In Re: Redefinition of Appellate Districts and Certification of Need for Additional Appellate Judges ( 2021 )

Supreme Court of Florida
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No. SC21-1543
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IN RE: REDEFINITION OF APPELLATE DISTRICTS AND
CERTIFICATION OF NEED FOR ADDITIONAL
APPELLATE JUDGES.
November 24, 2021
PER CURIAM.
Consistent with the recommendations of a Court-appointed
assessment committee, this Court has determined that a sixth
appellate district should be created in Florida and that
accompanying changes should be made to the existing boundaries
of the First, Second, and Fifth districts. 1 Also consistent with the
1. Article V, section 9 of the Florida Constitution provides in
pertinent part:
Determination of number of judges.—The
supreme court shall establish by rule uniform criteria for
the determination of the need for additional judges except
supreme court justices, the necessity for decreasing the
number of judges and for increasing, decreasing or
redefining appellate districts and judicial circuits. If the
supreme court finds that a need exists for increasing or
decreasing the number of judges or increasing,
assessment committee’s recommendations, the Court has
determined that six new appellate judgeships are needed for the
continued effective operation of the newly aligned district courts of
appeal of this state. The subject of trial court certification of need
for additional judges is addressed in a separate opinion. 2
I. Background
In May 2021, this Court appointed a District Court of Appeal
Workload and Jurisdiction Assessment Committee 3 composed of
appellate judges, trial court judges, and lawyers to evaluate the
necessity for increasing, decreasing, or redefining the appellate
districts. The Committee evaluated the operation of the existing
districts using the five criteria prescribed in Rule of General
decreasing or redefining appellate districts and judicial
circuits, it shall, prior to the next regular session of the
legislature, certify to the legislature its findings and
recommendations concerning such need.
2. See In re Trial Court Certification of Need for Additional
Judges, No. SC21-1542 (Fla. Nov. 24, 2021).
3. See In re District Court of Appeal Workload and Jurisdiction
Assessment Committee, Fla. Admin. Order No. AOSC21-13 (May 6,
2021).
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Practice and Judicial Administration 2.241: effectiveness, efficiency,
access to appellate review, professionalism, and public trust and
confidence. The Committee filed its final report 4 with the Court on
September 30, 2021. By this certification, the Court adopts the
Committee’s recommendation for a realignment of the state’s
appellate districts in order to create a sixth district, which we
conclude would significantly improve the judicial process.
II. District Realignment
A discussion of the full background and reasoning for the
Committee’s recommendation concerning a new appellate district is
contained in the Committee’s final report and recommendations. A
majority of the Committee recommended the creation of at least one
additional district court, with a plurality supporting the creation of
a sixth district and the adjustment of the existing district lines in
the manner we certify in this opinion.
The “primary rationale” for this recommendation “is that
creation of an additional DCA would promote public trust and
4. District Court of Appeal Workload and Jurisdiction
Assessment Committee Final Report and Recommendations,
https://www.flcourts.org/DCA-Committee-Report.
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confidence.” This rationale is linked specifically to the provisions of
rule 2.241(d), which sets forth “public trust and confidence” as one
of the criteria to be considered when determining the necessity for
increasing, decreasing, or redefining appellate districts. The rule
sets forth several factors to be evaluated in connection with the
public trust and confidence criterion:
Public Trust and Confidence. Factors to be
considered for this criterion are the extent to which each
court:
(A) handles its workload in a manner permitting its
judges adequate time for community involvement;
(B) provides adequate access to oral arguments and
other public proceedings for the general public within its
district;
(C) fosters public trust and confidence given its
geography and demographic composition; and
(D) attracts a diverse group of well-qualified
applicants for judicial vacancies, including applicants
from all circuits within the district.
Fla. R. Gen. Prac. & Jud. Admin. 2.241(d)(5).
Regarding these factors, the Committee report observes:
Specifically, an additional [district court] would help
provide adequate access to oral arguments and other
proceedings, foster public trust and confidence based on
geography and demographic composition, and attract a
diverse group of well-qualified applicants for judicial
vacancies including applicants from all circuits within
each district.
