day of _pecevare » 298)ECR _. at
tne dDasis for this hearing, and the possible inveiuatary detention
9. 00 a.s.
(2;
waich sav result cherefree are:
(a) Petition fer laveluatery ——— execeted by
Dorothy Darnell , .A@ministrator desicnee, J.M. INSTITUTE
(ticle) (agency)
Lieging that Gerald Alchin » de weocally t11 aad because
thereof is ltirely £2 tejure hieself er echers enless tevelustarily Moocx
piaced
Mere ct mentally iil and in seed of care or tCreacteent but lacks suffi-
fect capaci: te wake «4 respoasidle applicatics ea ete eve behalf and
ar-ot be ade uately cared for by friends or family.
f>) Saiz pecicicnr ts accompanied by the Certificates of two e«exaeuia~
3 placemes:
Pg rtvGitsars Suppore.ag involwacary WXMXXXXEUOCERKKK whose samen snd the
a bbiates tt iMeae certificate and proposed testiaoay is:
: Margarita Le-—> < Be.
Schizophren-a, gearanocic type, chror-c
2 Susan $. iioreno . 0.8.
Schizophrenia, parancid type
(2) Other perscns who are expected to testify ta support ef itavol-
placensnt
urtory Zeecewccvsmpoem and che substance ef cheir proposed testimony are:
Ruch anc Don Alchin, parents. will ses-ify sas to parient « behavior
(21> A pattenc has the right to be represented by sa attorney at the heart
arrt in preparaciun therefore, and if financially wsaable to retain one, the
Cuutt will weppoint en attorney upon returs ef chis Nacice with the follavi
Ayulinvsiion for Attorney fully executec acc swore CO by the petienc, his
gumrdian, ef reprrevenctacive Sey!
r4nGs J. CHRST2
Agp. 30
Judge
A76
t,. » hereby petities the Ceert to
@ppo-nt an actorasy to represent me ia these preceediags.
.
t decture wuder penalty ef perjury thet | dv ewt bawe saevia wf any
kisd for paysent of actorasey fees for such represestation.
(patien:) (guardian) (represeatative)
day of _ ees
Swers cco aad subdscribded before me, this
Betary Pablic
(4) The pacienc bas che righe to am itadependest expert exasiastiosn by «
peychiactrist er peycheolegisc, and if he canumet afferd ene, speoa completios
ef che following Application for Medical Expert, th- Court will appeiat one
wupos recura ef this Nocice, fully executed aad swore te by the patieat, his
gvuecdian, oe representacive.
APPLICATION FOR MEDICAL EXPERT® °
g, . bereby peticies the Ceurt te
appoint an insependent expert te examise we prier te the abeve heariag.
I declare usder penalcy ef perjury that I de ast have assets of aay
aiad for payeenct of an expert's fee for such exaninaction.
(patient) (guardians) (represeatative)
Sworn co and subscribed before we, this day of » 497 ‘
Beotary Public
CERTIFICATE OF MAILIBC
l hereby carsify chat I sailed, except as meted, the sbeve asad fere-
zolag notice to the sased parties by depositing the same ia the United
a |
states cay of Joverha> , RB — “TOO. Wie ee
tweet .
S
Clerk &
’ -euty Clerw
fan or represectatives and facility adwmiaistractor
a: : < @
* Tie patigne and his guard
viall.recwive Notise of Mewring, Application fer Atteruey, and Application
tor Medi. ei Zapecey. | Z
¢ e° e
ce: Paciene’t, “os wey
Facitlicy \teteserracor )
Coardian ) Whes Applicable
First Representative )
Second Representative )
Stace Attorney )
Owes tO
\ THE Cimcwes COURT
OF THE ELEVESTE CUDICIAL CoRCTIT
=*) sup FOR DADE COLNTS FLORIDA
no £1-9434 (03)
ines, GERALD ALCHIN
ORDER APPOINTING COUNSEL
This matter being be‘ore ine Court for consideraiwon pursuant (o Chapre: 592 —Part |. Ficrity Statutes, om een
Gerale Alchin
ee he OR ts! Court sppernicd
counsel, and i being determined by une Court pursuant ‘0 affidamt fied herein 'hai —
Gerald Aascnsn a unable (0 afford counsel. \' + inereiore
ORDERED
|. The Public Defender
Lan aftome. practicing @
Dade County, Florida a hercty appeunted cousuel
Gerald Alchin
to repr
wm all pendang maciers under Chaprer J94—Part |, Flonds Siatures
2 The County of Dade od! py
reasonebie attorney s fees 10 be deiermmed afier a bearing (hereon by the CPOE ul ge
Dada Contry, Florida
ORDERED um
rare 23rd fay of November 1983
. Judge ib, Oe
EDMUND W NEWBOLD
(By authority of Chapter 394—Part |. Flomda Sty cs)
ett. (meme
A78
[App. 33]
AFFIDAVIT
STATE OF FLORIDA )
) ss:
COUNTY OF DADE )
The undersigned, being duly sworn deposes and says:
1. My name is Barry A. Weinstein. I am an Assistant
Public Defender in the office of the Dade County Public
Defender.
