History of Court Processes, Programs, and Initiatives
Enhance Access to Justice and Court Services
- Florida Commission on Access to Civil Justice
- Fairness and Diversity Awareness
- Court Interpreting in Florida
- Access to the Courts for People with Disabilities
- Family Court Initiatives
- Florida’s Problem-Solving Courts in Florida
- Alternative Dispute Resolution in Florida
- The Florida Courts System’s Foreclosure Initiative
At his passing of the gavel ceremony on June 30, 2014, Chief Justice Jorge Labarga spoke passionately about the challenges faced by disadvantaged, low-income, and moderate-income Floridians when seeking meaningful and informed access to the civil justice system. One of the most effective ways to navigate the legal system is to engage legal representation, he pointed out. And legal representation is guaranteed for low-income individuals in criminal cases. But in civil cases (e.g., those related to family matters, home ownership and landlord-tenant issues, and veterans’ benefits), defendants have no right to representation. They either must pay out of pocket for legal counsel (often not an option, as attorney fees in Florida run upwards of $250 per hour). Or they must represent themselves—and try to make sense of a spate of processes, laws, rules, and forms that can be mystifying to non-lawyers.
The chief justice also noted that, in the past, these Floridians could apply for free or low-cost legal help through legal aid services—but because the funding sources for these services have diminished steadily these last few years, only a small percentage of those who need civil legal assistance are actually able to obtain it.
In short, for these Floridians who are caught in the “civil justice gap,” securing legal representation for civil matters is often not feasible. And although Florida’s courts have been working to develop forms, instructions, and other self-help resources, and although other entities in the justice system have tried, within the scope of their authority, to improve the availability and delivery of legal services, many Floridians still encounter obstacles when seeking access to the civil justice system. Calling this a critical issue for the state, the chief justice announced that access to justice for all Floridians would be one of the top priorities of his administration.
At a ceremony in the Florida Supreme Court rotunda on November 24, 2014, he signed an administrative order creating the Florida Commission on Access to Civil Justice. Recognizing that access to civil justice is a societal concern, he emphasized that the solutions would require a broad, holistic approach that depends on all segments of society, not just its attorneys and lawmakers. Therefore, this commission “bring[s] together the three branches of government, the Bar, civil legal aid providers, the business community, and other well-known stakeholders in a coordinated effort to identify and remove these economic barriers to civil justice.” Urging the 27-member commission to “consider Florida’s legal assistance delivery system as a whole,” his administrative order directs members to “consider and evaluate components of a continuum of services for the unrepresented, taking into account consumer needs and preferences.” Among the components suggested are “interactive forms; unbundled legal services; the involvement of court, law, and public libraries; and other innovations and alternatives.” The administrative order also bids the commission to “examine ways to leverage technology in expanding access to civil justice for disadvantaged, low income, and moderate income Floridians.” Supported in its work and goals by The Florida Bar and the Office of the State Courts Administrator, with additional support from The Florida Bar Foundation, the commission, which had its first meeting in January 2015, has made “a coordinated effort to identify and remove barriers to civil justice.” (This link goes to the administrative order.)
At the commission’s first meeting, members learned about the scope of the problem and the urgent need for action and discovered what other state access commissions have been doing to address the issue (the keynote speaker was The Honorable Nathan Hecht, chief justice of the Supreme Court of Texas, who has played a major role in the access to justice efforts in his home state). Members then began considering the role the commission could play in improving the availability and delivery of judicial and legal services for Floridians who fall into the civil justice gap. To carry out the commission’s charges, Chief Justice Labarga, who chairs the commission, also announced the creation of five subcommittees: Outreach, Access to and the Delivery of Legal Services, Continuum of Services, Technology, and Funding. (This link goes to the website of the Florida Commission on Access to Civil Justice.)
In its first year and a half, the commission met as a whole five times; in addition, the five subcommittees met separately, on a regular basis. On June 30, 2016, it submitted its final report describing its accomplishments, providing an overview of the work completed by each subcommittee, and proposing next steps, including recommendations to the supreme court. The final report builds on previous reports and updates the interim recommendations the commission made in October 2015.
The final report provides updates on several promising projects for connecting disadvantaged, low-income, and moderate-income Floridians with legal resources. The four that have generated the most excitement so far are the implementation of a gateway portal, the expanded use of emeritus attorneys, the adoption of a cy pres rule or statute, and the development of Do-It-Yourself Florida. (This link goes to the final report.)
The commission proposed the development of a statewide online triage gateway that will identify and recommend the best existing civil legal resources for users based on variables such as location, income, language, and other related factors. In essence, the gateway portal would serve as an online connector to resources such as hotlines, law libraries, legal aid organizations, and court self-help centers. The commission has been working with the Florida Justice Technology Center (a nonprofit center that works on harnessing technology to increase access to justice) to design and implement a pilot project in Clay County.
The commission recommended emendations to Rule 12 of the Rules Regulating The Florida Bar to permit retired judges and retired and active law professors to serve as emeritus attorneys. The commission also proposed expanding areas of the law in which attorneys are allowed to practice as well as allowing emeritus attorneys to provide advice and assistance to clients whose legal problems are not likely to be subject to litigation. Florida Bar committees have been reviewing these proposed rule changes, and, if approved, they will be submitted to the supreme court for consideration.
From the French, “cy pres comme possible,” meaning “as near as possible,” cy pres is a doctrine that permits a court to award any unallocated, unclaimed, or undeliverable funds from a class action settlement or judgment to a non-profit organization. The commission discovered that 18 states have cy pres statutes or court rules that designate for legal aid programs any funds left over after class-action settlements are distributed to the plaintiffs covered by the lawsuit. The commission recommended that the supreme court develop a specific proposal for a cy pres rule in Florida, and the court referred the matter to The Florida Bar’s Civil Procedure Rules Committee, which is currently researching the issue.