Assessment Committee Report at 3-4.
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We agree with the Committee’s conclusion that public trust
and confidence will be enhanced by the creation of a sixth district
court. We recognize that the rule factors related to public trust and
confidence are largely subjective and that they are affected by
circumstances that go beyond the number of district courts and the
configuration of district boundaries. Nonetheless, we believe that
the factors are meaningful considerations and that the Committee
has identified a reasonable basis for its proposal.
A salient issue relevant to this criterion is the serious
underrepresentation among district court judges of judges from
within the Fourth Judicial Circuit, which contains Jacksonville, one
of Florida’s largest metropolitan areas. Under the current
configuration of district courts, the Fourth Judicial Circuit
generates 29 percent of the filings of the First District Court, but
only two judges—constituting 13 percent of the judges on the First
District Court—are from the Fourth Judicial Circuit. Even more
striking, the population of the Fourth Circuit—with its 2 out of 15
DCA judges—makes up 37.5% of the population of the current First
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District. 5 Although no district court configuration will perfectly
address every relevant consideration, the configuration proposed in
the Committee’s plurality plan would help address this geographical
anomaly existing in the current district court system.
The creation of a new district court, like any other significant
change in the judicial system, would be accompanied by some
degree of internal disruption, but we conclude that any such
internal disruption in the district courts associated with the
creation of a sixth district court would be short-lived and would be
outweighed by the benefit of enhanced public trust and confidence.
Appended to this certification is a map showing the
geographical areas to be within the recommended, realigned
districts. Also appended to this certification is a table showing the
counties and judicial circuits affected by the proposed new district
boundaries. As shown, the Fourth Judicial Circuit 6 moves from the
5. As of January 1, 2019, the population of the Fourth Circuit
was 1,264,060 and the population of the First District was
3,346,191.
6. The Fourth Judicial Circuit is composed of Clay, Duval,
and Nassau counties.
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First District into the Fifth District, composed of the Fourth, Fifth,
Seventh, and Eighteenth judicial circuits; the Ninth Judicial
Circuit7 moves from the Fifth District into the Second District,
composed of the Ninth, Tenth, and Twentieth judicial circuits; and
the Sixth, 8 Twelfth, 9 and Thirteenth10 judicial circuits move from
the Second District to compose a newly created Sixth District Court
of Appeal. The boundaries of the Third and Fourth district courts
are unaffected by this proposal.
The Court acknowledges that a variety of operational issues
with policy and fiscal implications will arise from creating an
additional district court and revising the territorial jurisdiction of
other courts. For example, the Florida Constitution, under article
V, section 4, requires the appointment of a clerk and a marshal to
7. The Ninth Judicial Circuit is composed of Orange and
Osceola counties.
8. The Sixth Judicial Circuit is composed of Pasco and
Pinellas counties.
9. The Twelfth Judicial Circuit is composed of DeSoto,
Manatee, and Sarasota counties.
10. The Thirteenth Judicial Circuit is composed of
Hillsborough County.
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each district court. A new district court will also require associated
administrative, security, and information technology support staff.
Additionally, the realigned Second District will require an interim
facility in which to operate while a more permanent facility is
considered. The Court is prepared to assist the Legislature, as
needed, in determining an appropriate level of court system
resources associated with the creation of the new district court, the
details of which will be dependent upon the policy direction the
Legislature establishes. Other potential operational effects on
justice system entities are discussed in the Committee’s report.
III. Additional Judges
This opinion also fulfills our constitutional obligation to
determine the State’s need for additional district court judges in
fiscal year 2022/2023 and to certify our “findings and
recommendations concerning such need” to the Florida
Legislature.11 Certification is “the sole mechanism established by
our constitution for a systematic and uniform assessment of this
11. Art. V, § 9, Fla. Const.
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need.” In re Certification of Need for Additional Judges, 889 So. 2d
734, 735 (Fla. 2004).
