Navigating With a New Map: Impact of Changes to the District Courts of Appeal Territorial Boundaries
On January 1, 2023, Florida’s district court map is changing: A new Sixth District Court of Appeal has been created. “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.” To make way for the new court, the geographic boundaries of the First, Second, and Fifth districts will all change. These changes in boundaries present logistical and practical concerns for the courts and the practitioner. This article addresses the path to approval of the new district, the contours of the new map, how the change affects both individuals and state entities, and discusses practical considerations for navigating the new map.
The District Court of Appeal Workload and Jurisdiction Assessment Committee
The journey to changing the layout of the district courts began in earnest on May 6, 2021, when the Supreme Court issued an administrative order creating the District Court of Appeal Workload and Jurisdiction Assessment Committee to aid the court in its annual determination of the necessity for increasing, decreasing, or redefining appellate districts as required by Fla. Const. art. V, §9. The committee was charged with conducting a review in accordance with Rule of General Practice and Judicial Administration 2.241. Rule 2.241 requires an evaluation of the district courts’ effectiveness, efficiency, access to appellate review, professionalism, and public trust and confidence. Representative members from each existing judicial circuit were appointed, with Judge Ed Scales being appointed as chair.
Pursuant to art. V, §9, the court must file its report prior to the beginning of the legislative session. Therefore, the committee was given a tight deadline, to file its report: October 1, 2021. To fulfill its charge, the committee met six times. The meetings were structured around data gathering and analysis, survey reviews, and a public hearing. Committee members also relied on available quantitative and qualitative information, and their collective judgment as judges and legal practitioners to evaluate the districts according to the criteria established in rule.
Although all data showed that Florida’s district courts are currently functioning well, a majority of the committee members recommended the creation of at least one additional district court. The fifth factor set forth in Rule 2.241 — public trust and confidence — served as the main rationale for the majority recommendation. Specifically, the majority of the committee members felt creation of a new district court would
foster public trust and confidence by aligning the district courts with future growth of the state and making the number of judges on each court more comparable, and will enhance diversity and circuit representation among the applicants for appellate judicial vacancies. A number of members of the Committee also believe that creation of an additional district court will contribute to enhanced effectiveness, efficiency, access to appellate review, and professionalism, thereby indirectly complementing the other four criteria in Rule 2.241.
A minority of the committee members favored maintaining the existing jurisdictional boundaries of the five district courts. These minority members felt the data the committee reviewed, when applied to the five criteria prescribed in Rule 2.241, did not establish a need to change the boundaries of the existing district courts. Reasons cited by the minority included the performance statistics for the courts, the survey results, and public hearing comments.
The Supreme Court Opinion Certifying the Need for Change
All but one member of the Supreme Court agreed with the committee’s majority recommendation, both as to the need for a new district court as well as the recommendation that new appellate judgeships were needed for the newly aligned district courts of appeal. The court’s opinion discussed the “primary rationale” for the committee’s recommendation noting:
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 District. 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.
After noting “the [c]ourt continues to use a verified objective weighted caseload methodology as a primary basis for assessing judicial need,” the court found there was no need for either certification or decertification of additional judgeships in the existing district courts based on that methodology.
However, the court did not stop there. The court next considered the implications of the creation of a new district court and the corresponding changes in geographical boundaries to determine whether the change occasioned the need for additional appellate judges. The court found a need would arise from the creation of a new district court, and, in keeping with its constitutional duties, certified its findings and recommendations concerning such need to the Florida Legislature. Key to this consideration was Fla. Const. art. V, §8, which prohibits any person from serving as a judge of any court unless that person resides in the territorial jurisdiction of the court. The committee had recommended, and the Supreme Court concurred, that no existing district court judge’s position be decertified while that judge was in office, and that no existing district court judge have to change residence in order to remain in office as a result of the realignment of districts. Based upon this methodology, the Supreme Court certified the need for additional appellate judgeships.
Justice Polston was the lone dissenter. As the majority opinion tracked the majority report, so too did the minority opinion track the minority report. That report principally relied on the fact that creation of a new district court was not supported by any of the five chief judges of the district courts of appeal or by any district court of appeal judge on the committee. Starting from the conclusions that workload capacity did not dictate a need for additional judges, Justice Polston analyzed the statistics specifically for Jacksonville, Duval County, and concluded no serious underrepresentation existed.
