NORTH DAKOTA LEGAL COUNSEL FOR INDIGENTS COMMISSION
October 26, 2000
Judge Debbie Kleven, Chair Rep. Ron Carlisle Wade Enget Carl Flagstad Mary Norum Hoberg Chad Nodland
Leslie Johnson Aldrich
David J. Carroll, Senior Research Associate, The Spangenberg Group Chief Justice Gerald W. VandeWalle
Justice Dale Sandstrom
Justice William A. Neumann
Justice Mary Muehlen Maring
Justice Carol Ronning Kapsner
Robin Olson, Contract Counsel, Northeast Central Judicial District
Steven Balaban, Contract Counsel, South Central Judicial District
Rod Feldner, former Contract Counsel, South Central Judicial District
Doug Johnson, Trial Court Administrator, South Central Judicial District
Chair Kleven called the meeting to order at 9:30 a.m. and welcomed Chad Nodland, a newly appointed Commission member nominated by the State Bar Association Board of Governors. She then drew Commission members' attention to Attachment B (October 20, 2000) - Minutes of the July 20, 2000, meeting.
It was moved by Wade Enget, seconded by Rep. Carlisle, and carried unanimously that the minutes be approved.
The Delivery of Indigent Defense Services - Overview and Assessment
In light of an impending court appearance, Chair Kleven invited Rod Feldner, a former contract counsel in the South Central Judicial District, to offer his comments concerning the delivery of indigent defense services under the state's contract system.
Rod Feldner explained that he had been practicing in the criminal law area for nearly 20 years, and for 16 years of that time contract work comprised approximately 85% of his criminal cases. He said his firm also served as the lead contract firm in the district for 12 years. Notwithstanding that long term involvement, he said he had, for a variety of reasons, recently resigned from the contract. He explained that when he initially became involved in routine representation of indigent defendants, there was no contract system for Morton County. It was a relatively simple appointment process in which the judge conducted a fairly thorough examination of the defendant's financial situation. It seemed, he said, that the judge had more latitude in this regard than under the present contracting system, particularly with respect to assignment of cases. For example, he said, the judge might assign relatively new attorneys to "easy" cases, saving the more serious cases for the older, more experienced attorneys. Then in 1983, he said, the contract approach was adopted, with bids submitted on each offered contract by interested lawyers. However, he said, the "bidding" process has since changed, with a simple declaration now of how much the state will pay for representation services under a certain contract. Counsel, he said, are left to decide whether they will accept that amount.
With respect to problems he has encountered, Rod Feldner said he was paid contract dollars for approximately 1/6 of the assigned cases in the judicial district, with misdemeanor and felony cases handled on a separate rotation. Under this assignment process, he said, he may be assigned three serious cases or have three cases going to trial during one month. He said the result is that his private practice suffers, because there are limited hours to do an effective job. Additionally, he said a troubling aspect of the contract system is that counsel receive the same compensation regardless of the number of hours spent on cases. He noted a draft contract that included a provision for additional compensation for complex cases with inordinate hours was recently circulated, but that provision was struck from the South Central judicial district's contracts. He said the district had recently adopted an expedited process in which certain matters were scheduled in the morning in one county and other matters were scheduled in the afternoon in another county. That, he said, was intended to provide a mechanism for his timely appearance on different cases. However, he said, lately cases have been double-scheduled, for example, during the morning session, which extends the time he is required to be in court and, again, adversely affects his private practice. The system, he said, appears to place little value on court appointed counsel's time and the pressures associated with handling indigent defense cases while attempting to maintain a private practice. He observed that the time is likely past when counsel can effectively combine private practice with providing indigent defense representation under a contract system.
With respect to determining a defendant's indigent status, Rod Feldner said the defendant completes a form listing financial assets, debts, and other information, but there is little effort by the court to verify the information. He noted that contract counsel are generally expected to inform the court if the defendant has any undisclosed assets. But, he said, he generally will not raise the issue unless the defendant is particularly brazen about having the money. There is, he said, little assistance from the court in following through on the defendant's financial status.
Delivery of Indigent Defense Services - A National Perspective
Chair Kleven next welcomed David Carroll, Senior Research Associate for The Spangenberg Group, for a presentation on methods for providing indigent defense services.