OSCA, at the direction of the Judicial Management Council and in cooperation with The Florida Bar and the Florida Court Clerks and Comptrollers, has been developing web-based, interactive “interviews” to help self-represented litigants navigate the court system. Users are guided through a series of questions that enable them to assemble pleadings and other documents suitable for filing either through the statewide electronic filing portal or in person at the local clerk’s office.
In his cover letter presenting the final report to his supreme court colleagues, Chief Justice Labarga praised the Florida Access Commission for the foundation it has laid: “While much remains to be done, I am proud of the Commission’s achievements thus far,” he wrote, adding, “I am confident that the Commission is on the right path toward addressing the long-term and complex issues that impede access to the civil justice system by disadvantaged, low-income and moderate-income Floridians.” To ensure further advances in the court’s access to justice efforts, the work of the commission must continue in order to “bridge the gap that keeps too many people from meaningful access to civil justice,” the report concluded. The supreme court concurred with this recommendation, and in an October 2016 administrative order, the Florida Commission on Access to Civil Justice was re-established as a standing committee. (Take this link to the administrative order.)
The judicial branch strives to create court settings that are free of bias—environments in which judges, court personnel, attorneys, and litigants treat each other with courtesy, dignity, and consideration. Indeed, the judicial branch emphasizes that striving for fairness is one of its fundamental values, expounding on this in its vision statement, where it specifies that, “To be fair, the Florida justice system will respect the dignity of every person, regardless of race, class, gender or other characteristic, apply the law appropriately to the circumstances of individual case, and include judges and court staff who reflect the community’s diversity.” The Long-Range Strategic Plan for the Florida Judicial Branch, 2016 – 2021 reinforces this commitment: the first goal under long-range issue #1, Deliver Justice Effectively, Efficiently, and Fairly, is to “Perform judicial duties and administer justice without bias or prejudice.”
Since the 80s, with the help of several supreme court-appointed committees, the branch has endeavored to realize this aspiration; committees include the Gender Bias Study Commission (1987), the Racial and Ethnic Bias Study Commission (1989), the Committee on the Court-Related Needs of Elders and Persons with Disabilities (early 1990s), and the Commission on Fairness (1987). More recently (in 2004), the court established the Standing Committee on Fairness and Diversity “to advance the State Courts System’s efforts to eliminate from court operations bias that is based on race, gender, ethnicity, age, disability, financial status, or any characteristic that is without legal relevance.”
The standing committee has made great progress over the years. Among its accomplishments, it created an online court diversity information resource center; produced a report titled Promoting and Ensuring the Diversity of Judicial Staff Attorneys and Law Clerks, whose recommendations continue to be implemented by the courts; coordinated an extensive outreach project on perceptions of fairness in Florida’s courts and prepared a comprehensive report based on the findings; and coordinated the development of a courts-specific survey instrument for evaluating all state court facilities to determine their accessibility to people with disabilities. Ongoing projects include the coordination of regular diversity and sensitivity awareness programs for judges and court staff; the implementation of 26 diversity teams (one in each circuit court and DCA and one in the supreme court/OSCA) to advance court-wide education programs and to produce and promulgate public educational materials; the encouragement of local initiatives to strengthen court-community relationships; the production of practical educational materials to help judges, court staff, and attorneys recognize, respond to, and understand their role in eliminating bias from the courtroom; and collaborations with the Florida Court Education Council to identify and recommend resources for implementing fairness and diversity training for judges and court personnel at the local, regional, and state levels. (This link goes to information about the courts system’s fairness and diversity initiatives.)
One of the committee’s leading responsibilities is to ensure that diversity awareness programs are regularly available for Florida’s judges. The need for diversity awareness programs has grown over the years, in part due to a rule change (recommended by the committee and supported by the Florida Court Education Council) that allows judges to use approved courses in fairness and diversity training to fulfill the four-hour ethics requirement they must meet every three years, and in part due to a requirement that new judges attend a full-day, in-person fairness and diversity training within three years of becoming a judge. To date, more than 1,000 judges and senior judges have completed a full-day training program. More recently, the committee has been working to provide diversity awareness trainings for court staff—and, so far, hundreds have participated in a training.
In addition, the committee works with the courts system’s 26 diversity teams, providing support for sustaining diversity awareness by combining diversity education programs with other local initiatives designed to appreciate differences and celebrate diversity—initiatives like diversity mixers and minority mentoring picnics, for instance.
The committee also supports local court efforts to reach out to and educate the public about the courts system, thereby strengthening court-community relationships and enhancing the public image of the judicial branch. Recent court-community relationship-building activities include courthouse tours, Justice Teaching and other school outreach initiatives, teen courts, Law Day and Constitution Day activities, “meet your judge” and “inside the courts” programs, jury appreciation events, adoption events, speaker’s bureaus, citizens guides, citizen advisory committees, and the like. (This link goes to a compilation of court-community relations activities.)
To advance fairness and diversity in the legal profession, the committee also continues its efforts to build partnerships and collaborations with the Supreme Court of Florida Commission on Professionalism, local bar associations, community organizations, and Florida law schools. Members of the committee participate in numerous events sponsored by these entities to help develop, implement, and enhance diversity education programs and opportunities in the legal profession. In addition, the committee maintains connections with the deans of the Florida law schools and offers itself as a resource to the schools and their students. Committee members also take advantage of opportunities to give presentations at and to participate in various local, regional, and statewide fairness and diversity events—among them, diversity picnics, diversity mixers, cultural awareness presentations, and diversity symposiums.
