Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2), and Staying Proceedings - 1 IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR ADA COUNTY TRACY TUCKER, JASON SHARP, NAOMI MORLEY, and JEREMY PAYNE, on behalf of themselves and all others similarly situated, Plaintiffs, vs. STATE OF IDAHO; DARRELL G. BOLZ, in his official capacity as Chair of the Idaho State Public Defense Commission; REP. CHRISTY PERRY, in her official capacity as Vice-Chair of the Idaho State Public Defense Commission; ERIC FREDERICKSEN, in his official capacity as a member of the Idaho State Public Defense Commission; PAIGE NOLTA, in her official capacity as a member of the Idaho State Public Defense Commission; SHELLEE DANIELS, in her official capacity as a member of the Idaho State Public Defense Commission; SEN. CHUCK WINDER, in his official capacity as a member of the Idaho State Public Defense Commission; and HON. LINDA COPPLE TROUT, in her official capacity as a member of the Idaho State Public Defense Commission, Defendants. Case No. CV-OC-2015-10240 ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT, RECOMMENDING PERMISSION TO APPEAL PURSUANT TO I.A.R. 12(c)(2), AND STAYING PROCEEDINGS THIS MATTER comes before the Court on cross Motions for Summary Judgment, filed through counsel on November 20, 2018. A hearing was held on February 13, 2019, and the matter was taken under advisement. One of the central issues presented by the Motions is: what is the appropriate legal standard the Plaintiffs must meet in order to prevail on their systemic challenge to Idaho’s indigent public defense system? Both sides urge the Court to adopt two very different standards and conclude that the evidence supports their respective Motions for Summary 03/19/2019 13:28:53 Hoskins, Janet Filed: Fourth Judicial District, Ada County Phil McGrane, Clerk of the Court By: Deputy Clerk -
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Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2),
and Staying Proceedings - 1
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT
OF THE STATE OF IDAHO, IN AND FOR ADA COUNTY
TRACY TUCKER, JASON SHARP, NAOMI
MORLEY, and JEREMY PAYNE, on behalf
of themselves and all others similarly situated,
Plaintiffs,
vs.
STATE OF IDAHO; DARRELL G. BOLZ, in
his official capacity as Chair of the Idaho State
Public Defense Commission; REP. CHRISTY
PERRY, in her official capacity as Vice-Chair
of the Idaho State Public Defense Commission;
ERIC FREDERICKSEN, in his official
capacity as a member of the Idaho State Public
Defense Commission; PAIGE NOLTA, in her
official capacity as a member of the Idaho
State Public Defense Commission; SHELLEE
DANIELS, in her official capacity as a
member of the Idaho State Public Defense
Commission; SEN. CHUCK WINDER, in his
official capacity as a member of the Idaho
State Public Defense Commission; and HON.
LINDA COPPLE TROUT, in her official
capacity as a member of the Idaho State Public
Defense Commission,
Defendants.
Case No. CV-OC-2015-10240
ORDER DENYING MOTIONS FOR
SUMMARY JUDGMENT,
RECOMMENDING PERMISSION
TO APPEAL PURSUANT TO I.A.R.
12(c)(2), AND STAYING
PROCEEDINGS
THIS MATTER comes before the Court on cross Motions for Summary Judgment, filed through
counsel on November 20, 2018. A hearing was held on February 13, 2019, and the matter was
taken under advisement. One of the central issues presented by the Motions is: what is the
appropriate legal standard the Plaintiffs must meet in order to prevail on their systemic challenge
to Idaho’s indigent public defense system? Both sides urge the Court to adopt two very different
standards and conclude that the evidence supports their respective Motions for Summary
03/19/2019 13:28:53
Hoskins, Janet
Filed:Fourth Judicial District, Ada CountyPhil McGrane, Clerk of the CourtBy: Deputy Clerk -
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2),
and Staying Proceedings - 2
Judgment.1 There is no controlling precedent in Idaho on the issue, and other courts dealing with
challenges to public defender systems have adopted widely varying standards. Accordingly, the
Court finds that an immediate appeal is necessary to materially advance the litigation as there is
substantial confusion over the standard to be applied and the issue presents a matter of first
impression.
FACTS
This case is about whether Idaho’s public defender system fails to meet constitutional
requirements. The Plaintiffs allege Idaho’s public defense system violates the Sixth and
Fourteenth Amendments to the U.S. Constitution and Article I, Section 13 of the Idaho
Constitution. The Defendants include the State of Idaho and the members of the Idaho Public
Defense Commission, in their official capacities.