David Carroll explained that The Spangenberg Group is a nationally recognized consulting firm that has conducted numerous studies of indigent defense issues for the American Bar Association and several state court systems. He noted that while each jurisdiction is unique, many are experiencing problems similar to those that are of concern in North Dakota. By way of background, he said, there are twenty-one states in which indigent defense services are completely state funded. There are, he said, approximately six states in which funding is provided predominately by the state, but in which there is also funding at the county level. He said North Dakota falls in this latter category because funding for indigent defense services in mental health commitment proceedings and sexual predator commitment proceedings is providing by the county. He said some jurisdictions have established pure public defender systems, while others combine a public defender approach with contract and appointed counsel, while still others, such as North Dakota, use a contract approach almost exclusively. He noted that Minnesota has established a good model that combines public defenders with contract counsel. Oregon, he said, provides indigent defense services exclusively through a contract system and spends more per capita on indigent defense than any other state - approximately $23 per person, compared to approximately $2 per person in North Dakota. He noted that among the 32 states for which The Spangenberg Group has assembled fiscal information, North Dakota ranks 29th in expenditures for indigent defense.
With respect to changes in delivery systems, David Carroll said the movement toward public defender systems is gaining some momentum, in part because of some of the issues identified by Rod Feldner. Additionally, he said, while the general crime rate appears to be declining, there is not a corresponding decline in caseload and costs. He said there appears to be a variety of reasons for this situation: improved police technology resulting in a higher percentage of apprehensions, increased costs attributed to DNA testing, and an apparently greater percentage of crimes being committed by indigents. In light of these factors, he said, public defender systems are often perceived as having advantages over other systems. He said a public defender system provides a centralized organization for handling payroll and expenses, whereas the contract system tends to be more fragmented. Public defender systems, he said, often provide a more manageable method for ensuring cost containment while increasing the quality of representation. However, he cautioned that the key to an effective public defender system is adequate funding and proper infrastructure support.
In response to a question from Chief Justice VandeWalle, David Carroll said states with public defender systems are nearly equally divided in establishing them under either the executive or judicial branch. He noted that more states are moving toward establishing independent commissions, with members appointed by the different governmental branches and the local bar, which formulate policies and procedures for delivery of indigent defense services. He said these entities are intended to operate independently even though they may be established generally under the executive or judicial branch.
Judge Kleven noted that thought had been given to a possible pilot public defender project in the NortheastCentral judicial district, but it was determined that the cost would exceed that which is currently used to operate the contract system in the district. David Carroll responded that states that make the transition to a public defender system usually experience an initial increase in costs, but the more important consideration is how the cost compares over the long term. He noted that Vermont has a system that is composed of staffed public defender offices and contract public defenders. He said the state had increased the court-appointed counsel rate to approximately $65 per hour, which then resulted in counsel leaving contracts, particularly in rural areas, to obtain higher per hour court appointments. He said the resulting escalation in cost led Vermont to consider systems such as those in Alaska or Colorado, which provide indigent defense services through a second, alternative public defender system. The initial cost, he said, is expected to be significant, but there is expected to be cost-savings in the future.
Justice Sandstrom noted that North Dakota, like surrounding states, has a large geographic area but small population and asked how it compares with Wyoming, for example, in providing indigent defense services. David Carroll responded that the public defender system in Wyoming is completely funded by the state, with public defenders being state employees. He said there are public defender offices in each judicial district in the state and conflicts are handled by assigned counsel outside the public defender offices. He noted that it is often assumed that providing indigent defense services in rural areas is less expensive than in more populated areas. That is not the case, he said, as rural areas, such as Wyoming, have unique higher costs associated with such things as obtaining expert witnesses and increased travel by counsel. In response to a question from Justice Kapsner, he said he would provide more detailed information about funding in Wyoming. He offered to provide additional comparative information to the Commission concerning Wyoming's public defender system and perhaps another neighboring state, such as Minnesota.
