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    ©ervowewn 10 n 2 3 14) 5 16 7 8 19) 20 21 24 26 27 MONTANA THIRTEENTH JUDICIAL DISTRICT COURT YELLOWSTONE COUNTY ) CAUSENO. SB 2021-1 ) IN RE THE OFFICE OF STATE ) JUDGE DONALD L. HARRIS PUBLIC DEFENDER, ) ) ORDER RE: CONTEMPT AND ) SANCTIONS: ) ) On September 15, 2021 this Court issued an Order holding Rhonda Lindquist, Director of the Office of State Public Defender, in contempt for failing to immediately assign qualified public defenders to criminal cases in Department No. 2 as previously ordered. The September 15" Order identified 16 defendants with a total of 31 cases for which counsel had not been immediately assigned. The Court imposed a $500.00 fine for each case as a sanction for the OPD's failure to immediately assign counsel. The Court further ordered the OPD to assign counsel to Department No. 2 cases within three working days of being ordered to do so and ‘warned that the failure to obey would be sanctioned through future contempt proceedings. The | OPD did not seek a review of this Court's September 15" Order through a writ of certiorari, The OPD paid the sanctions imposed. On November 15, 2021 the Court ordered Rhonda Lindquist, as Director of the State Office of Public Defender, to show cause why she should not be held in contempt for disobeying this Court’s September 15, 2021 Order requiring OPD to assign public defenders to Department No. 2 cases within three working days after being ordered to do so. The Court conducted a Show © oervon awn 10 " 2 13 4 15 16 7 18 19 20 21 24 25 26 27 Cause hearing on December 20, 2021. Director Lindquist appeared with counsel, After considering the arguments of counsel and reviewing the OPD’s response and affidavits, the Court finds Director Lindquist in contempt of this Court’s September 15, 2021 Order. DISCUSSION ‘The OPD argues that itis not in contempt of this Court's September 15" Order because: (1) this Court has acknowledged that it is beyond the OPD’s power to comply with the September 15" Order; (2) the OPD does immediately assign a public defender to every defendant even before being ordered to do so; (3) this Court lacks legal authority under Mont, Code Ann. § 47-1-104 to require the OPD to assign counsel within three working days of being ordered to do so; (4) OPD’s Director has discretion to timely assign counsel as circumstances may dictate; and (5) none of the 17 defendants identified in the Court’s November 15" Order to Show Cause were prejudiced by OPD’s failure to assign counsel within three working days. Each of the OPD’s arguments are addressed below. OPD ARGUMENTS L This Court’s September 15" Order. ‘The OPD contends that this Court has acknowledged that OPD’s delay in assigning counsel “was caused by inadequate funding and other circumstances beyond the power of OPD to remedy ...” Response at 1 The OPD misconstrues this Court's September 15" Order. In fact, this Court specifically rejected OPD’s defense that inadequate funding relieves OPD of the statutory and constitutional obligations to immediately assign counsel: At the hearing the OPD explained that it is not able to immediately assign public defenders to 13" Judicial District cases in Yellowstone County because: (1) the OPD's budget is insufficient; (2) its public defenders already have too many wo oroan non 10 " 12 13 4 15 16 7 18 19 20 21 22 23 26 27 cases; (3) it cannot attract sufficient contract counsel because the pay is too low; (4) the Billings OPD office suffers from high turnover and currently has eight full time vacancies; and (5) the Legislature has refused to adequately fund the OPD. Though acknowledging that the OPD has failed to immediately assign public defenders despite being ordered to do so for months, Director Lindquist could provide no assurances that the situation would improve anytime soon, if at all. While the Court understands the OPD’s explanation, it is no defense to the constitutional and statutory requirements that public defenders be immediately assigned to defendants when ordered to do so by a court, Montana's Constitution guarantees that, “Right and justice shall be administered without sale, denial or delay.” Mont. Const. art Il, § 16. Montana's Constitution guarantees a defendant the right to counsel and to a speedy trial. Mont. Const. art, II, § 24. To preserve those fundamental rights, Mont, Code Ann. § 47-1-104(3) requires the immediate assignment of public defenders in criminal cases when the assignment is ordered by a court. These constitutional guarantees and statutory mandates are not contingent upon the OPD's success in securing an adequate budget or upon the OPD’s decision on how to allocate its existing funds. I OPD’s Assignment of Counsel. Contradicting its position that it is beyond the OPD's power to immediately assign counsel, the OPD makes the alternative argument that it does immediately assign counsel even before being ordered to do so. OPD contends that is has complied