IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY

Transcription

1 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY AL FLORA, JR., in his capacity as Chief Public Defender of Luzerne County and NO OF 2012 CLASS ACTION SAMANTHA VOLCIAK, YOLANDA HOLMAN and CHARLES HAMMONDS, on behalf of themselves and all others similarly situated, Plaintiffs vs. LUZERNE COUNTY of the COMMONWEALTH OF PENNSYLVANIA and ROBERT C. LAWTON, COUNTY MANAGER, in his official capacity, Defendants PROCEDURAL HISTORY OPINION The matter before this court has as its genesis a class action complaint filed on April 10, A scheduling conference was conducted before the undersigned on April 12, Additionally, on that date, plaintiffs filed a motion for both a peremptory writ of mandamus and a preliminary injunction as well as a supporting brief. Defendants' response in opposition was received on May 1, Both plaintiffs and defendants have submitted supplemental briefs in support of their respective positions. Preliminary objections were interposed to plaintiffs' complaint on April 30, A hearing on plaintiffs' preliminary request was conducted on May 10, Thereafter,

2 on May 16, 2012, an order was issued appointing a master pursuant to Pa.R.C.P to preside in settlement negotiations. Additionally, on May 24, 2012 defendants' preliminary objections were overruled, and they were directed to file an answer within 35 days. On June 14, 2012, the parties presented to the court a stipulation which advises the court, inter alia, that " parties in settlement discussion, and counsel for both parties have communicated regularly to address issues relating to the operation and staffing of the OPD " The transcript of the May 10, 2012 hearing, consisting of 329 pages, has been received and utilized in the preparation of this opinion. PRELIMINARY STATEMENT Given the nature and complexity of the instant litigation we are compelled to offer certain initial observations. Pennsylvania jurisprudence deems requests to issue a writ of mandamus and injunction as extraordinary, especially in the peremptory and preliminary stage, and therefore reserved for extraordinary cases. The class action complaint giving rise to these extraordinary requests was filed by the Chief Public Defender of Luzerne County and three named indigent defendants against Luzerne County and Robert C. Lawton, the county manager, in his official capacity. In summary form, the complaint alleges that a long standing lack of resources and concomitant excessive work loads result in assistant public defenders, primarily in what is described as the adult unit, unable to provide minimally adequate representation to indigent defendants. These circumstances result in an alleged inability to provide 2

3 representation at the initiation of criminal proceedings where the right to counsel has attached. It is also asserted that the Office of Public Defender (OPD) is unable to conduct reasonable factual investigations in cases where its stewardship is mandated by law and unable to perform work with both reasonable diligence and promptness. In essence, the complaint suggests that the lack of resources and overwhelming work load creates a context in which constitutionally adequate representation is impossible. It is additionally alleged that the nature and construct of office space allocated to OPD results in compromised client confidentiality. In this context it is also asserted the manner in which video conferencing is being presently utilized for preliminary stages in the criminal process serves as an impediment to confidential communications between assistant public defenders and prisoners. The complaint sets forth three causes of action. Count 1 asserts a cause of action in mandamus by plaintiffs individually against all defendants. Count 2 asserts a deprivation of the class plaintiffs rights under the Sixth and Fourteenth Amendment of the United States Constitution results in relief pursuant to 42 U.S.C The 3rd Count asserts a cause of action pursuant to Article I 9 of the Pennsylvania Constitution by class plaintiffs against all defendants. As succinctly stated by then President Judge Spaeth in Commonwealth vs Brown, 476 A.2d 381, 384 (Pa.Super. 1984), the Sixth Amendment of the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense. An accused unable to afford counsel has the right to have appointed counsel. This right extends to everyone charged with 3

