IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MIAMI-DADE COUNTY THE STATE OF FLORIDA,

Plaintiff, vs. GREGORY MARTIN, Defendant _____________________________/ CRIMINAL DIVISION CASE NO.: F11-003648 JUDGE SIGLER

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DECLARE SECTION 27.5304 FLORIDA STATUTES (2012) UNCONSTITUTIONAL

This cause having come before the court on Defendants Motion, and the court having held a hearing on October 19, 2012, finds as follows: I The Session Law Amending chapter 27, Florida Statutes (2012) Violates the Single Subject Rule.

Chapter 2012-123, (Senate Bill 1960), amends various sections of Chapter 27, 39 and 318. Section 1 amends 27.40, court appointed counsel. It also sets up the limited registry. Section 2 amends 27.511, which sets qualifications for criminal conflict and civil regional counsel. Section 3 amends 27.52, determination of indigent status by the clerk of court. Section 4 amends 27.5304, which concerns compensation of private court appointed counsel and sets the flat fee that cannot be exceeded. While there may be a logical connection between the first 4 sections of Chapter 2012-123, the same cannot be said for the later sections. Section 5 amends 39.8296, which creates a statewide guardian ad litem office within the JAC. Section 6 creates 39.8297, which provides for county funding of guardian ad litem employees. Section 7 is totally unrelated to indigent defendants and guardian ad litems. It amends 318.18, allowing counties to impose a surcharge. The single subject rule can be traced to ancient Rome, where crafty lawmakers learned to carry an unpopular provision by harnessing it up with one more favored. To prevent this nefarious practice, the Romans in 98 B.C. forbade laws consisting of unrelated provisions. Robert Luce, Legislative Procedure 548 (1922).
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Defendant contends that this violates the single subject rule set forth in Heggs v. State, 759 So.2d 620, 620 (Fla. 2000). Heggs challenged the constitutionality of the 1995 sentencing guidelines, arguing that Chapter 95-184, which created the 1995 sentencing guidelines was unconstitutional in that it violated the single subject rule. In his briefs to this Court, Heggs argues that the sections of chapter 95-184 summarized above address four different subjects: criminal sentencing; defining substantive crimes; monetary compensation for crime victims; and civil remedies for victims of domestic violence. During oral argument, Heggs asserted that those sections address at least three different subjects: criminal sentencing, monetary compensation for crime victims, and civil remedies for victims of domestic violence. Conversely, the State claims the various sections comprising chapter 95-184 are cogent and interrelated and directed to one primary object: the definition, punishment, and prevention of crime and the concomitant protection of the rights of crime victims. State's Answer Brief at 7-8. After reviewing the various sections contained in chapter 95-184, we conclude that our analysis in Thompson concerning chapter 95-182 must be applied here-the domestic violence provisions contained in chapters 95-182 and 95-184 are not naturally or logically connected to the remaining criminal subject matters contained in those chapter laws. We agree with the reasoning of the Second District that: Following our own precedent in Thompson, we believe that chapter 95-184 violates the single subject rule because it, too, embraces civil and criminal provisions that are not logically connected. The two subjects are designed to accomplish separate and dissociated objects of legislative effort. 708 So.2d at 317 (quoting State ex rel. Landis v. Thompson, 120 Fla. 860, 892893, 163 So. 270, 283 (1935)). Likewise, as in Thompson, here there is no legislative statement of intent to implement comprehensive legislation to solve a crisis. See Thompson, 708 So.2d at 315. Heggs, 718 So.2d at 264.