The Court continues to use a verified objective weighted
caseload methodology as a primary basis for assessing judicial
need.12 When applied to the district courts as they currently exist,
the methodology does not indicate the need for certification or
decertification of additional judgeships. However, the simultaneous
consideration of the creation of an additional district court and the
realignment of existing district boundaries raises policy
considerations with workload implications.
Article V, section 8 of the Florida Constitution provides that
“[n]o person shall be eligible for office of justice or judge of any
court unless the person is an elector of the state and resides in the
territorial jurisdiction of the court.” The District Court of Appeal
Workload and Jurisdiction Assessment Committee recommended
that no existing district court judge’s position be decertified while
that judge is in office and that no existing district court judge have
12. Our certification methodology relies primarily on the
relative weight of cases disposed on the merits to determine the
need for additional district court judges. See Fla. R. Gen. Prac. &
Jud. Admin. 2.240.
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to change residence in order to remain in office as a result of the
realignment of districts. The Committee also recognized that, if
such a policy approach were adopted, there might not be sufficient
judges residing within included counties to meet the estimated
judicial workload of that realigned district. In turn, the number of
judges in another district may initially exceed its estimated need
after realignment. Although it was not charged with determining
the need for additional judges, the Committee used a modified
weighted caseload methodology, only slightly different from that
used in certification, to estimate judicial need as it considered
realignment of existing districts and creation of an additional
district. That methodology suggested the need for six appellate
judges to meet the workload of realigned districts without a
sufficient number of judges who currently reside within the
boundaries of the districts.
The Court concurs with the Committee’s recommendation that
realignment of districts not result in decertification of judges or a
requirement for judges to change their residence in order to remain
in office. Thus, we adopt the Committee’s methodology to meet the
need of districts without sufficient resident judges and in this
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opinion certify the need for six additional district court judgeships,
one in the realigned Second District and five in the realigned Fifth
District. This assessment is based on the assumption that each
existing judge who resides within a county that was proposed for
assignment to a new district court would be considered a judge of
the new district court.
The creation of the new judgeships we have certified would
result in six district courts of appeal composed of the following
judicial officers:
First District: 13 judges (all presently sitting).
Second District: 10 judges (9 presently sitting and 1 to be
added).
Third District: 10 judges (all presently sitting).
Fourth District: 12 judges (all presently sitting).
Fifth District: 12 judges (7 presently sitting and 5 to be added).
Sixth District: 13 judges (all presently sitting).
Further, the Court recommends that the legislation
implementing the territorial jurisdiction changes specify that
vacancies will not be deemed to occur as a result of the changes
and recommends that excess judicial capacity in a given district
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court be addressed over time through attrition, as guided by this
Court’s annual certification of the need for additional appellate
judges. The creation of an additional district and changes to the
territorial boundaries of other districts are milestone events that
have not occurred since the creation of the Fifth District Court of
Appeal in 1979. It will take some time to fully assess the impact of
these changes on workload and judicial need for any given court
and statewide.
We decertify no district court judgeships. As noted above, the
Court recommends that the creation of an additional district and
realignment of existing districts not result in decertification of
existing judges, pending an opportunity to fully assess workload
need over time through future certification processes. In addition,
statutory amendments and other relevant circumstances militate
against decertification of any appellate court judgeships.
Specifically, the impact of the Coronavirus Disease 2019
(COVID-19) pandemic in the circuit and county courts has been
significant. Those operational impacts at the trial court level have a
direct bearing on the number of appeals filed in the district courts.
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An increase in district court workload is anticipated as the trial
courts fully return to normal operations.
Another issue requiring consideration, because it influences
this Court’s ability to accurately project judicial need, is the
transfer of circuit court authority to hear appeals from county court
final orders and judgments in criminal misdemeanor cases and
most civil cases to the district courts of appeal effective January
2021 (Chapter 2020-61, sections 3 and 8, Laws of Florida). These
changes are affecting the respective distribution of judicial workload
between the circuit and district courts. However, given that this
change occurred during the COVID-19 pandemic, it has been
difficult to determine the ultimate workload associated with this
statutory change.