4 an offense punishable by imprisonment and is binding upon the states. The Brown opinion observes in recognition of the right to counsel, the Pennsylvania legislature enacted the Public Defender Act (16 P.S et.seq.) which requires the public defender to furnish legal counsel, in certain cases, to any person who for lack of sufficient funds is unable to obtain counsel. Additionally, a common pleas court may "for cause" appoint counsel other than the Public Defender (Id. at 384 n.2; 16 P.S ). As further explained by Justice Nigro, author of the Pennsylvania Supreme Court's opinion in Dauphin County P.D.'s Office vs Court of Common Pleas of Dauphin County, 849 A.2d 1145 (Pa. 2004) the public defender's system has its roots in the United States Constitution, which guarantees criminal defendants the right to legal assistance for their defense. To that end, the United States Supreme Court has held that each state must provide legal counsel to indigent individuals who are charged with either state felonies or misdemeanors involving possible imprisonment. Justice Nigro points to Justice Black's explanation in Gideon vs Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963) "In our adversary system of criminal justice, any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him". The right to counsel is assured at every step in the criminal process. In Pennsylvania, this right attaches at the initiation of adversarial judicial proceedings. Commonwealth vs Gwynn, 943 A.2d 940 (Pa. 2008). Further it is beyond cavil that the presence of counsel is mandated at each and every subsequent critical stage of the criminal process. Montejo vs Louisiana, 129 S.Ct (2009). The Sixth Amendment guarantee of counsel encompasses more than the physical presence of a licensed attorney at a preliminary hearing, guilty plea, trial, 4

5 sentence or appeal. For example, the time frame between preliminary arraignment and a trial or guilty plea requires the factual development of the case which includes research and decision making concerning witnesses, plea negotiations and pre trial motions. Indeed, "to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself". Maine vs Moulton, 474 U.S. 159, 170 (1985). In recognizing actual assistance contemplates significantly more than mere presence the United States Supreme Court instructs that to conclude otherwise could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Sixth Amendment guarantee of assistance of counsel can not be satisfied by mere formal appointment. United States vs Cronic, 466 U.S. 648 (1984); Avery vs Alabama, 23 U.S. 444, (1940). The duty to provide counsel therefore falls squarely and unambiguously on government and the burden of deficient representation, to the extent it results from demonstrated lack of resources or overwhelming case load, cannot be borne or shouldered by indigent defendants. The public defender's office in the Commonwealth of Pennsylvania enjoys constitutional status as an office of county government. (Pa. Const. Art. IX, 4). The OPD in Luzerne County and throughout this Commonwealth perform an essential and core function in the criminal justice system which in turn comprises an essential and core function of government - the administration of justice. The status of the OPD is further explicated in the recently adopted Luzerne County Charter, 6.04(B). It is evident to this court that the referenced authority establishes the Chief Public Defender as an autonomous appointed official. 5

6 Additionally, we have no hesitancy in concluding that the Court of Common Pleas has jurisdiction to consider both this class action and these ancillary requests. Medico vs Makowski, 793 A.2d 167 (Pa.Cmwlth. 2002) (Considering review of trial court's determination regarding judicial intervention into county fiscal matters in the nature of mandamus or mandatory injunction). Further, the Pennsylvania Constitution, Art. IX 4, establishes the office of the Public Defender as a county executive office. See: Olenginski vs Luzerne County, 24 A.3d, 1103; see also, Luzerne County Charter, 6.04(B). In deciding these preliminary requests we are acutely aware of the judiciary's role vis a vis the other branches of government. In Beckert vs Warren, 439 A.2d 638 (Pa. 1981) the Pennsylvania Supreme Court observes that the existence of the judiciary's inherent power to compel expenditures necessary to prevent the impairment of its exercise of the judicial power or of the proper administration of justice is well established. The opinion further instructs the circumstances in which the exercise of such power is justified, however, must be clearly delineated. Beckert further elaborates the notion of the inherent power of the judiciary is implicit in the doctrine of separation of powers. The exercise of judicial power generally should not encroach upon or interfere with the taxing and spending powers vested in the legislature. However, Pennsylvania jurisprudence has repeatedly recognized that this legislative authority is subject to constitutional limitations. Then Chief Justice O'Brien, author of Beckert, writes the actual exercise of the inherent power of the judiciary must be viewed as exceptional and reserved for instances which pose a genuine threat to the administration of justice. See 6