According to the data collected by the US Census Bureau, more than half of the nation’s foreign born population resides in four states: California, New York, Texas, and Florida. Of the nearly 20.3 million people currently residing in Florida, approximately 20.6 percent are foreign born, with approximately 27.8 percent speaking a language other than English at home (2010 -2014 American Community Survey, Five-Year Estimate).
The judicial branch recognizes that language barriers can limit access to the courts and court services and has noted that “Non-English speakers and those not fluent in English generally have significant difficulty understanding the court system and may not be able to fully participate in the court process. Our system of jurisprudence may be unfamiliar to citizens from other nations, and may present a level of complexity that is intimidating and frustrating.” To ensure that all people, regardless of their ability to communicate effectively in the English language, have meaningful access to the courts, the branch is committed to building a reserve of qualified court interpreters and to harnessing technology to facilitate the sharing of interpreting resources among circuits.
To reduce the effect of language barriers, the courts must have access to a pool of well-qualified court interpreters—and judges and trial court administrators must have the means to evaluate the credentials of spoken language interpreters seeking appointment. To support these efforts, the supreme court adopted the Florida Rules for Certification and Regulation of Court Interpreters (the Court Interpreter Rules) in 2006. In adopting the rules, the court also created the Court Interpreter Certification Board, which is responsible for certifying, regulating, and disciplining court interpreters as well as for suspending and revoking certification. At the same time, the court established the court interpreter certification program.
The Court Interpreter Rules initially established two levels of expertise for spoken language interpreters working in the courts: certified interpreters and duly qualified interpreters. To become a certified interpreter, an applicant had to attend a two-day orientation program offered by OSCA; pass a written examination; pass an oral proficiency examination; take an oath to uphold the code of conduct for court interpreters; undergo a background check; and comply with continuing education requirements. A duly qualified interpreter, on the other hand, merely had to attend the OSCA orientation program, obtain a passing grade on the written examination, be “familiar with” the court interpreters’ code of conduct, and have “an understanding of basic legal terminology in both languages.”
However, while the Court Interpreter Certification Board acknowledged that the court interpreter program made considerable progress in eliminating language barriers in the courts, it opined that the program could be strengthened and better equipped to provide effective interpreting services. After performing a comprehensive study of the program, the Supreme Court Commission on Trial Court Performance and Accountability corroborated the board’s opinion, finding problems with the certification process (including lack of incentive for interpreters to become certified and inadequate standards for duly qualified interpreters). In response to the study, the board proposed amendments to the Court Interpreter Rules that would improve the overall quality of interpreting services available to the courts. In a March 2014 opinion, the supreme court adopted the amendments as proposed.
In the amended rules, the “duly qualified” designation was eliminated. Instead, the classification system now has three tiers, with the following official designations: a certified court interpreter has achieved the highest level of expertise; a language-skilled interpreter has reached the same level of proficiency—but in a language for which no certification exam is available; and a provisionally approved interpreter has passed the oral performance exam and satisfied the other general prerequisites but is not yet certified in a spoken language for which a state-certifying exam is available. The rule amendments also require that a provisionally approved interpreter complete the process of becoming certified within two years of attending the orientation program. In addition, the rules stipulate that applicants selected as employee interpreters—if they are not certified at the time of court employment—must become certified within one year of being employed in a court interpreting position. Finally, the amended rules clarify that the certified court interpreter designation is the preferred designation when selecting court-appointed interpreters, when arranging for contractual interpreter services, and when making staff hiring decisions. (This link goes to In Re: Amendments to the Florida Rules for Certification and Regulation of Court Interpreters.)
As a result of the rule amendments, the court interpreter program now has greater leverage in encouraging court interpreters to become certified. The changes also strengthen the provision of interpreting services in the courts; help judges select the most qualified interpreters available for service in court proceedings; and eliminate the disparity in the qualifications interpreters are required to possess to perform interpreting services in Florida’s courts.
The judicial branch has also made progress in expanding its repertoire of approved continuing education programs. Among the requirements for maintaining certification, court interpreters must earn a minimum of 16 hours of continuing interpreter education credits every two years. Continuing education was phased in on July 1, 2010, and, since that time, more than 140 continuing interpreter education programs have received board approval. Initially, all the approved programs were offered by private entities. But, before long, a number of circuits began developing their own trainings to meet the specific needs of their court interpreters: as of 2016, nine circuits had received approval for their locally-devised programs. (Take this link to see the approved continuing interpreter education programs.)
Finally, the branch continues to work on the language access priorities it identified in the wake of the October 2012 National Language Access Summit. The Florida team that attended the summit proposed six recommendations for the supreme court’s consideration: designate a language access advisory committee to make policy recommendations to the court; enhance remote interpreting services; institute a grievance complaint process; evaluate existing standards and best practices; conduct outreach on collaborating with other entities (universities, national testing organizations) to expand interpreter resources; and enhance judicial education. The court approved all six recommendations, and the board has been applying its efforts to the first three so far: the Court Interpreter Board was granted expanded authority to serve as a language access advisory committee; it is developing a grievance process modelled after the ADA Accommodations and Grievance Procedure; and it is working with other court committees to expand the use of remote interpreting technology. Through initiatives like these, the branch advances its efforts to improve the quality and accessibility of language access services in Florida’s courts.
The Americans with Disabilities Act (ADA), enacted in 1990, was established to ensure that people with disabilities have the same opportunities that are available to people without disabilities. Often called the most significant piece of federal legislation since the Civil Rights Act of 1964, the ADA protects people who have impairments that substantially limit major life activities, such as breathing, seeing, hearing, speaking, understanding, learning, walking, caring for themselves, performing manual tasks, and working. According to the most recent census data, approximately one in five people in the US report having one or more disabilities.