Chief Justice VandeWalle asked whether there might be a higher rate of appointed counsel if a public defender system, staffed by public employees, is used to provide representation. David Carroll said he is unaware of any studies that address the particular issue, but The Spangenberg Group has conducted a study on appointment rates generally and the impact of screening processes for determining indigency. The study, he said, found that some states have concluded that the funds necessary to implement screening may exceed counsel costs and, therefore, have not undertaken a screening program. Other states, he said, have recognized the associated cost, but have implemented screening anyway because it provides a method of ensuring appropriate counsel appointments. For example, he said, Pierce County, Washington, established an elaborate system in which staff of a pretrial services department supervise the completing of appointed counsel applications and financial affidavits and then conduct follow-up to determine the validity of financial information supplied by defendants. He said the system is costly, but the county council concluded the cost was worthwhile in providing a basis for demonstrating to the public that counsel is appropriately appointed.
With respect to other methods of cost containment or recovery, David Carroll said it has generally been concluded that recoupment, that is, the recovery of indigent defense costs from the defendant after the case is over, is most often a situation in which the amount of costs recovered is offset by the costs associated with the recoupment effort. And, he said, effective recoupment is complicated by the fact that it often competes with other court-imposed costs. As a result, he said, some states have established a nominal fee to be paid by the defendant when applying for appointed counsel services. He said the approach seems to be working well because there often is a good chance that a defendant will have a small amount of money available at the outset. Additionally, he said, anecdotal evidence suggests that defendants tend to be more engaged in the process if they are asked to pay something toward the costs of counsel. The approach has also, he said, received noticeable public support.
In response to a question from Steve Balaban, David Carroll said it is difficult to compare costs between public defender systems and contract systems because individual contracts in contract states vary widely in coverage and cost.
In response to a question from Doug Johnson, David Carroll said if defense costs recovered from a defendant are returned to the indigent defense system there tends to be a higher recovery rate. Particularly, he said, an effective screening process, coupled with a follow-up collection effort, enhances recovery. Such an effort, he said, is more effectively supported if money recovered from defendants is returned to the indigent defense program. Consequently, he suggested targeting recovered funds to a collection effort and providing for a special, dedicated fund for recovered costs, which has been shown to lead to better collection efforts.
With respect to obtaining increased funding, Mary Hoberg asked how a legislative response has been achieved in other jurisdictions. David Carroll responded that in some states litigation alleging ineffective assistance of counsel because of inadequate funding has resulted in increased spending on indigent defense. It is also helpful, he said, to emphasize fairness and efficiency in the system, as well as the importance of providing equal services throughout the jurisdiction.
In response to a question from Rob Olson regarding how to achieve parity in contract counsel compensation between different regions, David Carroll said one of the more effective methods for achieving that goal is to empower an oversight body to address such issues. He said his understanding is that the Legal Counsel for Indigents Commission does not have such authority. He said recent turmoil in Alabama over counsel compensation led to the establishment of a commission with the authority to study county-based systems in the state and determine how indigent defense services would be provided in each county. He emphasized that state level authority is very important. An oversight body, he said, is necessary to constantly evaluate and manage the system. Such an entity, he said, is also useful for ensuring uniformity in date reporting and assembly, as well as, perhaps, conducting studies of time spent on particular categories of cases.
In response to a question from Wade Enget regarding costs per capita for indigent defense in other surrounding states, David Carroll said cost per capita in Minnesota was $9.84, in Wisconsin - $12.57, in Colorado - $9.36, and in Kansas - $5.82. He said he is currently assembling information on costs in Montana, but noted that the state funds approximately 85% of district court costs.
In response to a question from staff concerning providing counsel for defendants that are determined to be only partially indigent, David Carroll said some jurisdictions have established panels of lawyers who are willing to provide indigent defense services as a reduced rate. In response to a question from Justice Neumann, he said there may be one or two jurisdictions in which lawyers on such panels are paid an additional amount by the state.
In conclusion, David Carroll offered the assistance of The Spangenberg Group in any effort to further analyze the operation of the state's contract system or consider an alternative delivery system. He said it was very encouraging to have members of the Supreme Court in attendance, which is unusual for the jurisdictions he has visited.
Rep. Carlisle observed that if a public defender system is considered for North Dakota it would be necessary to compile at least a five state comparison of similarly situated states with respect to funding, crime rate, and population.
Application Fee for Appointed Defense Services - Draft Legislation
At the request of Chair Kleven, staff reviewed Attachment C (October 20, 2000) - draft legislation regarding an application fee for appointed defense services. Staff said the draft was modified as a result of discussion at the Commission's last meeting and then submitted to the Council of Presiding Judges for review. The Council, he said, was generally supportive of the concept, but did suggest that the revenue derived from the fee be deposited in the state general fund, rather than the special fund set out in the bracketed alternative on pages 2 and 5 of the draft.