Further, Justice Polston noted “[i]t is court filings, not population size that matters to how many judges are needed” and that the number of filings declined each calendar year from 2016 to 2020. Lastly, Justice Polston thoroughly reviewed all of the factors set forth in Rule 2.241 and determined none of the factors warranted creation of the new district court. He concluded that “[b]ecause 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.”
The Legislation: Laws of Fla. Ch. 2022-163
The legislature heard the Supreme Court’s call and a bill to create a new district court was filed in the Florida House of Representatives. As filed, House Bill 7027 tracked the Supreme Court’s proposed restructuring plan, which included 1) moving the Fourth Judicial Circuit from the First District Court of Appeal into the Fifth District Court of Appeal; 2) moving the Ninth Judicial Circuit from the Fifth District Court of Appeal into the Second District Court of Appeal, which would be comprised of the Ninth, 10th, and 20th judicial circuits; and 3) separating the Sixth, 13th, and 12th judicial circuits from the Second District Court of Appeal to create a Sixth District Court of Appeal.
The bill realigned judicial work assignments and added seven new appellate judges overall. The legislation also made conforming changes addressing the logistical concerns raised by the committee and, in the court’s opinion, certifying the need for the creation of a new district. It established the public defender’s office for the Sixth Judicial Circuit as the Appellate Public Defender for the new Sixth District Court of Appeal. It provided the Offices of Criminal Conflict and Civil Regional Counsel be divided by geographic region, and transferred judicial nominating commission members seats to the nominating commission for the district as composed on January 1, 2023.
After passing the full House and the Senate, the bill was amended by the conference committee. Significantly, the bill flipped the composition of the Second and newly created Sixth District court. As enacted, the Second District consists of the Sixth, 12th, and 13th judicial circuits; the Sixth District consists of the Ninth, 10th, and 20th judicial circuits. Seven additional appellate judges were still added.  The headquarters for the two district courts were also flipped, with the Second District court headquarters now being situated in Pinellas County, and the headquarters for the Sixth District being in Lakeland, Polk County. The bill requires all property, furnishings, artwork, and fixtures located at the current Second District court in Lakeland to remain in Lakeland and to be transferred to the Sixth District court, unless the Office of the State Courts Administrator determines that such property is essential to the continuing operations of the Second District Court in its new headquarters in Pinellas County. Changes to the corresponding appropriations bill, discussed below, demonstrates the significance of this switch.
The conforming amendments remained, but changes were made to each. Rather than the Sixth Circuit public defender’s office, the 10th Circuit office was designated to provide appellate representation for both the Second and Sixth districts. And the Criminal Conflict and Civil Regional Counsel offices remain at five geographic regions by judicial circuit. The bill terminated the terms of all members of the judicial nominating commissions of the First, Second, and Fifth district courts and directed the governor to appoint members to those three commissions as well as the new district court’s commission.
On June 2, Gov. Ron DeSantis signed C.S./H.B. 7027, creating Laws of Fla. Ch. 2022-163. The corresponding appropriations did not fare so well. Although the majority of the Supreme Court’s requested spending items were funded, the appropriation amounts contained within the budget for construction of a new Sixth District Court of Appeal headquarters in Lakeland and a Second District Court of Appeal facility in St. Petersburg were vetoed by the governor. The Bernie McCabe Courthouse in Pinellas County, however, already received a $50 million appropriation in last year’s budget. While the new facility is being built, the Second District court’s headquarters will remain in Hillsborough County. The effect of the veto combined with the conference committee amendments to the district map is that instead of the Second District, the Sixth District will now have to rely upon leased space for its headquarters for the foreseeable future.
Practical Effects of Changes to the District Court Map
• The Composition of the Court — Foremost in many practitioner’s minds is the question of the composition of the court. How many judges will there be in each district? Which judges will fill those seats? Based upon the addition of the new Sixth District, the bill reorganizes the existing appellate judges and adds a total of seven new appellate judges statewide. The bill 1) decreases the number of appellate judges in the First District court from 15 to 13; 2) decreases the number of appellate judges in the Second District court from 16 to 15; 3) leaves the number of appellate judges in the Third District court at 10; 4) leaves the number of appellate judges in the Fourth District court at 12; 5) increases the number of appellate judges in the Fifth District court from 11 to 12; and 6) provides the newly created Sixth District court with nine appellate judges.