Moreover, since the nation’s population is aging, and since the risk of having impairments grows with age, the number of people with disabilities is likely to increase in the coming years. This is of special import in Florida, the state with the highest rate of residents who are 65 years or older (19.1 percent of the population in 2014, according to the US Census Bureau). To provide meaningful access to Florida’s courts for all people, the judicial branch continues its efforts to ensure that people with disabilities can effectively participate in court proceedings, programs, and services.
The branch has a longstanding commitment to compliance with the ADA. For instance, the ADA requires that public entities with 50 or more employees assign at least one employee to coordinate ADA compliance—and Florida’s courts system has consistently exceeded this mandate: since 1990, each of Florida’s 20 circuits and five DCAs has had at least one ADA coordinator to facilitate compliance at the local level, and the branch has also had a statewide ADA coordinator to provide technical assistance to judicial officers and court employees regarding court compliance with the ADA.
Also of note is the branch’s endeavors to minimize the effects of physical barriers to Florida’s courts—an undertaking that then Chief Justice R. Fred Lewis highlighted in 2006, when he appointed a committee to oversee a multi-year, branch-wide court accessibility initiative. Members of the Court Accessibility Subcommittee developed a courts-specific survey instrument to identify architectural obstacles in public areas of court facilities, worked with chief judges to create a Court Accessibility Team in each circuit and appellate court, and provided regional training sessions to teach the teams how to survey and evaluate their court facilities. Thereafter, each team developed a transition plan that identified its court’s barriers, devised measures for addressing the problems, and determined who would be responsible for correcting the problems. Even when funding is constrained at the state and local levels, Florida’s courts continue to work steadily to eradicate architectural hurdles that thwart access for people with disabilities. As the economy continues to show signs of strengthening and more resources are available for addressing courthouses’ ADA-related concerns, state and county lawmakers earmark funding for making needed improvements to existing structures and for replacing dilapidated ones. Constructed in compliance with the 2010 ADA Standards for Accessible Design, these buildings are readily accessible to and usable by people with disabilities.
While reducing architectural barriers, the judicial branch has also been working to eradicate impediments to electronic access. As an entity covered by Title II of the ADA, state courts are required to by federal law to ensure equal access to all of their services, programs, and activities—and that means that communications via electronic information and information technologies must also be accessible to people with disabilities. Courts are relying increasingly on making information and services available online, and, since 2007, ADA coordinators have been partnering with court technology staff to ensure that their web-based communications are accessible to people using assistive devices like screen readers. The goal of the ADA coordinators is to ensure that these communications are as effective and accessible for people with disabilities as they are for others. (This link goes to ADFA and Court Accessibility Information.)
Separation and divorce, child support, termination of parental rights, delinquency, dependency, family violence, child neglect and abuse, substance abuse, mental illness—some of life’s most complex, distressing, and private family matters end up being adjudicated in the courts. Since launching its first family court initiative in 1991, the judicial branch has been working with federal, state, and community partners to develop comprehensive, integrated approaches to handling these sensitive matters. Through its implementation of innovative practices and programs under the aegis of family court, the branch works to resolve family-related disputes in a fair, timely, efficient, and cost-effective way.
Many of the branch’s innovative family court programs, projects, and practices are spearheaded by the supreme court’s Steering Committee on Families and Children in the Court (originally called the Family Court Steering Committee), established in 1994. Receiving authority and direction through an administrative order of the chief justice, this 23-member body of judges, quasi-judicial officers, and justice system partners provide guidance and support to courts around the state, helping to enhance the efficiency and effectiveness of family court operations. (This link goes to information about the Steering Committee on Families and Children in the Court.) Also providing assistance in advancing the family court goals is OSCA’s Office of Court Improvement (OCI); in addition to staffing the steering committee, OCI develops and coordinates a wide range of family court trainings, publications, and other projects. (Take this link to learn more about the work of OCI and to access its publications.)
One of the steering committee’s responsibilities is to provide assistance to the judicial branch’s statewide, multidisciplinary Dependency Court Improvement Panel, which was established in 2009 by then Chief Justice Peggy Quince to improve courtroom practices and decision-making in dependency cases. (The panel was created in response to a federal Child and Family Services Review that discovered a number of shortcomings in Florida’s child welfare system; while the Department of Children and Families is responsible for addressing most of the deficiencies, the courts system, through the Dependency Court Improvement Panel, has been taking concurrent action to improve dependency court.)
The panel, with the support of OCI, concentrates on projects like the Early Childhood Court Initiative, which grew out a concern about a pattern that was becoming increasingly evident to judges on the family court bench. Called the multigenerational transmission of trauma and maltreatment, this pattern unfolds as follows: children who are maltreated often end up suffering a host of developmental issues (e.g., cognitive problems, speech delays, health problems, motor delays, and mental health problems); if the underlying factors are not addressed, the effects worsen over time, and the child appearing in dependency court today is likely to end up in delinquency court years later—and, later still, in court again, facing, perhaps, a domestic violence injunction or a paternity matter. To address this concern, many courts across Florida began establishing Early Childhood Court Teams. Comprising judges, case workers, attorneys, and parent and community organizations, these teams collaborate with experts in early childhood development and mental health to learn how to identify and expand evidence-based services for, and how to prevent the further traumatization of, young children.
The steering committee is also focused on ensuring that children engaged in the justice system achieve school stability and are not subject to suspension, expulsion, or arrests at higher rates than their peers. Seeking a strategy to help children stay in school and out of court, the steering committee and OCI, working with the Florida Department of Education, created an online School-Justice Partnership Tool Kit, conceived as an ongoing mechanism to develop and encourage collaborations among the courts, school resource officers and school administrators, state agencies, service providers and law enforcement in each county. This “how-to guide,” largely based on the Palm Beach County School-Justice Partnership, offers alternatives to arrests, suspensions, and expulsions, such as the adoption of practices like a model discipline code, school liaisons in the courtroom, and juvenile probation officers stationed in schools. (For more information about the School-Justice Partnership, please follow this link.)
