MEMORANDUM OF DECISION
ROBERT S. LASNIK, District Judge.
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." Plaintiffs filed this lawsuit in Skagit County Superior Court in order to challenge the constitutional adequacy of the public defense system provided by the City of Mount Vernon and the City of Burlington. The defendant municipalities removed the case to federal court on July 5, 2011. Testimony on this matter was heard by the Court commencing on June 3, 2013, 2013 WL 2422744, and concluding on June 18, 2013. Additional briefing closed in August of 2013.
At trial, plaintiffs set out to prove that the Cities of Mount Vernon and Burlington are regularly and systematically failing to provide effective assistance of counsel to indigent persons charged with crimes, thereby violating both the federal and state constitutions and necessitating injunctive relief. Defendants took the position that, whatever defects may have existed in their public defense systems before 2012, they have taken significant steps to improve the representation provided, including contracting with a different law
FINDINGS OF FACT
Plaintiffs have shown, by a preponderance of the evidence, that indigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation. The period of time during which Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting. Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public. There is almost no evidence that Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare. In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.
This situation was the natural, foreseeable, and expected result of the caseloads the attorneys handled. Sybrandy and Witt, both of whom also had private practices (Mr. Witt spent only 40% of his time providing public defense services), each closed approximately 1,000 public defense cases per year in 2009, 2010, and 2011 and often spent less than an hour on each case. Although both counsel testified that they did not feel rushed or overworked, it is clear that, in light of the sheer number of cases they handled, the services they offered to their indigent clients amounted to little more than a "meet and plead" system. While this resulted in a workload that was manageable for the public defenders, the indigent defendants had virtually no relationship with their assigned counsel and could not fairly be said to have been "represented" by them at all. The Cities, which were fully aware of the number of public defenders under contract, remained wilfully blind regarding their overall caseloads and their case processing techniques. The City officials who administered the public defense contracts did not feel it was necessary for them to know how many
After this lawsuit was filed, Sybrandy and Witt were no longer willing to provide public defense services for the Cities. The Cities issued a request for proposals and ultimately hired Mountain Law to provide the necessary services. Mountain Law came on-line in April 2012 with two attorneys. The evidence regarding initial caseloads varies significantly: the Cities negotiated the new public defense contract on the assumption that over 1,700 cases would be transferred from Sybrandy and Witt during the transition period, but Mountain Law's caseload statistics show that it was assigned approximately 1,100 cases. Whatever the true numbers, it is clear that by the end of May each of the two public defenders was handling well over 400 cases. By the end of 2012, Mountain Law had added a third attorney and another 963 cases. The Cities were kept apprised of these numbers. They were also aware that, on June 15, 2012, the Supreme Court of Washington established 400 unweighted misdemeanor cases per year as "the maximum caseload for fully supported full-time defense attorneys for cases of average complexity and effort," assuming a "reasonably even distribution of cases throughout the year." Because the 400 caseload limit would not be effective until September 1, 2013, neither Mountain Law nor the Cities were particularly concerned that Michael Laws and Jesse Collins were each handling over 500 cases at any given time between April and August 2012. The mantra during that period and continuing through trial was that Mountain Law would continue to work toward the 400 annual caseload limit by adding attorneys as needed. As of the time of trial, Mountain Law had added two additional attorneys (one in August 2012 and another in March 2013), presumably reducing the per attorney caseload to some extent. The preponderance of the evidence shows, however, that Mountain Law continues to handle caseloads far in excess of the per attorney limits set forth in the Supreme Court's guidelines.