7 also, Snyder vs Snyder, 620 A.2d 1133 (Pa. 1992); Lavelle vs Koch, 617 A.2d 319 (Pa. 1992). Finally, we have referenced the Chief Public Defender's correspondence of September 12, 2011 to the President Judge in Finding 27 and Conclusion 19 below. It is imperative to observe at the outset that we disapprove of the manner in which the Chief Public Defender contacted the court. The absolute responsibility for the appointment and funding of the OPD lies with the county council and the county manager. It is neither the responsibility, prerogative or inclination of the Court of Common Pleas to insert itself into this process. Correspondence is not a substitute for formal requests for relief. We view this request as nothing more than informational. It is the obligation of county government acting through its executive branch to provide and pay for adequate representation of qualified indigent defendants. The court's role is to appoint counsel in the event of conflict or special circumstances and to authorize the payment of reasonable fees to be borne by the county on a case by case basis upon the presentation of an appropriate pleading. (Public Defenders Act, 16 P.S , et seq). FINDINGS OF FACT 1. At the inception of the May 10, 2012 hearing in the above captioned matter counsel for the respective parties presented "Stipulated Facts" (N.T. 8 through 19). They consist of 64 numbered paragraphs and were reduced to writing and submitted to the Court. These stipulated facts are incorporated herein by reference. 2. Al Flora, Jr., Esquire is presently the Chief Public Defender of Luzerne County. 7

8 3. The Chief Public Defender in Luzerne County is an autonomous appointed official compensated as a part-time employee. 4. Mr. Flora indicated that although a part-time employee is only required to work 20 hours a week, he routinely spends 35 to 40 hours a week on public defender's business. 5. Mr. Flora became Chief Public Defender in March of 2010 and previously served in the capacity of First Assistant Public Defender for a period of 20 years. Additionally, Mr. Flora was employed as an Assistant Public Defender. His experience in the OPD totals 32 years. 6. Mr. Flora often performed his duties from his private office utilizing his own secretary and equipment, attributing this, in part, to inadequate support staff. 7. The OPD has traditionally employed an office administrator but the role is described as "very limited" since they are non lawyers. 8. After receiving the appointment as Chief Public Defender, Mr. Flora observed both the high volume of cases handled by assistant public defenders as well as the lack of working space "lawyers.were crammed 2 to 3 in a room". 9. In accessing the problems facing OPD staff Mr. Flora reviewed s from prior Chief Public Defender, Basil Russin, Esquire, "as far back as 2007" sent frequently to county administration requesting additional staffing "citing increase case loads and that there was nothing to indicate that additional staffing had come forward". 10. Chief Public Defender Flora drafted a report, issued in June of 2010, directed to the then County Commissioners outlining the staffing and case loads of assistant public defenders. 8

9 11. Simultaneously with the above Chief Public Defender Flora was responsible for reviewing and attempting to remedy deficiencies outlined in a report generated by the Inter Branch Commission on Juvenile Justice. 12. The previous Luzerne County Commissioners received the aforementioned report in June of 2010 which provided, in the Chief Public Defender's words, "a clear understanding of the problems that the office was facing". (N.T. p. 26) 13. This report, entered as Plaintiff's Exhibit 1, purported to outline the obligations of defense counsel not only pursuant to the Public Defender Act but also with regard to the rules of professional conduct. 14. The Chief Public Defender identified during his testimony several vacancies which exist in the OPD (N.T., p. 28, 29) 15. The Chief Public Defender indicated the purpose of the June 10, 2010 report to the then Luzerne County Commissioners was to convey " that the case loads in the office that the lawyers were handling were too high for the lawyers to provide a level of competent or adequate representation for the clients. (N.T., p. 32) 16. The inability to provide adequate representation was attributed to the assistant public defenders inability to adequately prepare; consult with clients; investigate cases; meet with the District Attorney's office in a timely fashion to negotiate pleas; prepare for sentencings and deal with assigned appeals. (N.T., p. 32 through 36) 17. Chief Public Defender Flora described the physical space and layout of the offices provided to OPD, indicating they create not only a difficult work environment but result in an inability to " have confidential communications with clients in that type of 9