In 2015, Plaintiffs’ Tracy Tucker, Jason Sharp, Naomi Morley, and Jeremy Payne (collectively,
“Plaintiffs”) filed the instant suit on behalf of themselves and all other similarly situated indigent
criminal defendants alleging Idaho’s public defense system is inadequate under state and federal
constitutional standards. Plaintiffs were represented by public defenders (or conflict counsel for
the public defenders) in at least eight Idaho counties, including Bonner, Boundary, Kootenai,
Shoshone, Ada, Gem, Payette, and Canyon counties. They alleged numerous instances of their
1 In short, Plaintiffs contend they need only prove a risk of harm, whereas Defendants assert Plaintiffs must
demonstrate actual harm to prevail on their claims.
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2),
and Staying Proceedings - 3
public defenders’ inadequate representation of them in their respective cases,2 which amounted
to “actual and constructive denials of counsel at critical stages of the prosecution.”3 They
contend that “they exemplify the experiences of thousands of indigent defendants across the
State, who have been denied their right to effective assistance of counsel as a result of the State’s
failure to provide the necessary resources, robust oversight, and specialized training required to
ensure that all public defenders can handle all of their cases effectively and in compliance with
state and federal law.”4
(1) Background
In Idaho, individual counties are tasked with the duty of administering and funding public
defender services.5 Counties have four options for providing public defender services. They
may provide representation by (1) establishing and maintaining an office of public defender; (2)
joining with the board of county commissioners of one or more other counties within the same
judicial district to establish and maintain a joint office of public defender; (3) contracting with an
existing office of public defender; or (4) contracting with a defending attorney. I.C. § 19-859.
2 First Amended Class Action Compl. for Injunctive & Declaratory Relief & Suppl. Pleading ¶¶ 6—9 (filed Aug. 15,
Report”).6 The NLADA Report found there were n0 constitutionally adequate public defender
systems in the sample counties and identified various areas of concern. The NLADA Report
concluded:
Though we find systemic deficiencies in the delivery of right to counsel services,
we do not offer specific recommendations for reform.
Our decision t0 exclude specific recommendations was made for two very
specific reasons. First and foremost, Idaho is unique — any solution must
necessarily take into account local cultures, court structures and other variances
that are best debated by the citizenry 0f the state and their elected officials rather
than outside observers. There is no single “cookie-cutter” delivery model (staffed
public defender office, assigned counsel system, or contract defenders) that
guarantees adequate representation. Rather, there are two primary factors that
determine the adequacy of indigent defense services provided: (a) the degree and
sufficiency of state funding and structure, and (b) compliance with nationally
recognized standards ofjustice. So long as these two goals are met, Idaho policy-
makers will have remedied the crisis.
Second, if NLADA drafted a list of recommended solutions, a political debate
would most likely ensue around the validity 0f the recommendations. NLADAhopes instead for statewide debate t0 center on the soundness of our assessment of
the system. We have no power to compel change beyond our ability to hold a
mirror up t0 the present system, make the case that Idaho is falling short on its
6http://nlada.net/sites/default/files/id_guaranteeofcounseliseriO1-2010_report.pdf. The counties studied included,
Ada, Blaine, Bonneville, Canyon, Kootenai, Nez Perce, and Power. Id.
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant t0 I.A.R. 12(c)(2),
and Staying Proceedings - 4
As a result, the State has different systems With different standards, resources, and varying
Report”).6 The NLADA Report found there were n0 constitutionally adequate public defender
systems in the sample counties and identified various areas of concern. The NLADA Report
concluded:
Though we find systemic deficiencies in the delivery of right to counsel services,
we do not offer specific recommendations for reform.
Our decision t0 exclude specific recommendations was made for two very
specific reasons. First and foremost, Idaho is unique — any solution must
necessarily take into account local cultures, court structures and other variances
that are best debated by the citizenry 0f the state and their elected officials rather
than outside observers. There is no single “cookie-cutter” delivery model (staffed
public defender office, assigned counsel system, or contract defenders) that
guarantees adequate representation. Rather, there are two primary factors that
determine the adequacy of indigent defense services provided: (a) the degree and
sufficiency of state funding and structure, and (b) compliance with nationally
recognized standards ofjustice. So long as these two goals are met, Idaho policy-
makers will have remedied the crisis.
Second, if NLADA drafted a list of recommended solutions, a political debate
would most likely ensue around the validity 0f the recommendations. NLADAhopes instead for statewide debate t0 center on the soundness of our assessment of
the system. We have no power to compel change beyond our ability to hold a
mirror up t0 the present system, make the case that Idaho is falling short on its
6http://nlada.net/sites/default/files/id_guaranteeofcounseliseriO1-2010_report.pdf. The counties studied included,
Ada, Blaine, Bonneville, Canyon, Kootenai, Nez Perce, and Power. Id.
