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Public defenders sue state over funding
By Brandon Ortizbortiz@herald-leader.com
State public defenders filed a sweeping lawsuit Monday seeking a declaration that Kentucky's criminal-defense system for the indigent is inadequately funded and unconstitutional.
The Department of Public Advocacy filed a petition in Franklin Circuit Court asking a judge to order the state finance Cabinet to pay for private lawyers in cases where public defenders withdraw because of a $2.3 million budget cut in the fiscal year that begins Tuesday.
In the alternative, public defenders are asking the court to set a deadline for the General Assembly to allocate more money. If the legislature does not provide “sufficient” funds, then public defenders want the courts to dismiss all charges for poor criminal defendants who are denied public defenders.
“Not only are the lives and liberty of some of our most vulnerable citizens at risk, but the fairness, reliability and credibility of the criminal justice process are rightly in question,” Louisville's chief public defender, Dan Goyette, said in a statement. “We can ill-afford a loss of public confidence in our adversary legal system and with it respect for the rule of law.”
The department's budget for fiscal year 2008-09 was recently cut by the General Assembly to $37.8 million. Officials say they will be unable to fill as many as 75 positions, including 60 lawyer slots.
Public defenders are asking the courts to allow them to withdraw from cases if their caseloads are too high. The average caseload for a public defender in 2007 was 436, with 23 percent of those being felony cases, according to the lawsuit. Public defenders say that level is excessive.
The lawsuit was filed by lawyers Jon L. Fleischaker, Charles E. English and Sheryl G. Snyder, who has been a legal adviser to several governors. The lawyers are handling the case for free.
“It's a system that needs to be adequately funded so that there is equal justice for all, including indigent defendants,” Snyder said. “So undertaking the representation as a public service is something I was glad to do.”
The plaintiffs are Chief Public Defender Ernie Lewis, the department, the Jefferson County Public Defender Corporation, Goyette and three separate classes of plaintiffs: one representing poor criminal defendants, another for the department's lawyers and one for private lawyers who might be assigned to represent indigent defendants.
The defendants are State Treasurer Todd Hollenbach, IV, Finance and Administration Secretary Jonathan Miller, State Senate President David L. Williams, and House Speaker Jody Richards.
Attorney General Jack Conway, whose office is responsible for defending lawsuits against the government, declined to comment because his office has not yet reviewed the lawsuit, his spokeswoman said.
A spokeswoman for the Justice and Public Safety Cabinet also declined comment.
Because of the budget cuts, several public defender offices will begin reducing services Tuesday, Lewis said.
The department will eliminate funding for contract lawyers for 3,000 to 5,000 conflict-of-interest cases. These are cases in which there is more than one indigent defendant; the DPA contracts with other lawyers so it is not representing both clients.
Public defenders will stop representing family court cases, which involve domestic violence and failure to pay child support. They also will withdraw from status offender cases, which involve children charged with running away from home, being unable to be controlled by their parents or being truant.
Public lawyers will pull out of involuntary commitment cases, and begin refusing Class B misdemeanors and some Class A misdemeanors, which carry up to a year in jail.
Several legislators predicted the budget would lead to litigation.
“I think that any of us who were paying attention knew that this was coming,” said House Judiciary Chairwoman Kathy Stein, D-Lexington. “The public defenders office across the state for the past decade has been making some progress. But we dealt them a pretty serious blow, particularly in Fayette County, this past session.”
Lewis says he had no choice but to file the lawsuit.
He noted that a 2006 American Bar Association opinion states that public defenders cannot allow their caseloads to rise to the point that they can no longer competently represent clients.
“I think there has been a sharpening awareness of the ethical considerations for public defenders,” Lewis said. “Public defenders have handled caseloads few private lawyers would have ever thought of handling. Poor people have a right to a lawyer who is just as ethical as people of means do.”