10 setting. You don't have the ability where the lawyers can sit down and do the work that they should be doing in a appropriate manner". (N.T., p. 41) 18. This witness further described the difficulty with not being able to employ a full time First Assistant Public Defender, as well as the paucity of secretarial and non lawyer legal assistance. 19. The previously described summary of the condition, staffing and work loads of the OPD outlined in the June 2010 report concluded with the admonition that "absent appropriate staff increases, the office will begin declining applications for representation within 60 days". (N.T., p. 49) 20. Chief Public Defender Flora stated that the report was followed by a July 14, 2010 "proposed short term plan to implement staffing needs in the office of the Public Defender". (N.T., p. 50) 21. This report was directed to then County Commissioners Petrilla, Cooney and Urban in addition to then County Manager Doug Pape. 22. Although the commissioners declined to adopt the proposed staffing requests improvements were made vis a vis the Juvenile Division. (N.T., p. 52, 53) 23. Chief Public Defender Flora related he did not decline representation during that time period " because I truly believed the commissioners would work with me to improve the staffing in [OPD] over a period of time". (N.T., p. 55) 24. Chief Public Defender Flora additionally outlined efforts in the spring of 2011 to obtain pro bono services from the bar, which, according to this witness, were impeded by representatives of the relevant union and as a result "I was not able to 10

11 implement that program because of the collective bargaining agreement". (N.T., p. 57 through 59) 25. Chief Public Defender Flora explained plaintiff's Exhibit 10 and 11 which outline the status of adult cases handled by assistant public defenders during the time period reflected on those exhibits. 26. Chief Public Defender Flora repeatedly indicated that the assistant public defenders in the adult unit are "overwhelmed" and "overworked". (N.T., p. 69 through 74) 27. Chief Public Defender Flora also offered testimony regarding correspondence he authored, dated September 12, 2011, to President Judge Thomas Burke stating that as of December 19, 2011 the OPD would decline representation except in cases of homicide, felony sex offenses and extradition. The correspondence further indicated the "policy was being placed in effect due to the lack of resources that our office was not receiving". (N.T., p. 75) 28. The witness additionally referenced Plaintiffs' Exhibit 3 which is a December 16, to then County Manager Doug Pape attaching the September 12, 2011 correspondence to President Judge Burke. 29. Chief Public Defender Flora reiterated the reasons for declining representation, concluding there are "over 450" indigent defendants who have presently been denied representation. (N.T., p. 78) 30. Chief Public Defender Al Flora testified that in mid January of 2012 he appeared at a County Council meeting regarding the proposed budget and attempted to 11

12 alert County Council regarding the " serious problem in my office that had to be immediately corrected". (N.T., p. 81) 31. Chief Public Defender Flora provided additional testimony regarding existing vacancies in the OPD. (N.T., p. 83 through 85) 32. This witness outlined efforts to fill the vacancies including a May 3, 2012 correspondence to current the County Manager. (N.T., p. 85) 33. In response to questions posed by the court, the Chief Public Defender indicated that the referenced vacancies were funded in the current budget for OPD. (N.T., p. 93) 34. During cross examination the Chief Public Defender engaged in a thrust and parry with defense counsel regarding the Public Defender's responsibilities pursuant to both the Public Defender Act and the Pennsylvania Rules of Professional Conduct. (N.T., p. 101 through 105) 35. Regarding the Chief Public Defender's efforts to secure pro bono representation for indigent defendants, which is provided for in the Public Defender's Act, the witness maintained "In light of the provisions of the Collective Bargaining Agreement, I could not obtain pro bono counsel. That would be a violation, I believe, of the Collective Bargaining Agreement". (N.T., p. 106) 36. Plaintiffs' second and final witness was Norman Lefstein. Mr. Lefstein is Dean Emeritus and Professor of Law at Indiana University School of Law in Indianapolis. 37. Dean Lefstein's voir dire appears in the transcript at pages 166 through 174. This witness was permitted to testify as an expert in (1) the provision of counsel for 12

