Director for the Office of the Public Defender, Rhonda Lindquist and her office’s managers, testified in Helena before the Interim Public Safety Budget Committee Wednesday, in part, to brief state lawmakers on a judge’s decision to hold her in contempt Monday for cases directed to her office that had not been immediately assigned a lawyer and to discuss budgeting options to rectify the problem.
At the time of the hearing Wednesday, OPD had not yet received the final order from Yellowstone County District Judge Donald Harris laying out his contempt charge and assigning a fine to each case or what that total fine would be, Lindquist explained. She speculated that once they had the written order they would determine whether or not her office would appeal the charge or proceed in a different way.
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Harris issued his order Wednesday afternoon and fined OPD $15,500 for 31 cases he said had not been immediately assigned a public defender. In his order, Harris reiterated the causes of the problem based on OPD’s testimony at the hearing: “(1) the OPD’s budget is insufficient; (2) its public defenders already have too many cases; (3) it cannot attract sufficient contract counsel because the pay is too low; (4) the Billings OPD office suffers from high turnover and currently has eight full time vacancies; and (5) the Legislature has refused to adequately fund the OPD.”
Harris had ordered to Lindquist to answer for why cases in his courtroom had not been immediately assigned a public defender. Lindquist conveyed the background to the committee.
“To give you some perspective on that, on Aug. 20th there were 8,020 cases open in the Billings area,” Lindquist told the committee. “To provide additional perspective the total number of cases open within the OPD system was 28,466. At this time the total unassigned cases within the statewide system was 830. Of this number, 532 were cases that were unassigned in the Yellowstone region.”
Lawmakers expressed concern that the committee was unaware when they left the biennial session in April that OPD was on the cusp of what Sen. Ryan Lynch, D-Butte, called a “constitutional crisis”. OPD’s executives said they were also caught off guard by a rapidly developing situation, but they highlighted a number of factors that have made the problem worse in Billings and they looked for solutions.
Short-term solutions
To fix the problem, OPD has been meeting with the state's budget office looking for work-arounds to increase lawyer capacity in Billings. One solution was to move funds from contract attorneys to full-time lawyers. Other solutions included borrowing lawyers from other branches of government who have worked in OPD before to take cases on a temporary basis.
Whatever the solution ends up being, Brian Smith, the administrator for the public defender division of OPD, pointed out that the agency has to work within the limits of their allotted budget.
Increased funding did not appear to be on the table at the hearing. Aside from possibly using COVID relief money to alleviate the funding problem, a move viewed with skepticism by lawmakers, additional funds were not readily available.
As a result, each solution available to the agency was a short-term solution, explained Lindquist.
The discussion of pay was key to the proceedings. Lindquist brought up to lawmakers that lawyer and contractor pay in Billings were both well below the market rate. However, if the agency pays contractors more money to take on cases, then they run the risk of staff lawyers jumping ship to be contractors. If they don’t increase contractor rates, then they need to add full-time lawyers to the office. If they add full-time lawyers, they will need to pay more to fill the jobs.
“I can’t let this go without saying that our attorneys are the lowest paid in state government,” Lindquist said.
The root of the problem
Brett Schandelson, developments and operations bureau chief for OPD, said Harris had “shined a light” on the agency’s needs. He discussed a 2020 workforce audit of OPD pointing out inefficiencies and personnel problems that existed in Billings as far back as 2019.
Over 80% of Billings public defenders considered their caseloads too high. The audit also found that contact attorneys were not as cost-effective as full-time lawyers at performing OPD’s mission. The audit also found that the conflict division of OPD was not being assigned cases at the same level as the main defender division.
In response, OPD changed its methods by enforcing the agency’s “ethical case management system”, which dictated lawyers could not be assigned more than 125 hours of cases per month. Cases were “weighted” for their complexity and assigned a value, so a homicide, Shandelson explained, was weighted at 100 hours.
The enforcement of this system in Billings led to more unassigned cases in the public defender division. Instead of immediately pushing those cases out to contractors, the agency assigned them to the conflict office instead.
That system was not only better suited to serve OPD’s clients, the audit said, but was more cost-effective for taxpayers. When the conflict office was overburdened then contractors would be called in. The problems with retention and contract rates persisted however, and contract attorneys have been refusing cases.
“These two specific areas have shined lights where we need them shined,” Shandelson told lawmakers. “While we may disagree with the order, although we haven’t seen it, we do not disagree that these are situations we need to discuss.”
The defense
Smith pushed back on the judge’s assertion that a lead attorney must be assigned immediately. He highlighted that the agency still meets with defendants in jail, briefs them on their rights, and makes bond arguments and similar early motions generally as an agency without immediately assigning a specific defender. He called it assigning a placeholder.
“This is the rub of what Judge Harris said, is that he wants to know who that lead attorney is and that’s what he held us in contempt for,” said Smith. “We disagree that that’s the standard. We are acting before that, but that’s the basis of his opinion.”
Prior to 2021, OPD would assign the regional manager as the public defender of record if a case went without an attorney for any period of time. That is no longer the case, said Smith, but he clarified that OPD is still handling the legal necessities of clients.
The problem has existed in OPD long before this summer, he told lawmakers. “There’s just a shortage” of attorneys, he said, and cases in the Billings area just continue to be unassigned. To satisfy the judge’s decision, OPD has taken to assigning cases directly to one attorney for each case.
“Our immediate response to this issue in Billings is to assign one attorney per judge, and it’s unworkable,” Smith said. “That essentially is probably almost 400 cases for one attorney, but we need someone assigned. We’re trying to comply with the judge’s order but at the same time maintain an ethical standard … We know that’s not a long-term solution.”
Problems in Billings are only getting worse, Lindquist explained. Increasing crime rates and more law enforcement capabilities have forced OPD to take on more cases than they are capable of handling in Yellowstone County. Efforts to increase enforcement are adding to that pressure.
After going over their allotted hour of testimony, the committee pivoted to complete the remainder of their full-day agenda. Before the meeting closed, Committee Chair Rep. Bill Mercer, R-Billings, came back to the issue after looking at data provided by OPD. Lawmakers wanted to focus on solving the Billings' area problem and not look at the issue as a statewide crisis.
“I think, if you look at those data, the obvious conclusion is that this is a problem that is concentrated in Yellowstone County,” Mercer told his colleagues. “I do think that the budget office would welcome a sense of the committee and what it is seeing, and my recommendation would be that we say as an interim committee that, although we haven’t had a lot of time to focus on this issue, that we believe that any attempts to fix this in the short-term should be focused on trying to focus on the 13th Judicial District [Billings area] and the pressures created by the caseload and the assignment of cases in Billings and the immediate surrounding areas. As opposed to something that might be more global, and frankly, I don’t think is supported by the data at this point … I’m hopeful that the committee can encourage the budget office to work with OPD to decide what steps it can take to try to alleviate the immediate problem in Yellowstone County.”