with this Court’s September 15" Order despite arguing it is unable to comply. OPD cannot have it both ways, The Court rejects OPD's argument that it assigns counsel before being ordered to do so. The OPD does have on-duty! counsel present at arraignments for Department No. 2 law and motion days to represent all indigent defendants for their initial appearance. At the initial appearance, however, OPD’s on-duty counsel requests the Court to sign an order appointing the Office of State Public Defender to represent the Defendant. The order directs the “Region 9 Office of State Public Defender” to assign counsel pursuant to Mont. Code Ann, § 47-1-104 to represent the defendant. See, e.g., Exhibit 2 attached. It is only after the Court appoints the "in State v. Zlahn, 2014 MT 224, § 10, the Court described OPD's counsel who represented all defendants who appeared on the Court's calendar that day for arraignment as the on-duty publie defender. Office of Public Defender to represent the defendant, that “a public defender qualified to provide the required services” is assigned to represent the defendant as counsel of record. See Mont. Code Ann, § 46-8-101(2) (court shall order office of state public defender to assign counsel to represent defendant at defendant's request.) At the previous September 13! hearing, Brian Smith, OPD’s Public Defender Division Administrator, admitted that the OPD had failed to immediately assign public defenders to represent defendants in a number of cases after being ordered to do so by this Court. Until now, OPD's position has been that counsel of record was assigned after arraignment or initial appearance, not before. Indeed, if the OPD had been immediately assigning counsel at arraignments or initial appearances all along, there would be no reason for the OPD to argue that |_ itis beyond its power to immediately assign counsel. In Department No. 2 it has been the Court’s experience that OPD's on-duty counsel at arraignments routinely tell defendants that they are not their assigned counsel and to contact the public defender’s office to find out who has been assigned to their case. TIL. Legal Authority for Immediate Assignment of Counsel. A. On-Duty Counsel and Assigned Counsel Serve Different Purposes. OPD argues that Mont. Code Ann. § 47-1-104 only requires OPD’s Director to ensure the timely assignment of counsel. When asked at the December 20" hearing what the outer parameters of a timely appointment would be from the OPD’s perspective, the OPD’s position was that no hard and fast rule would apply. When pressed further if 90 days after arraignment ‘would constitute the timely assignment of counsel, the OPD again responded that no one rule or time period would be appropriate for all cases. When asked whether it would be acceptable not eoarvoanron 10 " 12 13 4 15 16 ” 18 19 20 21 23 24 25 26 27 Under Montana statute, however, the OPD has no authority to assign counsel to represent a defendant unless ordered to do so by the Court. Mont, Code Ann. § 46-8-101(2). Once counsel is assigned, “the assignment is effective until final judgment. .. unless relieved by order of the court that assigned counsel or that has jurisdiction over the case.” Mont. Code Ann. § 46- 8-103(1). ? On each of the 17 cases identified in this Court’s November 1 5th Order to Show Cause, the OPD filed notices of assignment of counsel after being ordered to do so by the Court. See, ©.g., Exhibit 3 attached. Each notice of assignment identified the attorney or attorneys who had been assigned to represent the defendant, directed that all pleadings and correspondence be sent to the assigned attorney or attorneys, and designated the assigned attorneys as the attomeys of record, In 16 of the 17 cases, the notice of assignment also included a comprehensive request for discovery, In 14 of the 17 cases, the OPD attomey assigned to represent the defendant was not the OPD on-duty attorney who appeared at the defendant’s arraignment or initial appearance on a bench warrant. See Exhibit 1 attached. In three eases OPD’s on-duty attorney, David Garfield, did appear at arraignment and was later assigned to represent the defendant. Mr. Garfield is the OPD staff attorney who, absent a conflict, is designated to represent defendants in Department No. 2 cases. The Court finds, based upon Mont. Code Ann. § 46-8-101(2) and OPD’s actual assignment of counsel after being ordered to do so, that the appearance of OPD’s on-duty counsel for the limited purpose of representing a defendant at arraignment or an initial ? tn its Response, the OPD argues that it has diseretion in deciding whether to add co-counsel to assist counsel of record on cases when necessary. That some cases warrant the assignment of co-counsel, however, does not relieve OPD of its obligation to immediately assign counsel of record, ©ervoanon 10 n 12 13 14 5 16 7 18 19 20 21 22 24 25 26 27 appearance does not constitute the assignment of counsel to represent the defendant