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Diane Lozano, the Wyoming state public defender, speaks passionately for doing away with the death penalty and the fiscal impacts it has on the state during a committee hearing on House Bill 145 on Wednesday, Feb. 13, 2019, at the Jonah Business Center in Cheyenne. The bill made it out of committee and heads to the floor. Jacob Byk/Wyoming Tribune Eagle

CHEYENNE – In a case that could decide the future of misdemeanor public defender representation, the Wyoming Supreme Court will hear arguments at 9 a.m. Nov. 20 in Cheyenne.

The dispute began in May when Wyoming State Public Defender Diane Lozano said her office could no longer accept misdemeanor cases in Campbell County because of a heavy caseload and understaffing crisis. Soon after, Campbell County Circuit Judge Paul Phillips found Lozano in contempt of court for her refusal to take new misdemeanor cases.

Lozano then filed the court case against Campbell County Circuit Court and Phillips on May 30.

While the court arguments are set for November, the Legislature’s Joint Judiciary Interim Committee will consider legislation to address public defender issues during its meeting at the end of this month.

The court case

The case stems from a situation where the circuit court found two people in two separate misdemeanor cases qualified for public defender representation. The circuit court then appointed the public defender’s office to the two cases.

Lozano’s refusal to take on the two cases led the circuit court to hold her in contempt by fining her $1,500 a day until her Campbell County office resumed accepting misdemeanor cases. In response, Lozano filed suit.

Lozano raises three issues for the Supreme Court to rule upon, while the circuit court argues there is only one issue at hand: whether it has the ability to hold a lawyer in contempt of court for ignoring court orders.

In her case, Lozano said she has the right to declare her office unavailable per the Public Defender Act. Furthermore, she said the circuit court lacked jurisdiction to impose a criminal fine against her because the circuit court failed to have a separate criminal proceeding. Also, she argues it didn’t have jurisdiction to impose a civil fine because she was a non-party in the misdemeanor cases her office refused to handle.

The Supreme Court case Lozano filed said the fine would be paid for by the state of Wyoming, which has sovereign immunity and would go against the state’s constitution.

The Circuit Court also said Lozano is in contempt because she never entered a motion to withdraw as counsel in the two misdemeanor cases. However, Lozano argues she didn’t have to enter a motion to withdraw because she never made an entry of appearance in either case.

“The State Public Defender’s Office never recognized representation,” the lawsuit stated. “As a matter of fact, it had attempted to preemptively address the issue that it would not be able to accept representation, but the circuit court balked.”

The contrasting interpretations highlight the question of whether a court appointment for a public defender constitutes an entry of appearance.

In its argument, the circuit court maintains that it controls the entire judicial process, including how people are deemed eligible for public defenders.

“Allowing (Lozano) to control whether, if or when cases are assigned to her – by declaring herself ‘unavailable’ – is completely contrary to this foundational principle,” the circuit court stated in its brief. “Typically, lawyers freely recognize and acknowledge the court’s unquestioned authority to control the judicial process in every case.”

Caseload management

Though the case was sparked by an overworked public defender’s office in Campbell County, the decision from the case will have statewide implications as to whether public defenders can be required to take on misdemeanor cases if their office is understaffed and overworked.

Currently, 4.5 public defenders in Campbell County are handling the workload of 7.5 attorneys.

Prior to refusing misdemeanor cases, Lozano informed the circuit court that it was incredibly difficult for the Campbell County office to retain attorneys due to high turnover and heavy workloads. She also told Gov. Mark Gordon that hiring private attorneys in Campbell County had the potential of bankrupting the entire public defender’s office budget.

“She could no longer ask her attorneys to jeopardize their professional license, or allow understaffing to jeopardize the rights of the accused in Campbell County,” the court case stated.

In 2006, the American Bar Association issued an opinion that stated if a high workload prevents a lawyer from competently and diligently providing representation to existing clients, they must not accept new ones.

The opinion goes on to say if a lawyer is being assigned clients through court appointment, the lawyer needs to request that the court stop making new appointments. Also, the lawyer’s supervisor, including the head of the public defender’s office, has a responsibility to make sure lawyer caseloads aren’t excessive and align with the ABA Rules of Professional Conduct.

If a supervisor knows that a subordinate’s workload is too heavy, but doesn’t help them lower the workload, they can be found in violation of those same rules.

The Wyoming public defender’s office fiscal year 2018 annual report states annual caseloads shouldn’t exceed 150 felonies, 400 misdemeanors or 200 juvenile court cases per attorney.

If a lawyer is assigned cases in more than one category, “the percentage of maximum caseloads in each should be assessed, and the combined total shouldn’t exceed 100%.”

In FY 2018, the public defender’s office was at a 103.5% caseload maximum for its 14 field offices. At the time of the report, there were eight field offices over the 100% caseload maximum in the following counties: Albany, Campbell, Converse, Hot Springs, Laramie, Natrona, Sweetwater and Uinta.

The public defender’s office also represented 90.7% of all criminal cases in state trial courts, and the average newly assigned caseload per attorney was 285.55 annually, according to the FY 2018 report.

In Campbell County, the average caseload per attorney is about 341 cases, compared to Laramie County’s about 309 cases and Natrona County’s about 270 cases, according to a caseload report from the Public Defender’s Office.