IV. Certification
In accordance with article V, section 9 of the Florida
Constitution, we therefore certify the need for six additional district
court of appeal judgeships, bringing to 70 the total number of
judges on the state’s district courts of appeal, and we recommend
that the state’s judicial districts be aligned as follows:
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First District: to contain the First, Second, Third, Eighth, and
Fourteenth judicial circuits.
Second District: to contain the Ninth, Tenth, and Twentieth
judicial circuits.
Third District: to contain the Eleventh and Sixteenth judicial
circuits.
Fourth District: to contain the Fifteenth, Seventeenth, and
Nineteenth judicial circuits.
Fifth District: to contain the Fourth, Fifth, Seventh, and
Eighteenth judicial circuits.
Sixth District: to contain the Sixth, Twelfth, and Thirteenth
judicial circuits.
To implement these proposals, the Court certifies to the
Legislature the need to amend chapter 35, Florida Statutes, to
create a new district court of appeal and realign the other district
court boundaries as described above. As to judges currently
residing in the realigned districts, no vacancies in office shall be
deemed to occur by reason of the realignment of districts.
Consequently, if the certified plan is adopted the two First District
judges residing in Duval County shall be judges of the Fifth District
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(which will include Duval County); the three Second District judges
residing in Pinellas County, one residing within Pasco County, one
residing in Manatee County, and eight residing in Hillsborough
County shall be judges of the Sixth District (which will include
those counties); and the six Fifth District judges residing in Orange
County shall be judges of the Second District (which will include
Orange County).
We recommend no decertification of district court judgeships.
We further certify that the realignment of the state’s judicial
districts and the certification of six district court judges, as set forth
in the appendix to this opinion, are necessary, and we recommend
that the Legislature enact the applicable laws and appropriate
funds so that the adjustments can be implemented.
It is so ordered.
CANADY, C.J., and LABARGA, LAWSON, MUÑIZ, and
COURIEL, JJ., concur.
GROSSHANS, J., concurs in result only.
POLSTON, J., dissents with an opinion.
POLSTON, J., dissenting.
The majority certifies a need for an additional district court of
appeal and 6 additional district court of appeal judges that is not
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supported by any of the 5 chief judges of the district courts of
appeal or by any district court of appeal judge on the District Court
of Appeal Workload and Jurisdiction Assessment Committee. I
agree with the district court of appeal judges that no changes are
justified.
Under our annual certification process for the need for
additional judges, no district court requested certification of
additional judgeships, and none are justified by the average
projected judicial need analysis performed. In the last 20 years,
there has been a net addition of 2 district court of appeal judges.
One was decertified in the Third District Court of Appeal in 2009,
one added to the Fifth District Court of Appeal in 2015, and 2 were
added to the Second District Court of Appeal in 2015. No more
changes have been needed in the last 6 years, and the answer
should be the same now. There is no objective justification for the 6
additional judges certified by the majority.
Instead, the majority approves the Committee’s
recommendation to create an additional district court of appeal
because it believes there should be more judges from Jacksonville
as a matter of public trust and confidence. It is the creation of the
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Sixth District Court of Appeal that provides the rationale for 6 new
judges, not needed workload capacity. Two of the 15 judges on the
First District Court of Appeal are from Jacksonville, which the
majority treats as “serious underrepresentation.” Majority op. at 5.
Objectively, that is not the case.
Looking specifically at Jacksonville, Duval County had 926
cases filed in fiscal year 2019-20 at the First District. 13 Using the
same metrics the Court uses to determine the certified need for
judges on district courts of appeal, taking those 926 Duval cases
divided by 239, the 3-year average weighted judicial workload per
judge (2017-18 to 2019-20) for the First District, there would be a
calculated need for 3 judges specifically as to Duval. Arguably the
average number should be even higher as eligible judges are based
13. The information used in this paragraph was obtained
from the Committee’s report, Appendix D-41, the DCA Workload
and Jurisdiction Assessment Committee, DCA Filings and
Dispositions by Circuit/County, Fiscal Year 2017-18, 2018-19, and
2019-20; Appendix D-12 District Courts of Appeal Judicial
Workload Per Judge and Percent Change; and Certification of Need
for Additional Judges FY 2022-23, 2A-1 District Courts of Appeal
Fiscal Year 2022-23. Amounts per judge are rounded down,
consistent with the annual practice to determine the number of
needed positions.