throughout the case as required by Mont. Code Ann, § 47-1-104(3) and Mont, Code Ann. § 46-8-103(1) B. Law of the Case and Mont. Code Ann. § 47-1-104(3) Provide Legal Authority, ‘The Court further concludes that it has the legal authority to enforce its September 15" Order requiring the OPD to assign counsel within three working days of being ordered to do so. ‘The OPD did not seek a stay or review of this Court’s September 15" Order, Instead, the OPD disobeyed this Court's September 15" Order by not assigning counsel within three working days afier being ordered to do so. The OPD does not dispute the Court’s computations that, in each of the 17 cases identified by the Court in its November 15" Order to Show Cause, the OPD failed to assign counsel within three working days, Under Mont. Code Ann. § 3-1-501(e), this Court has authority to hold the OPD in contempt for disobeying this Court's September 15" Order. The September 15" Order is a lawful order. If the OPD thought the September 15" Order was issued without legal authority, as it now claims, the OPD should have stayed its enforcement while seeking a writ of certiorari. Mont. Code Ann. 3-1-523(1). Having failed to seek the Montana Supreme Coun’s review of this Court's contempt order, the September 15"* Order became the law of the case. State v. Carden, 355 P.2d 738, 739-740 (Mont. 1976) (law of the case doctrine applies to final ruling of a trial court in the same case). ‘The Court’s September 15" Order is also lawful under Mont. Code Ann. § 47-1-104(3) which requires the immediate assignment of counsel: “When a court orders the assignment of a public defender, the appropriate office shall immediately assign a public defender qualified to provide the required services.” The term “immediate” means: “Present; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise 1| signification, denotes that action is or must be taken either instantly or without any considerable 2} Joss of time.” Black's Law Dictionary 675 (5" ed., West 1979) 3) The OPD acknowledges that its operational goal is to assign counsel within three days of : being ordered to do so. Response at 5. This Court’s September 15" Order mirrors the OPD's g| Own practice standards for assigning counsel. This Court did not, as the OPD now claims, 7 manufacture the three working day requirement out of thin air. 8 In requiring counsel to be assigned within three working days, this Court's September 8/15! Order interprets the term “immediate” as mandating urgent assignments for defendants *°) charged wit felonies. Failure to assign counsel within three working deys prejudices a : defendant's right to effective assistance of counsel. is For example, the defendant's right to substitute a judge must be exercised within ten 14) calendar days of arraignment. Mont. Code Ann. § 3-1-804(1)(b). In Department No. 2, 18 || arraignments are conducted on Fridays at Law and Motion at which time the Court orders the 78) Opp to assign counsel to represent indigent defendants. The third working day after Friday's 7 8 arraignment is the following Wednesday. This means that assigned counsel has only three ag) Working days left (Thursday, Friday, and Monday) to contact and meet with his or her client to 29 | decide whether to substitute the assigned judge. The ten calendar day deadline for substituting a 21| judge is the second Monday after the Friday arraignment. A defendant may not receive effective 22 | assistance of counsel if counsel is not assigned until after the deadline for substituting the judge. 2 ‘The same is true for timely bail hearings, A defendant does not receive effective assistance of counsel if defense counsel is not assigned to represent the defendant for weeks or months. With effective assistance of counsel, an incarcerated defendant might be released on his 26 27| of her own recognizance, with or without monitoring, thereby enabling them to maintain employment, obtain treatment, and/or care for their children. Immediate assignment of counsel is critical to preserving the defendant's right to appropriate bail and/or release conditions. ‘The immediate assignment of counsel also promotes judicial economy and the administration of justice. Counsel who are immediately assigned can promptly obtain the State's discovery, investigate the case, meet with their client to review the strengths and weaknesses of the case, engage in plea negotiations, and timely file pretrial motions. Failure to immediately assign defense counsel delays and impairs their ability to effectively represent their clients. This delay often results in repeated motions to continue trial dates, even for in-custody defendants, ‘While Mont. Code Ann. § 47-1-104(3) mandates the immediate assignment of public defenders, the statute does not, as OPD points out, define the term “immediate.” Given that the statute’s purpose is to ensure that indigent defendants receive the effective assistance of counsel and given that OPD’s own operational goal is to