Published in Miami Daily Business Review, Broward Daily Business Review, and Palm Beach Daily Business Review.
8/24/05
Territorial conflict
Miami case over pretrial release of accused criminals spurs justices to seek input on rules from lawmakers
In the latest tussle over the constitutional separation of powers, the Florida Supreme Court has struck down the Legislature's move to change the rules governing pretrial release of defendants charged with serious crimes.
But the justices, in an apparent effort to avoid inflaming Republican lawmakers, expressed a desire to work with the Legislature on the rules.
"We are particularly concerned that we be fully informed as to the policy concerns of the Florida Legislature before we take any final action on these rules," the court majority said in the June 30 ruling in State v. Raymond, which was written by Justice Peggy A. Quince.
By a 5-2 vote, the Supreme Court upheld the rulings of two lower courts that Florida Statute 907.041(4)(b) - which was passed in 2000 and which forbade judges from granting nonmonetary, pretrial release at a first appearance hearing to defendants accused of what the statute deemed "dangerous crimes" - violated the separation of powers. The court invited the Legislature to file comments on the case by next Monday.
"I think the court is drawing the line with regard to procedural rules, and saying, 'That's our territory,' " said Nancy Daniels, legislative co-chair of the Florida Public Defender Associa-tion. "And yet I think they're doing it in a conciliatory fashion by inviting comments."
The intent of the 2000 bill, according to the legislative history, was to create a presumption in favor of nonmonetary pretrial release for defendants who qualified for pretrial release in general.
But such a presumption already existed in Florida Rules of Criminal Procedure 3.131 and 3.132, which required judges to decide a defendant's eligibility for pretrial release at the first appearance hearing. The 2000 bill - which repealed these rules "to the extent of inconsistency with the act" - actually created a major exception to the presumption.
The exception applied to defendants accused of any of 20 offenses deemed dangerous, including arson, carjacking and acts of domestic violence. The goal of the legislative provision was unclear, although an attorney who worked on the case but did not want to be identified suggested that it may have been intended to improve public safety by keeping dangerous offenders off the streets longer.
The justices struck down the (4)(b) provision, holding that by attempting to change the timing and order of court proceedings in cases affected by the statute, the Legislature was enacting a procedural rather than a substantive change to the law. Under Article V, Section 2 of the Florida Constitution, the Supreme Court has the exclusive power to "adopt rules for the practice and procedure in all courts."
"Because the right to nonmonetary pretrial release is not itself at issue ... this is not a substantive provision. The provision at issue here merely affects the timing of the release," the majority wrote. "Although the Legislature may repeal a court procedural rule, it cannot create a new procedural rule by statute."
Justices R. Fred Lewis and Kenneth B. Bell dissented but did not issue their own opinions.
The court majority recognized that striking down the legislative provision created "a vacuum" in the rules for nonmonetary pretrial release, so it temporarily reinstated Florida Rules for Criminal Procedure 3.131 and 3.132 in their entirety. The court, however, invited the Legislature to file comments regarding the case by the end of this month before deciding whether to return to these rules permanently.
This isn't the first time that the state Supreme Court - the majority of whose members are Democratic appointees - and the Republican-dominated Legislature have come into conflict over the separation of powers. Last year, GOP leaders unsuccessfully proposed a bill to have voters adopt a constitutional amendment giving the Legislature the power to write judicial rules of procedure. Gov. Jeb Bush and legislative Republicans frequently have criticized the state Supreme Court for what they consider its failure to properly defer to the executive and legislative branches.
Some observers see another profound issue in this case - the right to a presumption of innocence. "Everyone who is arrested has the right to be considered for bond, even if they're arrested for a dangerous offense," Daniels said. "I think maybe the Legislature just doesn't understand that when someone's arrested, they're not guilty yet."
The Florida Prosecuting Attorneys Association and state Sen. Walter "Skip" Campbell, D-Tamarac, who sponsored the 2000 bill, did not return calls for comment.
