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Legal battle brews over public defender shortfall

ALBUQUERQUE, N.M. — May Day was significant for the Law Office of the Public Defender, because that was the day when it threw down the gauntlet.

Chief Public Defender Jorge Alvarado sent a letter to chief judges statewide saying the predicted budget crisis had materialized for his office, resulting in a decision to stop providing contract defenders for indigent defendants who aren’t jailed because there’s no money to pay them.

COURTESY PHOTO New Mexico Public Defender Commission Chair Michael Stout Mon May 11 15:56:16 -0600 2015 1431381376 FILENAME: 192128.jpeg

New Mexico Public Defender Commission Chair Michael Stout

Contract defenders typically are hired when there is more than one defendant in a case, or in rural areas such as Lincoln or Cibola counties, where the Law Office of the Public Defender doesn’t have staff.

The move could lead to a lawsuit – something that could be decided as soon as Wednesday, when the New Mexico Public Defender Commission has a special meeting in Albuquerque at the University of New Mexico School of Law.

“The commission is considering all options, including litigation, but no decisions have been made about how to proceed,” said commission Chairman Michael Stout. “We do know we have inadequate funding, and we have to address it in some forum or another.”

That could be a lawsuit by an unrepresented individual, an unpaid contractor or the commission itself in support of the public defender’s mandate to provide legal counsel to any indigent defendant who faces potential jail time.

The defender office represents anyone charged with DWI who cannot afford a lawyer, as well as crimes up to and including murder. In fiscal 2014, more than 70,000 individuals charged with crimes were provided attorneys by the defender office, including contract counsel.

Alvarado, in the letter to the courts, said he took the step “with extreme regret” but was forced to cut back on representation because of the governor’s line-item veto of a supplemental $1.3 million appropriation for the balance of the fiscal year, which ends June 30.

Without it, the office has a projected deficit of $1.75 million. With the salary savings from refusing to represent eligible defendants who aren’t in custody, the deficit can be reduced to about $900,000, according to the estimate.

Gov. Susana Martinez’s April 9 veto message complained about the “rapid rate of overspending at the Public Defender Department” and said she had nevertheless supported the original appropriation in the House budget to cover agency shortfalls for this fiscal year.

The Senate increased the amount for the office and made it into a special appropriation, the message said, which would mean an increase of 8.3 percent, “far beyond the increase being seen by virtually all other state agencies.”

Alvarado’s letter to the state’s judges said he has asked the State Board of Finance for help with the deficit. If it gets any additional money, it will fill defender positions left vacant in-house and not impact “our partner attorneys handling the contract cases throughout the state.”

“We recognize that this may cause a backlog of cases,” Alvarado’s letter said, “but we calculate that by not assigning only this limited class of clients, the impact to the courts, the district attorneys, the victims, the clients, the jails and the citizens of New Mexico will be the minimum possible under the circumstances.”

Not all courts, however, are going along with Alvarado’s plan.

J.C. Robinson, chief judge in the 6th Judicial District, which covers Grant, Luna and Hidalgo counties, issued an order in response, saying that as an independent branch of government, the courts have a duty to apply the law equally and without discrimination as to who is or isn’t in custody. He also noted that the state Supreme Court had reminded trial courts of the constitutional and statutory right to pretrial release.

Robinson ordered courts in the 6th Judicial District not to accept the “notice of declination” from public defender contractors and for magistrate courts to keep assigning contract attorneys “until and unless the Supreme Court orders to the contrary.”

“While the court finds the LOPD’s financial constraints disconcerting, the LOPD’s fiscal problems are matters (it) may address with the (Department of Finance and Administration) or the governor or the courts via litigation,” Robinson’s order said.

Thirteenth Judicial District Chief Judge Louis McDonald said Friday that he met with Alvarado and told him the court would continue to appoint attorneys.

“I am going to continue to appoint contract attorneys, because people have a constitutional right to be represented,” he said.

McDonald said he was contemplating entering a formal order like Robinson’s.

Cibola, Sandoval and Valencia counties each have between three and 12 contract attorneys who handle indigent cases on contract, he said.

The state Supreme Court, for its part, acknowledged getting Alvarado’s letter explaining how the office would address the budget deficit.

But Chief Justice Barbara Vigil also said that as an independent branch of government, apart from the Public Defender Commission, the court “does not take a position regarding the justification, legality or reasonableness of the procedure you outlined.”

Translation: The high court likely could end up with the dispute before it.