The Kentucky experience addressing resources

The Kentucky experience addressing resources The Department of Public Advocacy, Kentucky s statewide public defender program, has had significant resource and workload problems for decades. Leaders have addressed these in a variety of ways, groups, initiatives, lawsuit, campaign of conversations, criminal reform to reduce workloads and increase the public value of public defenders. Blue Ribbon Group recommendation provide more resources To address the need for substantial new resources, the Public Advocate created a Blue Ribbon Group of prominent legal professionals to study and recommend what was required. In 2000, Governor Paul Patton responded to a call by the Blue Ribbon Group to increase DPA's budget in order to lower caseloads, complete the full-time system, and raise salaries. $5 million additional dollars was allotted, short of that requested by the Blue Ribbon Group but substantial new funding. While the budget increase was significant and workloads were reduced for a time, these reforms did not keep up with the increased overall cases coming into the system. Workloads increase By 2004, caseloads had risen to almost 500 new cases per lawyer among Kentucky's public defenders. The Kentucky Public Advocacy Commission identified excessive caseloads as the #1 problem in Kentucky's public defender system. Justice Jeopardized campaign A series of five public meetings across the state were conducted in an effort called Justice Jeopardized. Thereafter, a report was issued calling again upon Kentucky's policy makers to fund the public defender system consistently with nationally recognized standards. An increased budget in 2006 was insufficient to cut workloads sufficiently to comport with national standards. 2008 $2.3 million reduction In 2008, the Public Advocate requested a budget that would, if fully funded, result in workloads that would have been consistent with the NAC Standards. However, rather than increasing the budget, the Kentucky General Assembly reduced the budget by millions of dollars from $40.1 million to $37.8 million. They did so despite warnings from the Kentucky Public Advocate that without a budget increase, cases would have to be turned back due to ethical considerations. Declaratory judgment action filed - average of 436 newly opened cases per attorney On June 30, 2008 a declaratory judgment action was filed by Public Advocate Ernie Lewis, Jefferson County Chief Defender Dan Goyette, Frank Mascagni, III and John Doe to address the inability of DPA to provide representation to all the clients that courts appointed DPA to represent. It sought the right to decline cases the attorneys were unable to handle because of excessive workloads, which were at an average of 436 newly opened cases per attorney. In addition, a Service Reduction Plan was implemented in which courts were advised that certain kinds of cases not involving jail time would not be represented by a DPA lawyer. The service reductions were an effort to stay responsibly within their budgeted funds. 1

The declaratory judgment action sought to clarify the legal and ethical parameters under circumstances in which defender caseloads are so high that professional responsibilities and effective assistance of counsel for poor people across Kentucky are compromised and threatened. TRO On September 19, 2008, the Franklin Circuit Court ordered DPA to cease service reductions and provide attorneys to all of Kentucky s indigent defendants in all cases in which court appointments were entered as long as it had funds. Nevertheless, the fact was that DPA did not have sufficient funds for the entire year with existing resources. Discovery audit shows accuracy of workloads During the course of the lawsuit, the respondents requested that an audit be performed to ascertain, in part, the real extent of defender caseloads and to determine the accuracy of the way in which DPA calculated its attorney caseloads. The auditors in the Kentucky Finance Cabinet were directed to conduct a thorough review of the way in which DPA counted cases. Since the case counting approach used by DPA differed from that used by the Kentucky Administrative Office of the Courts, and prosecutors counted their cases in yet another way, one of the important goals of the audit was to reconcile the differences between the different sets of figures. After having identified seven counties in which to conduct the audit, DPA spent the next several months traveling with the auditors from the Finance Cabinet to various DPA field offices to personally inspect and verify that DPA was actually handling all of the cases which it claimed to handle. After completing its work, the auditors from Finance concluded that DPA accurately accounted for over 99% of its cases. $1,269,600 reduction Because of a significant downturn in state revenues, on December 18, 2008, DPA along with all state agencies was required to take a 4% reduction, $1,269,600 advancing when DPA would run out of money. Action dismissed by trial court After extended litigation, the Franklin Circuit Court on September 19, 2008 prohibited DPA from declining appointments and on March 10, 2009 dismissed the action even though it found that members of the General Assembly cannot assert legislative immunity for a declaratory action to determine whether the legislature has failed to comply with a constitutional mandate. Despite the fact the trial court dismissed the lawsuit on March 10, 2009 on the grounds that it was unripe for adjudication because DPA had not yet run out of money at that point in the fiscal year (even though all projections indicated that the Department would be bankrupt well before the end of the year), the audit that was conducted as a result of the litigation verified DPA s workloads and the Finance Cabinet verified and approved the propriety of its expenditures. These two findings confirmed the inevitable that DPA would run out of money before the fiscal year ended. The trial judge also ruled that the attorney plaintiffs had no standing to bring the action but that the indigent clients did have standing when DPA ran out of money. The dismissal was appealed to the Kentucky Supreme Court. $2 million provided 2