While a hard caseload limit will obviously have beneficial effects and the Washington Supreme Court's efforts in this area are laudable, the issue for this Court is whether the system of public defense provided by the defendant municipalities allows appointed counsel to give each case the time and effort necessary to ensure constitutionally adequate representation for the client and to retain the integrity of our adversarial criminal justice system. Mount Vernon and Burlington fail this test. Timely and confidential input from the client regarding such things as possible defenses, the need for investigation, mental and physical health issues, immigration status, client goals, and potential dispositions are essential to an informed representational relationship. Public defenders are not required to accept their clients' statements at face value or to follow every lead suggested, but they cannot simply presume that the police officers and prosecutor have done their jobs correctly
A number of defendants' witnesses, including former Pierce County Executive and Prosecutor John Ladenburg, pointed out that the adequacy of counsel cannot fairly be judged in a vacuum: the Court must also take into consideration the resources available to the other side. If, in a time of fiscal constraint, the prosecutor is also overwhelmed and/or the municipal jail cannot accommodate any more inmates, the resulting plea offers are likely to be as good as or better than the public defender could negotiate even if he or she spent untold hours on legal research and investigation.
Given the fiscal constraints imposed on both sides of the criminal justice equation
The Court finds that, as of the date of trial, the representation provided to indigent defendants in Mount Vernon and Burlington remains inadequate. The Court would have to make several unsupported assumptions regarding Mountain Law's ability to clear the backlog of cases it inherited, the distribution of cases within the office, counsels' experience and proficiency, and the number of new cases opened each month to conclude that the defenders' current caseloads allow the kind of individualized client representation that every indigent criminal defendant deserves and on which our adversarial system of criminal justice depends. Even if the Court were willing to make those assumptions, there is no evidence that Mountain Law has rethought or restructured the case management procedures that were developed during the first few hectic months of its contract with the Cities. Rather than providing an opportunity for a representational relationship to develop and following up as appropriate given the facts of each case, Mountain Law allowed the massive caseload to determine the level
The Court's findings should not be interpreted as an indictment of Mountain Law, its attorneys, or their legal acumen. The Court is encouraged by some of the changes Mountain Law is making in Mount Vernon and Burlington: the public defense system is definitely trending in the right direction, and the Court sees great promise in Mountain Law's dedicated young lawyers. By accepting a contract with the Cities of Mount Vernon and Burlington, however, Mountain Law became embroiled in an ongoing debate regarding the adequacy of our public defense systems in times of fiscal constraint and the meaning of the right to counsel fifty years after it was promised in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Although the right to the assistance of counsel regardless of economic status is established by the Constitution, legislative enactments are required to ensure that the right is maintained, and funding limitations imposed over the past few years are having a cumulative and adverse impact at both the state and national levels.
CONCLUSIONS OF LAW
A. Right to Counsel
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of
Despite the broad language of the Sixth Amendment, Powell, and Gideon, it was not until 1972 that the Supreme Court made clear that the right to counsel extends to all cases in which the accused may be deprived of his liberty, whether characterized as a felony or a misdemeanor. In Argersinger v. Hamlin, 407 U.S. 25, 33, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court noted that the legal and constitutional questions involved in the prosecution of petty offenses are not necessarily any less complex than those that arise in felony cases. In addition, the sheer volume of misdemeanor cases may give rise to unique procedural challenges that threaten the fairness of the criminal justice system:
Id. at 34-36, 92 S.Ct. 2006 (internal quotation marks and citations omitted). The Washington Supreme Court recognized the primacy of the Argersinger decision in McInturf v. Horton, 85 Wn.2d 704, 707, 538 P.2d 499 (1975), overruling an earlier opinion that held there was no right to appointment of counsel in misdemeanor prosecutions. See also Washington Criminal Rule for Courts of Limited Jurisdiction 3.1 ("The right to a lawyer shall extend to all criminal proceedings for offenses punishable by loss of liberty regardless of their denomination as felonies, misdemeanors, or otherwise.").
Mere appointment of counsel to represent an indigent defendant is not enough to satisfy the Sixth Amendment's promise of the assistance of counsel. While the outright failure to appoint counsel will invalidate a resulting criminal conviction, less extreme circumstances will also give rise to a presumption that the outcome was not reliable. For example, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, if there is no opportunity for appointed counsel to confer with the accused to prepare a defense, or circumstances exist that make it highly unlikely that any lawyer, no matter how competent, would be able to provide effective assistance, the appointment of counsel may be little more than a sham and an adverse effect on the reliability of the trial process will be presumed. Cronic, 466 U.S. at 658-60, 104 S.Ct. 2039; Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940).