13 indigent criminal defendants - legal and professional standards; (2) the representation of indigent defenders by public defenders or appointed counsel; (3) the staffing, resources, training and experience necessary for effective public defenders or appointed counsel representation of indigent defendants. (N.T., p. 174, 175) Dean Lefstein identified and discussed counsel's obligations regarding representation utilizing Plaintiffs Exhibit 18, a summary of what were described as the applicable Pennsylvania Rules of Professional Conduct (Pa.R.P.C.) including Rules 1.1, 1.3, 1.4, 1.16(A), 5.1, 5.2 and 6.2(A). 38. Dean Lefstein explained the aforementioned rules in conjunction with the requirements of the Sixth Amendment right to counsel embodied in the United States Constitution and defined as a result of a series of United States Supreme Court decisions establishes the threshold for reasonably competent representation by defense counsel. (N.T., p. 179 through 181) This witness further referenced American Bar Association (ABA) guidelines for capital cases as well as Formal Ethics Opinion issued by the ABA. 39. An examination of the aforementioned authority in the context of Chief Public Defender Flora's testimony and Plaintiffs' exhibits regarding workload yielded the expressed opinion that Luzerne County OPD's case loads are "clearly excessive". (N.T., p. 192). His opinion was well articulated and persuasive. 13

14 40. When questioned specifically regarding an opinion about whether Luzerne County Public Defenders are able to comply with the responsibilities of representation outlined in the aforementioned Rules of Professional Conduct this witness responded: My opinion is that they can not. I've inspected a number of defense programs. I understand what the burdens of defense representations are. When you have over 100 clients for whom you are simultaneously responsive, you simply can not discharge the range of duties that you have to those clients; and what occurs and, I think, it's essentially what Mr. Flora testified to this morning, is a form of triage representation, where you deal only with the most immediate problem of the day, because that is really all you can do. N.T., p On cross examination Dean Lefstein acknowledged the referenced ABA guidelines are not mandatory in the Commonwealth of Pennsylvania but rather may be considered "persuasive authority". 42. The witness indicated he did not meet with any assistant public defenders in Luzerne County prior to forming or expressing an opinion regarding representation. 43. Dean Lefstein acknowledged the Public Defender Act authorizes the Chief Public Defender to seek pro bono representation of indigent defendants. 44. Robert C. Lawton was called as the lone defense witness and indicated he assumed the position of County Manager on February 29, Mr. Lawton described both his management style and the challenges regarding the implementation of Luzerne County's implemented home rule charter. 45. In response to the initial question posed on cross examination concerning two vacancies in OPD Mr. Lawton stated "I have no intention of withholding my approval. Its been demonstrated that the vacancies exist, that adequate funding is 14