So who will fill these seats? As noted above, due to the reorganization of the sitting appellate judges, seven new appellate judges were added. Where those vacancies will arise is dependent upon the residence of each of the current district court judges, as the bill incorporates the request of the Supreme Court that no judge be decertified or forced to move to remain a sitting judge after the creation of the new court. To accomplish this goal, the bill specifies a current district court judge residing in a county within a realigned district will be a district court judge of the new district where he or she resided on December 22, 2021.
There are eight judges affected by the change in territorial boundaries: 1) Judges Harvey L. Jay III and Scott Makar will move from the First District to the Fifth District; 2) Judge John K. Stargel will move from the Second District to the Sixth District; and 3) Judges Jay P. Cohen, Mary Alice Nardella, Meredith L. Sasso, Dan Traver, and Carrie Ann Wozniak move from the Fifth District to the Sixth District.
With these changes, there will be four vacancies to fill in the Fifth District and three vacancies to fill in the Sixth District. The bill specifies that it is the legislature’s intent that policies and practices be implemented to provide more opportunities for remote workplaces to encourage the selection of the most qualified applicants to fill these vacancies.
• Controlling Caselaw — The committee report suggests the newly created Sixth District be controlled by caselaw as established in rule of the Supreme Court. As Florida has no horizontal stare decisis, some action would be needed by either the Supreme Court or the Sixth District itself or there will be no binding precedent within that district. While a rule setting precedent for the new Sixth District court may be adopted, the territorial changes may prove more difficult for the trial courts and the practitioner to navigate.
The Supreme Court has clearly established “decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [c]ourt.” And further “in the absence of inter-district conflict, district court decisions bind all Florida trial courts.” Trial courts must follow the decisions of the district court in which the trial court is located. If “the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court [is] required to follow that decision.”
Consider the Fourth Judicial Circuit, formerly housed in the First District and now housed in the Fifth District. Applying these principles, where there is conflict between the First District and the Fifth District, the law of the Fifth District will now control the trial court’s decision. If the Fifth District has not considered the issue, and there is First District precedent, the decision of the First District will still control. But if there no decision from the Fifth District, and there is conflict between the First District and another district, the trial court will be free to apply whichever “foreign” district’s precedent it chooses. This is so because district court decisions are binding “in the absence of prejudice,” and there is no controlling decision from the trial court’s own district court.
Challenges raised for practitioners can also be found by considering the effect of a split of authority between the districts. As an example, inter-district conflict exists between the Second and Fourth districts, on the one hand, and the First, Third, and Fifth districts on the other hand, on the issue of whether a motion for rehearing is required to preserve a challenge to the sufficiency of a trial court’s finding in family law cases. The Third District Court of Appeal issued the seminal opinion in this line of cases in Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001), in which it found the husband had failed to preserve the issue for appeal by failing to raise them in a motion for rehearing. The Fifth and First district courts of appeal followed suit. However, the Fourth District, in a 7-5 opinion issued en banc, determined preservation rules should give way to the special circumstances of dissolution of marriage cases.
Staying with the Fourth Judicial Circuit as an example, the preservation requirement would not change for practitioners as both the First and Fifth districts are in agreement on the issue. However for practitioners in the Ninth Judicial Circuit, which is leaving the Fifth District and moving to the Sixth District, the question is far from settled. If precedent from the Fifth District is adopted as binding, then the preservation requirement will still not change. If, on the other hand, precedent from the Second District is adopted, then Ninth Judicial Circuit practitioners will no longer need to file motions for rehearing to preserve the issues. If no precedent is adopted, the trial court will be free to determine which precedent to apply.
While the legislation creating the new Sixth District addressed many logistical concerns, practical considerations still remain. The changes in territorial boundaries bring changes in binding precedent. Practitioners must be vigilant while learning to navigate the new map in order to ensure the smoothest course possible for their clients.
 In re Redefinition of Appellate Districts and Certification of Need for Additional Appellate Judges, No. SC21-1543, –– So. 3d ––, 2021 WL 5504715, at *4 (Fla. Nov. 24, 2021).
 In re District Court of Appeal Workload and Jurisdiction Assessment Committee, Fla. Admin. Order No. AOSC21-13 (May 6, 2021).
 Id. at 1.
 District Court of Appeal Workload and Jurisdiction Assessment Committee, Final Report and Recommendations (Sept. 30, 2021), https://www.flcourts.org/content/download/791118/file/dca-assessment-Committee-Final-Report.pdf.