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on the presumptive need of 315 average weighted judicial workload
per judge after application of the additional judgeships. Based on
that number, there would be a calculated need for 2 judges
specifically as to Duval. Again, there are already 2 judges from
Jacksonville on the First District. So looking at the most recent
data, either there is no calculated need for an additional judge from
Jacksonville, or perhaps one. Taking an average over 3 years
(2017-18 to 2019-20), Duval had 1,178 filings, which would be a
calculated need of 4 judges (based on 239, the 3-year average per
judge), or 3 judges (based on 315, the average presumptive need per
judge). Using this 3-year average, there would be a calculated need
for 1 or 2 more Jacksonville judges out of 15. At most, the
additional 2 judges from Jacksonville are 13% of the 15 on the First
District. Serious underrepresentation cannot be found at 13%.
As the majority notes, Jacksonville is a large metropolitan
area. But the Florida Constitution does not provide for redistricting
in the court system based on population size as it does for
legislative representation, and the Committee properly did not do
so. See generally art. III, § 16, Fla. Const. (providing
reapportionment after each decennial census). It is court filings,
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not population size that matters to how many judges are needed.
As noted in the Committee’s September 30, 2021, Final Report and
Recommendations, page 10, “the number of [district court of
appeal] filings, from calendar year 2016 through calendar year 2020
declined each year while Florida’s population continued to increase
during the same period.” The statewide district court of appeal
filings per 100,000 population steadily decreased each year from
116 in 2016 to 70 in 2020. Jacksonville’s population size is not
justification to add a sixth district court of appeal.
Moreover, the relevant portion of the rule setting out the
factors for public trust and confidence is whether the court
“attracts [a] diverse group of well-qualified applicants for judicial
vacancies, including applicants from all circuits within the district.”
Fla. R. Gen. Prac. & Jud. Admin. 2.241(d)(5)(D). Significantly, the
rule requires that the court attracts well-qualified applicants, not
that certain applicants must be selected. Jacksonville has
outstanding lawyers and judges, and I have the upmost respect for
them. It is undisputable that there have been numerous well-
qualified Jacksonville applicants to the First District, including
making the short list, who were not selected in recent history or by
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different governors over the last 20 years. But it is the governor’s
selection, not the inability to attract well-qualified applicants, that
is relevant under the rule. See generally art. V, § 11, Fla. Const.
(the governor fills vacancies in judicial office).
Further, the majority accepts the Committee’s certification
justification to provide adequate access to oral arguments. Again,
this has no basis. The First District has panels that regularly travel
to Jacksonville for oral arguments, in addition to Pensacola and
Orlando (workers compensation cases). And all of the oral
arguments are available live on the internet on the First District’s
website.
Rule 2.241(b)(8) has not been properly considered by the
majority:
(8) Whether or not an assessment committee is
appointed, the supreme court shall balance the potential
impact and disruption caused by changes in judicial
circuits and appellate districts against the need to
address circumstances that limit the quality and
efficiency of, and public confidence in, the judicial
process. Given the impact and disruption that can arise
from any alteration in judicial structure, prior to
recommending a change in judicial circuits or appellate
districts, the supreme court shall consider less disruptive
adjustments including, but not limited to, the addition of
judges, the creation of branch locations, geographic or
subject-matter divisions within judicial circuits or
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appellate districts, deployment of new technologies, and
increased ratios of support staff per judge.
