IN THE SUPREME COURT OF FLORIDA CASE NO. SC LOWER TRIBUNAL NO: 4D FLORIDA DEPARTMENT OF CHILDREN and FAMILIES, Petitioners.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC LOWER TRIBUNAL NO: 4D FLORIDA DEPARTMENT OF CHILDREN and FAMILIES, Petitioners -vs- WALTER FACYSON, JR., and KEN JENNE, as Sheriff of Broward County, Florida, Respondents. RESPONDENT, SHERIFF KEN JENNE S, BRIEF ON JURISDICTION ON APPEAL FROM THE FOURTH DISTRICT COURT OF APPEAL, STATE OF FLORIDA GALE CICERIC PAYNE, ESQ. FLORIDA BAR NO Gale Payne & Associates 1220 East Broward Boulevard Fort Lauderdale, FL Telephone (954) Telefax (954) KIMBERLY KISSLAN Acting General Counsel Broward Sheriff s Office 2601 W. Broward Boulevard, #3548 Fort Lauderdale, FL Counsel For Ken Jenne, as Sheriff of Broward County, Florida, Respondent

2 TABLE OF CONTENTS Page TABLE OF CONTENTS i TABLE OF CITATIONS ii STATEMENT OF FACTS AND CASE SUMMARY OF ARGUMENT ARGUMENT WHETHER THE OPINION BELOW DIRECTLY AND EXPRESSLY CONFLICTS WITH PETITIONER S PROPOSED CASES BY EXPRESSLY REQUIRING DCF TO TAKE CUSTODY AND CONTROL OF ONE TYPE OF INCOMPETENT DETAINEE NOTWITHSTANDING INSUFFICIENT FUNDING IN CONFLICT WITH CASES THAT CONDITION DCF S DUTY TO TAKE CUSTODY AND CONTROL OF ANOTHER TYPE OF INCOMPETENT DETAINEE ON DCF S FUNDING SUFFICIENCY 2

3 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS i- TABLE OF CITATIONS Cases Page Department of Children and Families v. Anderson et al., Nos. 4D , 2935, 2960, 3125,3306, 2002 WL (Fla. 4th DCA October 23, 2002)(not final) , 8 Department of Children and Families v. M.H., No. 2D ,2002 WL (Fla. 2d DCA Aug. 9, 2002)(not final) , 5, 8 Department of Health and Rehabilitative Services v. V.L., 583 So.2d 765 (Fla. 5th DCA 1991), rev. den., 591 So.2d 185 (Fla. 1991) , 6 Facyson v. Jenne, 821 So.2d 1169 (Fla. 4th DCA 2002) , 2, 4, 5, 8, 9 Miller v. Carson, 524 F. Supp 1174 (M.D. Fla. 1981) Statutes

4 , Fla. Stat. (1998) , , Fla. Stat. (1998) , Fla. Stat. (2000) , passim , Fla. Stat. (2000) , 6, 7 Rules and Orders F. R. App. P (a)(2) Supreme Court of Florida Administrative Order dated July 13, Miscellaneous Cervantes, Don Quixote, circa B.C ii- STATEMENT OF FACTS AND CASE Walter Facyson, Jr., after being arrested and charged with, inter alia, the felony of attempted murder of a law enforcement officer, was adjudicated incompetent to proceed to trial (ITP). After hearing, the trial court identified a forensic hospital as the least restrictive placement for Facyson. Pursuant to Fla. Stat , the Broward County Jail was used as an emergency facility. It is undisputed that Facyson remained in jail much longer than fifteen days, during which the Department of Children and Families (DCF) failed to take him into its custody and care to treat him for competency restoration as required by Section The lower court recognized that: Although the Broward County Jail may have facilities for temporarily caring for and

5 treating Petitioner, only the department has the statutory duty to provide competency restoration; the sheriff is not required to do so, nor is the jail equipped or budgeted to provide such treatment. Facyson v. Jenne, 821 So.2d 1169, 1170 (Fla. 4 th DCA 2002). Facyson sought habeas corpus relief or mandamus directing DCF to take immediate custody of him and give him the care needed to restore his competency. Habeas corpus was deemed below to be an inappropriate remedy at this time. Mandamus was deemed warranted and granted. Timely appeal of the decision below was taken. -1- SUMARY OF ARGUMENT The issue is whether DCF must, with or without using a jail as an emergency facility, take ITP detainees into its custody and control to treat them for competency restoration without delay regardless of budgetary appropriations. The Fourth District in Facyson below says yes. The Second District in Department of Children and Family Services v. M.H., No. 2D , 2002 WL (Fla. 2d DCA Aug. 9, 2002) says no. Conflict jurisdiction is warranted here. ARGUMENT THE OPINION BELOW DIRECTLY AND EXPRESSLY CONFLICTS WITH PETITIONER S PROPOSED CASES BY EXPRESSLY REQUIRING DCF TO TAKE CUSTODY AND CONTROL OF ONE TYPE OF INCOMPETENT DETAINEE NOTWITHSTANDING INSUFFICIENT FUNDING IN CONFLICT WITH CASES THAT CONDITION DCF S DUTY TO TAKE CUSTODY AND CONTROL OF ANOTHER TYPE OF INCOMPETENT DETAINEE ON DCF S FUNDING SUFFICIENCY. Respondent agrees with petitioner that review of this case is warranted on the basis of conflict jurisdiction. The opinion below construes Fla. Stat which accords a bill of rights for forensic detainees who are charged with felonies, are adjudicated incompetent to proceed ( ITP ), and cannot be treated in a less restrictive setting. Normally, those charged with a felony would be

