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March 11, 2009

Broke justice

Amended bill would keep the state’s public defender system from shutting its doors

The fate of Kentucky’s public defender system has looked pretty bleak lately.

The Department of Public Advocacy is seriously short on cash, resulting in fewer attorneys juggling increasingly excessive caseloads. The situation is so dire that the commonwealth’s top public defender filed a lawsuit against the state last year, claiming his department does not have enough money to adequately defend its clients, as required by the U.S. Constitution.

Then last week, some of the state’s leading lawyers and legal experts predicted the massive budget shortfall would force the struggling public defender’s office to shut down by next month, likely bringing the criminal justice system to a screeching halt.

That warning got the attention of lawmakers in Frankfort.

During a committee meeting at the capitol late Monday afternoon, just four days before the end of the regular legislative session, something unexpected happened: $4.7 million — the exact amount needed for the Department of Public Advocacy to continue operating — was added to House Bill 433, a sweeping piece of legislation intended to tie up loose ends in the budget.

“I know it’s necessary because they are about to run out of money,” says Rep. Robin Webb, D-Grayson, who sits on the House budget committee, which approved the measure.

As a trial lawyer serving much of eastern Kentucky, Webb works alongside public defenders whom she says worry about fulfilling their ethical duties due to enormous caseloads caused by inadequate funding.

“We sort of anticipated this problem in the last full budget cycle, it just wasn’t a priority with the Senate,” says Webb. “I fought tooth and nail up until the last minute to try and get them more money.”

In response to a projected $900 million budget shortfall over the next two fiscal years, legislators cut $2.3 million from the public defenders’ already lean budget, leaving them with $37.8 million for the fiscal year, which ends June 30.

Calling the proposed cash injection now being considered a “funding stopgap,” Webb says if the bill does not pass, a lawsuit still is pending, meaning a judge might very well require the state to fork over the cash regardless: “If the bill doesn’t pass, it’s still a necessary government expense that constitutionally the state would have to pay.”

If both chambers of the General Assembly approve the bill this week, the measure will go to Gov. Steve Beshear to be signed into law. Assuming that happens, the one-time allocation of “rainy-day” funds will carry the public defender’s office through the end of this fiscal year.

When asked whether the governor plans to approve the funding, spokesman Jay Blanton issued this response: “The budget cleanup bill that’s in the House would provide funding for DPA for the remainder of the fiscal year. While we need to review the entirety of the bill, as it contains a number of items, we are certainly open to the funding resolution for public defenders. We know those issues are important and need to be resolved.”

This is good news for now, but the Department of Public Advocacy’s budget woes are likely to continue in the future given yet another grim economic forecast.

As for the pending lawsuit, a hearing currently is set for March 25 to consider a motion filed by the Department of Public Advocacy. If lawmakers approve the $4.7 million, however, the lawsuit would likely become moot — at least according to most observers.

“It has the potential for resolving funding issues for this year,” says Louisville lawyer Jon Fleischaker, one of several attorneys representing the Department of Public Advocacy. “Whether it would resolve the lawsuit, I can’t tell you. But it certainly takes away the urgency that exists today.”

The Department of Public Advocacy filed suit in June 2008 claiming the General Assembly did not appropriate sufficient funds for the office to provide “constitutionally mandated, ethical representation to every client.”

The department’s caseload now exceeds 140,000 clients a year, an increase of 52 percent compared to a decade ago. Trial lawyers in the department handle an average of 436 new cases each year, which according to DPA exceeds national standards by almost 50 percent.

In an effort to address the problem, former Public Advocate Ernie Lewis implemented a service reduction plan last year, proposing that trial courts assign some misdemeanors and other minor cases to private defense attorneys, who would in turn be paid by the state treasury.

Not surprisingly, the state opposed the arrangement, and a judge ultimately ordered the public defenders to suspend the service reduction plan.

In a motion filed last week, Public Advocate Edward Monahan asked a Franklin County circuit judge for permission to cut back on the department’s caseload as previously proposed, and to declare that the commonwealth failed to meet its constitutional obligation to fund the public defender system.