2. Iamtrial counsel in G.A. v. PHT, 80-2924-Civ-EBD.
In initiating this federal law suit, it was my opinion that
the conditions under which G.A. was confined at Jackson
Memorial Hospital violated G.A.’s rights under the First,
Sixth, Eighth, Ninth, and Fourteenth Amendments to the
United States Constitution, Sections 2, 4, 9, and 17 of Ar-
ticle I of The Florida Constitution, and Chapter 394,
Florida Statutes.
3. The Public Defender has been appointed to
represent G.A. on five separate occasions by circuit judges
sitting in the probate and juvenile divisions of the
Eleventh Judicial Circuit, Dade County, Florida.
4. I have filed a motion to renew application to pro-
ceed in forma pauperis in G.A. v. PHT, 80-2924-Civ.EBD.
This motion is still pending.
/s/ Barry A. Weinstein
Barry A. Weinstein
SWORN TO and SUBSCRIBED
before me this 11th day of
December, 1981.
/s/ (Illegible)
Notary Public, State of Florida
at large
My Commission expires: May 23, 1984
A79
(Filed December 29, 1981)
IN THE SUPREME COURT OF FLORIDA
CASE NO. 61,376
STATE OF FLORIDA, ex rel. JIM SMITH, Attorney Gen-
eral of the State of Florida, PUBLIC HEALTH TRUST OF
DADE COUNTY, d/b/a JACKSON MEMORIAL HOS-
PITAL, THOMAS J. KELLY, JOSEPHINA PEREZ,
JAMES SUSSEX and ARMANDO MERINO,
Relators,
VS.
BENNETT 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,
Respondents.
REPLY TO RESPONSE TO ORDER TO
SHOW CAUSE
Relators hereby reply to the response to order to show
cause filed by Respondents and state the following:
1) The primary thrust of Respondents’ argument
seems to be twofold, that they have previously handled
cases in similar postures to the case of G.A. et al. v. Public
Health Trust of Dade County et al. and that the interests
of society would be best served by allowing them to
handle cases of such nature.
2) The first of these contentions is plainly without
merit. Respondents’ authority was not challenged in the
proceedings to which they refer, so their handling of those
cases can hardly be said to compel the conclusion that
they are presently acting within the scope of their au-
thority.
A80
Moreover, the cases referred to by Respondents pre-
sented very different situations than is presented by the
case they are now handling.
Perhaps the most significant difference between those
cases and the case Respondents are now handling is that
in those cases, Respondents instituted the suit at a time
when the matters complained of affected their client.
Here, Respondents’ client had already been discharged
and was not at all affected by the challenged practices at
the time the suit was instituted. Thus, whatever validity
there may be to the assertion that Respondents should be
allowed to bring suits of this nature to correct conditions
affecting their clients is of no applicability here.
Further, the cases cited by Respondents involved
situations in which the proceeding instituted by Respon-
dents was instituted at a time when Respondents were ap-
pointed to represent the party in question. Here, by con-
trast, Respondents’ appointment had already terminated,
since their appointment was only “in all pending matters
under Chapter 394-Part I, Florida Statutes,” ( Appendix
to Petition for a Writ of Quo Warranto [hereinafter re-
ferred to as “A"’] 35), and since all such matters had been
concluded before the filing of the federal suit.
The other obvious distinction between the cases Re-
spondents previously instituted and the case now being
litigated is that those cases involved the representation of
persons facing criminal charges. Under such circum-
stances, the First District Court of Appeal, in a case upon
which Respondents place a great deal of reliance, has
upheld the Public Defender’s right to bring suit to chal-
lenge conditions of confinement. Graham v. Vann, 394
50.2d 176 (Fla. lst DCA 1981 Respondents’ attempt to
apply the reasoning of that case here must be rejected as
the court’s conclusion in that case was predicated on
A81
Florida Rule of Criminal Procedure 3.111(b) (2), a rule
which obviously does not come into play here, as no
criminal proceeding ever existed. Additionally, Graham
vy. Vann dealt with a situation in which the Public De-
fender was appointed to do what he did, not one, as here,
in which Respondents unilaterally filed the case, not only
without appointment, but after their appointment had
expired. Further, Graham v. Vann did not deal with an
attempt to go into federal court, an attempt which for
the reasons set forth in section IV(a) of the Petition for
a Writ of Quo Warranto is not within the scope of Re-
spondents’ authority.
