Florida stands poised to alter its judicial landscape in perpetuity: the Florida Supreme Court has recently recommended that the Florida Legislature establish a new District Court of Appeal (“DCA”), the Sixth DCA, to improve public trust and confidence in the judiciary.[i]  In the Court’s opinion, recommending the creation of a Sixth DCA, the Court stated that “[a] salient issue relevant to this criterion [public trust and confidence] 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.”[ii]  The Fourth Circuit represents only thirteen percent of the judges currently sitting on the First DCA despite making up more than a third of the population encompassed by the First DCA.[iii]  The court based these findings on a report created by the District Court of Appeal Workload and Jurisdiction Assessment Commission, a commission that the Court itself ordered into existence pursuant to the Florida Constitution.[iv]

The prospective Sixth DCA has garnered attention and even support within the Florida legislature evidenced by the sweeping margins of recent votes on the subject: “[t]he [Florida] Senate voted 39-0 on February 17 to begin a formal conference. A day before, the [Florida] House voted 87-27 to approve a competing proposal . . . .”[v]  However, the recommendation is not without criticism; Justice Polston offered a dissenting opinion in which he argues that the adoption of an entirely new DCA would be disruptive, costly, and objectively unnecessary.[vi]  Justice Polston also argues that underrepresentation could simply be solved by adding additional judges to the First DCA from Jacksonville.[vii]  While the addition of a new DCA in Florida may seem exciting to those involved in the legal community and may even be thought of as necessary to increase public trust and confidence in the Florida judiciary, the average Floridian taxpayer may not see the benefits in such an expenditure, especially if that Floridian resides outside the Jacksonville metropolitan area.

Although adding DCAs is a constitutionally mandated responsibility of the Florida Supreme Court when the Court deems it necessary, the Court has not created a new DCA since 1979 when the Fifth DCA was created.[viii]  The Court has been reluctant in years past to add a new DCA because of potential impacts on nearly all aspects of Florida’s judicial system and the prospective costs. Therefore, according to the rules of judicial administration, the addition of an entirely new court should be a last resort: “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 . . . .”[ix]  But, in this case, it seems the Florida Supreme Court has opted for the most disruptive solution available.

There are a multitude of operational issues associated with the establishment of a new DCA.  Because DCAs have the authority to disagree with each other, the implementation of redistricting could cause sudden changes in the controlling case law of certain jurisdictions.[x]  Any unresolved splits in the DCAs would create new laws for those areas subject to redistricting.  Also, because the legislature has not settled on a plan for which circuits would be included within this new Sixth DCA, there is no way to know the exact nature of the judicial disruption that undoubtedly will occur when the Sixth DCA begins operations.  Without an exact map of the circuits that will be redistricted, it is impossible to tell which circuits will be controlled by what case law.

Additionally, according to the Florida Constitution, “[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.”[xi]  Because some judges currently seated on the First, Second, and Fifth DCAs may be redistricted into different DCAs, they may be required to either move their residence to keep their current DCA assignment or be forced to sit on a completely different DCA.  The Court addressed this in its opinion: “[t]he 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.”[xii]  Despite the desire to keep current judgeships as they are, keeping those judgeships will only compound the cost issue associated with an additional DCA.

Because some judges will be reassigned to new DCAs to prevent those judges from losing their judgeships, other DCAs to which those judges once belonged will require replacement judges to make up for those lost in the redistricting process.  To meet the demand for additional judges in districts that no longer have sufficient judges to meet the workload, the Court certified “the need for six additional district court judgeships, one in the realigned Second District and five in the realigned Fifth District.”[xiii]  Therefore, in addition to the costs associated with establishing an entirely new DCA, the Court also sees the need for six additional DCA judgeships because of the redistricting.

Justice Polston argues that the addition of one or two more judgeships from Jacksonville would solve Jacksonville’s underrepresentation without the need for an additional DCA.[xiv]  Under Justice Polston’s plan, the Court would create two more judgeships from Jacksonville, and there would be no need for an additional DCA.[xv]  Under the Court’s recommendation, Florida will need to create a new DCA and—to ensure no current judgeships are disrupted—six new judgeships would need to be created to account for the shift in DCA jurisdiction.[xvi]  In effect, the Court’s costly plan to create a new DCA created the need for an additional six judgeships where no need existed before.  Now, Florida taxpayers will have to foot the bill for both an entirely new DCA and six more judgeships instead of one or two more judgeships under Justice Polston’s plan.

Not even the Supreme Court would be safe from this judicial shakeup.  The Florida Constitution mandates that each appellate district have at least one justice from its jurisdiction on the Supreme Court.[xvii]  Therefore, future appointments to the Florida Supreme Court would require six of the seven justices to be from different DCAs.  While this change seems likely to diversify the Court (which is admittedly a reasonable desire and a beneficial change to the Supreme Court), this also means that one lucky DCA will have two representatives on the Supreme Court leading to greater voting power from just one DCA.  Such a situation does not seem to rectify underrepresentation in the Supreme Court.

