Judge stands by contempt order against public defenders

It's the judge's second such order in six months.

Advocacy groups last week also joined the Montana Supreme Court case in support of both parties as the public defender office attempts to push back against the contempt order, arguing its delays in assigning counsel are due to a workforce and funding crisis beyond its control.

Judge Donald Harris in September held the public defender office and its state director, Rhonda Lindquist, in contempt after learning 650 defendants were without legal representation in Yellowstone County District Court. He leveled a total fine of $15,500 against the agency and ordered the agency to assign public defenders to defendants within three days. 

In February, Harris held Lindquist and the agency in contempt again for failing to assign attorneys to 17 clients. The state public defenders office took this contempt order to the state Supreme Court, challenging Harris' ability to sanction OPD into compliance.

In his brief filed with the Supreme Court last week, Harris said the public defender office's challenge is procedurally flawed. He argued that because the agency did not take up a legal challenge of the first order, it should not be able to dispute the second. The agency argues it would be impossible to assign attorneys to clients within three days, but Harris counters that the agency failed to present any evidence of that "impossibility" until it was held in contempt.

Indeed, Harris argues, one month after the initial contempt order, the state released $1.5 million to the Office of State Public Defender to shore up the budget shortfalls, which should have allowed the agency to meet Harris' three-day deadline for assigning attorneys to clients. The agency also failed to mention during the last legislative session that without additional funding it would not be able to assign attorneys to clients "immediately," as required by state law, Harris argued.

"The 'impossibility' defense only works if OPD is not responsible for the long-standing problem in Yellowstone County of not immediately assigning indigent defendants counsel," Harris argued. "OPD's failure to secure adequate funding, if true, appears to be a failure of leadership — not the governor's or Legislature's indifference."

Meanwhile, state and national organizations last week entered the fray on either side of the argument. The Montana Innocence Project, a legal organization that works to free wrongfully incarcerated people, has asked the state Supreme Court to uphold Harris' contempt order, arguing that failing to assign a public defender for 53 three days on average violates the defendant's Sixth Amendment right to attorney. The Montana County Attorneys' Association, too, has asked the court to uphold the contempt order, arguing in part on the same procedural grounds as Harris.

The National Association for Public Defense has argued the high court should vacate Harris' contempt order, stating in its May 25 brief that the contempt order approach is ineffective, counter productive and sets a "concerning precedent."

"Historically, public defense has been understaffed and underfunded. Montana's public defender system is no different," the association stated in its brief. "Allowing such an action would undermine the Montana Office of Public Defenders operations and goals as the district court has made clear it will continue to issue fines as long as OPD is unable to comply with its judicially crafted mandate."

The American Civil Liberties Union and its state affiliate, the ACLU of Montana, took its argument a step further. The joint brief filed May 25 asks the Supreme Court to declare the current public defense system inadequate and refer the funding issues to the Legislature for reform "with instruction that funding must be tied to reasonable attorney workloads and a pay scale that ensures OPD can recruit and retain qualified lawyers."