The state agency tasked with finding lawyers for poor Mainers and the civil rights group that is suing it are headed to trial after a judge shot down their second attempt at a settlement agreement.

Superior Court Justice Michaela Murphy gave the ACLU of Maine until March 8 to file a new civil complaint in its long-running lawsuit alleging that the Maine Commission on Indigent Legal Services is failing to provide legal representation to low-income Mainers. Murphy’s decision, dated Tuesday, ordered them to be ready for trial by June.

The ACLU sued the commission in Kennebec County Superior Court in March 2022 and was awarded class-action status a few months later. The parties have been negotiating a settlement agreement since that fall. They offered Murphy two proposed agreements focused on a four-year improvement process that would task the commission with hiring more public defenders and improving its oversight of the private attorneys who currently handle a majority of the state’s court-appointed cases.

But neither agreement met what Murphy says is a more pressing need. She wrote in the latest order that there are nearly 400 Mainers who are entitled to a lawyer and are still waiting for one to be appointed. More than 100 of those defendants are waiting in jail, unable to raise a defense or understand the cases against them. Many have been waiting for weeks and months.

Assistant Attorney General Sean Magenis, who is representing the commission in the lawsuit, declined to comment through an office spokesperson.

Jim Billings, the commission’s executive director, said Wednesday that he had yet to finish reviewing Murphy’s order with his attorney, but that the commission is disappointed in the ruling and needs to consider next steps.

THE CRISIS IT HAS BECOME

When the ACLU filed its complaint, the constitutional issues they identified were different than what they’re seeing now, said Carol Garvan, the organization’s legal director.

In its original complaint, the ACLU was more focused on problems it saw with the effectiveness of lawyers doing court-appointed work – not the availability of lawyers, Garvan said.

“That was not nearly as much of a crisis as it has now become,” Garvan said.

Two years ago, the commission had roughly 280 attorneys willing to accept criminal cases around the state, a number that was already dropping. By January 2024, they had a little more than 140 lawyers taking new court-appointed cases.

Because of that, the ACLU’s proposed settlements with the commission have focused more on systemic concerns, like long-term plans to open and staff public defense offices, and oversight of attorneys.

But the agreements “failed to appreciate the reality facing Class Members across the state,” Murphy said in Tuesday’s order. “Standards and accountability mean very little when very few attorneys, or no attorneys at all, have been made available by (the commission) for judges and justices to appoint.”

Murphy said the commission has taken several steps since it was sued to address its issues, including advocating for the state’s first public defense jobs and convincing state leaders to increase what it spends on reimbursing private lawyers. But some steps, Murphy said, were questionable – including new caseload limits that took effect in January.

While the limits could lead to more quality representation for some Mainers, Murphy said, the timing of the limits concerned her, “as it was becoming clear by the end of 2023 that the number of attorneys provided to the courts for appointment was steadily decreasing.”

Garvan and ACLU chief counsel Zachary Heiden said Tuesday that they agree with Murphy’s ruling and are “committed to doing everything possible to ensure the state upholds the Sixth Amendment rights of all people accused of a crime in Maine.”

“Maine is in the midst of an unconstitutional crisis,” Garvan said. “A person’s liberty should never depend on how much money they have.”

NEXT STEPS

Murphy has ordered the case to be split into two parts, and that the class members – tens of thousands of Mainers who are accused of crimes and eligible for a court-appointed lawyer – can be separated based on who’s eligible for a lawyer and already has one appointed, and who’s eligible but is still waiting.

The trial in June is intended to help those who are still waiting for a lawyer.

The ACLU’s only obligation will be to prove that the commission is violating its obligations under the Sixth Amendment.

And the ACLU could add more defendants and more allegations. Garvan was unsure Wednesday what the group will argue and who they’ll include in the amended complaint.

Garvan said the June trial likely will be a bench trial before Murphy, who has broad discretion in whatever her ruling is.

But should Murphy rule that the state is in violation of state and federal laws, it likely will be up to the state to come up with and enforce a remedy.

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