Our Public Defender System: A Funding Crisis
By James L. Baillie

On December 5, the MSBA Board of Governors, expressing concern for the health of Minnesota's public defender system and its funding crisis, resolved to support adequate funding for the public defender system. That concern was underlined on December 26 when the Minnesota Supreme Court issued an order in which the Court "acknowledged the fiscal crisis [the public defenders] are experiencing, threatening the ability of the public defenders to fulfill their crucial role in the justice system." In the same order, the Court added that "only the legislature can provide genuine relief." It will be a challenge for the Legislature and our profession in this coming session, and in the longer term, to find the needed funding. Our president-elect, David Stowman, is taking the lead for our association on this issue and we have begun meetings with the Public Defender, our Chief Justice, and legislators. We may soon call on some of you to meet with your legislators in this regard.

In a country with a number of inadequate state public defender systems, Minnesota's system has been an exception. As it struggled with increasing case loads and reorganization into a single statewide system, it received national recognition in 1995 from the National Association of Legal Aid and Indigent Defenders and the American Bar Association for its progress. But case loads have continued to grow, funding has not kept pace, and the system has been seriously weakened. The aba recommends that the annual case load for a full-time public defender be 400 case units. Our State Public Defender reports that the case load in Minnesota is now approximately 900 cases. The State Public Defender also reports that part-time public defenders have "contributed" more than 40,000 hours beyond their contracts. Public defenders are leaving the system at a greater rate than ever before, and in the absence of funding, vacancies are not being filled.

Nothing can be more fundamental to justice than counsel for those in danger of losing their liberty. The surprise may not be that the MSBA has taken a position in favor of adequate funding for the public defender system but that it has not done so before this year. Public defense has been constitutionally mandated since Gideon v. Wainwright; the bar may have assumed that its support was not necessary.

The MSBA has been extremely active in support of adequate funding for civil legal services and in developing and promoting pro bono civil legal services. The reason this approach differs may be that at critical times in the late 1970s and early 1980s, federal funding for civil legal services required private bar involvement. The organized bar responded, playing an active role in the delivery of civil legal services and providing board members to oversee local legal services programs.

When the Legislature met in the spring of 2003, it faced a huge budget deficit. The Court and the civil legal services, with assistance from the MSBA, were successful in holding their funding loss to a minimum. At the same time, the Legislature attempted to maintain funding levels for the public defender system. However, funding for the public defender system has become somewhat complicated.

For the second year of the biennium (FY 2005), direct funding for the public defender system was reduced from approximately $53 million to $45 million. That shortfall was to be made up by "copays." For example, the amount to be paid by an indigent defendant for a felony defense would increase from $28 to $200. However, there was no certainty whether those copays would actually make up the difference. Since then it has become clear that they will not.

On September 3, 2003, a Hennepin County District Court, in State v. Tennin, held the copay statute unconstitutional. The appeal was argued to the Minnesota Supreme Court on December 3 with a decision expected in February 2004. How the Supreme Court will rule and whether the statute, if found unconstitutional, can be rewritten to meet constitutional requirements and yet raise significant funds may be before us soon.

Meanwhile, the State Public Defender had requested administrative relief from the Supreme Court in the form of presumptive continuances and revisions in the procedures for Child in Need of Protection or Services (CHIPS) cases. In denying the request, the Minnesota Supreme Court reiterated earlier statements that the public defender offices are "grossly underfunded" but decided that the requested relief would not be effectual, or was not within the authority of the Court, and concluded that "only the legislature can provide genuine relief."

Much will depend on the revenue projections which will be available soon after the Legislature starts its ten-week session on February 2nd. For now, the assumption will be that no additional funding will be available. This is further complicated by the fact that there is likely to be legislation calling for longer imprisonment for sexual predators and for a death penalty, both of which would carry hefty price tags. (At the same December 5 meeting, the MSBA Board of Governors adopted a resolution opposing the reinstatement of a death penalty. More on that, perhaps, in a future column.) These developments, in turn, could be a threat to the funding of the courts and civil legal services.

These challenges are daunting and yet, because these institutions are so central to our justice system, our bar association must be involved. We will support, simultaneously, strong funding for our court system, for civil legal services, and for the public defender system. We hope that the importance of all of these institutions will be recognized and that our profession will be able to engage in an inquiry, together with the Court and the Legislature, to find a way to support all of these critical institutions at the level they require.

JIM BAILLIE is president of the Minnesota State Bar Association. A shareholder in the firm of Fredrikson & Byron, P.A., he concentrates his practice in business bankruptcy and insolvency law and related litigation and business transactions.