Respondents’ only attempt to deal with these dis-
tinctions is to say that the principles of the rule of crim-
inal procedure should also apply to situations in which the
Public Defender is appointed to represent someone in a
mental competency proceeding. Whether those principles
should or should not apply is not relevant here, however.
They apply to a situation only if a rule or statute spe-
cifically applies them and none exist as regards the present
situation. Thus, whatever the merit of having such a rule
or statute for the circumstances dealt with here, Graham
v. Vann, supra, avails Respondents naught, since, quite sim-
ply, no provision comparable to the criminal rule exists.
3) The second primary thrust of Respondents’ argu-
ments deals with numerous policy reasons why they should
be allowed to bring proceedings of the sort dealt with here.
Indeed, strong policy arguments can be made both in sup-
port of and against this premise. Such arguments, how-
ever, are irrelevant here and should be directed to the
legislature. The Public Defender has “no authority out-
side of that provided by statute.” Graham v. Vann, supra,
394 So.2d at 177. This court’s role in this case is therefore
to determine whether Respondents’ present representation
A82
is within the scope of their existing statutory authority,
not whether it should be. Thus, Respondents’ reliance
on the difficulty of other sources providing representation
for persons in a situation similar to that of G.A. is nothing
more than an emotional appeal which ignores the real ques-
tion of Respondents’ statutory authority. Respondents’
arguments in this regard should thus be totally discounted.
Additionally, whatever force may attach to an argu-
ment that Respondents should be allowed to bring such
suits because of their affect on other clients of Respondents
does not change the appropriate conclusion. This is so for
four reasons: (A) There exists no reason why a suit filed
for such a purpose could not be filed while the party to the
suit is affected by the practices. (B) The Public Defender
had no other clients similarly situated in the proceedings
with which this case is concerned, since G.A. was the
only patient of the 46 being treated who was involuntarily
committed. (A 71). (C) It is not likely that Respondents
will usually have clients which are affected by the treat-
ment in question since the 45-1 ratio is and has been over
the years representative of the patient mix at the hospital.
(A 71). Moreover, at least a reasonable number of the
few involuntary patients will unquestionably be solvent.
(Compare Gerstein v. Pugh, 420 U.S. 103, 111. n.11 (1975),
where the Court noted that although the case was moot as
to the named respondents, it was safe to assume that the
Public Defender had other clients with a continuing live
interest in the case.) (D) Whatever the attractiveness of
Respondents’ premise in a vacuum, the fact remains that
any representation undertaken by Respondents must be
authorized by statute and their present representation is
not.
4) Several other points made by Respondents will
also be replied to here.
A83
5) The contention that Respondents are not repre-
senting G.A. as regards his damage claim can be dealt
with by simply looking to the fact that the amended com-
plaint seeking damages is submitted by Respondents and
Eugene Zenobi. (A 120). There is no distinction drawn
among the attorneys. Thus, it is clear that Respondents
are among the attorneys of record for the damage claim as
well as the original request for relief. If it was Respon-
dents’ desire that they not be involved in the damage
claim, they should not have allowed Mr. Zenobi to par-
ticipate in the suit, but should have told him to institute
a separate suit for damages and perhaps seek consolida-
tion. Under the circumstances that exist, however, it seems
likely that Mr. Zenobi joined Respondents because Re-
spondents were aware that the present request for quo
warranto would be filed (Respondent Weinstein was so
informed by the undersigned at a hearing in the federal
case which occurred well before the filing of the amended
complaint) and felt that it was probable that their con-
tinued representation would be precluded by this court.
In any event, it is clear that even though Mr. Zenobi
may have actually prepared the changes in and additions
to the complaint, Respondents are also representing G.A.
as to the damages claim, representation which Respondents
have at least implicitly conceded would be improper. The
writ of quo warranto should thus clearly issue at least as
to this aspect of Relators’ claims.
One other point should also be briefly noted here. Mr.
Zenobi’s willingness to participate in the case demonstrates
that perhaps the problems Respondents assert exist in
providing representation for persons such as G.A. are not
as insurmountable as Respondents would contend.