JAC contends that the single subject rule is not violated in that all of the sections have a relationship to JAC and that the Defendant has a high burden. Subsequent to Heggs, the Florida Supreme Court addressed the issue of single subject rule in Franklin v. State, 887 So.2d 1063 (Fla. 2004), which addressed the constitutionality of Three Strike Violent Felony Offender Act. First the Florida Supreme Court traced the history and purpose of the Single Subject Rule. Every law shall embrace but one subject and matter properly connected
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therewith, and the subject shall be briefly expressed in the title. Art. III, 6, Fla. Const. [1] Thus, the single subject clause contains three requirements. First, each law shall embrace only one subject. Second, the law may include any matter that is properly connected with the subject. The third requirement, related to the first, is that the subject shall be briefly expressed in the title. In State v. Thompson, 750 So.2d 643, 646 (Fla.1999), this Court reaffirmed the purposes of the single subject provision: (1) to prevent hodgepodge or log rolling legislation, i.e. putting two unrelated matters in one act; (2) to prevent surprise or fraud by means of provisions in bills of which the title gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon. Franklin, at 1072. Next the Court discussed the standard of review. When courts are called upon to assess legislation for compliance with article III, section 6, the standard of review is highly deferential. [T]he general disposition of the courts [is] to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted. Canova, 94 So.2d at 184. We stated: Should any doubt exist that an act is in violation of art. III, sec. 16 of the Constitution, or of any constitutional provision, the presumption is in favor of constitutionality. To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law. Therefore, the act must be construed, if fairly possible, as to avoid unconstitutionality and to remove grave doubts on that score. Franklin, at 1073. (Footnote omitted.) In determining whether a law violates the single subject rule, the first part of the test is to define the single subject. The Supreme Court stated that the title should be instructive. The short title of 2012-123 is an act relating to the state judicial system. This a very general and very broad topic. Our determination that the single subject of an act can be found in the short title is subject to the following caveat: the title of an act may be general, so long as it is not made a cover to legislation incongruous in itself. State ex
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rel. Attorney General v. Green, 36 Fla. 154, 18 So. 334, 338 (1895). In other words, the short title of the legislation cannot be so broad as to purportedly cover unrelated topics, and thus provide no real guidance as to what the body of the act contains. Indeed, allowing an overly broad short title to become the single subject runs the risk of permitting logrolling and hodgepodge or omnibus legislation. Franklin, at 1076. In Franklin, the Supreme Court then discussed how to address an overly broad short title. An example of an overly broad short title can be found in State v. Thompson, 750 So.2d 643 (Fla.1999). In that case, the short title of the act was, An act relating to [the] justice system. Id. at 648. The State argued that the reference to the justice system in the title encompassed provisions that addressed both career criminals and domestic violence. See id. Because the short title was so broad as to encompass the entire justice system, this Court looked beyond the short title to determine whether the act encompassed a single subject that was briefly stated in the title. We noted that the act was originally titled more narrowly as an act relating to career criminals before it was changed to refer to the justice system when the domestic violence provisions were added shortly before the bill passed. See id. Noting that nothing in the career criminal provisions addressed any facet of domestic violence, we determined that it was clear that the various sections of [the chapter law] ... address two different subjects: career criminals and domestic violence. Id. at 648. Therefore, we hold here, as we did in Thompson, that if the Legislature's short title is suspect for being overly broad, a court should look to the remainder of the act and the history of the legislative process to determine if the act actually contains a single subject or violates the constitution by encompassing more than one subject. Franklin, at 1076-1077. The next part of the test is to determine if all the provisions of the body of the act be properly connected to the single subject. Id., at 1077. A proper connection is one that is natural or logical. Id., at 1077. Whether there is a connection that is proper will depend on common sense. Id., at 1077. More recently, we explained that a connection between the subject and the provision is proper if a reasonable explanation exists as to why the Legislature chose to join the provision to the legislative act. Grant, 770 So.2d at 657 (citing State v. Johnson, 616 So.2d 1, 4 (Fla.1993)). After reviewing these various methods of defining a proper connection, we take