6 arrested and detained in jail. But, where such detainees have been adjudicated ITP, the statute requires -2- DCF to take custody, to remove them from jail after fifteen days if placed there as an emergency, and to place them in a treatment facility devoted to restore their competency. Under this statute, the Department of Children and Families (DCF) is made responsible for the care, custody, and treatment of such detainees without regard to funding appropriation. The statute allows such detainees temporary use of a jail as an emergency facility but only up to fifteen days from the date DCF receives a completed copy of the prescribed commitment order. The issue below arose from the uncontested failure of DCF to assume its statutory responsibility to take Walter Facyson, Jr. into its custody and care by removing him from the Broward County jail after the mandated fifteen-day period and treating him for competency restoration. DCF claimed that, due to lack of funding and the demands of other detainees seeking like custody, space was not available to remove Mr. Facyson from jail and place him into DCF s custody for treatment to restore his competency. DCF does not deny its duty to treat Section detainees for the purpose of restoring competency. Wherever the venue of the detainee, be it at a treatment facility as

7 that term is statutorily defined or in jail, DCF s duty of treatment is not and cannot be vitiated by -3- illegally delaying treatment to the detainee and refusing its custodial responsibility. DCF likewise cannot pass this responsibility to a public jailor who not only bears zero legal responsibility for the same but also is without funding appropriation to usurp such responsibility. Therefore, notwithstanding if Section detainees are allowed to languish in jail beyond the emergency fifteen-day statutory period or released to the street, the issue in conflict justifying the instant review continues to be whether DCF can stay or condition its duty to initiate treatment of ITP defendants for competency restoration pending lack of funding to do so. The Fourth District says no. The Second District says yes. The opinion below denied habeas corpus relief but granted mandamus. It expressly held that: It is clear that the department [DCF] is responsible for Petitioner s care and custody. Notwithstanding insufficient funding, the department is charged with the responsibility for maintaining secure facilities and programs for treating defendants charged with felonies who are determined incompetent to proceed and who cannot be treated in a less restrictive setting. Facyson, 821 So.2d at 1171 ((bracketed material and emphasis supplied).

8 The Second District considered a case affecting juveniles who were detained while facing delinquency -4- charges, adjudicated incompetent to proceed, and committed to the custody of DCF pursuant to Fla. Stat M.H., 2002 WL (opinion not final). Twenty-one days after the Facyson opinion, the Second District rendered its opinion in M.H. and stated, [W]e hold that the circuit court is without authority to compel DCF to place the children in programs for which space is simply not available. Id. at *1. See also Department of Health and Rehabilitative Services v. V.L., 583 So.2d 765 (Fla. 5th DCA 1991)(juvenile in HRS custody, not charged with crime, but involuntarily placed under Section , cannot be ordered by court to be treated in residential facility at HRS s cost until HRS has funding to pay the cost). Respondent agrees with petitioner that the Facyson and M.H. holdings directly and expressly conflict. Respondent also agrees with petitioner that Section as construed in Facyson and Section as construed in M.H. are different statutes with different language. Specifically, Section specifies no emergency use facility for temporary placement of the affected detainee (perhaps such juveniles typically are not imprisoned) and includes a subsection (7) stating that it shall be

9 implemented only subject to specific appropriation. Section expressly imposes a fifteen-day time -5- limitation on the use of a jail as an emergency facility at which time DCF must take custody and control of the affected detainee and neither deny nor delay treatment. Section fails to condition DCF s responsibility on a funding appropriations provision. Section at issue in V.L., unlike or , imposes no responsibilities on HRS, or its successor DCF. The consequence of these stated differences deserves considered attention by this Court on the merits but does not negate the existence of a conflict requiring instant review. The whole point of Section is to place ITP defendants charged with a felony outside the jails and into treatment facilities that can restore them to competency within the fifteen-day time frame specified by that statute. Whether to judicially condition and excuse DCF s failure to exercise its custodial duties of treatment toward these detainees on its funding appropriation raise matters of great public importance in Florida. These issues also necessitate review, as they impact interests critical to American jurisprudence, such as separation of powers, (not only vis-à-vis the legislative and judicial branches of government but also the executive