Rep. Carlisle noted that the Legislative Assembly is generally skeptical about establishment of special funds and continuing appropriations, both of which are included in the draft.
Carl Flagstad observed that the presiding judges likely prefer the general fund approach because they are concerned about budget reductions if the fee revenue is deposited in a special fund appropriated to the judiciary. However, he said his experience has been that unless funds are earmarked, which a dedicated special fund does, they soon disappear. Consequently, he recommended that the special fund language in the draft be retained.
Wade Enget wondered who would have the responsibility for ensuring the application fee is collected. Judge Kleven suggested the possibility of designating one person in each judicial district as a screener. In response to a question from Dough Johnson regarding who should screen applications, David Carroll said there is no particular method, but uniformity in evaluating the applications should be the goal.
David Carroll noted that one concern of the defense bar in other states about the application fee was that it might cause some defendants to attempt to represent themselves. However, he said, that has not occurred. In response to a question from Rob Olson concerning whether application fees in other states have been constitutionally challenged, he said all states that have enacted the application fee, except Florida, have included a provision permitting the court to waive all or part of the fee if the defendant cannot pay. He said some expect that the Florida law may be challenged on that ground.
It was moved by Wade Enget, seconded by Carl Flagstad, and carried unanimously that the draft legislation, modified to include the alternative language dedicating the fee revenue to a special fund, be approved and submitted to the Supreme Court for consideration. It was noted that Chad Nodland, who had to leave the meeting to attend a court hearing, opposed approval of the draft.
Draft Application for Appointed Defense Services - Review
At the request of Chair Kleven, staff reviewed Attachment D (October 20, 2000) - a revised draft application for appointed defense services. He said the draft is based on the Minot form with the following additions resulting from Commission discussion at its last meeting: a provision was added on page 1 regarding contact with at least two attorneys, references to monthly and annual gross income were added on page 2, and on page three statements were included about extraordinary financial conditions and the possible consequence for providing false information. He noted that the Minot form also requests information concerning the spouse's annual income, rather than monthly income as the draft provides.
Judge Kleven noted that the Procedures and Guidelines provide that spousal income should be considered only in determining whether the defendant can meet expenses. She said it is a legitimate consideration and she, as a judge, would like to know that information. Mary Hoberg said it seems to be commonsense to request information on spousal income. Commission members agreed the draft should be revised to request information concerning the spouse's annual gross income.
Judge Kleven suggested, and Commission members agreed, a statement should be added on page 3 regarding the defendant's continuing obligation to inform the court of any change in financial condition.
With respect to the Subscribed and Sworn/Witness provision on page 3, it was observed that there generally is no witness when forms are completed. Commission members agreed the language should be deleted from the draft.
It was moved by Carl Flagstad, seconded by Mary Hoberg, and carried unanimously that the draft, as further modified, be approved.
Change in Financial Status Following Appointment of Counsel
Chair Kleven drew attention to an issue raised by Presiding Judge Benny Graff concerning how to respond in situations in which the defendant's financial situation has changed after counsel has been appointed based on indigency. Staff noted that most indigent defense contracts contain a provision requiring counsel to inform the court if they become aware of any change in financial circumstances that might have a bearing on whether the defendant should have appointed counsel. A possible approach, he said, is to require the defendant to submit a revised application so that it can be determined if appointed counsel should continue.
David Carroll noted that if a change in financial condition occurs far along in the process, it poses a difficult situation with respect to disrupting the case if appointed counsel is withdrawn. He said a general approach has been to require the defendant to submit a revised application and increase the amount of costs to be reimbursed after the case is concluded.
Carl Flagstad said the defendant should have the benefit of contract counsel until improved financial status is shown. Then, he suggested, the defendant should pay counsel at an hourly rate if the defendant wants to continue with that attorney.
Chair Kleven thanked David Carroll and The Spangenberg Group for their willingness to visit with the Commission and share information on providing indigent defense services. No further business appearing, the meeting was adjourned at 2:25 p.m.
Jim Ganje, Staff