This means if Campbell County had 6.5 attorneys, the maximum caseload would be at 103%, and if it was at 5.5 attorneys, the maximum caseload would be at 122%. At the time of the Supreme Court case, Campbell County only had 4.5 attorneys.

In order to be considered to have a caseload that wouldn’t exceed the maximum caseload standards, the field office would need 7.5 attorneys.

“In essence, if ... a field office has workloads that exceed 100%, the constitutionally protected right to counsel is jeopardized; an attorney with an excessive workload cannot provide competent, diligent representation,” Mark Gifford, attorney for the Wyoming State Bar Association, said via email.

“These attributes of effective assistance of counsel are required not only by case law, but are requirements of the Rules of Professional Conduct that apply to all members of the Wyoming State Bar,” Gifford continued. “When an attorney cannot meet his/her ethical obligations, not only are the client’s constitutional rights jeopardized, the attorney’s license to practice law is also jeopardized.”

Legislative solutions

As the case continues in the Supreme Court, lawmakers on the Joint Judiciary Interim Committee plan to consider a couple bills addressing public defense issues during their Oct. 31 meeting.

One of the bills would eliminate the possibility of jail time for certain traffic violations. During the last legislative session, a similar bill passed with overwhelming support in the House, but it failed to make it to the Senate floor after being voted down by the Senate Judiciary Committee.

Sen. Tara Nethercott, R-Cheyenne, who chairs the Senate committee, said she voted against the law last session partially due to her concern about eliminating jail time for repeat offenders.

“I think it was too early for us to thoughtfully look at that as an option and to understand its ramifications, which is what we’re now doing in the interim work of the judiciary, to really understand what consequences there may be, if any,” Nethercott said.

Proponents of the bill argue it could lighten the caseload for Wyoming’s public defenders, though Nethercott said the committee needs to learn whether the bill would make a substantial impact.

“Is that really a concern that the Public Defender’s Office is experiencing? How many times are they being appointed to represent somebody in a traffic offense?” Nethercott said. “I would anticipate it’s probably not often, but we really don’t know that information.”

Yet others maintain that the effort is worthwhile. Rep. Sara Burlingame, D-Cheyenne, said the bill is a great one.

“That one I thought actually did something,” said Burlingame, who is a member of the House Judiciary Committee. “Are public defenders using their time on things that don’t need to be in front of them? Great, let’s clear that up.”

Another bill up for discussion at the end of the month will be based on recommendations by a subgroup charged with investigating Wyoming’s indigency standards, which determine when a defendant is in need of a public defender.

Wyoming, in contrast with many states, does not set out specific definitions for what qualifies a person as indigent in the eyes of the law. During the Judiciary Committee’s last meeting in August, a few members were tasked with studying the standards in Nebraska.

The bill drafted by the group would define a person as indigent if they use certain government programs, such as Temporary Assistance for Needy Families, or make a gross income that is 125% or less of the federal poverty level.

Burlingame, who was among those in the group, said they have studied other states’ standards because of a perception that people with financial means abuse the public defender system.

“I think the committee is trying to do sincere work here,” Burlingame said. “If the public has a perception that someone is accessing this who ought not to be, we’ll address it. But I don’t know that this is going to actually change that much.”

The State Public Defender’s Office is not exempt from the budget woes hitting the rest of Wyoming’s government. However, Lozano said her office was appropriately funded last year. In her view, retaining and recruiting attorneys sometimes supercedes funding as the most difficult issue for her office.

Lozano spoke with the Wyoming Tribune Eagle to generally discuss the topics of staffing and funding within her office. She was not commenting on the pending Supreme Court case.

Ernie Lewis, executive director of the National Association for Public Defense, said a lack of adequate staffing is an issue for public defense offices throughout the country.

“I analogize public defenders to pack mules,” Lewis said. “Legislators and executives always think to just give the public defender a few more cases. If they can do 200, maybe they can do 250. If they can do 500, maybe they can do 750. What’s another couple of cases? Public defenders have to have the right to say enough.”

Lewis also emphasized ethical caseloads are necessary to preserve the integrity of the Sixth Amendment, which guarantees the rights of criminal defendants, including their right to an attorney.

“The whole reason you insist on an ethical caseload is not just for the lawyers to make sure their bar license doesn’t get pulled, but it’s fundamentally so that an individual who’s charged with a crime is having their constitutional rights honored,” Lewis said.

Lozano agreed, stating her opinion that the Sixth Amendment is the most important constitutional right in our society.

“What does any other constitutional right matter if they can just throw you in jail and not give you an attorney to help you through that process? Like it or not, in society, it’s the poor who are charged with crimes and who go to jail,” Lozano said. “If we’re truly a state that believes government should be small, we should understand that government is no bigger than when it’s trying to take somebody’s liberty or life.”

Once the Supreme Court rules in the public defender case, the extent to which that constitutional right must be honored in Wyoming should become clearer.

Isabella Alves is the Wyoming Tribune Eagle’s criminal justice reporter. She can be reached at ialves@wyomingnews.com or 307-633-3128. Follow her on Twitter @IsabellaAlves96.

Tom Coulter is the Wyoming Tribune Eagle’s state government reporter. He can be reached at tcoulter@wyomingnews.com or 307-633-3124. Follow him on Twitter @tomcoulter_.

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