15 included in the current county budget; and, you know, there is a little bit more paperwork to do, but I have no intention of withholding my approval". (N.T., p. 253) CONCLUSIONS OF LAW 1. The conclusions presently expressed incorporate and compliment the initial observations and analysis set forth in the preliminary statement. 2. The Chief Public Defender of Luzerne County, is an autonomous appointed official of the Executive Branch of County Government and his status, duties and responsibilities regarding representation of indigent defendants are provided for in the United States and Pennsylvania Constitutions; the Public Defender's Act of the Commonwealth of Pennsylvania; appellate authority and the home rule charter. 3. A preliminary injunction is a most extraordinary form of relief which will be granted only in the most compelling cases. Goodies Old Fashion Fudge Co. vs Kuiros, 597 A.2d 141 (Pa.Super. 1991). 4. Pursuant to Pennsylvania law, a party seeking injunctive relief must establish each of the following elements: (1) that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, i.e., a party must demonstrate a likelihood of success on the merits; (2) that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; (3) that greater injury would result from refusing an injunction than from granting it, and concomitantly, that issuance of an injunction would not substantially harm other interested parties in the proceedings; (4) that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; (5) that the injunction it seeks is reasonably suited to abate the offending 15

16 activity; (6) the party seeking an injunction must show that a preliminary injunction will not affect the public interest. See: Summit Town Centre, Inc. vs Shoe Show of Rocky Mount, Inc., 828 A.2d 995 (Pa. 2003); Kessler vs Broder, 851 A.2d 944 (Pa. Super. 2004) 5. Peremptory judgment in a mandamus action may be entered only when no genuine issue of material fact exists and the case is free and clear from doubt. Mandamus is an extraordinary remedy to compel performance of a ministerial act or mandatory duty. It is warranted where the petitioner has a clear legal right, respondent a corresponding duty and where no other appropriate remedy exists. Philomeno & Salamone vs Board of Supervisors of Upper Merion Township, 882 A.2d 1044 (Cmwlth. 2005). 6. The evidence presented by Plaintiffs was in large measure uncontroverted and uncontradicted. No testimony was presented by the defense, other than through cross examination, which addressed the essential substance of Chief Public Defender Flora's factual representations. 7. The record is devoid of testimony which rebutted or challenged Plaintiffs' factual assertions. 8.. To describe the current state of affairs in the Office of the Public Defender as approaching crisis stage is not an exaggeration. 9. The historical and actual funding mechanism for the OPD in Luzerne County has been the legislative branch of county government - the Luzerne County Commissioners and presently the Luzerne County Council. 16

17 10. Defendants' position that Luzerne County is simply mandated to provide for a public defender and not the "staffing" of the OPD is categorically rejected by this court. (N.T., p. 323) 11. The Legislative and Executive Branch of Luzerne County government not only appoints the Public Defender it funds the operation of his office through the budgetary process. 12. The funding of the OPD is inexorably linked to both the nature and actual representation of indigent criminal defendants. 13. The Chief Public Defender cannot carry out or fulfill his constitutionally required and legislatively mandated responsibilities without adequate funding. 14. The Chief Public Defender of Luzerne County is not the sole or exclusive arbiter of the amount or nature of resources to be allocated to the operation of his office. Luzerne County, through Council and the County Manager have a duty to act with regard to providing effective representation of indigent defendants. The authority referenced in the preliminary statement neither allows, permits or condones a "poor person" exception to adequate representation. The cost of indigent defense as embodied in the United States and Pennsylvania Constitution and implemented by the Public Defenders Act must fall on the community at large. 15. Unlike many other contexts of governance, representation of indigent criminal defendants is not an area where the legislative branch, County Council, enjoys plenary discretion. Indeed, Council's discretion is circumscribed by the Constitution, applicable legislation, applicable appellate precedent and the Pennsylvania Rules of Professional Conduct. 17