This rule emphasizes that the Court should consider the
disruptive effect of changes and attempt to minimize it by other
means first. The cost for a new district court of appeal is very
expensive. The September 13, 2021, letter to Judge Scales, Chair of
the Committee, from Judge Roberts, Chair of the DCA Budget
Commission, notes significant fiscal impacts including facilities,
staffing, and operational expenses that would necessitate additional
funding without causing significant negative fiscal impact on the
current district court budget. The disruptions to the branch are
significant. See majority op. at 13-15 (describing realignment
boundaries and current judges). This certification is analogous to
rebuilding a ship for what should be swapping out a couple of deck
chairs at most.
Rule 2.241(b)(1) states that the Court “shall certify a necessity
to increase, decrease, or redefine judicial circuits and appellate
districts when it determines that the judicial process is adversely
affected by circumstances that present a compelling need for the
certified change.” (Emphasis added.) There is no compelling need
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for adding an additional district court of appeal. The majority
makes no such finding.
Rule 2.241(b)(2) provides that the Court “may certify a
necessity to increase, decrease, or redefine judicial circuits and
appellate districts when it determines that the judicial process
would be improved significantly by the certified change.” The
Committee provides no objective justification that the judicial
process will be improved significantly by adding an additional
district court of appeal.
The Court’s rules and its responsibilities, along with the
Legislature, in the certification process are at the direction of the
Florida Constitution. As explained by article V, section 9 of the
Florida Constitution, titled “Determination of number of judges”:
The supreme court shall establish by rule uniform
criteria for the determination of the need for additional
judges except supreme court justices, the necessity for
decreasing the number of judges and for increasing,
decreasing or redefining appellate districts and judicial
circuits. If the supreme court finds that a need exists for
increasing or decreasing the number of judges or
increasing, decreasing or redefining appellate districts
and judicial circuits, it shall, prior to the next regular
session of the legislature, certify to the legislature its
findings and recommendations concerning such need.
Upon receipt of such certificate, the legislature, at the
next regular session, shall consider the findings and
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recommendations and may reject the recommendations
or by law implement the recommendations in whole or in
part; provided the legislature may create more judicial
offices than are recommended by the supreme court or
may decrease the number of judicial offices by a greater
number than recommended by the court only upon a
finding of two-thirds of the membership of both houses of
the legislature, that such a need exists. A decrease in
the number of judges shall be effective only after the
expiration of a term. If the supreme court fails to make
findings as provided above when need exists, the
legislature may by concurrent resolution request the court
to certify its findings and recommendations and upon the
failure of the court to certify its findings for nine
consecutive months, the legislature may, upon a finding of
two-thirds of the membership of both houses of the
legislature that a need exists, increase or decrease the
number of judges or increase, decrease or redefine
appellate districts and judicial circuits.
(Emphasis added.)
Specifically, the Florida Constitution authorizes the
Legislature to make its own determination regarding appellate
districts notwithstanding what the Court determines, with a two-
thirds vote of the membership of both houses. Accordingly, if the
Court were to determine there is no justification for changes under
its rules, the Legislature is free to act according to the Constitution
and draw the lines as a policy decision to provide more Jacksonville
judges. That is the proper response to the Committee’s
recommendation.
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Because there is not a compelling need or significant
improvement to the judicial process as required by rule 2.241(b), I
would not certify a new district court of appeal or any additional
district court of appeal judges.
I respectfully dissent.
Original Proceeding – Certification of Need for Additional Appellate
Judges
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APPENDIX
District Court Need
District
Court
Certified
District Judges
1 0
2 1
3 0
4 0
5 5
6 0
Total 6
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Recommended Realignment of Districts
Counties and Judicial Circuits Affected
County Circuit Current Proposed
District District
Clay Fourth First Fifth
Duval Fourth First Fifth
Nassau Fourth First Fifth
Orange Ninth Fifth Second
Osceola Ninth Fifth Second
Pasco Sixth Second Sixth
Pinellas Sixth Second Sixth
DeSoto Twelfth Second Sixth
Manatee Twelfth Second Sixth
Sarasota Twelfth Second Sixth
Hillsborough Thirteenth Second Sixth
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