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant t0 I.A.R. 12(c)(2),
and Staying Proceedings - 4
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2),
and Staying Proceedings - 5
constitutional obligations, and hopefully convince citizens and policy-makers to
want to act. If there is consensus agreement that Idaho is failing to uphold one of
the fundamental constitutional rights, we are confident that Idahoans — with
more intimate knowledge of the local variances and the state’s financial situation
— can both construct an effective system and find the money to run it efficiently.
In 2007, the Louisiana Legislature was able to quadruple funding for indigent
defense services while overhauling their system despite the financial constraints
of their post-Katrina reality.
NLADA stands ready to assist state policymakers by providing advice about what
has worked, been tried and failed in other states, should such assistance be sought.
However, we do not have standing or the desire to dictate a single path to reform.
We are confident that the people of Idaho have the will, experience and
knowledge to fix this problem in a way that makes sense before others file a class
action lawsuit and a Court imposes an “off the shelf” solution.7
(2) Public Defense Commission
In response to the NLADA Report, in 2014, the legislature created the Idaho Public Defense
Commission (“PDC”).8 The PDC is a self-governing agency comprised of nine members,
9
which includes two representatives from the state legislature, one representative appointed by the
chief justice of the Idaho Supreme Court, and six representatives appointed by the governor. I.C.
§ 19-849. The PDC is tasked with overseeing the delivery of public defender services in all of
Idaho. The PDC is required to promulgate rules regarding the delivery of public defender
services, make recommendations to the legislature concerning public defense, review and
evaluate compliance with indigent defense standards and grants, and hold at least one meeting
each quarter. The rules the PDC is tasked with promulgating include:
7 Id. at p. 89. Obviously, the NLADA report drafters’ hopes for a fix outside the court system did not come to
fruition.
8 The PDC and the rules and regulations enacted by it have gone through numerous revisions and additions since the
PDC’s inception. This decision will focus on the currently enacted rules and regulations.
9 At the time it was created, the PDC consisted of seven members.
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2),
and Staying Proceedings - 6
(i) Training and continuing legal education requirements for defending
attorneys, which shall promote competency and consistency in case types
including, but not limited to, criminal, juvenile, capital, abuse and neglect,
post-conviction, civil commitment and criminal contempt;
(ii) Uniform data reporting requirements and model forms for the annual
reports submitted pursuant to section 19-864, Idaho Code, which shall
include, but not be limited to, caseload, workload and expenditures;
(iii) Model contracts and core requirements for contracts between counties
and private attorneys for the provision of indigent defense services, which
shall include, but not be limited to, compliance with indigent defense
standards;
(iv) Procedures and forms by which counties may apply to the
commission, pursuant to section 19-862A, Idaho Code, for funds to be
used to bring their delivery of indigent defense services into compliance
with applicable indigent defense standards;
(v) Procedures for administrative review and fair hearings in accordance
with the Idaho administrative procedure act, which shall include, but not
be limited to, providing for a neutral hearing officer in such hearings;
(vi) Procedures for the oversight, implementation, enforcement and
modification of indigent defense standards so that the right to counsel of
indigent persons, as provided in section 19-852, Idaho Code, is
constitutionally delivered to all indigent persons in this state; and
(vii) Standards for defending attorneys that utilize, to the extent
reasonably practicable taking into consideration factors such as case
complexity, support services and travel, the following principles:
1. The delivery of indigent defense services should be independent
of political and judicial influence, though the judiciary is
encouraged to contribute information and advice concerning the
delivery of indigent defense services.
2. Defending attorneys should have sufficient time and private
physical space so that attorney-client confidentiality is safeguarded
during meetings with clients.
3. Defending attorneys’ workloads should permit effective
representation.
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2),
and Staying Proceedings - 7
4. Economic disincentives or incentives that impair defending
attorneys’ ability to provide effective representation should be
avoided.
5. Defending attorneys’ abilities, training and experience should
match the nature and complexity of the cases in which they
provide services including, but not limited to, cases involving
complex felonies, juveniles and child protection.
6. The defending attorney assigned to a particular case should, to
the extent reasonably practicable, continuously oversee the
representation of that case and personally appear at every
substantive court hearing.
7. There should be reasonable equity between defending attorneys
and prosecuting attorneys with respect to resources, staff and
facilities.
8. Defending attorneys should obtain continuing legal education
relevant to their indigent defense cases.
