Lavallee v. Justices in the Hampden Superior Court
| Citation | 812 NE 2d 895,442 Mass. 228 |
| Parties | NATHANIEL LAVALLEE & others v. JUSTICES IN THE HAMPDEN SUPERIOR COURT & others (and a consolidated case). |
| Decision Date | 30 June 2004 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
William J. Leahy, Committee for Public Counsel Services, & David P. Hoose (Benjamin H. Keehn, Committee for Public Counsel Services, John Reinstein, & William C. Newman with them) for Nathaniel Lavallee & others.
Ronald F. Kehoe, Assistant Attorney General, for Justices in the Hampden Superior Court & others.
The following submitted briefs for amici curiae:
Paul J. Machado for Bristol County Bar Advocates.
Edward J. Barshak for William C. Flanagan & another.
Andrew Good & Charles P. McGinty for Massachusetts Association of Criminal Defense Lawyers.
Richard C. Van Nostrand, Martin W. Healy, Kristina H. Allaire, & Mary J. Kennedy for Massachusetts Bar Association & another.
Arnold R. Rosenfeld & Wendy A. Berliner for Arnold R. Rosenfeld.
R.J. Cinquegrana, Michelle L. Dineen Jerrett & Terrence M. Schwab for Boston Bar Association.
The petitioners are indigent criminal defendants who have no attorneys to represent them due to a shortage of lawyers in the Hampden County bar advocates program.4 That shortage has been caused by the low rate of attorney compensation authorized by the annual budget appropriation. For fiscal year (FY) 2004 the authorized rates for private counsel were thirty dollars an hour for a District Court case, thirty-nine dollars an hour for a Superior Court case other than a homicide case, and fifty-four dollars an hour for a homicide case. See St. 2003, c. 26, § 2, line item XXXX-XXXX.5 Since 1986 there has been little change in these rates, which are among the lowest in the nation. See The Spangenberg Group, Rates of Compensation for Court-Appointed Counsel in Non-Capital Felonies at Trial: A State-by-State Overview (July 2002). The Committee for Public Counsel Services (CPCS) has asserted that it had no staff attorney in its public defender division, see G. L. c. 211D, § 6 (a), available to represent any of the petitioners due to its own staffing and funding limitations, or due to the conflict of interest that arises or may arise when attorneys from the same office also represent a codefendant or witness in the case.
On May 6, 2004, CPCS filed in the county court a petition seeking relief pursuant to G. L. c. 211, § 3, on behalf of Nathaniel Lavallee and eighteen other indigent criminal defendants (Lavallee petitioners) being held in lieu of bail or under preventive detention, without counsel, by order of judges in the Springfield District Court. On the same day, the American Civil Liberties Union of Massachusetts (ACLU) filed a petition on behalf of Michael Carabello and four other indigent defendants, also being held without counsel by order of judges in the Holyoke District Court. Both petitions were filed one day after judges in the Springfield and Holyoke District Courts had denied the petitioners' motions to compensate assigned counsel at a higher rate than the rates the Legislature has authorized CPCS to pay.6
The petitioners allege that, as a result of the Commonwealth's chronic underfunding of the assigned counsel system administered by CPCS, there was no longer a sufficient number of certified private attorneys (bar advocates) willing to accept assignment in the petitioners' cases.7 The petitioners sought a ruling that the failure of the Commonwealth to provide counsel to the petitioners warranted the exercise of this court's statutory or inherent powers of superintendence, and a declaration that the trial judges could order that assigned counsel be compensated at a higher rate. The rate they requested was sixty dollars an hour for District Court cases, ninety dollars an hour for cases "not within the final jurisdiction of the District Court," and one hundred twenty dollars an hour for murder cases. These proposed compensation rates are identical to those approved by CPCS in 2002, pursuant to its authority under G. L. c. 211D, § 11, to "establish rates of compensation payable, subject to appropriation, to all counsel who are appointed or assigned to represent indigents" (emphasis added).8 In the alternative, the petitioners asked this court to determine a fair rate of compensation for assigned counsel, and to direct CPCS to begin paying private assigned counsel according to that rate or rates.