6) Respondents also point to the fact that cases of
the sort dealt with here make up a small percentage of
A84
their caseload. This fact is immaterial. If Respondents’
representation is in excess of their authority, they should
not be allowed to continue in such a manner. Moreover,
given the caseload problems of Respondents’ office (see
Section VI of Petition for a Writ of Quo Warranto), even
the handling of one case which Respondents should not be
handling has an impact. Certainly, for instance, the time
spent on the federal case with which this proceeding is
concerned could have been utilized to prepare a brief in a
capital case.
7) Respondents rely on the fact that the decision to
file the federal complaint as a class action was a tactical
one, based on the likelihood of obtaining relief for both
G.A. and other individuals. The mere fact that a deci-
sion is tactical is of no import. Respondents still must have
the authority to act and here they simply do not. More-
over, as discussed in paragraph three of this reply, Re-
spondents had no other clients similarly situated and are
not likely to have such clients at any given time.
8) In arguing that they believe their client to be
indigent, Respondents rely on determinations made by
the state circuit court at times other than that at which
the federal court made its determination. Whether G.A.
was indigent at those times has no bearing on the question
of whether he is currently indigent or on how the court
hearing the present case has ruled. The fact remains
that the court before whom the proceeding in which Re-
spondents’ authority is being questioned is pending has
determined that G.A. is not indigent. This determina-
tion must take priority over other determinations by
other courts and precludes Respondents’ representation.
9) Respondents’ contention regarding access to the
courts can be rejected with little discussion. Respon-
A85
dents’ clients are in no way denied access to the courts.
They can file whatever proceedings they wish, either
pro se or with whatever counsel they are able to obtain.
To accept Respondents’ claim is to say that access to the
courts automatically includes an attorney at taxpayers
expense in every case, civil or criminal, and to thus estab-
lish a civil public defender system, a concept which can
be supported by no authority whatsoever. Even if such
a concept could be supported, the obligation to provide
such counsel in the federal courts would fall to the federal
public defender, not the state public defender.
10) Respondents’ assertions regarding ethical obliga-
tions are also without merit. The State is required to
supply an attorney to persons in certain situations, but
certainly not in the situation presented here. To accept
Respondents’ contention that they are ethically required
to pursue matters in addition to those for which they
are appointed is to extend ethical obligations to an un-
heard of and unrealistic point. Pursuing a civil suit in
federal court in no way furthers Respondents’ representa-
tion in state court in the matters for which they were ap-
pointed. The opinion in Graham v, State, 372 So.2d 1363
(Fla. 1979), relied upon by Respondents does not affect
this conclusion. The reference cited by Respondents in
that case is to continued pursuit in the federal courts of
the same reliet sought in the state courts. Moreover, it
dealt with private attorneys appointed by the court, not
public defenders, attorneys not bound by statutory require-
ments. It is also significant to realize that this court de-
clined to allow those attorneys to receive compensation
from state funds for their continued handling of the case,
thus demonstrating that state funds in the form of public
defender salaries should also not be so expended. Finally,
in this regard, it should be realized that any ethical ob-
A86
ligation would be fulfilled by referring a client to a private
attorney such as Mr. Zenobi who could handle the case.
11) Respondents point to the case of G.R. v. Taylor,
United States District Court, Southern District of Florida,
Case no. 80-3021-CIV-EBD, and assert that it upheld the
Public Defender’s authority to bring a federal suit in
light of a federal grant that office had received. The
case is totally inapplicable here. In the first place, the
grant expired prior to the institution of the case from
which this proceeding arose. (Response to Order to Show
Cause, p. 11). Moreover, the grant guidelines (a copy of
which is attached to this reply) provide that the costs
must “[b]Je authorized or not prohibited under State or
local laws or regulations.” (p. 7). For the reasons set
forth in the initial petition, this requirement is not met in
Florida by bringing suits such as G.R. v. Taylor.
12) Respondents’ only response to the challenge to
their authority to litigate a moot case is to say that since
the federal court has not yet ruled on the suggestion of
mootness, the case is not moot. (Response, p. =. This
ignores the fact that the mootness argument Relators is
making is premised initially on the conclusion that Re-
spondents cannot seek damages. Since that claim has
been added, it would appear that the federal proceeding as
a whole is not moot. Since. however, Respondents cannot
represent G.A. as to that aspect of the claim, and since
the remaining claims are plainly moot, (Indeed, Respon-
dents have not even challenged that assertion. ), Respon-
dents’ efforts can have no practical effect and they are
litigating a moot case. Respondents’ statements regarding
the letter from the undersigned to the federal judge are
to say the least puzzling. The letter referred to the pos-
sibility of the case pending before this court becoming
A87
moot, not the federal case. The letter is thus of no rele-
vance here whatsoever.