Increasingly, many of the branch’s family court projects—like the School-Justice Partnerships, the Early Childhood Court Initiative, and the Evidence-Based Parenting Initiative—involve multi-systems work. Multi-systems partnerships recognize the benefits of collective impact in two ways: they aim to improve outcomes for children and families involved in multiple systems, and they offer effective methods for tackling large, complex social issues that affect children and families. The branch participates in several other projects that involve multi-systems collaborations, including the Florida Children and Youth Cabinet and the Multi-Agency Child Welfare Workgroup.
The judicial branch also develops important resources for the domestic violence division. Domestic violence cases involve many different entities—law enforcement, judges and court personnel, staff attorneys, public defenders, advocates, probation officers, and other professionals in the domestic violence field. In order for this complex, intricate system to operate effectively—and in order to ensure the safety of the victims, protect the due process rights of all parties, and hold perpetrators accountable—these entities must endeavor to respond as a coordinated community: all must be well-informed about the numerous components of the process and must strive to work collaboratively to help families access resources and navigate the justice system. To facilitate this process, OCI, with information gleaned from court observations and from surveys tailored to each of the various stakeholder groups, and with feedback from its Domestic Violence Advisory Group and from focus groups comprising diverse domestic violence professionals, developed a long-range plan that identifies, prioritizes, and addresses the domestic violence issues that Florida’s courts system currently faces. This report, and the input of the Domestic Violence Advisory Group, guide OCI’s domestic violence-related goals and plans.
Through gathering information and feedback for the development of the long-range plan, OCI became aware of the pressing need to devote more resources to education and training on the subjects of domestic violence, sexual violence, dating violence, repeat violence, and stalking. To meet this need, OCI established the Florida Judicial Institute on Domestic Violence—now called the Florida Institute on Interpersonal Violence (to reflect changes in the STOP Violence Against Women Grant formula that expand the reach of the domestic violence umbrella to include sexual violence). The institute is a repository of helpful resources, including case law updates, a calendar of training events, publications and materials prepared by Florida state courts system entities as well as other state and national organizations, and links to a plethora of training opportunities—webinars, virtual court, videos, and online and in-person training events—all of which aim to support the Florida courts system’s response to issues associated with interpersonal violence.
One of the institute’s principal objectives is to enhance statewide consistency and uniformity in the handling of domestic violence cases, and, toward this end, the institute facilitates comprehensive education programs for judges involved with domestic violence injunctions specifically or with domestic violence issues generally. Moreover, now that approximately one-third of OSCA’s STOP Grant funding is required to be directed toward projects addressing sexual violence within a domestic violence framework, OCI has expanded the scope of its training, offering trainings on topics such as the issues surrounding strangulation, for example; OCI is also completing a sexual violence benchbook and preparing materials to support the work of judges who handle sexual violence on the criminal bench. (Take this link to access the Florida Institute on Interpersonal Violence.)
Florida’s Problem-Solving Courts and Initiatives
In the late 1980s, crack cocaine usage began to plague the neighborhoods of Dade County. The scourge became so serious that the prospect of jail overcrowding and federal court-imposed sanctions was imminent: thousands of offenders charged with possession and purchase of controlled substances began to overwhelm the courts, and judges and court personnel realized that something radical had to be done quickly.
In 1989, with approval from the Florida Supreme Court and the support of a range of state and local community leaders, Judge Herbert Klein, Eleventh Circuit, conceived and implemented the nation’s—and the world’s—first drug court. In actualizing his vision, Judge Klein set in motion what became the national drug court movement: these days, more than 3,000 drug courts are in operation across the country, according to the National Institute of Justice, and they can be found in every state and US territory. Judge Klein’s pioneering efforts also sparked a profound change in the way the US responds when a person suffering from drug and/or alcohol addiction is arrested. Often called “the most successful criminal justice reform of our nation’s history,” drug court has since prompted the creation of other kinds of problem-solving dockets using the drug court model—among them, mental health court, veterans court, domestic violence court, and truancy court.
Problem-solving dockets are designed to help individuals who have specific needs and problems that are not being addressed, or cannot adequately be addressed, in traditional courts. Although most problem-solving dockets are relatively new, studies have already shown that this approach, which hinges on differentiated case management (that is, adapting the case management process to the requirements of specific case types), significantly reduces crime—and provides better treatment outcomes and produces better cost benefits than other criminal justice strategies. Ultimately, it has a more positive effect on the lives of the participants, their families, their victims, and their communities. The most prevalent problem-solving courts in Florida are drug court, mental health court, and veterans court. (For more information about Florida’s problem-solving dockets, follow this link.)
Many of the initiatives discussed below have grown out of the recommendations of the supreme court’s Task Force on Substance Abuse and Mental Health Issues in the Courts. Established in 2010, this task force (a merger of the court’s Task Force on Treatment-Based Drug Court and the Mental Health Subcommittee) is charged with addressing the needs and challenges of individuals with serious mental illnesses and substance abuse disorders who become involved in the justice system. Chaired by Judge Steven Leifman, Miami-Dade County, and supported by OSCA’s Office of Court Improvement (OCI), the task force has a far-reaching membership that includes judges, quasi-judicial officers, justice system partners, and representatives from Florida’s Department of Children and Families, Department of Corrections, and Agency for Health Care Administration. (This link goes to the task force’s 2016 administrative order.)
