The entrance to the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).
The Montana Supreme Court unanimously decided this week to void sanctions and a contempt order filed earlier this year against the Office of State Public Defenders by a Yellowstone County District judge.
In the past year, Yellowstone County District Judge Donald Harris twice found OPD in contempt of court for not promptly assigning counsel to defendants, resulting in $24,000 worth of fines.
However, according to the 7-0 opinion filed Tuesday, the high court said Harris was in the wrong in filing his second contempt order. The opinion said the judge should not have ordered OPD to assign counsel to defendants within three working days and was wrong in finding the counsel must provide the client “continuous representation.”
The ruling nullifies the second contempt order and voids an $8,500 fine against OPD.
“Judge Harris’s ruling, however — mandating a categorical three-working-day deadline for appointment of counsel — does not take into account what is reasonable in view of the particular facts and circumstances of each case,” the opinion reads. “Rather, it creates a hard-and-fast rule applicable to all cases regardless of their facts and circumstances. This approach is unsupported by statute.”
Harris issued the first contempt order after finding out there was an extraordinary amount of defendants in Yellowstone County who had not been assigned a public defender. In August of 2021, he discovered that 663 defendants had not been assigned a public defender beyond their initial appearance in the 13th judicial district, which covers 16 courts throughout Yellowstone, Big Horn, Carbon, and Stillwater counties.
Harris fined OPD $15,500 for the backlog, $500 for 31 specific cases. The order said OPD paid that fine and did not challenge the order.
Then on March 18, former OPD Director Rhonda Lindquist filed a petition with the Montana Supreme Court, arguing that Harris overstepped his authority after he issued a second contempt order in February, again for unassigned cases. 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.
The Montana Supreme Court said the two contempt orders were distinct. In the first contempt order, which OPD did not challenge, defendants were left for long periods of time before counsel was assigned. In the second contempt order, OPD assigned attorneys to represent defendants, but those attorneys would sometimes change, depending on the staffing circumstances, and Harris opposed the lack of “permanent” counsel.
This practice is known as “horizontal staffing,” as opposed to a single attorney handling the same case throughout the entire court process, known as “vertical staffing.”
Though the Supreme Court held that vertical staffing is preferable, state law does not specify what kind of representation OPD must make, and it ruled that Harris exceeded his authority in the second contempt order.
It also said that OPD’s attorney assignment fulfilled the constitutional requirement of having attorney representation.
The OPD has been transparent about its struggles with high turnover rates and low staffing levels, specifically in Billings. The office has said because of a lack of funding from the state, it has been 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 contract attorneys $56 an hour — a third of the federal contract rate for public defenders and $13,000 less per year than other state Department of Administration lawyers. A subsequent court filing notes that hourly rate has gone up to $71, higher but still below the market rate for Montana.
In April, OPD’s employee union and state officials reached a deal to raise wages for staff attorneys. 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.
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