13) Respondents contend that they are not repre-
senting plaintiff R.A. in the federal suit since Federal Rule
of Civil Procedure 17 (c) requires that minors sue through
an adult next friend. That rule, however, provides that
“CaJn infant . . . may sue by his next friend... .” It
is thus discretionary whether to sue by a next friend. In-
deed, it has been held that it is proper to allow a minor
to bring suit anonymously and not even notify her parents.
M.S. v. Wermers, 557 F.2d 170, 176 (8th Cir. 1977). It is
thus apparent that R.A. was not a necessary party. Re-
spondents’ representation of her is thus improper.
14) Respondents’ attempts to circumvent Relators’
claims are for the reasons discussed previously herein quite
unpersuasive. It is significant to note that Respondents
have not even attempted to answer the argument that they
cannot represent a person in any proceeding without a
specific appointment regarding that proceeding. (Petition
for a Writ of Quo Warranto, p. 10). Their silence speaks
volumes.
CONCLUSION
Respondents have relied upon a misdirected emotional
appeal, a ‘“‘squatter’s rights” theory that because they have
done something before, they are immune from challenge
to their doing it again, and an attempt to apply principles
which might arguably be applicable in criminal cases in
which their client is actually affected and in which they
were appointed to handle the case, conditions which do
not exist here. Respondents’ arguments cannot overcome
the one basic principle applicable to each of the contentions
set forth by Relators, that Respondents lack the statutory
A88
authority to handle the federal case which gave rise to this
proceeding. The writ should issue.
Respectfully submitted,
Jim Smith
Attorney General
/s/ Anthony C. Musto
Anthony C. Musto
Assistant Attorney General
Chief Counsel, Miami Division
Department of Legal Affairs
401 N.W. 2nd Avenue, Suite 820
Miami, Florida 33128
(305) 377-5441
Melinda S. Thornton
Assistant County Attorney
Of Counsel
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of
the foregoing Reply to Response to Order to Show Cause
was furnished by mail to Parker D. Thomson, PAUL &
THOMSON, 1300 Southeast First National Bank Building,
Miami, Florida 33131, on this 28th day of December, 1981.
s/ Anthony C. Musto
Anthony C. Musto
Assistant Attorney General
A89
Apr. 30, 1973 M 7100.1A
Appendix 1
APPENDIX 1. TEXT OF OFFICE OF MANAGEMENT
AND BUDGET CIRCULAR No. A-87
EXECUTIVE OFFICE OF THE PRESIDENT
Bureau of the Budget
Washington D.C. 20503
May 9, 1968 CIRCULAR NO. A-87
TO THE HEADS OF EXECUTIVE DEPARTMENTS AND
ESTABLISHMENTS
SUBJECT: Principles for determining costs applicable to
grants and contracts wiih State and local gov-
ernments
1. Purpose. This Circular promulgates principles and
standards for determining costs applicable to grants and
contracts with State and local governments. They are de-
signed to provide the basis for a uniform approach to the
problem of determining costs and to promote efficiency and
better relationships between grantees and their Federal
counterparts.
2. Coverage. This Circular applies to all Federal agen-
cies responsible for administering programs that in-
volve grants and contracts with State and local govern-
ments. However, it does not apply to grants and contracts
with (a) publicly financed educational institutions subject
to Bureau of the Budget Circular No. A-21, and (b) pub-
licly owned hospitals and other providers of medical care
subject to requirements promulgated by the sponsoring
Federal agencies. Any other exceptions will be approved
by the Bureau of the Budget in particular cases where ade-
quate justification is presented.
A90
3. Cost principles. The principles to be followed in de-
termining costs are set forth in Attachment A. Standards
with respect to the allowability of selected items of cost are
set forth in Attachment B.
4. Effective date. The principles will be applied at the
earliest practicable date but not later than January 1,
1969, with respect to State governments and January 1,
1970, with respect to local governments. This arrangement
will permit prompt implementation in programs where
that is possible, but also allow time for study and develop-
ment of necessary procedures in more complex programs.