B. Municipal Liability under Section 1983
Under 42 U.S.C. § 1983, a municipality is a person and may therefore be liable for a constitutional deprivation. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006).
The Court finds that the public defense system in Mount Vernon and Burlington has systemic flaws that deprive indigent criminal defendants of their Sixth Amendment right to the assistance of counsel. Although counsel are appointed in a timely manner, the sheer number of cases has compelled the public defenders to adopt case management practices that result in most defendants going to court for the first time — and sometimes accepting a plea bargain — never having had the opportunity to meet with their attorneys in a confidential setting. The attorney represents the client in name only in these circumstances, having no idea what the
Having found that plaintiffs' Sixth Amendment rights were violated, the Court must determine whether the Cities are responsible for the constitutional deprivation. Plaintiffs have shown that the constitutional deprivations at issue here were the direct and predictable result of the deliberate choices of City officials charged with the administration of the public defense system. Intentional choices made while negotiating the public defender contracts and allocating funds to the public defender system left the defenders compensated at such a paltry level that even a brief meeting at the outset of the representation would likely make the venture unprofitable. And the Cities knew it. When Mountain Law took over the public defense contract, the Cities estimated there would be approximately 1,700 cases transferred from Sybrandy and Witt and yet chose a proposal pursuant to which they would pay only $17,500 per month. That works out to $10 per case for April 2012, with the per case rate reduced in future months by each additional case assigned to Mountain Law. Mountain Law had (and still has) every incentive to close cases as quickly as possible and to minimize the time spent on each case. While every attorney, whether privately or publicly retained, must be cognizant of costs when choosing a course of action, defending an indigent criminal defendant — any indigent criminal defendant — on $10 per month inclusive of staff, overhead, and routine investigation costs makes it virtually impossible that the lawyer, no matter how competent or diligent, will be able to provide effective assistance.
Legislative and monitoring decisions made by the policymaking authorities of the Cities ensured that any defects in the public defense system would go undetected or could be easily ignored. Despite receiving monthly reports listing case assignments, types of cases, dispositions, and hours worked on each case, the administrators made no effort to calculate the number of cases assigned to Mountain
The Court finds that the combination of contracting, funding, legislating, and monitoring decisions made by the policymaking authorities for the Cities directly caused the truncated case handling procedures that have deprived indigent criminal defendants in Mount Vernon and Burlington of private attorney/client consultation, reasonable investigation and advocacy, and the adversarial testing of the prosecutor's case. The Cities are therefore liable under § 1983 for the systemic Sixth Amendment violation proved by plaintiffs. See Miranda v. Clark County, 319 F.3d 465 (9th Cir.2003) (finding that county could be liable for constitutional deprivations arising from funding and case assignment policies); Clay v. Friedman, 541 F.Supp. 500, 502, 505-06 (N.D.Ill.1982) (finding that administrative head of public defender's office could be liable for non-representative decision-making and that county could be liable for promulgating policies and customs that led to the constitutional deprivation).
C. Injunctive Relief
Plaintiffs have succeeded on the merits of their claim, establishing both a systemic deprivation of the right to the assistance of counsel and the Cities' responsibility for the deprivation.
The Court is sensitive to the Cities' interests in controlling the manner in which they perform their core functions, including the provision of services and the allocation of scarce resources. Having chosen to operate a municipal court system, however, defendants are obligated to comply with the dictates of the Sixth Amendment, and the Court will "not shrink from [its] obligation to enforce the constitutional rights of all persons." Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011) (internal quotation marks omitted). A continuing injunction is hereby entered against defendants as follows:
— Within seven days of the date of this Order, the officials charged with administering the public defense contracts in Mount Vernon and Burlington and all full — and part-time public defenders in those municipalities shall read the Washington Defender Association's 2007 Final Standards for Public Defense Services with Commentary (http://www.defensenet.org/about-wda/standards).
