# Appendix — Brummer v. Florida ex rel. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1084%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 464 U.S. 823 ## Text Por: s2-1960 "> No | 5 iti bd — ~ 2 TS a GP endl ~ GP . 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 INTHE, Cana COURT a reat eng eee 5**Sebonty eroripa £1 -3435-02 “yh we hh bear, Connie wjpar 5/2 g/1fés ‘i AND pt > CONTERCATE® creviously examuned and evaluated. de placed «= @ 4 Creatment ‘acidity ant | Cemppatec representatives are A : a ee A4p aT 4 Coal oll, loa teem Lt OY LO, yO me 2 MENTAL BEALTH PR ‘S (GP) OPINION - ‘ Py : vidoe & eC PMS Pe Lh mental pment ee CBee! i (ae pracuce ws the Siace of Ploruta, having persoeaily cxamamad (fn WT. a oe oe . on ~ J l= a ne cape an Lenina fib —— Gagnosed 34 ah *» me 2 ie = ¥ =. or others f aiowed : AS fe aa a) A CH -*. (Sy ' aA mee 2 a > apn author se pracuca ia the Site of Flcnds. having personally exarmacd emit Pe PSC —_ on \\ OH ak . se matin five (5) days of the wgmng aereut and fing {rem such examnavon (he) (she) © mentally @. haves * dhagrosec as ‘ pon ae pron anc Secause of (his) (her) wines @ [likely (0 inure (hammetf) (hersaif) oF others ot Showed to remain at liberty | * fis seed of care cr trestment wtuch. / sot provided. may a eesemunere wegec: OF refi poses 4 real and present threat of rabetaacal harm to his wal beng) . : = a a a ee Oe | 6. Se hel om * The pauent and %is guardian oF representatives hal recerve copies of the Petitun for lewoty vy Placement CeraLea‘e cc Patent Guardian ) When spplasbie ~ FILED - First Representative } RICHAPT P GRIN" Second Representative ) CRN (By authonty of Chapter 94 467 (2), Fiomda Statutes) NOV20 1981 Giri? cc :: fbn: * F Gate COs ¥ WB—dere MORAG TOTR. Seer TP (Cuneteus somes oo nen & Chere BA—37) 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 * ~ iN RE (ED tna: pen been flied win tne Cuwnty Flonda on the quetian of Court. should be ordered retarnet or confines fo: nvoluniar placement. A paleent may apply for voluntary placement. A saient may waiee heanng by executing and reiumung io the admunnisater che attached Waiver oi Hearing. if sa16 Reanng % nor waved within five (5) Gays from the daie on the Peuuon fr involuntary Placement not Pocamen: Certifleaie Une court shall be soufied by Une edmrunuiraior (0 proceed e1Uh wetting 2 time and place for a heans, : A pateent may be represenied by .owmse! si the hearing and Vf fiaaacully vasbic (0 retain counsel. Counsel will be appomies by the court upon return of the attached Application for Atiorne, fully execwied By the paient. hes Fuser lian. Of represeniaine if une hepa waved, the paven!. ha guardian of represenistree way appl) at an ume wie mx ('! months from tha éaie of (he Pigecment Cerficase for a bearing on ‘he need for = placement «by ingnimg Une attached Penties for Heanng an. mdcaung ibe court of raven A Pe::uen ‘or Heanng may de filed erik 2 court m ihe county in which the paurni + placed a the tee the certifieste 3 exacuied A tts of courts and the yudges’ names fer cach coun!) m Une $1 1¢ @ atiached 10 enable the patent tc é.rect hus curses and file has peition m Uke eppropnat v7, f i &/ A eum = sommes =— ams scm eins as a ee CERTIFICATE OF MAILING thereby cerufy ina: | mailed the above and foregus the named p, bs Jepun se ame in the ned Siaves Poss Clie on ie * The sairent and Art gustan ue representatives small ieserve cote ot the Porte ne deat Pucement snl Po,ement Cerufaste Waoewer of Hearing for invedwotan = Placemen: Potne terg Hearn, oo Inedumtaey Peement and Arpicatees Sor at Attoenew cen Notice ot Perrin fot bicemantens Plas'e we -FILEO ~ ; RECHARD KER ) 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-—> 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: : ‘ Naw ee ae ee rr} : " mF mia ~ 1. “ ua? P (tie ines), postage, messenger service and similar expenses are allowable 10. Compensation for personal services a. General. Compensation for personal services includes all remuneration, paid currently or accrued, for Son ee a > gab | 5 | ry . ° } 1m TING ) ring the period of performance under the grant agreement, including but not necessarily limi to wages, salaries, and supplementary compensatic Al07 benefits (section B.13.). The costs of such compensation are allowable to the extent that total compensation for individual employees: (1) is reasonable for the services rendered, (2) follows an appointment made in accordance with State or local government laws and rules and which meets Federal merit system or other requirements, where applicable; and (3) is determined and supported as pro- vided in b. below. Compensation for employees engaged in federally assisted activities will be considered reasonable to the extent that it is consistent with that paid for similar work in other activities of the State or local government. In cases where the kinds of employees required for the federally assisted activities are not found in the other activities of the State or local government, compensation will be considered reasonable to the extent that it 1s com- parable to that paid for similar work in the labor market in which the employing government competes for the kind of employees involved. Compensation surveys pro- viding data representative of the labor market involved will be an acceptable basis for evaluating reasonableness. b. Payroll and distribution of time. Amounts charged to grant prog [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1084%3A2. Public record. Not legal advice.