Phillip S. Hughes
Acting Director
Attachments
Table of Contents
Attachment A - PRINCIPLES FOR DETERMINING
COSTS APPLICABLE TO GRANTS
AND CONTRACTS WITH STATE AND
LOCAL GOVERNMENTS
Page
A. Purpose and scope
1. Objectives ‘ 1
2. Policy guides , ie ]
® Appicstion ne secede sa caye 1
B. Definitions
1. Approval or authorization of the grantor Fed-
Cre: Oeetey REMC ARE at ]
Cost allocation plan . He
Ge Ce : oo 2
mo ts
Cost objective ane, bia seelucbuenetacas, 2
ee
5
6.
. ee Ore
8. Grantee ............ ee ee
9. Local units
16. Other State or local agencies ................................
li. services ....... i EE cee
12. Supporting services
Basic guidelines
1. Factors affecting allowability of costs
2. Allocable costs
3. Applicable credits
Composition of cost
1. Total cost eb ope ue
2. Classification of costs
Direct costs
1. General SOS ne on anne
2. Application EAU NDT PONCE EEO EN GINSUTECS
Indirect costs
1. General a sees reaceee se ckanes
2. Grantee departmental indirect costs ...........
3. Limitation on indirect costs
Cost incurred by agencies other than the grantee
1. General .... fendi ern ia lana een eens UL MONE
2. Alternative methods of determining indirect
OO iw bees Sey eee
Cost incurred by grantee department for others
1. General ee ee LO ae ce:
NNO NN WW DH 8
J. Cost allocation plan
——s
?)
©
=
©
3
Sy)
st
No
Requirements .... ee
3. Approval of cost allocation plan .
TABLE OF CONTENTS
Attachment B - STANDARDS FOR SELECTED ITEMS
OF COST
A. Purpose and applicability
Re 1
2. Application l
B. Allowable costs
Accounting l
2. Advertising ...... l
3. Advisory councils ]
4. Audit service ]
+. Bonding 2
. Dusetneg _.. beers 2
7. Building lease management 2
8. Central stores 2
9. Communications 2
10. Compensation for personal services 2
11. Depreciation and use allowances . 3
‘ sueuurene serve 4
i peepee iringe benefity. oo -
14. Employee morale, health and welfare costs ____. +
eR 8 MSRM UEP eS OEOSGIRD en AOL ett Ue aie oN ue 4
1 eee 4
A93
PRMCOT ORS BO BUCS —. ees
Memberships, subscriptions and professional
i i tee
Motor pools .......... oe ee
Te RT eee
Personnel administration
Printing and reproduction
Procurement service
Taxes
Training and education
Transportation
Travel
Costs allowable with approval of grantor agency
Dn
e
i.
8.
Automatic data processing
Building space and related facilities
Capital expenditures
Insurance and indemnification
Management studies
Preagreement costs
Professional services
Proposal costs
Unallowable costs
rr YY
Do op
_
© ©
Bad debts ...... ecu.
Loerie 2... ee ons
Contributions and donations
Settee pata
Oe Ne I ie
[oer 6 Cees |
Interest and other financial costs .
one Crees...
Underrecovery of costs under grant agreement
6
~]
ce CWO WO @wMOOoooe
A94
ATTACHMENT A
Circular No. A-87
PRINCIPLES FOR DETERMINING COSTS APPLICABLE
TO GRANTS AND CONTRACTS WITH STATE AND
LOCAL GOVERNMENTS
A. Purpose and scope.
1. Objectives. This Attachment sets forth principles
for determining the allowable costs of programs admin-
istered by State and local governments under grants from
and contracts with the Federal Government. The princi-
ples are for the purpose of cost determination and are
not intended to identify the circumstances or dictate the
extent of Federal and State or local participation in the
financing of a particular grant. They are designed to pro-
vide that federally assisted programs bear their fair share
of costs recognized under these principles, except where
restricted or prohibited by law. No provision for profit
or other increment above cost is intended.
2. Policy guides. The application of these principles
is based on the fundamental premises that:
a. State and local governments are responsible
for the efficient and effective administration of grant and
contract programs through the application of sound man-
agement practices.
b. The grantee or contractor assumes the re
sponsibility for seeing that federally assisted program funds
have been expended and accounted for consistent
underlying agreements and program objectives
c. Each grantee or contractor organization. in
recognition of its own unique combinatior
and experience, will have the primary responsibility
A95
employing whatever form of organization and management
techniques may be necessary to assure proper and effcient
administartion.