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this opportunity to set forth the correct test to be applied when determining whether a connection between a provision in the act and the act's subject is proper within the meaning of the single subject clause: A connection between a provision and the subject is proper (1) if the connection is natural or logical, or (2) if there is a reasonable explanation for how the provision is (a) necessary to the subject or (b) tends to make effective or promote the objects and purposes of legislation included in the subject. Franklin, at 1078. With all due deference to the legislature, session law 2012-123 does not pass the above test. There is no logical common sense connection as in Franklin, supra. While JAC contends that all the sections have a connection to JAC, that connection is not obvious or logical. There is no common sense link between the clerk of court, regional counsel, conflict attorneys, and the guardian ad litem in juvenile. While there may be some tangential connection to JAC, there is no obvious connection. Section 7 allows a county to impose a surcharge. The clerk must submit an electronic report via Florida Clerk of Courts Operations Corporation. While the corporation is housed within JAC, it is not controlled by JAC and its employees are not employees of JAC. Section 6 provides for county funding for guardian ad litem employees. JAC has no connection to county employees. While these employees will be supervised by the Statewide Guardian ad Litem, it is a separate entity housed by JAC. There is no logical obvious connection between guardian ad litem, the clerk of courts, which are elected officials, and JAC. The session law amending Chapter 27 violates the single subject rule. II Section 27.5304, Florida Statutes (2012), Creates a Judicial Conflict of Interest That Violates an Indigent Defendants Right to Due Process. Defendant alleges that 27.5304, Fl. Stat. (2012), puts the circuit court judge in the unconstitutional position of deciding whether to grant an indigent defendants due process costs in the form of criminal court-appointed counsel excess fees, with the knowledge that the courts budget will be affected once the special appropriations of $3,000,000. For attorneys fees in excess of the flat rate for indigent cases is exhausted. Under the statute, the division judge would not be hearing the money issues, the fee judge would. Until the defendant was denied legitimate due process costs/fees or the court runs out of money to pay due process costs, there is no unconstitutional conflict between the defendant and division judge. Also, as argued by JAC, for capital death and RICO cases, there is no conflict of interest because the methodology adopted by the Trial Court Budget Committee and implemented by OSCA does not require the transfer of funds from the circuits budget. Payment would be from a statewide pool shared by the circuits. For all other cases, each circuit is budgeted an amount for extraordinary fees. Only if that amount is exhausted
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will funds be allocated from a circuits budget. Section III of the Fiscal Impact Statement sets forth the effect of the Proposed Changes states: Section 3 amends s. 27.5304, F.S., to require the state court system to pay court appointed counsel fees ordered by the court above the flat fees set in the Florida Statutes and the General Appropriations Act once the funds appropriated for that purpose have been spent. This change is aimed at encouraging the courts to take a stronger role in governing the ordering of fees. If the court system is answerable for some of the costs associated with payments above the flat fee, judges may be less willing to order these fees. The Courts take the due process rights of all indigent defendants very seriously. At this time the Eleventh Judicial circuit has expended approximately $712,000 of its allocated $1,249,000 and may soon be out of funds. But until the allotted over the cap fees are exceeded, this claim is not ripe. The Court therefore denies this argument without prejudice. The Fourth Judicial Circuit in Jacksonville has already utilized the allotted funds there. See Defendants Exhibit 1. This issue might be ripe for consideration at a later date. III. Section 27.5304, Fla Stat (2012) Violates the Sixth, Eighth, and Fourteenth Amendment Rights of Capital Defendants. Counsel also argues that 27.5304, Fla. Stat., violates the Sixth, Eighth, and Fourteenth Amendments of Capital Defendants. Under the statutes new constraints, court appointed registry counsel will have a well-founded fear that their work, even if reasonable and necessary in an extraordinary case, will not receive anywhere near fair remuneration that is not confiscatory of his or her time, energy and talents. A similar issue was raised in Olive v. Maas, 811 So.2d 644 (Fla. 2002). Olive sued because he did not want to sign a contract with the registry and sought to have the statute regarding conditions of employment unenforceable. Mr. Olive represented capital defendants and his fee for representing these defendants was limited by the statute. He claimed that the statutory maximum fees may be unconstitutional when they are inflexibly imposed in cases involving unusual or extraordinary circumstances because the caps interfere with the trial courts inherent power to ensure adequate representation and the defendants Sixth Amendment right to assistance of counsel. The Florida Supreme Court relied upon Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986). The Court held that, although the statute was not unconstitutional on its face, the statute was unconstitutional when applied in such a manner as to
