Pleading the Sixth: In September 2013, the Montana Office of the State Public Defender filed a motion seeking to decline new cases in two courts of limited jurisdiction. Though the lower court found in October of that year that it did not have the authority to grant relief, a subsequent appeal was put on hold to allow for a political resolve. Now that significant new resources have been secured, the 6AC can tell the story of how transparency, time-tracking and data collection persuaded the Governor to fund new positions in the hopes that other states can learn from Montana’s example.
“Although the Court sympathizes with the Office of the Public Defender and agrees that its attorneys face growing caseloads … This court can find no authority … to grant the motion filed.” Thus concluded an October 10, 2013 court order in response to a motion filed in September of that year by the Montana Office of the State Public Defender (OSPD). The motion sought to decline new cases in two lower courts covered by the Helena public defender office. (For more on the original challenge, click here.) The OSPD immediately filed an appeal to the district court. However, before the appeal could be heard, a political solution took shape that eventually resulted in a 5% increase ($625,000) to the statewide system with much of the new monies dedicated to significantly expand the Helena office.
As noted in the original public defender motion, the office in question was previously authorized to operate with a supervisor, ten attorneys and one investigator. The new resources allow OSPD to add twenty new staff positions. Though OSPD Chief Defender William Hooks is still determining how to most efficiently split those positions between attorney and non-attorney staff, OSPD will be hiring the state system’s first ever “resource advocate” (akin to social workers in other states) to work on mitigation, sentencing alternatives and emphasizing reunification over termination in dependency cases. In an interview with the 6AC, Mr. Hooks stated that the he will likely hire 10-12 attorneys, with the balance split between intake clerks and other administrative staff (thus freeing up the existing legal secretary staff to handle more of the non-attorney work being carried out by lawyers). Importantly, some attorney and non-attorney staff obtained will be dedicated to other offices throughout the state experiencing excessive caseloads but where litigation was never filed.
How the political course succeeded in Montana, where other states have failed
There is little doubt that systemic litigation over excessive caseloads in any state can drag out for months, if not years. In Montana, an appeal of the trial court’s original denial of OSPD’s request for caseload relief likely could have given state legislators and other policymakers an excuse to do nothing while the case fluctuated between courts. So why did Montana policymakers work so quickly to redress the issues in Helena? Chief Defender Hooks attributed the political resolve to a number of factors, including an indigent defense structure that fosters independence and values transparency, an institutional commitment to time tracking and data collection, and the leadership of the Governor. We will explain.
It starts with independence of the defense function. The Montana defender system was created in 2005 with its enabling legislation mirroring the requirements of the ABA Ten Principles. OSPD operates under an 11-member commission appointed by diverse authorities such that no single branch of government can exert undue political influence (as required by ABA Principle 1). But, at the same time, the executive, legislative, and judicial branches of government each appoint representatives to serve on that 11-member commission ensuring accountability and transparency (as required by ABA Principle 10). From Hooks’ perspective, this set-up gave all three government branches a ringside seat, so to speak, from the very beginning as the public defender system went about the business of promulgating and implementing standards and creating internal structures to monitor compliance against those standards at the local levels.
In regard to crafting Montana-specific workload standards, that implementation phase took years. First, OSPD promulgated performance standards such that every attorney may understand what is expected of her in regards to such critical areas of practice as: client contact, motions practice, investigation, etc. Then, OSPD trained staff against those standards and developed a supervision structure to monitor performance against those standards. Importantly, this supervisory structure includes policies requiring attorneys to track their time. Regional directors monitor time routinely and frequently to determine if an individual attorney or office is nearing an excessive workload based upon OSPD-developed case-weights. (Case-weights determine the average time from assignment to disposition for different case types.)
What this all means is that when the Helene office started to lose staff -in large part because the county prosecutor and other state agencies were able to offer increased salaries and hired away more experienced public defenders – OSPD was able to telegraph the looming caseload crisis in that jurisdiction. Excessive caseloads were thoroughly discussed and debated in open meetings long before the caseload challenge was filed in the local trial court. Indeed, the motion for caseload relief only occurred after the legislative process resulted in the legislature choosing to fund only public defender salary increases at the expense of more bodies. (The governor’s budget had proposed funding both salary increases and 37 new positions.)
Thus, when OSPD carried through on its intentions to withdraw from cases, the data existed to show policy-makers that caseloads were indeed excessive. The Governor moved to fund needed positions and avoid the cost of further litigation. Hooks said that the importance of an independent statewide commission was essential in both the launch of litigation and the political resolve. The Commission provided “strong and solid support,” Hooks said, showing leadership and “enhancing our independence in the process.”
When I first visited Montana, in 2001, indigent defense services there could only be described as a “non-system.” Administration and funding of trial-level services were entirely county-based, with most counties operating flat fee contracts. The successful remedy to the caseload battle in Montana is demonstrative of how long it takes a state to transition from a “non-system” to a functioning indigent defense “system” – in all senses of the word.
Legislative reform – which occurred in Montana in 2005 – is not the end of the reform battle, but simply a shift from having outside advocates working to highlight the need for reform to the system itself taking on its own battles. Thus, legislative reforms – like those taking place currently in Michigan and Idaho – do not connote putting a flag in the sand and declaring victory, presuming that things are fixed for all time. Rather, the passage of sweeping legislation in those states marks the start of a new phase of reform – a phase with its own ups and downs.
Fledgling indigent defense systems experience growing pains. Those growth pains may result in the change of leadership of the organization, failure to use the powers afforded to the system by the legislature, or simply a long time to track and analyze data. But as Montana shows, if “systems” are built upon independence, time tracking and evidence-based practices, in time the indigent defense system will be able to advocate for itself and guard against external pressures.