Public defenders air caseload frustrations to legislative committee

The department’s attorneys are the lowest paid in the state

By: - September 15, 2021 6:16 pm

Construction being done on the landscaping of the Montana Capitol during Spring 2021 (Photo by Eric Seidle for the Daily Montanan).

Two days after being held in contempt of court in Yellowstone County, the Montana Office of Public Defenders appeared before a legislative budget subcommittee dedicated to public safety on Wednesday to explain how they plan to navigate heavy caseloads with finite resources.

The most daunting problem facing the department is money. OPD pays attorneys just $56 an hour to contract attorneys — a third of the federal contract rate for public defenders. The department also faces high turnover as its attorneys are paid $13,000 less per year than other state Department of Administration lawyers.

“I can’t let this go without saying: Our attorneys are the lowest paid in state government, and that was in the audit done in 2020,” said OPD Director Rhonda Lindquist at Wednesday’s meeting. “As we try to comply with that, we continue to have that conversation about our attorneys and being fairly compensated.”

Lindquist was ordered by Yellowstone County District Court Judge Donald Harris on August 17 to appear before the court after learning of 663 unassigned cases in the 13th judicial district, which covers 16 courts throughout Yellowstone, Big Horn, Carbon, and Stillwater counties. As of Wednesday, the office had 691 unassigned cases across the state, with about 40 percent of cases existing in Billings alone.

The Billings office currently has 31.5 full-time lawyers, but to adequately service the caseload, the department would need 43 full-time lawyers, said OPD’s lawyer, Peter Habein ,with the Crowley Fleck Law Firm in Billings, according to the Billings Gazette.

As a result of Monday’s hearing, the department was fined around $500 for every unassigned case in the judge’s department, which could be around $5,000 to $10,000 to be paid to the county. The judge also ordered that any case coming to his courtroom must have a lawyer signed within two to three days as set forth by OPD policy.

“Our immediate response to this issue in Billings is to assign one attorney per judge, and it is unworkable. That is essentially almost 400 cases for one attorney,” said Brian Smith, OPD’s public defender administrator. “But we need someone assigned when we’re trying to comply with the judge’s order, but at the same time, maintain an ethical standard.”

Following a 2020 audit, Brett Schandelson, development and operations bureau chief for the Office of State Public Defender, said the department restructured how it assigns cases to its lawyers to spread the workload more efficiently and started enforcing workforce standards that ensure defenders do not work more than 125 case hours per month — a DUI case takes up about seven hours while a homicide can take around 100 hours. By guaranteeing ethical workloads, the department hopes to attract more lawyers.

“Our audit response in our attempt to be better has worked everywhere except for Billings,” Smith said. 

To address the Billings problem, the department said it is looking to hire paralegals from temp agencies, invest money the department spends on contract attorneys on full-time employees, and hired two attorneys in Missoula that will work in Billings.

And last month, the department said it started advertising flexible living accommodations to recruit more lawyers.

“We’re able to recruit in Missoula all day long, but we can’t in Billings,” said Travis Tillman, acting administrator for OPD’s centralized services division.

The interim committee also heard presentations from the state Department of Corrections, where officials talked about the possible strike at Montana State Prison. 

“Myself and the warden have been meeting with the union at the Montana State Prison for the last couple, three months, face to face with them across the table, and those negotiations continue, and we are absolutely moving forward,” said DOC director Brian Gootkin.

In the last four years, the prison in Deer Lodge has been short 36 to 41 officers on any given day, said prison warden Jim Salmonsen. 

The employees union at the prison have said their top priority is securing better wages for its workers given the working conditions.

Gootkin agreed. 

“I think one of the biggest things is pay. On average, our correctional officers make about $4 less an hour than the big six or eight detention centers around the state,” he said. “It’s a very difficult job, that type of environment and dealing with what they deal with, and then you add mandatory overtime 12-hour shifts at some times. And that’s stress they need to be compensated for … we are looking at that right now .. to try and figure out how we can actually do that within this bargaining session.”

The interim committee also agreed on Wednesday to study victim services and funding in Montana before the 2023 legislative session.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

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