A single justice held a hearing on the petitions on May 6, 2004. Eleven days later the office of the Attorney General moved on behalf of the respondents (Justices of the Springfield and Holyoke District Courts) to dismiss the petitions. On May 20, the petitioners filed an opposition to the motion to dismiss, and further moved for immediate relief for those petitioners who had been detained without counsel for more than two weeks. On May 21, the Lavallee petitioners moved to amend the petition to add thirty-three more unrepresented indigent defendants in Hampden County as petitioners, and to name the Justices of additional Hampden County courts as respondents. The single justice allowed the motion to amend on May 25. He consolidated the two cases and reserved and reported them without decision to the full court.
We conclude that the petitioners are being deprived of their right to counsel under art. 12 of the Massachusetts Declaration of Rights, a deprivation that has resulted in severe restrictions on their liberty and other constitutional interests. Although we do not grant the precise remedy the petitioners seek for the reasons we shall explain, we hold that, on a showing that no counsel is available to represent a particular indigent defendant despite good faith efforts, such a defendant may not be held more than seven days and the criminal case against such a defendant may not continue beyond forty-five days.
1. Factual background. Hampden County Bar Advocates, Inc., contracts with CPCS to provide counsel for indigent defendants in Hampden County in cases that CPCS staff attorneys are unable to accept. See G. L. c. 211D, § 6 (b). According to the petitioners, about fifty lawyers have left the Hampden County bar advocate program in the last several years because they are simply unable to make a living at the current compensation rates.9 Many others in the program have reduced their days of availability due to the increased number of cases assigned, brought about as a result of both the increase in the number of criminal cases and the reduction in the number of attorneys available to take assigned cases. On May 3 and 4, 2004, no Hampden County bar advocates appeared in Springfield District Court, the busiest District Court in the Commonwealth, to accept assignments. As a result, many indigent defendants, including the nineteen original Lavallee petitioners, were arraigned on those two days without benefit of counsel. A judge set bail or issued an order of preventive detention for each unrepresented petitioner.10
On May 4, the presiding judge assigned the chief counsel for CPCS, William J. Leahy, to represent the Lavallee petitioners, pursuant to G. L. c. 211D, § 5, and S.J.C. Rule 3:10, as amended, 416 Mass. 1306 (1993).11 Leahy, who was not present at the time, received the notices of assignment on the afternoon of May 4, and appeared in Springfield District Court the next morning (May 5). He informed the judge he was not there to represent the nineteen individual defendants, but rather to file and argue, collectively, motions to assign certified private counsel at rates exceeding those approved by the Legislature. The judge denied the motions, ruling that he would "continue with the order appointing CPCS," as he believed G. L. c. 211D required. Leahy's objections were noted.
As for the second petition, Michael Carabello was charged in Holyoke District Court on April 2, 2004, with, inter alia, armed assault within a dwelling and kidnapping. An attorney assisted him for the purpose of "bail only," but would not represent him thereafter. Bail was set at $100,000 cash or $500,000 surety. As of July 8, Carabello remained in custody without counsel and had not had a bail review in the Superior Court.12
2. Discussion. Hagen v. Commonwealth, 437 Mass. 374, 377 (2002). Petitioners seeking relief under G. L. c. 211, § 3, must present a substantial claim involving important substantive rights, and demonstrate that any error cannot adequately be remedied in the course of trial or normal appellate review. See Elder v. Commonwealth, 385 Mass. 128, 132 (1982); Powers v. Commonwealth, 426 Mass. 534, 535 (1998).
A. Right to counsel at bail and preventive detention hearings. Several petitioners allege, and it is not disputed, that they have been ordered held in lieu of bail, or pursuant to an order of preventive detention, without the assistance of counsel. Because a defendant's liberty, a fundamental right, is at stake at a bail hearing, the principles of procedural due process in art. 12 of the Massachusetts Declaration of Rights are implicated. They include the right to be heard, which necessarily includes the right to be heard by counsel. See Commonwealth v. Torres, 441 Mass. 499, 501-502 (2004). A defendant is entitled to no less protection when the State seeks to deprive him of his liberty under the preventive detention provision of G. L. c. 276, § 58A, on the ground that he is dangerous. Section 58A (4) specifically includes a right to counsel. Neither a bail hearing nor a preventive detention hearing may proceed unless and until the defendant is represented by counsel.
B. Right to counsel at trial. The Attorney General, on behalf of the respondents,...
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