June 13, 2008 9:58 AM CST by Barbara L. Jones Associate Editor

Consequences of the recent $3.7 million budget cut for the state’s public-defender system will be felt throughout the legal system as some clients go unrepresented and cases begin to stack up.

The system will be short the equivalent of 53 lawyers — about 15 percent of its total statewide lawyer work force. The direct impact will be to criminal prosecutions, child abuse cases and problem-solving courts, but the delays that will result inevitably will be felt all around.

“I really believe we’re the canary in the coal mine. The courts are in the same boat,” Kevin Kajer, chief administrator for the State Public Defender’s Office, told the Board of Public Defense on June 5, when the board voted for the budget reduction that will mean that about 23 lawyers will be laid off.

The rest of the staff reductions will come through leaving vacant positions unfilled, voluntary resignations and lawyers taking unpaid leaves of absences. The staff shortage will translate to service cuts in child protection cases and problem-solving courts in order to concentrate on the board’s priority — representing in-custody criminal defendants.

Cuts in personnel

Kajer and State Public Defender John Stuart worked with the chief public defenders across the state to allocate the pain. Because of economies of scale, it’s easier to be short of people in an urban setting than a rural one because there are colleagues to pitch in, Stuart told Minnesota Lawyer.

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The chief public defenders in the urban areas were willing to adjust so the rural defenders didn’t get hit too hard, according to Kajer.

Among the districts, the per-defender caseloads have been evened out so that all the lawyers have caseloads that are within 105 percent of the state average, Stuart said.

The chiefs in each district are acting to see that the public defender resources are not squandered and may need to relocate lawyers among counties. Scheduling is a particular problem in rural areas where a lot of driving time is required. “We’re asking the chiefs to protect people’s time,” Stuart said.

Stuart told Minnesota Lawyer that he and others will be talking with judges and court administrators to emphasize that public defender court appearances need to be efficiently allocated and that defenders, particularly those who work part time, will not always be available and can’t be in court five days a week. The clerks need to schedule hearings when the defenders will be there, Stuart said.

William Ward, chief public defender for the 10th Judicial District put it this way: “Part- time lawyers should work part time. The part-time lawyers can’t be in court five days a week. We want to make sure the courts don’t ramrod these cases down their throats.”

It’s also important not to put intolerable pressure on the public defenders who are left, Stuart said. “Experienced public defenders are a scarce resource,” he said. After the staff reductions, the average full time equivalent public defender caseload will be 812 files — more than double the ABA standard of 400, he noted.

The appellate office of the State Public Defender is down four lawyers and is in the process of cobbling together a plan to address the delays that will be caused by the loss, said Deputy State Public Defender Larry Hammerling. Hammerling has met with Court of Appeals Chief Judge Edward Toussaint Jr. about various ways that delays can be addressed, he said. “I don’t anticipate the state will object. The people who will suffer are our clients,” he said.

Cuts in services

Stuart and Kajer traveled the state talking to judges and lawyers about the services public defenders could and should provide. They reluctantly proposed cuts to two services — representation of parents who are faced with losing their children and post-adjudication representation in drug court and other problem-solving courts.

The first cut is admittedly inconsistent with the Children’s Justice Initiative, which aims for efficient resolution of child in need of protection and termination of parental rights matters and which is a priority under the court’s strategic plan. It is also inconsistent with Minn. Stat. sec. 260C.163, subd. 3, which says that the parents have a statutory right to appointed counsel, although not necessarily a public defender. (The Legislature has not provided money to pay private lawyers to perform this service for indigent parties.)

Appointments in CHIPS cases accounts for about 9 percent of the total current caseload for public defenders. (That figure includes Hennepin County, where public defenders will continue to represent parents because the costs are paid by the county.)

The decision to cut CHIPS representation drew a protest from Carver County District Judge Kevin Eide, the lead CJI judge in the 1st Judicial District and chair of the court’s Juvenile Protection Rules Committee.

In a letter to Stuart, Eide cautioned that much of the effort that has gone into CJI is at risk. “[I]t is essential that parents have attorneys when they are at the state of working their case plan,” the judge wrote. “Representation is necessary to advocate for a reasonable attainable case plan, to encourage parents to cooperate with their social worker rather than fight them tooth and nail, and to articulate to the court when good cause continuances and second chances are appropriate. Many of the best practices that have been achieved after years of concerted effort by CJI teams throughout the State and the advocacy of Chief Justice [Kathleen] Blatz will be lost without consistent representation of parents.”

Eide also warned that counties will not be able to absorb the costs and the result will be significant inconsistency with the representation of CHIPS parents throughout the state. He suggested that legislation be passed limiting public defender representation in misdemeanor cases rather than eliminating it in CHIPS matters.

The representation of adults in CHIPS cases is a matter of great concern to the judiciary, said Brown County District Court Judge John Rodenberg, head of the court’s access and delivery service committee. When the public defenders stop taking CHIPS cases on July 8, “trial judges are going to be faced with providing parents with their statutory right to counsel when it is not clear where the money for that is going to come from,” he said. “We’re going to do the best we can but the best we can is far from ideal.”

It’s conceivable that the lack of lawyers for parents will put children at risk, according to Rodenberg. The counties may increase the threshold of problem behavior that will be required before they will step in, the judge explained. “I hope it doesn’t happen. But it could,” he added.

The most immediate consequence will be delay. “If I end up continuing cases for three months while we figure this out — that’s an eternity to a child,” he said.

Impact on specialty courts

Drug courts and other problem-solving courts are labor-intensive for public defenders. Cutting out public defender provided post-adjudication representation will result in a significant resource savings for the office, but not without cost to the courts and parties. 

The problem-solving courts model contemplates that public defenders will be involved, Rodenberg said. “They provide perspective and balance we rely on,” he said. “The court is supposed to function as a team.”

The state may decide to revisit the model under which drug courts operate. According to Dan Griffith, court operations analyst for chemical health, there is a strong possibility that drug courts will change their model to pre-adjudication.

The Judicial Council is scheduled to discuss consequences of the budget cuts in July. In the meantime, the chief public defenders have the unpleasant tasks of laying people off and rearranging careers. Although the cuts are no surprise, morale is understandably down.

“All the public defenders have responded with tremendous grace and dignity,” said 7th Judicial District Chief Public Defender Rex Tucker. “They are dedicated, compassionate and zealous individuals who give of themselves to the poor.”