In a year when funding was being cut by the General Assembly, each chamber of the 2009 Kentucky General Assembly provided $4.7 million in additional funds for DPA. However, there were other differences in the bill that contained that appropriation and it did not become law when the General Assembly adjourned on March 26, 2009. The Chair of the Public Advocacy Commission, Bob Ewald, and Ed Monahan, the new Kentucky Public Advocate, met with Governor Beshear and the Governor allocated $2 million on April 16, 2009 from the State Salary and Compensation Fund and made a commitment to find funding to address the budget needs of both the prosecutors and the DPA next fiscal year. DPA was the only state agency to receive additional funding at a time when all of state government had its funding reduced. The Governor s press release follows: Gov. Beshear pledges to work with DPA, prosecutors next fiscal year to find funding for budget needs FRANKFORT, Ky. Gov. Steve Beshear today announced that through a series of cost-cutting measures and reallocation of existing funds, the Department of Public Advocacy (DPA) has enough money to continue operating through the end of June. We acknowledge that this is a short term fix to a broader funding problem, Gov. Beshear said. However, the services provided by this agency are too important to allow them to be discontinued for the remainder of this fiscal year. The entire judicial system would be jeopardized. Working with the General Assembly, I am committed to finding funding to address the budget needs of both the prosecutors and the DPA next fiscal year, Gov. Beshear said. We will face another difficult budget next year, but the criminal justice system is and must remain a top priority. The Beshear administration has been working with DPA over the last several weeks to address their fiscal challenges. To address the budgetary shortfall this year, steps taken will include: Reducing expenditures to minimal levels; Continuously monitoring and evaluating the need for any expenditures between now and June 30; Implementing a hiring freeze on all positions in the agency for the remainder of the fiscal year; Delaying payment on a series of bills until the beginning of the next fiscal year; and Allocating an estimated $2 million from the State Salary and Compensation Fund to allow the DPA to operate through the end of the year. We appreciate the Governor s time and attention to our needs and applaud his decision to ensure our constitutionally mandated services continue through this year so that our vital role in representing our clients, keeping the courts functioning and in ensuring public safety for Kentuckians continues, said Public Advocate Ed Monahan. We are also fortunate to have a Governor who will be working with us on our future funding needs. Commonwealth and County Attorneys offices throughout the state also faced a budget crunch this year, but unlike the DPA, prosecutors were able to call upon the legal authority to furlough employees to help address any shortfall. As a result, representatives of the Commonwealth and County Attorneys indicated that they have already taken steps to deal with this year s budgetary shortfall and are focused on next year s budgetary issues. Mike Foster, Christian County Attorney, president of the Kentucky Association of Counties and a member of the Prosecutors Advisory Council stated that prosecutors have attempted to deal with this budget crisis by 3