 Fla. Const. art. V, §9.
 Final Report and Recommendations at 5 (“Prior to this Committee’s review, the last time a district court workload and jurisdictional assessment committee conducted such an evaluation was in 2006. This Committee relied upon much of the same methodology as the 2006 Committee.”).
 Id. at 22
 Id. at 23. This provision provides: “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(c)(5).
 Final Report and Recommendations at 23.
 Id. at 30.
 Id. The members supporting the minority position submitted a comprehensive comment analyzing the criteria in Rule 2.241, attached to the Committee Report as Exhibit I.
 In re Redefinition of Appellate Districts, 2021 WL 5504715 at *2.
 Id. at *3.
 Certification is “the sole mechanism established by our constitution for a systematic and uniform assessment of this need.” In re Certification of Need for Additional Judges, 889 So. 2d 734, 735 (Fla. 2004). Fla. Const. art. V, §9, 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.”
 Fla. Const. art. V, §8.
 Final Report and Recommendations at 27; In re Redefinition of Appellate Districts, 2021 WL 5504715, at *3.
 Id. at **4-5.
 Id. at *5.
 Id. at **5-6.
 Id. at **6-7.
 Id. at *8.
 Fla. H.B. 7027 (2022).
 In re Redefinition of Appellate Districts, 2021 WL 5504715, at **4-5.
 Fla. H.B. 7027 (2022).
 Fla. C.S./H.B. 7027 (2022).
 Id. at §3, §15.
 Laws of Fla. Ch. 2022-163, §2.
 Id. It is within the legislature’s authority to implement the Supreme Court’s certification in whole or in part. In re Advisory Opinion to Governor Request of June 29, 1979, 374 So. 2d 959, 965 (Fla. 1979).
 Laws of Fla. Ch. 2022-163, §10.
 Laws of Fla. Ch. 2022-163, §9.
 Laws of Fla. Ch. 2022-163, §14.
 Laws of Fla. Ch. 2022-163, §1.
 Laws of Fla. Ch. 2022-163. The judicial circuits for each of the OCCR remains the same.
 Jim Ash, Governor Vetoes Courthouse Funding, But Creation of The New Sixth DCA Goes Forward, The Florida Bar News, June 9, 2022, available at https://www.floridabar.org/the-florida-bar-news/governor-vetoes-courthouse-funding-but-creation-of-the-new-sixth-dca-goes-forward/.
 Gov. Ron DeSantis Fiscal Year 2021-2022 Budget, Florida Leads the Nation: Statewide Overview and Taxes, available at https://www.flgov.com/wp-content/uploads/2021/06/FY-21-22-Budget-Highlights-6.2.21-FINAL.pdf. This year’s budgeted $15 million additional allocation was initially secured by Speaker Sprowls’ “sprinkle list,” and was planned to help with potential construction overages. Renzo Downey, Sprinkle List: House and Senate Deliver $759M in 2022 Funding Add-ons, Florida Politics (Mar. 9, 2022), https://floridapolitics.com/archives/506638-sprinkle-list-house-and-senate-deliver-759m-in-2022-funding-add-ons/.
 Ch. 2022-163, §16 provides: “Notwithstanding the amendments made to s. 35.05(1), Florida Statutes, by this act, until the Second Appellate District occupies the courthouse authorized in proviso accompanying Specific Appropriation 3147A of chapter law 2021-36, Laws of Florida, the district headquarters may be located in the [13th] Judicial [C]ircuit, Hillsborough County.”
 Laws of Fla. Ch. 2022-163, §10.
 Laws of Fla. Ch. 2022-163, §15.
 Laws of Fla. Ch. 2022-163, §9.
 Final Report and Recommendations at 29.
 Pardo v. State, 596 So. 2d 665, 666-67 (Fla. 1992) (“[A]s between District Courts of Appeal, a sister district’s opinion is merely persuasive.”).
 Id. (internal citations omitted).
 Engle v. Engle, 277 So. 3d 697 (Fla. 2d DCA 2019). The Engle court certified conflict with the First, Third, and Fifth districts. Id. at 704.
 Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018).
 Owens v. Owens, 973 So. 2d 1169, 1170 (Fla. 1st DCA 2007).
 Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001).
 Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th DCA 2004).
 See notes 54 and 56.
This column is submitted on behalf of the Appellate Practice Section, Carrie Ann Wozniak, chair, and Heather Kolinsky, editor.