3. Application. These principles will be applied by
all Federal agencies in determining costs incurred by State
and local governments under Federal grants and cost re-
imbursement type contracts (including subgrants and sub-
contracts) except those with (a) publicly financed educa-
tional institutions subject to Bureau of the Budget Cir-
cular A-21, and (b) publicly owned hospitals and other
providers of medical care subject to requirements pro-
mulgated by the sponsoring Federal agencies.
B. Definitions.
1. Approval or authorization of the grantor Federal
agency means documentation evidencing consent prior to
incurring specific cost.
2. Cost allocation plan means the documentation
identifying, accumulating, and distributing allowable costs
under grants and contracts together with the allocation
methods used.
[2]
3. Cost, as used herein, means cost as determined on
a cash, accrual, or other basis acceptable to the Federal
grantor agency as a discharge of the grantee’s accountability
for Federal funds
- :
4 Cost objectivte means a pool,
tablished for the accumulation of cost. Such areas include
4
center, Or aréa es
organizational units, functions; objects or items of expense,
1} j els j : ’ _
as well as ultimate cost objectives inciuding pecilic grants,
projects, contracts, and other activities
5. Federal agency means any department, agency,
commission. or instrumentality in the executive branch of
A96
the Federal Government which makes grants to or con-
tracts with State or local governments.
6. Grant means an agreement between the Federal
Government and a State or local government whereby the
Federal Government provides funds or aid in kind to carry
out specified programs, services, or activities. The prin-
ciples and policies stated in this Circular as applicable to
grants in general also apply to any federally sponsored
cost reimbursement type of agreement performed by a
State or local government, including contracts, subcon-
tracts and subgrants.
7. Grant program means those activities and opera-
tions of the grantee which are necessary to carry out the
purposes of the grant, including any portion of the pro-
gram financed by the grantee.
8. Grantee means the department or agency of State
or local government which is responsible for administra-
tion of the grant.
9. Local unit means any political subdivision of gov-
ernment below the State level.
10. Other State or loca! agencies means departments
or agencies of the State or local unit which provide goods,
facilities, and services to a grantee.
11. Services, as used herein, means goods and fa-
cilities, as well as services
12. Supporting services means auxiliary functions
necessary to sustain the direct effort involved in admin-
istering a grant program or an activity providing service
to the grant program. These services may be centralized
in the grantee department or in some other agency, and
include procurement, payroll, personnel functions, main-
tenance and operation of space, data processing. accounting
budgeting, auditing, mail and messenger service, and the
like.
[3]
C. Basic guidelines.
1. Factors affecting allowability of costs. To be al-
lowable under a grant program, costs must meet the fol-
lowing general criteria:
a. Be necessary and reasonable for proper and
efficient administration of the grant program, be allocable
thereto under these principles, and, except as specifically
provided herein, not be a general expense required to
carry out the overall responsibilities of State or local
governments.
b. Be authorized or not prohibited under State
or local laws or regulations.
c. Conform to any limitations or exclusions act
forth in these principles, Federal laws, or other govern-
ing limitations as to types or amounts of cost items.
d. Be consistent with policies, regulations, and
procedures that apply uniformly to both federally assisted
and other activities of the unit of government of which
the grantee is a part.
e. Be accorded consistent treatment through ap-
plication of generally accepted accounting principles ap-
propriate to the circumstances.
f. Not be allocable to or included as a cost of
any other federally financed program in either the current
or a prior period
g. Be net of all applicable credits
2 Allocable costs
a A cost 1s allocable to a particulal cost ob
jective to the extent of benefits received by such objective
Ag98
b. Any cost allocable to a particular grant or
cost objective under the principles provided for in this
Circular may not be shifted to other Federal grant pro-
grams to overcome fund deficiencies, avoid restrictions
imposed by law or grant agreements, or for other reasons.
ec. Where an allocation of joint cost will ultimately
result in charges to a grant program, an allocation plan
will be required as prescribed in section J.
3. Applicable credits.
a. Applicable credits refer to those receipts or
reduction of expenditure-type transactions which offset
or reduce expense items allocable to grants as direct or
indirect costs. Examples of such transactions are:
[4] purchase discounts; rebates or allowances, recoveries
or indemnities on losses; sale of publications, equipment,
and scrap; income from personal or incidental services;
and adjustments of overpayments or erroneous charges.
b. Applicable credits may also arise when Federal
funds are received or are available from sources other than
the grant program involved to finance operations or capital
items of the grantee. This includes costs arising from the
use or depreciation of items donated or financed by the
Federal Government to fulfill matching requirements under
another grant program. These types of credits should
likewise be used to reduce related expenditures in de-
termining the rates or amounts applicable to a given
grant.