In addition to operational and administrative hurdles, the Sixth DCA would create fiscal issues as well. Those issues include but are not limited to the construction of new court facilities including a new courthouse, the hiring of new staff, clerks, and marshals, implementation of a new judicial nominating committee, and the appointment of a new appellate Public Defender, regional conflict counsel, and capital collateral regional counsel.[xviii]  All of these financial burdens to resolve an issue with underrepresentation from the Fourth Circuit seem excessive.  In the words of Justice Polston, “[t]his certification is analogous to rebuilding a ship for what should be swapping out a couple of deck chairs at most.”[xix]

While there are legitimate reasons for the establishment of a Sixth DCA, including a seemingly unending population boom in Florida, a relatively new lack of appellate jurisdiction in the Circuit Courts leading to greater caseloads for DCAs, and a desire to cover Florida’s metropolitan areas more effectively, the underrepresentation of the Fourth Circuit in the First District should not justify all the above-listed expenses and operational issues.  Instead, a more measured approach should be used to rectify the situation.  A few new judges appointed from the Fourth Circuit would surely fix any issues of underrepresentation without the need to establish an entirely new district.[xx]  There are effective alternatives to establishing the Sixth DCA, and those alternatives should be explored before taking such a drastic step.

[i] See In re Redefinition of App. Dists. and Certification of Need for Additional App. Judges, No. SC21-1543, 2021 WL 5504715, passim (Fla. Nov. 24, 2021) [hereinafter In re Redefinition of App. Dists.] (Per Curiam) (recommending the implementation of a Sixth District Court of Appeal to improve public trust and confidence in the Florida judiciary); see also Fla. R. Gen. Prac. & Jud. Admin. 2.241(d)(5) (listing factors to consider when determining if new DCAs are needed to improve public trust and confidence in the judiciary). The rule reads as follows:

Criteria for District Courts. The following criteria shall be considered when determining the necessity for increasing, decreasing, or redefine/ng appellate districts as required by article V, section 9, of the Florida Constitution: . . . (5) 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.

Id.

[ii] In re Redefinition of App. Dists., 2021 WL 5504715, at *2 (Per Curiam).

[iii] See id.

[iv] See Dist. Ct. of Appeal Workload and Jurisdiction Assessment Comm., Final Report and Recommendations, passim (Sept. 30, 2021), [hereinafter The Report] https://www.flcourts.org/content/download/791118/file/dca-assessment-Committee-Final-Report.pdf (indicating that controlling case law throughout Florida may be affected by the implementation of a sixth DCA).

[v] See Jim Ash, Legislation to Create a Sixth DCA Goes to Conference, Florida Bar News (Feb. 21, 2022), https://www.floridabar.org/the-florida-bar-news/legislation-to-create-a-sixth-dca-goes-to-conference/ (noting that “[t]he [Florida] Senate voted 39-0 on February 17 to begin a formal conference. A day before, the [Florida] House voted 87-27 to approve a competing proposal . . . .”).

[vi] See In re Redefinition of App. Dists., 2021 WL 5504715, at *5 (Polston, J., dissenting) (“There is no objective justification for the 6 additional judges certified by the majority.”).

[vii] See id. at *6 (Polston J., dissenting) (“Using the same metrics the Court uses to determine the certified need for judges on district courts of appeal, . . . there would be a calculated need for 3 judges specifically as to Duval.”).

[viii] See art. V, §9, Fla. Const. (“If the supreme court finds that a need exists for . . . increasing, decreasing or redefining appellate districts . . . , it shall . . . certify to the legislature its findings and recommendations concerning such need.”).

[ix] See Fla. R. Gen. Prac. & Jud. Admin. 2.241(b)(8) (“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 . . . .”); see also In re Redefinition of App. Dists., 2021 WL 5504715, at *6 (Polston, J., dissenting) (“This rule [rule 2.241(b)(8)] emphasizes that the Court should consider the disruptive effect of changes and attempt to minimize it by other means first.”).

[x] See The Report, supra note 4, at 29 (indicating that controlling case law throughout Florida may be affected by the implementation of a sixth DCA).

[xi] See art. V, §8 Fla. Const. (“No 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.”); see also The Report, supra note 4, at 26 (“[A] boundary change may result in a workload need for fewer or more judges than currently reside within a particular DCA. Further, a judge may reside within a judicial circuit that moves into another DCA.”).

[xii] See In re Redefinition of App. Dists., 2021 WL 5504715, at *3 (Per Curiam); see also The Report, supra note 4, at 27 (“Creating a new DCA and realigning the boundaries of existing DCAs—operating solely with the existing 64 DCA judgeships—creates challenges in balancing workload if the goal is to not require a judge to change his or her residence.”).

[xiii] See In re Redefinition of App. Dists., 2021 WL 5504715, at *3 (Per Curiam).  Contra id. at *7 (Polston, J., dissenting) (recommending the addition of two judges to the First DCA from Jacksonville to correct underrepresentation without adding an additional DCA).

[xiv] See In re Redefinition of App. Dists., 2021 WL 5504715, at *7 (Polston J., dissenting).

[xv] Id.

[xvi] Id. at *3 (Per Curiam).

[xvii] See art. V, §3(a) Fla. Const. (“The supreme court shall consist of seven justices. Of the seven justices, each appellate district shall have at least one justice elected or appointed from the district to the supreme court who is a resident of the district at the time of the original appointment or election.”).

[xviii] See The Report, supra note 4, at 28 (listing various issues that may occur in the implementation of a new DCA); see also Ash, supra note 5 (noting that the cost for new appellate judges and support personal reaches 4.5 million dollars without including the costs associated with new construction of court facilities).

[xix] In re Redefinition of App. Dists., 2021 WL 5504715, at *7 (Polston, J., dissenting).

[xx] See id. at *6 (Polston, J. dissenting) (calculating that “there would be a calculated need for 1 or 2 more Jacksonville judges out of 15” to fix any perceived issues with underrepresentation from the Fourth Circuit).