18 16. We reject the Chief Public Defender's position that his ability to seek and secure pro bono representation pursuant to the Public Defenders Act was precluded by a collective bargaining agreement. 17. Based upon the instant record we cannot conclude that objection was a sufficient reason for the Chief Public Defender to fail to exercise his authority pursuant to the Public Defenders Act regarding pro bono representation. 18. The instant record does not permit the conclusion that the Public Defender's Act is subservient to or rendered impotent because of a collective bargaining agreement. 19. No formal motion or motions pursuant to applicable substantive and procedural law were presented to the President Judge of Luzerne County which required action by the Court of Common Pleas. 20. The instant record establishes the three named plaintiffs set forth in the stipulated facts are entitled to immediate representation and the relief requested in this regard is granted. 21. Pa.R.C.P provides that any judgment entered in a class action suit prior to certification of the class is binding only upon the named parties. This court, therefore, lacks authority over the putative members of the class. 22. Although the extent of existing vacancies remains unclear, insofar as the County Manager acknowledged that existing funded positions within the Public Defender's Office would be filled in due course no additional relief is presently warranted. Relief may be necessary if vacancy replacements are insufficient to the task. 18

19 23. Luzerne County will provide counsel through an augmented OPD or the resources to reimburse at reasonable rates representation by private defenders for the three named plaintiffs in the instant matter. 24. The Chief Public Defender is directed not to decline any additional representation of qualifying indigent criminal defendants. 25. The County Manager is directed to provide for adequate office space in order to permit confidential communications between assistant public defenders and indigent criminal defendants. 26. ABA guidelines do not establish, as a matter of law, the requisite or effective parameters of representation. Indeed, in Commonwealth vs Wright, 961 A.2d 119 (Pa. 2008), Justice Eakin, author of the opinion, observed that the Pennsylvania Supreme Court has never endorsed or adopted the ABA guidelines in full and rejected the contention there considered that appointment of additional counsel in the context of a death penalty is mandatory. Additionally, in Bobbie vs VanHook, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009) the United States Supreme Court rejected the Circuit Court of Appeals utilization of the ABA 2003 guidelines in capital cases as "inexorable commands" with which all capital defense counsel "must fully comply". The Supreme Court reiterated that standards, including those promulgated by the ABA, are merely guides to what reasonableness means, not its definition. These guidelines must reflect "prevailing norms of practice" and must not be so detailed that they would "interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making technical decisions". In a concurring opinion, Justice Alito specifically indicated his understanding that this opinion in no way suggests that the 19

20 ABA guidelines for the appointment and performance of defense counsel in death penalty cases have special relevance in determining whether an attorney's performance meets the standard required by the Sixth Amendment. While acknowledging the ABA as a venerable organization Justice Alito observes it is a private group with limited membership and that its views do not necessarily reflect the views of the American bar as a whole. Justice Alito cautions it is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution and expresses the view that ABA guidelines should not be given a privileged position in making that determination. CONCLUSION Our constitutions (United States and Pennsylvania) are the highest expression of the will of the people. In their wisdom, the people have ordained that the right to counsel exist as a bulwark against tyranny. It is the duty of those entrusted with the administration of our government that constitutional obligations be implemented in an effective way. Even when resources may be scarce, constitutional obligations must be afforded priority. Anything less would offend the sacrifice of those who created and defended our constitutional democracy. We are mindful that there is no one best way to implement and effectuate these obligations. At this time, in the context of the motions before us we will not mandate specific staffing for the OPD. The defendants have conceded the right of the Public Defender under the Luzerne County Charter to fill funded vacancies. Also, the parties inform us by the stipulation of June 14, 2012 that they are reviewing operations and staffing of the OPD. We prefer that the parties resolve the needs of the OPD to provide 20

21 effective representation for qualified indigent defendants and provide the necessary resources. We reserve the right upon application or upon trial to set forth the minimal staffing requirements of the OPD if the parties reach an impasse or fail to resolve the staffing levels within a reasonable time. However, we cannot permit qualified indigent criminal defendants to be unrepresented. Therefore, we will order that provisions for representation of the individual plaintiffs be immediately effective. Accordingly, we enter the following: ORDER IS ATTACHED SEPARATELY AS PAGE NO