implementing over $5 million in budget cuts during the current fiscal year ending June 30, 2009 through a series of layoffs, furloughs and the transmittal of local funds to the State Treasury. Unfortunately, Prosecutors are now confronted with an additional shortfall of $4.7 million in the Fiscal Year beginning July 1, 2009. Additional cuts of this magnitude would totally devastate the criminal justice system in the state of Kentucky. Foster further stated we truly appreciate Governor Beshear's commitment to addressing these critical issues and the budget shortfalls that created this crisis. Proposed legislation that would have allocated an additional $4.7 million each to DPA and Commonwealth and County Attorneys did not pass in the recently completed legislative session. That raised questions about whether the Governor has the authority to appropriate funding on his own to prosecutors and DPA. However, Gov. Beshear said it was not necessary to resolve that issue since this solution reallocates existing funds. The more important issue, he said, is the long-term funding of the criminal justice system a solution that will require work from both the executive and legislative branches. Action dismissed by KY Supreme Court On May 13, 2009, the Kentucky Supreme Court dismissed the appeal as moot by a vote of 6-1 in a one page Order. $1.7 million provided in Nevertheless, in the June 2009 special session of the General Assembly, which was called just prior to the beginning of the next fiscal year to further significantly reduce state spending, both DPA and prosecutors received additional funds. DPA received an additional $1,727,100 in legislation signed into law on June 26, 2009. See HB 4 Ky Bar Association Roundtable formed An important result of this independent verification of DPA s caseload figures was the formation, soon after the audit was completed, of a Criminal Justice Roundtable sponsored by the Kentucky Bar Association. The Roundtable included DPA, the head of the Prosecutor s Council, the auditor who conducted the audit, members of the private bar, law professors, judges, and legislators and was chaired by the KBA President. DPA established the accuracy of its case counting methods as well as explained why AOC and prosecution methods of case counting yielded different figures. The Roundtable then issued an important set of findings and recommendations with respect to how both prosecutors and DPA count cases. The December 4, 2009 findings and recommendations, and the KBA press release, are found at: KBA Criminal Justice Roundtable Findings and Recommendations 2009 Criminal Justice Roundtable KBA Press Release KBA President Charles E. Buzz English, Jr., of Bowling Green said the bar association formed the Criminal Justice Roundtable and its subcommittee in October 2009 to foster better communication on issues central to the advancement of justice in the Commonwealth. As an integrated bar representing all Kentucky lawyers, the Kentucky Bar Association is interested in advancing these interests and improving the effective administration of justice in the courts of our Commonwealth, English said. By 4

convening and facilitating this discussion, we hope to promote communications and cooperation among the key players in the interest of all stakeholders, the most important being the public at large. Ed Monahan, Kentucky Public Advocate, said that while we stand in different places in the courtroom, we can and should join together to seek adequate funding for Kentucky s criminal justice system to ensure fair process, reliable results and public safety. The work of the KBA Roundtable under the leadership of our KBA President significantly helps on this important journey of achieving adequate funding for the good of the Commonwealth. Allen C. Trimble of Williamsburg, Commonwealth s Attorney of the 34th Judicial Circuit and President of the Kentucky Commonwealth s Attorneys Association, said the criminal justice system is only able to effectively serve the public when all aspects of the system are properly funded. If the system is not properly funded, victims, defendants and the public in general suffer, Trimble said. This was the first successful effort of its kind in Kentucky, bringing together prosecutors and public defenders, as well as independent auditors, to collaborate on policy matters. In subsequent years, prosecutors and public defenders have lobbied the legislature for additional funding and have been successful in obtaining funding or in being spared some of the deep budget cuts other agencies are receiving. It is unlikely that any of these successful endeavors would have occurred if the various campaigns and initiatives and the lawsuit had not been filed. These brought sustained, high credibility attention and specific awareness of the inadequate resources provided to the defense function. The scrutiny placed on the public defender system during the lawsuit s discovery process brought credibility and indisputable verification to the lack of funding, inadequate resources and excessive workload of the statewide defender system. Reference For further discussion see Norman Lefstein, Securing Reasonable Caseloads Ethics and Law in Public Defense (2011) at pp. 18, 35, 175-78. 5