Florida’s legislature has a long history of support for drug court. In 1993, for instance, lawmakers provided for pretrial substance abuse education and treatment intervention programs for eligible nonviolent felony offenders; these programs were the precursors to the various forms of drug court that exist in the state today. And in 2001, the legislature, stating that it “recognizes that the integration of judicial supervision, treatment, accountability, and sanctions greatly increases the effectiveness of substance abuse treatment,” encouraged the implementation of drug courts “in each judicial circuit in an effort to reduce crime and recidivism, abuse and neglect cases, and family dysfunction by breaking the cycle of addiction which is the most predominant cause of cases entering the justice system” [Section 397.334, Florida Statutes (2001)]. The legislature also fostered the development of adult post-adjudicatory drug courts: in 2009, when the economy was deep in the throes of the recession and the prison population was still growing, lawmakers, in an effort to conserve public dollars, supported the expansion of the number of adult post-adjudicatory drug courts in the state; although the program was initially funded with $18.9 million in federal stimulus money, lawmakers voted to fund the initiative after the grant expired in 2013, and then in 2014, they appropriated recurring dollars to continue the program long-term.
In Florida, drug court comprises a 12 to 18-month process during which nonviolent offenders whose crimes are related to a substance abuse disorder or addiction are placed in a treatment program under the close supervision of a judge and a team of treatment and justice system professionals. Although each drug court in the state is singular, reflecting the needs, priorities, and culture of its local community, drug courts tend to have certain features in common: for example, they take a less adversarial approach than traditional criminal justice strategies; they require participants to maintain ongoing interaction with the court; they collaborate closely with community partners to offer a range of treatment and rehabilitation services; they require participants to undergo frequent, random alcohol and drug tests, closely monitoring compliance and conferring rewards and, when necessary, imposing sanctions; and they are structured to achieve positive outcomes for the participants—and for those whose lives they touch.
The same circumstances that spurred the development of drug courts prompted the creation of mental health diversion programs, mental health dockets, and mental health courts: offenders in need of treatment services. With the reduced availability of community resources to provide treatment for people with serious mental illnesses—one of the consequences of the recent recession—the courts began seeing a significant increase in the number of repeat offenders with untreated mental illnesses. Florida’s jails and prisons are not designed, equipped, or funded to accommodate these offenders. However, the drug court model offers a viable alternative. Like drug courts, mental health courts hold offenders accountable while connecting them to the treatment services they need to address their mental health disorders. Monitoring and treating them in a mental health court is more effective, efficient, and economical than the remedies available through traditional justice system approaches.
In addition to promoting the establishment of mental health dockets across the state, the Task Force on Substance Abuse and Mental Health Issues in the Courts also advocates the development of safe, effective, and cost-efficient alternative placement options for people adjudicated incompetent to proceed or not guilty by reason of insanity.
Task force chair Judge Leifman underscores that Florida’s current forensic treatment system does not prevent individuals from becoming involved in the justice system—nor does it reduce recidivism to jails, prisons, and state hospitals. Moreover, it is expensive: “Florida currently spends more than $210 million annually—one third of all adult mental health dollars and two thirds of all state mental health hospital dollars—on 1,700 beds serving roughly 3,000 individuals under forensic commitment” (Miami-Dade Forensic Alternative Center Pilot Program Status Report, 2014). Based on historic growth rates, these expenditures are forecast to increase significantly, by as much as a billion dollars each year over the next decade.
Instead of recommending admission to forensic treatment facilities for individuals with serious mental illnesses or co-occurring mental health and substance use disorders, the task force recommends community-based services and support, recognizing that this alternative approach saves taxpayer dollars—and it also redirects the state’s financial priorities from the incarceration of nonviolent offenders to their rehabilitation.
Thus the task force has explored the options for expanding the Miami-Dade Forensic Alternative Center (MD-FAC), a successful, community-based forensic commitment program that aims to successfully reintegrate its patients into the community. Established in August 2009, this program is a collaborative effort between the Eleventh Judicial Circuit and the Department of Children and Families; it admits adults age 18 and older who have been found by the circuit to be incompetent to proceed on a second or third degree felony, who do not have significant histories of violent felony offenses, and who are not likely to face incarceration if convicted of their alleged offenses. In addition, admission is limited to individuals who would otherwise be committed to the Department of Children and Families and admitted to state forensic treatment facilities.
Individuals admitted to the program are diverted from forensic treatment facilities into a secure inpatient setting where they receive crisis stabilization and short-term residential treatment services, which include illness management and community re-entry. When they are ready to step down to less restrictive community placement and outpatient services, they are given re-entry assistance and ongoing support services. Unlike state forensic treatment facilities, this program keeps in the program—rather than in jail—those individuals who are awaiting trial once their competency has been restored; as a result, these individuals are less likely to experience deterioration of psychiatric functioning and be declared incompetent to proceed again.
In an analysis comparing patients treated at the MD-FAC with demographically comparable individuals committed to a state facility, researchers at the University of Miami Miller School of Medicine found that patients admitted to the MD-FAC had lower recidivism rates, and their likelihood of not returning to jail in the year following discharge was doubled (and, for those who did return to jail, they spent two-thirds fewer days incarcerated than the state facility patients did). In addition, the average length of stay was one-third shorter at the MD-FAC inpatient unit and cost half as much as inpatient admission to a state forensic treatment facility. Judge Leifman and the task force continue to press for the passage of bills to support the expansion of this program to other areas in the state.
More than 21 million veterans live in the US, and, according to the Florida Department of Veterans Affairs, Florida—which ranks third in total veteran population—is home to more than 1.5 million (around 8 percent of the state’s total population). Veterans frequently return home with physical injuries—but war commonly leaves profound psychological scars as well. In addition to depression, veterans often suffer from two “signature injuries” of war—traumatic brain injury and post-traumatic stress disorder; all three are risk factors for substance abuse. Veterans often find it difficult to re-assimilate into their communities—and those with untreated substance abuse or mental health issues may find it even harder to return to their home lives. These challenges can lead to criminal activity.
