Right to Counsel Moot?
In September the 9th Circuit U.S. Court of Appeals dismissed our most recent challenge to the budget cutback plan imposed on the Oregon judicial branch by the Legislature. As the chief administrator of Oregon’s courts, Oregon Supreme Court Chief Justice Wallace Carson was required to create a way the state’s judicial branch could operate for the remainder of the fiscal year with significantly fewer dollars available than originally budgeted. Additionally, the Legislature made specific and very large cuts to the indigent defense budget that pays for legal representation for defendants in many criminal cases.
As a result, most misdemeanor and some felony prosecutions were suspended from March through June of 2003. The cutbacks forced the Lane County Public Defenders office to completely shut down for the month of June, thus requiring the postponement of other cases that had previously been set for trial.
In a March 6 decision, the Oregon Supreme Court rejected an Oregon ACLU request for a writ of mandamus forcing the Oregon Legislature to fund the full functions of the Oregon court system. The court acknowledged that budget cuts to the judicial branch, if severe enough, would violate the separation of powers under the Oregon Constitution. However, they said that these cuts had not yet prevented the judicial branch from carrying out its "core" functions.
We were incredulous because we believe the most important "core" function of the judicial branch is to see that all branches of government comply with the mandates of the Oregon Constitution. It is beyond dispute that criminal defendants have a constitutional right to a court-appointed lawyer if they cannot afford to hire one on their own. That right "attaches" no later than the first court appearance of the defendant—and it many cases even sooner.
Soon after the Court’s decision, we filed an amicus brief in support of a similar action brought by Multnomah County District Attorney Mike Schrunk. The Court denied Schrunk’s petition without comment.
Then the ACLU sought relief in federal court. The federal court challenge, filed on behalf of three criminal defendants and the Metropolitan Public Defenders office, argued that the refusal of state judges to arraign criminal defendants and appoint lawyers violated the federal rights to counsel, prompt arraignment and equal protection.
On May 16th, U.S. District Court Judge Michael Hogan refused to rule on the constitutionality of the Oregon budget cuts saying he did not have authority to interfere in pending criminal cases. ACLU immediately appealed to the 9th Circuit U.S. Court of Appeals. The Court of Appeals, however, denied our request for emergency relief. In the meantime, the state’s new fiscal year began July 1st and, even though a final state budget wasn’t adopted until late in August, state courts began to appoint lawyers in new cases and those that were backlogged.
The Court of Appeals, in a decision by Judge Susan Graber, dismissed our challenge as moot saying the budget crisis was no longer in play. We had argued that the situation could happen again—and very soon—if voters reject the proposed tax increase in February.
The response of the Legislature—and Chief Justice Carson—to the budget crisis interfered with the fundamental constitutional rights of hundreds of defendants. Most troubling, however, is that both Oregon and federal courts turned their backs on this wholesale deprivation of liberty. Despite the 9th Circuit’s dismissal, we continue to believe that the Bill of Rights applies to government officials in all circumstances—especially when times are bad.
The names of the ACLU’s cases are Foster v. Carson and Metropolitan Public Defenders v. Courtney & Minnis. Elden Rosenthal and Don Marmaduke served as the ACLU’s cooperating attorneys.