— The Cities of Mount Vernon and Burlington shall, within thirty days of the date of this Order, re-evaluate their existing contract for the provision of public defense in light of the Court's findings and ensure that the document encourages and is no way antithetical to a public defense system that allows for private attorney/client communications at the outset of the relationship and the ability to follow up as appropriate given the circumstances, including the client's status, input, and goals. While the standards adopted by the Washington Supreme Court and the experiences of the Washington Defender Association will undoubtedly inform any evaluation of the adequacy of defendants' system going forward, the constitutional benchmark cannot be reduced to a number, and the Court declines to adopt a hard caseload limitation. The critical issue is whether the system provides indigent criminal defendants the actual assistance of counsel, such that defendants have the opportunity to assert any rights or defenses that may be available to them and appropriate adversarial testing occurs.
— The Cities shall hire one part-time Public Defense Supervisor to work at least twenty hours per week. The Public Defense Supervisor may be either a contractor
— The duties of the Public Defense Supervisor shall include:
1. Supervision and evaluation of whether the public defenders are making contact (in-person or by phone) in a confidential setting with each new client within 72 hours of appointment. If contact cannot be made within that time period, the Public Defense Supervisor shall document the reason(s) for the failure and whether an opportunity for confidential communications occurred prior to the client's first court hearing. The Public Defense Supervisor will also take steps to ensure that the public defenders perform the following tasks when they first meet with a client following a new case assignment: (i) advise the client of the right to jury trial and right to a speedy trial; (ii) advise the client of the elements of the charge and that the prosecutor must prove each element beyond a reasonable doubt to obtain a conviction; (iii) advise the client of the right to present a defense; (iv) advise the client that it is solely the client's decision whether to accept or reject any plea offer; and (v) discuss with the client any potential witnesses or avenues of investigation.
2. Monthly supervision and evaluation of the first contact with clients, documenting whether the public defenders are determining if each client: (i) appears competent to proceed with the court process; (ii) has a sufficient literacy level to understand written court documents such as the guilty plea form and sentencing orders; (iii) needs an interpreter; and (iv) is a non-citizen in need of expert immigration advice from the WDA or another source.
3. Monthly supervision and evaluation of whether the public defenders are responding appropriately to information provided by the client and discovery obtained in each case, including pursuing additional discussions with the client, investigations, medical evaluations, legal research, motions, etc., as suggested by the circumstances.
4. Establishing a policy for public defenders to respond to all client contacts and complaints (including jail kites), including the length of time within which a response must occur. The Public Defense Supervisor shall review any and all client complaints obtained from any source and the public defender's response. Use or non-use of any particular complaint process shall in no way be considered a waiver of the client's rights. The Public Defense Supervisor shall establish a process for clients to pursue a complaint if the Public Defense Supervisor fails to resolve it to the client's satisfaction.
5. Monthly supervision and evaluation of whether the public defenders are appropriately using interpreters and translators before any decisions are made by the client.
7. Supervision and evaluation of whether the public defenders are fully advising clients of their options regarding possible dispositions, including information on treatment services, any options for a less onerous disposition based on treatment, explanations of plea offers, the consequences of a conviction, conditions that are normally imposed at sentencing, any applicable immigration consequences, and any other consequences about which the client has expressed concern.
8. Supervision and evaluation of whether the public defenders are maintaining contemporaneous records on a daily basis showing the amount of time spent on each task for each case, recorded in tenth-of-an-hour increments.
9. Quarterly supervision and evaluation of whether cases are being allocated to each public defender fairly and in consideration of existing workloads, the seriousness of the charge(s), any factors that make the case more complex or time-consuming, and the attorney's experience level.
10. Quarterly selection and review of fifteen randomly chosen files from each public defender to ensure that the necessary tasks are being performed and documented, with appropriate time being spent on each task. The Public Defense Supervisor shall conduct a quarterly meeting with each public defender to advise how their performance can be improved based on the file review.
11. Collecting data on a quarterly basis showing: (i) the frequency of use of investigators and expert witnesses; (ii) the number of motions on substantive issues that are filed and the outcome of each motion; (iii) the frequency with which cases are resolved by outright dismissal or a nonconviction disposition; (iv) the frequency of pleas to a lesser charge; and (v) the number of trials (broken down by bench vs. jury trials) conducted and the outcome of the trials.