Veterans court was founded in 2008 in Buffalo, NY, to address the substance abuse and mental health needs of veterans within the criminal justice system. Veterans court utilizes the drug court model: it holds offenders answerable for their offenses while connecting them with treatment services that address the complex needs associated with substance abuse, mental illness, and concerns particular to the traumatic experience of war. However, veterans court is different from drug court and mental health court in that it relies significantly on the use of mentors—other veterans in the community who volunteer to support defendants with one-on-one time and attention. In addition, veterans courts leverage resources from the US Department of Veterans Affairs to serve these offenders’ treatment needs.
Florida launched its first veterans docket in 2010, and as of May 2016, Florida has 24 veterans courts in operation, four of which are operating as a part of drug court and/or mental health court. These dockets have been showing great promise, and lawmakers are encouraging the development of more special dockets and diversion programs for veterans.
Mediation and other methods of alternative dispute resolution (ADR) help to improve the administration of justice by promoting communication (thereby opening the door to problem-solving) between parties, by conserving judicial time, and by helping the branch use public resources responsibly.
ADR is not new to this country: beginning in the 1930s, people made considerable use of ADR practices, primarily to settle labor-management disputes. Thirty years later, with the rise of the civil rights movement, the notion of developing alternative methods for resolving problems became both appealing and critical when the courts found themselves glutted with civil and criminal disputes that, in simpler times, had been dealt with in more intimate, neighborly contexts—e.g., by families, communities, and local civic interventions. Thus interest in mediation and other ADR practices was reinvigorated when, in the late 1960s, communities began to experiment with unorthodox strategies for solving disputes.
Florida’s court system has actively promoted the use of alternative dispute resolution methods since the 1970s. ADR had its origins in Dade County, which established the first citizen dispute center in 1975. For the first 12 years, legislation authorized the creation of citizen dispute settlement centers and the judicial referral of cases to family mediation, but, on the whole, most of the ADR momentum was fomented by grassroots efforts.
That all changed in 1988, when, as a result of the reports of Florida’s 1985 and 1986 Legislative Study Commissions, groundbreaking legislation was adopted to grant trial judges the power to refer any contested civil matter to mediation or arbitration. In addition, the Florida Supreme Court was authorized to create standards for a range of ADR elements including certification, training, conduct, and discipline. As a result of this legislation, ADR in Florida was elevated to a venerated place in the civil justice system.
At about the same time, former Chief Justice Joseph Boyd and Talbot “Sandy” D’Alemberte, former president of the American Bar Association and former dean of Florida State University College of Law, established the Florida Dispute Resolution Center (DRC) as the first statewide hub for education, training, and research in the area of ADR. This legislation and the creation of the DRC facilitated the flowering of ADR, particularly of mediation, in Florida. As a result, Florida began to develop what has become one of the most extensive, court-connected mediation programs in the country.
Housed in the supreme court building, the DRC has a broad range of responsibilities: it sponsors an annual conference for alternative dispute resolution professionals; conducts county mediation training for volunteers; assists local courts throughout the state, as needed; and provides staff assistance to four supreme court mediation boards and committees (the Supreme Court Committee on ADR Rules and Policy, the Mediator Ethics Advisory Committee, a mediator grievance board, and a grievance board for certified mediation training programs). The DRC also certifies mediators and mediation training programs in five areas: county, family, circuit, dependency, and appellate. Currently, nearly 6,000 supreme court-certified mediators serve the state and its citizens.
The DRC’s annual statewide conference is its crowning continuing education event—and it has been growing in size and scope since its inauguration in 1992. At these conferences, participants have the opportunity to earn their required continuing mediator education credits while learning about host of ADR-related topics. Recent conferences have paid homage to the considerable transformations that ADR in Florida has been undergoing these last few years. Some of these changes have been spurred by new technologies, including the DRC’s significant expansion of its web presence and its automation and streamlining of many of its processes to better assist mediators, trainers, attorneys, and the public. But some of the developments are connected to the broadening field of ADR: in the past, most people associated ADR with mediation, but now, mediation is regarded as just one of many ADR processes. Among the various new ADR roles, for instance, is the parenting coordinator (parenting coordination is a child-focused ADR process in which mental health or legal professionals with mediation training assist parents in creating and implementing their parenting plan). Indeed, the reach of the DRC has recently expanded to include some oversight for parenting coordination training program approvals and oversight of the process governing complaints filed against parenting coordinators. (This link goes to information about ADR in Florida and the DRC).
Glorious beaches, boundless sunshine, low unemployment, a relatively modest cost of living, a surge in domestic retirees, an increase in foreign investors...in the earliest years of the twenty-first century, many appealing ingredients combined to spur Florida’s economy into becoming one of the most vigorous in the nation. And the housing market in Florida mushroomed as well—aided by the same factors that made home-buying more affordable across the country: sub-prime lending, zero-interest loans, low-interest ARMs, and zero down payments. According to the Florida Association of Realtors, from 2000 to mid-2005, the median sales price of a single family home in Florida jumped 88.6 percent, and in 2005, four of the top five metropolitan areas in the US with the greatest home price appreciation were in Florida.
However, escalating home values—along with the decreasing housing supply, rising interest rates, immoderate home equity withdrawals, pervasive real estate speculation, the widespread securitization of loans, and regulatory loopholes—soon made Florida’s housing market one of the most volatile in the US. Such overheated markets are unsustainable, and Florida, once referred to as the “poster child for the real estate boom,” came to be known as the “poster child for the real estate bust.”