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curtail the court's inherent power to ensure the adequate representation of the criminally accused. Makemson, 491 So.2d at 1112. The opinion added: [I]t is within the inherent power of Florida's trial courts to allow, in extraordinary and unusual cases, departure from the statute's fee guidelines when necessary in order to ensure that an attorney who has served the public by defending the accused is not compensated in an amount which is confiscatory of his or her time, energy and talents. Id. at 1115. The Makemson Court also focused greatly on a defendant's constitutional right to the effective assistance of counsel, reasoning: Most fundamentally ... [a mandatory fee cap] interferes with the sixth amendment right to counsel. In interpreting applicable precedent and surveying the questions raised in the case, we must not lose sight of the fact that it is the defendant's right to effective representation rather than the attorney's right to fair compensation which is our focus. We find the two inextricably intertwined. Id. at 1112. Overall, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates and economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court. Olive, at 651-652. While the statute is not unconstitutional on its face, there is a strong possibility it is unconstitutional as applied in certain cases. As noted in Makemson, Defendants right to effective representation is paramount. It is inextricably intertwined with the attorneys right to fair compensation. At the hearing, JAC argued that the correct procedure to raise this claim would be to file a Declaratory Action in the Circuit Court in Tallahassee. This Court agrees. IV. Section 27.5304, Fla.Stat. (2012), Violates the Separation of Powers Doctrine. The defendant contends that the new provision violates the separation of powers doctrine. Specifically, section 27.5304(12)(f), Florida Statutes (2012) requires that any excess fee payments must be made from the due process funds appropriated to the state court system once the JAC funds are exhausted. The defendant alleges that this provision, in effect, gives the judiciary the power to appropriate funds for court-appointed counsel, thereby delegating the legislative function of appropriation to the judiciary, and further undermines the independence of the judiciary.
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Article II, Section 3, of the Florida Constitution provides that: No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Case law shows that the separation of powers doctrine encompasses two fundamental prohibitions: the first is that no branch may encroach upon the powers of another, and the second is that no branch may delegate to another branch its constitutionally assigned power. Fla. Assn of Prof. Lobbyists, Inc. v. Div. of Leg. Information Serv., 7 So. 3d 511, 514 (Fla. 2009) (quoting Chiles v. Children A, B, C, D, E, and F, 589 So. 2d 260, 264 (Fla. 1991). The power to control appropriations, whether by increasing or reducing the appropriation of state funds, is a legislative function to be exercised only through duly enacted statutes. Chiles v. Children A, B, C, D, E, and F, 589 So. 2d at 265. Historically, funding for court-appointed counsel has occurred through an appropriations bill distinct from court funding, and does not appear to be considered part of the judiciary branch. See Schreiber v. Rowe, 814 So. 2d 396, 398-399 (Fla. 2002). By authorizing funds appropriated to the state court to be used for excess fee payments after the exhaustion of JAC funds, section 27.5304(12) gives the court the power to appropriate state court funds to court-appointed counsel. By doing so, it also gives the court the power to reduce the amount of appropriated funds to the state court system. Since the power to appropriate is a legislative function, section 27.5304(12) appears to violate the separation of powers doctrine. Additionally, the Florida Supreme Court has held that the legislature cannot take actions that would undermine the independence of Floridas judicial .offices for such action would violate the doctrine of separation of powers. Office of the State Attorney v. Parrotino, 628 So. 2d at 1097, 1099 (Fla. 1993). Certainly, it is true that [i]t would be a violation of the separation of powers doctrine for the trial courts to address whether adequate state funding is available to discharge a statutory provision authorizing payment of attorneys fees. Still, III, v. JAC, 82 So. 3d 1168 (Fla. 4th DCA 2012). Yet, when examining the practical effect of this new provision, the designated judge under section 27.5304(12) must consider where the funds are going to be appropriated from when awarding fees in excess of the fee limits. Such considerations are by legislative design. Senate Bill Analysis and Fiscal Impact Statement for Senate Bill 1960 (SPB 7064) explicitly states that this change is aimed at encouraging the courts to take a stronger role in governing the ordering of fees. If the court system is answerable for some of the costs associated with payments above the flat fee, judges may be less willing to order these fees. In light of the foregoing, Section 27.5304 violates the separation of powers doctrine.

WHEREFORE, it is ORDERED AND ADJUDGED that Defendants Motion to Declare Section 27.5304 is GRANTED IN PART AND DENIED IN PART. DONE AND ORDERED in Miami-Dade County this _______ day of October, 2012.

_________________ Victoria Sigler Circuit Court Judge Copies as to all counsel of record.