District Court judge pushes back on OPD argument that lack of funding caused case assignment delays

OPD says lack of funding made it impossible to abide by court order to assign counsel within three days

By: - May 29, 2022 9:06 am

A District Court judge pushed back against an argument by the Office of State Public Defenders that it lacked adequate funding to assign counsel to defendants within three days.

In a Tuesday filing with the Montana Supreme Court, Yellowstone County District Court Judge Donald Harris affirmed his position that it was within his power to hold the Office of Public Defenders in contempt of court after the department failed to comply with an earlier order to assign counsel within three days.

The Office of Public Defenders subsequently challenged the judge’s contempt order in a case filed with the state Supreme Court. In a filing this week, Harris defended his rationale.

“OPD’s failure to immediately assign counsel delays trials, sentencings, and dispositions; increases incarceration and supervision costs; causes overcrowding at the jail; contributes to the soaring crime rate; directly threatens the public’s safety,” Harris’ filing reads.

Harris twice found OPD in contempt of court for not promptly assigning counsel to defendants, resulting in $24,000 worth of fines. In August of 2021, Harris discovered that 663 defendants had not been assigned a public defender in the 13th judicial district, which covers 16 courts throughout Yellowstone, Big Horn, Carbon, and Stillwater counties. The discovery led Harris to hold the department in contempt of court and ordered it to assign attorneys within three days, but months later, Harris discovered the department had failed to abide by his order.

On March 18, OPD Director Rhonda Lindquist filed a petition with the Montana Supreme Court, arguing that Harris overstepped his authority in February’s second contempt of court order. In the petition, OPD argued that lack of funding made it impossible to abide by Harris’ earlier September ruling that required OPD to assign counsel to cases within three working days.

“OPD strives to make assignments within three days, but that is not always possible,” OPD said. “The District Court exceeded its authority when it pounced on OPD’s operational goal and contorted it into a legal requirement with which OPD must comply or face serial fines.”

Problems with funding and high turnover rates, specifically in Billings, for OPD are well documented. Because of the lack of funding from the state, the office has said it is unable to offer competitive wages, leading to high turnover and vacant positions. At a September interim legislative committee meeting, OPD says it is only able to pay its attorneys $56 an hour to contract attorneys — a third of the federal contract rate for public defenders and $13,000 less per year than other state Department of Administration lawyers.

In April, OPD’s employee union and state officials reached a deal to raise wages. Under the new contract, entry-level attorneys would make around $76,000 per year, up from $65,000, and attorneys with three years of experience saw their pay increase from $84,000 per year to $89,000. But it’s unclear if the wage bumps will be enough.

“This insufficient funding is outside OPD’s control, and the governmental bodies that control OPD’s budget are aware of its plight,” the department wrote in its March petition. “OPD’s attorneys are overburdened, and recent increases in crime in Billings have coincided with high turnover rates at OPD, further burdening the Billings regional office.”

At the time of the filing, OPD said there were eight vacancies in the Billings office.

In its petition, the department noted that 20% of its staff attorneys exceed expected full-time work hours in a year, and the department experiences annual attorney turnover rates of 24%, which it said is around 8% higher than other state agencies.

OPD said it was impossible to comply with Harris’ September order for these reasons. But in his Tuesday filing, Harris pushed back on that argument, saying that if Lindquist’s impossibility argument were valid, she would have immediately challenged his September order.

“Lindquist is bound by the September 2021 Order because she never challenged OPD’s ability to comply with that Order until after she was held in contempt of it,” the filing reads. “Lindquist is not entitled to be ‘rescued’ for her failure to timely petition for review of a valid order or her failure to present evidence of impossibility.”

Additionally, because the state allocated $1.5 million of additional funds to the department in October 2021, it should have been able to assign attorneys within three days, thus placing the failures on the department, not the state.

“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. Lindquist wants to portray OPD as the victim of legislative underfunding,” Harris’ filing reads. “In fact, when informed of OPD’s request for additional funds, the Governor promptly responded. OPD’s failure to secure adequate funding, if true, appears to be a failure of leadership—not the Governor’s or Legislature’s indifference.”

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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 .