22 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY AL FLORA, JR., in his capacity as Chief Public Defender of Luzerne County and NO OF 2012 CLASS ACTION SAMANTHA VOLCIAK, YOLANDA HOLMAN and CHARLES HAMMONDS, on behalf of themselves and all others similarly situated, Plaintiffs vs. LUZERNE COUNTY of the COMMONWEALTH OF PENNSYLVANIA and ROBERT C. LAWTON, COUNTY MANAGER, in his official capacity, Defendants ORDER NOW THIS day of June, 2012, upon consideration of plaintiffs' motion for peremptory writ of mandamus and upon hearing and having determined that: 1. Plaintiffs have a clear right to relief. 2. Defendants have a corresponding duty to act. 3. Plaintiffs do not have any other adequate remedy; and 4. The facts at issue are not in dispute, it is hereby ORDERED, ADJUDGED AND DECREED, that plaintiffs' motion for peremptory writ of mandamus is GRANTED and pending the resolution of plaintiffs' case: 22

23 (a) Defendants shall not prevent the public defender from filling vacant funded positions; (b) Defendants shall review the operations and staffing of the county public defender's office and provide a plan to meet the constitutional obligations for indigent representation in accordance with the principles set forth in the foregoing opinion; (c) Defendants shall submit a report to this court within a reasonable time outlining its plan to meet its constitutional obligations in regard to the operation, staffing and expenses of the office of public defender; (d) The defendant, county manager, is directed to provide adequate office space in order to permit confidential communications between assistant public defenders and indigent criminal defendants within 30 days of the date of this order; and (e) the office of public defender is not permitted to refuse representation to qualified indigent criminal defendants. Further, upon consideration of the motion of plaintiffs, Volciak, Holman and Hammonds for a preliminary injunction, upon hearing and having determined that: 1. Plaintiffs will suffer irreparable harm and loss that is not compensable by money damages if defendants are not required to allocate funds to allow for the provision (and payment) of private counsel to represent them in their ongoing criminal proceedings; 2. Plaintiffs do not have an adequate remedy at law; 3. Plaintiffs have demonstrated a likelihood of success on the merits; 4. The public interest will not be adversely affected by the granting of the requested relief; 23

24 5. The requested relief will restore status quo between the parties; and 6. Greater injury will be inflicted upon the named plaintiffs by the denial of temporary injunctive relief than would be inflicted upon defendants by granting of such relief, it is hereby ORDERED, ADJUDGED AND DECREED that the named plaintiffs' motion for a preliminary injunction is GRANTED and, pending the resolution of the named plaintiffs' case within 30 days of the date of this order: (a) defendants shall allocate sufficient funds to allow for the provision of private counsel to represent the named plaintiffs in their ongoing criminal proceedings; or (b) provide representation to the named plaintiffs in their ongoing criminal proceedings through an augmented office of public defender; or (c) secure pro bono counsel as available or conflict counsel if current case load assignment permits to represent the named plaintiffs in their ongoing criminal proceedings; and (d) the office of public defender is not permitted to refuse representation to qualified indigent criminal defendants. The Prothonotary of Luzerne County is directed to mail a copy of this Opinion and Order to all Counsel of Record or each party if unrepresented pursuant to Pa.R.C.P. No BY THE COURT, S.J. 24

25 DISTRIBUTION SHEET Joseph VanJura, Esquire 610 Charles Avenue Kingston, PA Kimberly Borland, Esquire Borland & Borland 11th Floor 69 Public Square Wilkes Barre, PA Mary Catherine Roper Hilary J. Emerson, Esquire P.O. Box Philadelphia, PA Witold J. Walczak 313 Atwood Street Pittsburgh, PA David Rudovsky, Esquire 718 Arch Street, Suite 501S Philadelphia, PA Vernon L. Francis, Esquire Alicia M. Farley, Esquire Cira Centre 2929 Arch Street Philadelphia, PA John Dean, Esquire Elliott, Greenleaf & Dean 201 Penn Avenue Suite 202 Scranton, PA