Logistical nightmare
State v. Raymond started in February 2002, when Marti Cassandra Raymond was brought to Miami-Dade County Court for a first appearance on charges of misdemeanor battery involving domestic violence. It was her first offense, and the court found her eligible for nonmonetary release to pretrial services.
About half of Florida's counties have some form of pretrial release services, which allow many noncapital defendants to be released without bond after their first court appearance. Eligible defendants are screened to determine whether they are a safe risk, and they are often subject to monitoring or home visits. The programs provide some relief for an overcrowded jail system. But critics, including the bail bond industry, say this comes at the cost of public safety.
In Raymond's case, despite finding that she qualified for pretrial release services, the judge told her on a Friday that he was required to set a bond at her second appearance, citing statute 907.041(4)(b). Raymond could not post the $1,500, so she stayed in jail over the weekend to await her second hearing on Monday morning.
The Miami-Dade public defender's office filed a motion challenging the statute's constitutional validity. The judge denied the motion but certified the question to the Miami-Dade Circuit Court appellate division, which ruled in May 2002 that the statute was unconstitutional because it was a purely procedural rule. The 3rd District Court of Appeal affirmed the lower court in June 2003. The state appealed.
The separation of powers wasn't the only issue in the case. The statute presented a logistical nightmare for criminal courts. If judges could not grant pretrial release to certain defendants at first appearance hearings, this meant scheduling a second appearance, usually with no new information available between hearings.
The effect, according to John Eddy Morrison, the Miami-Dade assistant public defender who initiated the challenge to the statute, was to create twice as much work for judges, lawyers, clerks and sheriffs. There was no apparent benefit to these double hearings.
In fact, Morrison told the Supreme Court during oral arguments in March 2004, there was no reason that judges could not schedule the first and second appearances back to back to satisfy the letter of the law.
At the March hearing, John Barker, the assistant attorney general who represented the state in its appeal, argued that the portion of the statute in question was part of a larger, substantive scheme that dealt with the "right of the public to be protected from those charged with dangerous crimes."
Barker said the Legislature may have intended to provide more time for the court system to conduct a thorough background check of defendants before releasing them. According to Morrison's testimony, however, the pretrial services investigation is typically complete by the time of the first appearance.
'Sham proceedings'
During the oral arguments, the justices were critical of the second-appearance requirement, which put judges in the position of scheduling the first and second appearances consecutively. "If the statute doesn't mean that, then tell us how you would construe it not to have that absurd result?" Justice Barbara J. Pariente asked Barker.
"It seems to me that ... this thing is almost inviting sham proceedings," remarked then-Chief Justice Harry Lee Anstead. "What is it, really, that can be accomplished in a positive, constructive way through this procedure?"
Justice Pariente pressed Barker further. "You think that even though judges are already overloaded as it is, that they should have to have a [second] hearing that they don't have time to have? That's what you're telling us to do?" she asked Barker incredulously.
Although the Supreme Court's decision striking down the 2000 legislative requirement for a second appearance hearing was not released until two months ago, the issue in real terms has been settled for a while.
Morrison testified that as soon as the Miami-Dade Circuit Court appellate division declared the statute unconstitutional in 2002, Miami-Dade criminal court judges went back to scheduling just one first appearance hearing per defendant for most cases. "You could say there were shouts of joy and thanksgiving," he told the justices.
While Daniels said the 2000 statute did have an impact on domestic violence courts around the state, Morrison downplayed its impact in his argument to the justices last year.
When asked by Justice Pariente about the statewide effect of the law, Morrison surprised the justices by saying that "as far as I can tell, the only court that ever actually enforced this was the 11th Circuit."
"What are you saying?" asked Justice Peggy A. Quince. "That judges, even if the person is accused of one of these dangerous crimes, put people in pretrial release anyway?"
"They didn't know about the statute, I think," Morrison replied.
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