assign counsel within three days of being ordered to do so, the Court concludes that requiring the OPD to assign defense counsel within three days is reasonable. The OPD failed to present any evidence that requiring the assignment of counsel within three working days of appointment conflicts with the statutory mandate that counsel be immediately assigned. IV, The OPD’s Discretion. Ignoring the statutory language that public defenders be immediately assigned upon court order, the OPD argues that the OPD has discretion to make timely assignments depending upon the case. That “discretion,” the OPD claims, means that defense counsel could be timely assigned more than 90 days after arraignment, The Court rejects OPD’s argument Mont. Code Ann. § 47-1-104(3) requires the Director to “establish protocols to ensure that the offices make appropriate assignments in a timely manner.” The term “timely” must be e©ervouwnrwn 10 n 12 13 4 5 16 7 18 19 2 24 25 26 27 construed in light of the statute’s mandate that, “When a Court orders the assignment of a pul defender, the appropriate office shall immediately assign a public defender qualified to provide the required services (emphasis added).” To be timely, public defenders must be assigned immediately upon court order. ‘The terms “immediate” and “timely” must be read together in order to give effect to each. Mont, Code Ann. § 1-2-101 The OPD’s interpretation of “timely”, i.e. at the Director’s discretion, renders the term “immediate” meaningless. The Court rejects OPD’s position that Mont. Code Ann. § 47-1- 104(3) gives the Director unfettered discretion on how long to appoint defense counsel when the plain language of the statute requires their immediate assignment. Under the OPD's own practice standards, to be immediate, the assignment of defense counsel should be made within three working days. Vv. Prejudice is Not the Litmus Test for Immediate Assignment. The OPD argues that because none of the 17 defendants have been prejudiced by OPD's failure to assign defense counsel within three working days as ordered by this Court, the OPD should not be held in contempt. The OPD cites State v, Zlahn, 2016 MT 224, for the proposition that even a five-week delay in assigning counsel complies with Mont. Code Ann. § 47-1-104(3). ‘The OPD misconstrues Ziahn, In Zlahn the defendant was convicted of assault with a weapon, criminal endangerment, and tampering with or fabricating physical evidence. He was sentenced to the Montana State Prison for a total of 30 years, with five years suspended. On appeal the defendant argued that the OPD’s failure to assign him counsel until five weeks after his arraignment violated his constitutional and statutory right to counsel. Because the defendant failed to raise those issues with the district court, however, the Montana Supreme 10 " 12 13 4 5 16 7 18 19 20 21 22 24 25 26 27 oon wn Court declined to exercise plain error review of the defendant's claims on appeal. The Zlahn Court further noted that although the ten-day window for substituting the judge lapsed before defense counsel was appointed, the defendant never gave any indication that he actually wanted to substitute the judge or that OPD's failure to “swifily” appoint counsel resulted in any manifest miscarriage of justice. Zlahn, 4 19-20. Because the defendant failed to demonstrate prejudice, the Zlahn Court refused to reverse his conviction based upon OPD’s five-week delay in appointing counsel. OPD's reliance on Zlahn is misplaced. First, the Zlahn Court held that it would not exercise plain error review to reverse the defendant’s convictions. ‘The question of whether the OPD was in contempt for failing to obey a prior Court order was not an issue in Zlahn, Zlahn did not hold, as OPD suggests, that the OPD need not assign counsel for five weeks or more. Second, Mont. Code Ann. § 47-1-104(3) requires the OPD to immediately assign defense counsel after being ordered to do so — period. The statute does not make the immediate assignment of defense counsel optional at OPD’s discretion depending upon an indigent defendant's circumstances. Third, Mont, Code Ann, § 47-1-104(3) mandates the immediate assignment of counsel to ensure that defendants receive the effective assistance of counsel so they will not suffer prejudice. The OPD puts the cart before the horse by arguing that Mont. Code Ann. § 47-1- 104(3) and this Court's September 15" Order only apply to those defendants harmed by OPD's failure to immediately assign counsel. Mont. Code Ann. § 47-1-104(3) is fundamentally a prophylactic statute whose purpose is to prevent prejudice caused by delay in assigning counsel Immediate assignment, not prejudice, is the litmus test for compliance with Mont. Code Ann, § 47-1-104(3). 