Real estate busts profoundly affect property owners, neighborhoods, communities, real estate values, local businesses, and mortgage markets. And they also have a dramatic effect on the courts. Normally, Florida has about 6,000 foreclosure filings a month—or about 70,000 a year. However, as early as 2006, before there was much talk on the national level about a real estate bust, civil courts in several Florida counties were already beginning to show signs of unusual activity. In fact, before the year was over, foreclosure filings had started to rise across the state, with the last quarter of 2006 showing over 8,000 per month. Then in 2007, foreclosure filings more than doubled: Florida’s courts logged over 182,000 that year. And the numbers continued increasing precipitously: with one in five Florida homeowners in foreclosure or seriously behind on mortgage payments, it became “normal” for the courts to see between 30,000 and 40,000 filings per month in 2008 and 2009. By June 30, 2010, 462,339 foreclosure cases had been filed and—due to their sheer volume and the lack of judicial resources—were inundating the courts.
Through the implementation of a two-year Foreclosure Initiative that began on July 1, 2013, the courts were successfully able to reduce the glut of backlogged cases while protecting the rights of the parties involved in litigation. Fundamental to the initiative’s success was the $21.3 million that the legislature appropriated to the Florida courts system from the National Mortgage Settlement funds: $16 million for human resources such as additional senior judge days, general magistrates, and case managers, and $5.3 million for technology enhancements; lawmakers also designated $9.7 million to the clerks of court to assist with these cases (the funding was earmarked for fiscal years 2013 – 14 and 2014 – 15).
Also critical to the initiative’s success was the trial courts’ implementation of the practical strategies recommended in the judicial branch’s Foreclosure Backlog Reduction Plan, released in April 2013. The plan, developed by the Trial Court Budget Commission’s Foreclosure Initiative Workgroup, took a bottom-up approach, basing its recommendations largely on process improvements that were already showing great potential at the local level. In developing the plan, the workgroup aimed to present the trial courts with a range of viable, resourceful, cost-effective methods to consider in addressing their backlog crisis.
The plan offered four recommendations to address the problems impeding the just and timely processing of foreclosure cases—three pertaining to personnel and case management, and one concerning the utilization of technology resources. First was the implementation of more active judicial or quasi-judicial case management and adjudication, including expanded use of general magistrates into the civil division (the supreme court adopted rule 1.491, Florida Rules of Civil Procedure, to authorize referral of residential mortgage foreclosure cases to general magistrates with implied consent of the parties). The plan also recommended that each chief judge develop a case management plan that optimizes the circuit’s use of existing and additional resources in the resolution of foreclosure cases. In addition, the plan called for the hiring of additional case management personnel to allow for focused attention on older foreclosure cases.
To help judges move the foreclosure cases forward, the plan also urged the adoption of the Court Application Processing System (CAPS): an interactive, web-based application that enables judges to view and work on electronic documents, to manage their cases electronically from any location and across many devices, and to issue court documents electronically; it also provides them with basic tools and capabilities at the local level to manage and track case activity. (To read the plan, take this link.)
The supreme court adopted the plan in June 2013, and the Foreclosure Initiative was launched. When the initiative began, on July 1, 2013 (the start of the 2013 – 14 fiscal year), more than 329,000 foreclosure cases were pending before the courts; and when the initiative ended, on June 30, 2015 (the end of the 2014 – 15 fiscal year), 83,179 foreclosure cases were pending (this amount factored in the 163,152 new foreclosure cases that were filed within that time span). Altogether, the courts disposed of 378,446 foreclosure cases during the two-year stretch of the initiative. Since then, the number of pending cases has returned to normal levels; indeed, in fiscal year 2015 – 16, the number of filings was lower than it had been before the recession hit. (For more information about the Florida courts system’s response to the foreclosure crisis, take this link.)
Meanwhile, in the course of meeting the challenges of the foreclosure crisis and considering strategies for developing a more effective and comprehensive way of handling these cases, the Foreclosure Initiative Workgroup discovered several innovative methods for improving the administration of justice generally. For instance, they soon realized that expanding the use of general magistrates and adopting an active case management approach (which, in the past, had typically only been used in the family division in Florida) has auspicious implications for handling other cases in the civil division.
In addition, CAPS, a technology that was initially used to facilitate the processing of foreclosure cases, has come to be regarded as the basis for an automated statewide case management system—something the judicial branch has sought for over a decade. CAPS is now one of two components of a judicial branch project called the Integrated Trial Court Adjudication System (ITCAS). The second component, called Judicial Data Management Services, is described as a state-level data management strategy that will pull court activity data from the local judicial viewer systems, among other sources, and integrate them into a coherent whole, providing for statewide court operations management. ITCAS has the potential to lead to better management of cases, better statewide-level court data reporting, and improved performance generally.
Finally, the Foreclosure Initiative Workgroup recognized that judges, judicial officers, case managers, and other support staff need appropriate tools to help them manage this dynamic and complex foreclosure caseload—and one essential tool is meaningful and accurate real-time information reflecting the movement of these cases through the foreclosure process. For nearly four decades, the supreme court relied on a uniform case reporting system called the Summary Reporting System (SRS), which has historically provided OSCA with data that assist the supreme court in its management and oversight role. But, because it is a summary-level system, the SRS has limits; for instance, while it reveals the number of filings and the number of dispositions that a particular circuit had, it does not provide specific case information. For the foreclosure initiative, however, the workgroup proposed, OSCA developed, and the supreme court approved a new data collection plan that tracks and monitors case activity data, furnishing, for example, the specific cases filed, the specific cases disposed, and the specific cases that are still pending. This new data collection plan, which was implemented in June 2014, is a standardized way of calculating and looking at workload, and it provides all levels of court with critical information concerning the movement of foreclosure cases through the courts. So far, this system has been used exclusively for foreclosure cases—but it is being adapted for use for all case types and will provide invaluable local, circuit, and statewide data. The judicial branch aims to implement this system in all court divisions and is seeking resources to make this goal a reality.