12. Conducting a quarterly analysis of whether the Cities' public defense system (i) provides actual representation of and assistance to individual criminal defendants, including reasonable investigation and advocacy and, where appropriate, the adversarial testing of the prosecutor's case and (ii) complies with all provisions of the public defense contract and all applicable provisions of the Cities' ordinances and regulations. The Public Defense Supervisor shall meet with the officials charged with administering the public defense contract to advise how the Cities' performance can be improved based on the quarterly analysis.
13. Submission of biannual reports to the parties explaining: (i) whether all of the duties specified above have been performed in the most recent six-month period, and if not, why not, including a specific discussion of each duty that has not been performed and the Public Defense Supervisor's recommendations for how to achieve compliance; (ii) whether the Cities' public defense system (a) provides actual representation of and assistance to individual criminal defendants, including reasonable investigation and advocacy and, where appropriate, the adversarial testing of the prosecutor's case and (b) complies with all provisions of the public defense contract and all applicable provisions of the Cities' ordinances and regulations, and if not, why not, including a specific discussion of each item where the Cities fall short and the Public Defense Supervisor's recommendations for how to achieve compliance. The Public Defense Supervisor shall submit his
— Twelve months, 24 months, and 34 months after the entry of this Order, the Cities shall provide fifty case files, randomly selected by the Public Defense Supervisor, to plaintiffs' counsel so that they may evaluate the Cities' compliance with this Order and whether the Public Defense Supervisor is properly performing his or her duties. This Court shall retain jurisdiction over this case for three years from the date of entry of this Order, and this injunction shall remain in effect for that period. However, if the Public Defense Supervisor's annual reports show prior to that date that the system provides indigent criminal defendants actual representation by and assistance of counsel, such that defendants have the opportunity to assert any rights or defenses that may be available to them and appropriate adversarial testing occurs, defendants may petition the Court to dismiss the case and terminate the injunction at that point in time.
— If plaintiffs believe that the Cities' efforts to provide an adequate system of public defense are not trending in the right direction or a dispute arises as to compliance with the injunctive provisions of this Order, plaintiffs' counsel shall notify defendants in writing of any objections they have regarding the Cities' efforts or compliance. Within fourteen days of receipt of the objections, the parties shall meet and confer to discuss and attempt to resolve the dispute. If the parties are not able to resolve the objections, plaintiffs may file a motion seeking appropriate relief. The motion shall be noted for consideration on the third Friday after filing, the motion and opposition pages shall not exceed 24 pages, and the reply shall not exceed twelve pages.
It has been fifty years since the United States Supreme Court first recognized that the accused has a right to the assistance of counsel for his defense in all criminal prosecutions and that the state courts must appoint counsel for indigent defendants who cannot afford to retain their own lawyer. The notes of freedom and liberty that emerged from Gideon's trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.
WDA 2007 Final Standards for Public Defense Services with Commentary at 13 (http://www.defensenet.org/about-wda/standards).
At the intersection of staggering caseloads and insufficient resources we even find federal courts struggling to justify procedures that simply do not hold up under constitutional scrutiny. For instance, United States Magistrate Judges in Arizona faced with an explosion in the number of illegal entry cases across the Mexican border started doing "mass" plea proceedings with up to seventy defendants pleading guilty at the same time. United States v. Arqueta-Ramos, 730 F.3d 1133, 1135-36 (9th Cir.2013). During one such hearing, there were fifteen defense attorneys present, each representing between three and five defendants. Id. at 1136. The court advised the large group of defendants of their rights and then questioned them in groups of five, collectively asking questions to ascertain whether they understood their rights and the consequences of pleading guilty. Id. at 1139. The Ninth Circuit Court of Appeals struck down the court's collective group questioning because the court did not address any defendant personally during its advisement of rights or the small group questioning. Id. ("We act within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure.") (quoting United States v. Roblero-Solis, 588 F.3d 692, 693 (9th Cir. 2009)).