10 ©ervoanr own 10 " 2 13 4 15 16 7 8 19 20 2 23 24 26 27 ‘THE OPD PRESENTED NO EVIDENCE TO SHOW CAUSE WHY IT SHOULD NOT BE HELD IN CONTEMP’ The OPD has disobeyed this Court's September 15" Order. Further, the OPD's response to this Court’s November 15" Order to Show Cause demonstrates that the OPD has no intention of complying with the September 15" Order in the future. For example, this Court’s September 15 Contempt Order imposed sanctions for the OPD’s failure to immediately assign counsel to 16 defendants, This Court's November 15" Order to Show Cause identified 17 more defendants. ‘The OPD has demonstrated no progress in immediately assigning counsel. The gist of OPD’s defense at the September 13 Show Cause hearing was that it lacked the funding and attorneys necessary to immediately assign counsel. At the December 20" Show Cause hearing, however, the OPD argued that it does not immediately assign counsel because it is not legally required to do so. The OPD failed to present any evidence that it had or would immediately assign counsel as required by this Court’s September 15" Order. The OPD's position that it is not required to immediately assign counsel to indigent defendants is alarming. Even more shocking is OPD’s position that it has the discretion to take 90 days or more to assign counsel to indigent defendants. The OPD’s position ignores a defendant's statutory and constitutional rights to effective representation by counsel from the inception to the conclusion of their case. As set forth in this Court's September 15" Order: The OPD’s failure to immediately assign public defenders delays trials, sentencings, and dispositions, the net effect of which increases incarceration and supervision costs, causes overcrowding at the Yellowstone County Detention Facility, and contributes to the soaring crime rate in Yellowstone County. Of particular concern to this Court is that constitutional violations of a defendant's rights to counsel or to a speedy trial may require the dismissal of charges even for those defendants accused of violent crimes. The failure to immediately assign public defenders directly threatens the public’s safety. ul ©oervoannon 10 1 2 B 4 15 16 ”7 18 19 20 21) 24 25 26 27 Nothing has changed between September 15" and November 15", except that now the COPD believes it has no obligation to immediately assign counsel to represent indigent defendants after being ordered to do so. In Yellowstone County the OPD’s inaction permits indigent defendants to languisl I for weeks or months without being assigned counsel. As Governor Gianforte recently observed, the OPD is “broken.” Paul Hamby. Gianforte Holds Meeting on Publie Safety in Billings, Billings Gazette (January 21, 2022). What hope do the residents of Yellowstone County have in reducing jail overcrowding, decreasing incarceration costs, or improving public safety if the OPD does not immediately assign counsel? The answer, unfortunately, is very little. The immediate assignment of counsel is the essential first step to the fair and efficient administration of justice, The Court finds the OPD in contempt of this Court's September 15" Order requiring the OPD to assign counsel to indigent defendants within three working day's of being ordered to do so. The Court finds that the OPD presented no evidence at the December 20" hearing that excused its failure to comply with the September 15" Order, The Court further finds that while the OPD has within its power the ability to immediately assign counsel, a power the OPD is statutorily and constitutionally obligated to exercise, the OPD has failed to do so in each of the 17 cases identified by this Court in its November 15" Order to Show Cause. IT IS HEREBY ORDERED: 1. That the Director of the State Office of Public Defender, Rhonda Lindquist, is in contempt of this Court's September 15, 2021 Order for failing to immediately assign a public defender within three working days of being ordered to do so in each of the 17 cases listed on Exhibit 1 attached; and ©eVonnwn 10 1 12 13 “4 15) 16 | 7 18 19 20 21 22 23 24 25 26 27 2. That, as a sanction, for failing to obey this Court's September 15, 2021 Order, Rhonda Lindquist, as Director of the State Office of Public Defender, shall pay a fine of $500.00 per case for a total of $8,500.00 which amount shalll be paid to the Yellowstone County Clerk of Court within 30 days of the date of this Order. DONALD L. HARRIS, District Court Judge ce: Peter Habein (via email) ce a weuey) e w6 61s WOAIQOWN UIE LE os. uUO L1G UBAY 1Z 9d) =D Pi z a1 [ peux pea | 706 aa AS TT Ta asIeoa ae z= a. |praieci|, Fue | eso | ive | ER Tgcorzon oe s st wei L218 sa ey owe sa leor-izoa me z e na od aa | amaeper | peta [oyseD plan, a £8 6 %8 zo 318 prweopara | a |avausmy many] “ICO sh Is Pe 66 PRUE] EYSEIEN 616 sey Apeiy | 911-17 Oa a 5 16 ove peu para | 016 | mmonemser | oxit-1z0 : aT a « sai ove prumopea | 016 | cyrceetieg | 901-1290 a L olor 90L ‘yPRURUIEE] BYSEIEN, 901 Aemeyren wen | OSTI-1Z Od a g 9 weuey £t/6 re pang Airey, rl/6 opyME OUI | €611-1Z Od age prea aa 8 2 weury) F £06 +16 Spang Auey, 6 Ploury wepsor | C6 11-17 Od ees oo 8 9 weueyD

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