9. Defending attorneys should be regularly reviewed and
supervised for compliance with indigent defense standards and, if
applicable, compliance with indigent defense standards as set forth
in contractual provisions.
10. Defending attorneys should identify and resolve conflicts of
interest in conformance with the Idaho rules of professional
conduct and other applicable constitutional standards.
Violation of or noncompliance with the principles listed in this
subparagraph does not constitute ineffective assistance of counsel under
the constitution of the United States or the state of Idaho and does not
otherwise constitute grounds for post-conviction relief.
(b) On or before January 20, 2015, and by January 20 of each year thereafter as
deemed necessary by the commission, make recommendations to the Idaho
legislature for legislation on public defense system issues including, but not
limited to:
(i) Enforcement mechanisms; and
(ii) Funding issues including, but not limited to, formulas for the
calculation of local shares and state indigent defense grants.
Order Denying Motions for Summary Judgment, Recommending Permission to Appeal Pursuant to I.A.R. 12(c)(2),
and Staying Proceedings - 8
(c) Review indigent defense providers and defending attorneys to evaluate
compliance with indigent defense standards and the terms of state indigent
defense grants.
(d) Notwithstanding the provisions of paragraph (a)(iv) of this subsection,
establish temporary procedures and model forms by which counties may apply to
the commission for state indigent defense grants pursuant to section 19-862A,
Idaho Code, to be utilized until rules promulgated pursuant to paragraph (a)(iv) of
this subsection are in full force and effect. Such temporary procedures shall not be
subject to administrative or judicial review.
(e) Hold at least one (1) meeting in each calendar quarter.
I.C. § 19-850(1). The PDC has enacted rules and regulations concerning all the subjects set forth
above. IDAPA 61.01.01—.08 et seq. The PDC also provides counties with supplemental
resources for the delivery of indigent defense services:
(2) On or before August 1, 2016, and by May 1 of each year thereafter, each
county may submit to the commission an application for a state indigent defense
grant that shall include a plan that specifically addresses how indigent defense
standards shall be met and, if applicable under subsection (11)(a) of this section,
how any deficiencies previously identified by the commission will be cured in the
upcoming county fiscal year. The application shall also include a cost analysis
that shall specifically identify the amount of funding in excess of the applicable
local share, if any, necessary to allow the county to successfully execute its plan.
In the event the commission has not yet promulgated any indigent defense
standards, or the commission determines that the county can successfully execute
its plan without exhausting the entirety of the grant for which it may be eligible,
an application submitted pursuant to this section may request funding to be used
for other improvements to its delivery of indigent defense services. Such other
improvements may include, but are not limited to, funding for investigation costs,
witness expenses and other extraordinary litigation costs.
(3) The amount of a state indigent defense grant shall not exceed fifteen percent
(15%) of the county’s local share for said county fiscal year or twenty-five
thousand dollars ($25,000), whichever is greater. If a county elects to join with
the board of county commissioners of one (1) or more other counties within the
same judicial district to establish and maintain a joint office of public defender
pursuant to section 19-859(2), Idaho Code, each participating county shall be
eligible for an additional twenty-five thousand dollars ($25,000) per year. The
maximum amount of a state indigent defense grant shall remain in effect until
July 1, 2019, unless otherwise addressed by the legislature prior to that date.
(4) The commission shall approve an application submitted under subsection (2)
of this section, in an amount deemed appropriate by the commission, if the
application:
(a) Includes a plan that is necessary t0 meet 0r improve upon indigent
defense standards; and
(b) Demonstrates that the amount of the requested state indigent defense
grant is necessary to meet or improve upon indigent defense standards.
LC. § 19—862A(2)—(4).
The PDC has enacted various regulations concerning training for public defenders, including, the
allocation of training funds for public defenders, maintaining a roster 0f public defenders, types
of training programs t0 benefit defending attorneys and staff, and scholarships. See IDAPA
61.01.01 et seq. In 2017, the PDC promulgated “Standards for Defending Attorneys — edition
2017” (hereafter, “PDC Standards”), which sets forth rules governing standards for public
defenders and includes a requirement that defending attorneys complete seven hours of
continuing legal educations courses relevant t0 the representation 0f indigent defendants. The
PDC Standards includes many other training, performance, and qualification standards for public
defenders.10
(3) Caseloads
The ABA National Advisory Committee (“NAC”) promulgated national caseload standards in
1973. The NAC standards provide that a defending attorney’s annual caseload should not
exceed 150 felonies, 400 misdemeanors, 0r 200 juvenile cases per year, and that these numbers
must be adjusted to account for factors including mixed caseloads, private caseloads, an