10 and judicial), and the constitutional rights of mentally incompetent defendants charged with felonies. It is -6- apodictic that constitutional rights cannot be conditioned on funding. Miller v. Carson, 524 F.Supp. 1174, 1180 (M.D. Fla. 1981)( [T]he law is clear that lack of funds or facilities is never an adequate defense to actions charging violations of the United States Constitution. ). Two days ago, on October 23, 2002, the Fourth District decided Department of Children and Families v. Anderson et al, Nos. 4D ,2935, 2960, 3135, 3306, 2002 WL (Fla 4 th DCA October 23, 2002)(opinion not final). Sheriff Jenne, respondent here, was not a party to Anderson and did not participate. In what this respondent submits is dicta, the Anderson opinion, 2002 WL at , *1, stated that: Initially, we agree with DCF that our decision in Facyson does not authorize orders compelling immediate placement at a DCF facility or treatment at the jail when DCF lacks the necessary funding to do so. Facyson makes clear that the court s powers of compulsion and compliance with regard to DCF are limited to those actions within DCF s power to comply. Such dicta serves to rewrite Fla. Stat by making it subject to specific appropriation, a phrase expressly included in Fla. Stat (7) but omitted from Section Where the legislature wished to condition DCF s duties on specific appropriation in Section

11 (7), it said so. The Legislature elected not to say so in Section establishing that DCF s duties -7- there are not conditioned on funding appropriations. This is what the decision under review so held: DCF s duties under Section are not conditioned on funding. Anderson s dicta judicially wrote a funding availability condition, not included by the legislature, into Section To the extent this is attributable to Facyson, it stands in conflict with the Second District s opinion in M.H. M.H. holds that, Treatment of incompetent children accused of delinquent offenses represents a high social priority, but it is not within our power to rewrite the statute to impose time limitations that the legislature evidently thought were unnecessary or impractical. Id at 2002 WL , *2. Yet, Anderson rewrote Section to impose funding appropriation limitations that the legislature evidently thought were unnecessary or impractical. The Anderson dicta also contradicts the express holding below in Facyson. Facyson specifically held that notwithstanding insufficient funding DCF was bound by the duties enumerated in Section to ITP detainees. Approximately, three months later that court rewrote the

12 statute to suggest in dicta that insufficient funding would excuse DCF s duties. This portrays a greatly confused state of law that cries for reconciliation. -8- Facyson construes a statute ( ) declaring it to be the public policy of Florida that mentally ill ITP defendants charged with felonies shall receive appropriate training and treatment and that the department [DCF] shall not deny treatment or training to any client and that no services shall be delayed at a facility because the forensic client is unable to pay. Where delay is improper based on the detainee s inability to pay, the same goes when DCF concomitantly lacks funding. The statute does not vitiate public policy when there are insufficient appropriations to accomplish this public policy. Moreover, declares Florida s legislative intent that DCF s facilities for treatment of ITP defendants shall be sufficient to accommodate the number of defendants. The law in this critical area of public policy is in a spiraling state of flux and needs the attention of this Court to obviate fund-starved public agencies from shirking their statutory duties. Lower courts throughout Florida are crying in unison for clarification. Let these cries be heard, and give this area of the law appropriate direction.

13 CONCLUSION Delay always breeds danger; to protract a great design is often to ruin it. Cervantes, Don Quixote -9- Review of this case is warranted. Gale Payne & Associates 1220 East Broward Boulevard Fort Lauderdale, FL Telephone (954) By: Gale Ciceric Payne, FBN CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to Charlie McCoy, Assistant Attorney General, Office of the Attorney General, The Capital PL01, Tallahassee, FL , Diane M. Cuddihy, Chief Assistant Public Defender, 201 S.E. 6 th Street, Third Floor North Wing, Fort Lauderdale, FL 33301, and Craig Esquenazi, Assistant State Attorney, Office of the State Attorney, Broward County Courthouse, 201 S.E. 6 th Street, Fort Lauderdale, FL 33301, this day of October, CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS OF F. R. APP. P (a)(2) In compliance with F. R. App. P (a)(2) and Supreme Court of Florida Administrative Order dated July 13,

14 1998, it is hereby certified that the size and style of type used in Respondent s Brief On Jurisdiction is nonproportionally spaced, Courier New 12-point font. By: Gale Ciceric Payne -10-