D. Composition of cost.
1. Total cost. The total cost of a grant program is
comprised of the allowable direct cost incident to its
performance, plus its allocable portion of allowable in-
direct costs, less applicable credits.
Ag9
2. Classification of costs. There is no universal rule
for classifying certain costs as either direct or indirect
under every accounting system. A cost may be direct
with respect to some specific service or function, but in-
direct with respect to the grant or other ultimate cost
objective. It is essential therefore that each item of
cost be treated consistently either as a direct or an indirect
cost. Specific guides for determining direct and indirect
costs allocable under grant programs are provided in the
sections which follow.
E. Direct costs.
1. General. Direct costs are those that can be identi-
fied specifically with a particular cost objective. These
costs may be charged directly to grants, contracts, or to
other programs against which costs are finally lodged.
Direct costs may also be charged to cost objectives used
for the accumulation of costs pending distribution in due
course to grants and other ultimate cost objectives.
2. Application. Typical direct costs chargeable to
grant programs are:
a. Compensation of employees for the time and
effort devoted specifically to the execution of grant pro-
grams.
b. Cost of materials acquired, consumed, or ex-
pended specifically for the purpose of the grant.
c. Equipment and other approved capital ex-
penditures.
d. Other items of expense incurred specifically
to carry out the grant agreement.
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[5]
e. Services furnished specifically for the grant
program by other agencies, provided such charges are con-
sistent with criteria outlined in Section G. of these prin-
ciples.
F. Indirect costs.
1. General. Indirect costs are those (a) incurred
for a common or joint purpose benefiting more than one
cost objective, and (b) not readily assignable to the cost
objectives specifically benefited, without effort dispropor-
tionate to the results achieved. The term “indirect costs,”
as used herein, applies to costs of this type originating in
the grantee department, as well as those incurred by other
departments in supplying goods, services. and facilities, to
the grantee department. To facilitate equitable distribu-
tion of indirect expenses to the cost objectives served, it
may be necessary to establish a number of pools of indirect
cost within a grantee department or in other agencies pro-
viding services to a grantee department. Indirect cost
pools should be distributed to benefiting cost objectives
on bases which will produce an equitable result in consid-
eration of relative benefits derived.
2. Grantee departmental indirect costs. All grantee
departmental indirect costs, including the various levels
of supervision, are eligible for allocation to grant programs
provided they meet the conditions set forth in this Circular.
In lieu of determining the actual amount of grantee de-
partmental indirect cost allocable to a grant program, the
following methods may be used:
a. Predetermined fixed rates for indirect costs.
A predetermined fixed rate for computing indirect costs
applicable to a grant may be negotiated annually in situa-
Al0l
tions where the cost experience and other pertinent facts
available are deemed sufficient to enable the contracting
parties to reach an informed judgment (1) as to the prob-
able level of indirect costs in the grantee department dur-
ing the period to be covered by the negotiated rate, and
(2) that the amount allowable under the predetermined
rate would not exceed actual indirect cost.
b. Negotiated lump sum for overhead. A nego-
tiated fixed amount in lieu of indirect costs may be appro-
priate under circumstances where the benefits derived
from a grantee department's indirect services cannot be
readily determined as in the case of small, self-contained
or isolated activity. When this method is used, a deter-
mination should be made that the amount negotiated will
be approximately the same as the actual indirect cost that
may be incurred. Such amounts negotiated in lieu of in-
direct costs will be treated as an offset to total indirect
expenses of the grantee department before allocation to
remaining activities. The base on which such remaining
expenses are allocated should be appropriately adjusted.
[6]
4
3. Limitation on indirect costs.
a. Federal grants may be subject to laws that
limit the amount of indirect cost that may be allowed.
Agencies that sponsor grants of this type will establish
procedures which will assure that the amount actually al-
lowed for indirect costs under each such grant does not ex-
ceed the maximum allowable under the statutory limita-
tion or the amount otherwise allowable under this Circular,
whichever is the smaller.
b. When the amount allowable under a statutory
limitation is less than the amount otherwise allocable as
Alv2
indirect costs under this Circular, the amount not recover-
able as indirect costs under a grant may not be shifted to
another federally sponsored grant program or contract.
G. Cost incurred by agencies other than the grantee,
1. General. The cost of service provided by other
agencies may only include allowable direct costs of the
service plus a prorata share of allowable supporting costs
(section B.12.) and supervision directly required in per-
forming the service, but not supervision of a general nature
such as that provided by the head of a department and his
staff assistants not directly involved in
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