Lozano v. Circuit Court of the Sixth Judicial Dist.

• Decision Date: 01 April 2020
• Docket Number: S-19-0121
• Citation: 460 P.3d 721
• Parties: Diane LOZANO, State Public Defender, Petitioner, v. The CIRCUIT COURT OF the SIXTH JUDICIAL DISTRICT and Honorable Paul S. Phillips, Circuit Court Judge, Respondents.
• Court: Wyoming Supreme Court

460 P.3d 721

Diane LOZANO, State Public Defender, Petitioner,

v.The CIRCUIT COURT OF the SIXTH JUDICIAL DISTRICT and Honorable Paul S. Phillips, Circuit Court Judge, Respondents.

S-19-0121

Supreme Court of Wyoming.

April 1, 2020

Representing Petitioner: Bridget Hill, Wyoming Attorney General; Michael J. McGrady, Deputy Attorney General, Cheyenne, Wyoming. Argument by Mr. McGrady.

Representing Respondents: Hampton K. O’Neill, John A. Masterson, and Alaina M. Stedillie of Welborn Sullivan Meck & Tooley, P.C., Casper, Wyoming. Argument by Mr. O’Neill.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] In May 2019, State Public Defender Diane Lozano notified the Circuit Court of the Sixth Judicial District that until further notice, the public defender was not available to take appointments to represent misdemeanor defendants due to an excessive caseload and shortage of attorneys in its Campbell County office. Shortly thereafter, the circuit court entered orders appointing Ms. Lozano, or her representative, to represent misdemeanor defendants in two cases. When the local public defender’s office declined the appointments, the court held Ms. Lozano in contempt. We granted Ms. Lozano’s petition for a writ of certiorari and now reverse.

ISSUE

[¶2] The dispositive issue is:

1. Did the circuit court err in ruling that the public defender must accept all appointments to serve as counsel for indigent defendants unless and until the appointing court rules otherwise?¹

FACTS

[¶3] On May 1, 2019, the circuit court received a hand-delivered letter from State Public Defender Diane Lozano. The three-page letter was addressed to circuit court judges Paul S. Phillips and Wendy M. Bartlett and advised:

I know you are aware of our staffing issues in [the] Campbell County Public Defender office. We have 4.5 attorneys handling the workload of 7.5 attorneys. We are now in a situation where we can no longer provide ethical and effective counsel for the workload in Gillette. Because of this and pursuant to the Public Defender workload standards, I am informing you that we are not available to take misdemeanor cases until our staffing numbers reach the necessary levels. Please see W.S. § 7-6-105(b). Our workload standards require that an office be below 100%; our Gillette office is now at 168% of workload maximum standards.

[¶4] Ms. Lozano explained the public defender policies on maximum workloads, how those policies were derived, and how she applied the standards contained in the policies. She further explained:

In essence, if the public defender field offices have workloads that exceed 100%, the right to counsel is jeopardized; a lawyer with an excessive workload cannot provide competent, diligent or conflict free representation. These attributes of effective assistance of counsel are required not only by case law but are requirements of the Code of Professional Responsibility. The State Public Defender and Bar Counsel have worked closely on this matter and he agrees that excessive workloads result in unethical representation. When an attorney cannot meet his/her ethical obligations, she not only jeopardizes the client’s constitutional rights, she jeopardizes her license to practice law. The Public Defender has determined that when a workload exceeds 100% within a field office, that the field office will no longer be able to accept new cases. This would then require the courts to either reduce the number of public defender appointments, to allow defendants to represent themselves or to appoint private counsel. I have determined that the least harm to the system and to the indigent accused [is] to declare that the public defender is unavailable to accept new misdemeanor cases. Once my office is fully staffed, we will again accept new misdemeanor cases.

To add to the crisis, nobody is applying to work for the Public Defender in Gillette. Our turnover is high and becomes cyclical: when staffing levels are low, the attorneys who remain with us have to work the overload and they become burned out and eventually quit. Furthermore, our attorneys are working on a market pay from almost a decade ago and when that market analysis occurred it did not include local attorney pay. We know that the Campbell County Attorney’s (CCA) office (who hired two of our attorneys) pays much more and includes benefits and amenities our office cannot match. The CCA also has 2-3 times the support staff as our field office in Gillette. Although we do not know why attorneys are reluctant to work for us, we do know why they are reluctant to keep working for us. I hope we can attract qualified applicants to work for us in Gillette. As of now, we have an attorney who will start working for us August 1, 2019. But nobody else is applying. I will do my part to aggressively recruit and hire new attorneys and I am working with the Governor and the budget office to address in further budgets the ability and resources we need to retain attorneys in Campbell County.

I understand that you may have to appoint private counsel which would require the Public Defender to compensate those attorneys pursuant to W.S. § 7-6-109. I have informed Governor Gordon of this possibility as well as the possibility that paying for private attorneys in Campbell County may well "bankrupt" the entire Public Defender budget.

I want you to know that this decision was not one made lightly nor was it made without hesitation. I believe my attorneys are the best defense attorneys in the state. But no matter [what] the quality of an attorney is, he cannot do the work of two attorneys. I can no longer ask my attorneys to jeopardize their professional licenses, nor can I allow our understaffing to harm the right to counsel for defendants in Campbell County.

I understand full well the enormity of this decision. If I could reach another conclusion I would. I hope we can use this as an opportunity to better determine who qualifies for public defender services and what cases are assigned a court appointed attorney. I have also copied [the] County Attorney ... on this letter, as I know he and his staff can assist with those determinations.

The Public Defender in Campbell County is at the end of the constitutional and ethical rope that enables us to honor the indigent accused’s right to counsel. [The supervising attorney in our Gillette office] can express to you the particulars of being over worked and what that looks like on a day to day and case by case basis.

I apologize sincerely and wish we could address this in another way. I do not believe there is another option. Of course, I am available at your convenience to discuss this matter.

[¶5] On May 6, 2019, Judge Phillips entered an order appointing Ms. Lozano or her representative as counsel for Devan Stricker, a defendant in a misdemeanor case. On the same date, Judge Bartlett entered an order appointing Ms. Lozano or her representative as counsel for Ryan Johnson, also a misdemeanor defendant. On May 7, 2019, the field supervisor of the local public defender office provided notice in each case that no attorney there was available to accept the appointment and directed the court to its authority to appoint private counsel. The public defender referenced and attached Ms. Lozano’s May 1 letter to each notice.

[¶6] In response to the public defender’s declinations, the circuit court, on that same date, issued orders to show cause in the Stricker and Johnson cases. The orders directed Ms. Lozano to appear and show cause why she should not be found in contempt of court "for willful failure to abide by" the court’s order to provide public defender services. The orders were thereafter consolidated for purposes of the contempt hearing, which was set for May 21, 2019. On May 13, the court issued orders appointing private counsel in both the Stricker and Johnson cases, as authorized by the Public Defender Act.

[¶7] On May 21, 2019, the court held a hearing on the order to show cause and received the evidence Ms. Lozano presented as to why she should not be held in contempt. State Bar Counsel Mark Gifford testified that a public defender has the same legal obligations as a private attorney. He further testified that the public defender’s policies on caseloads and excessive caseloads "are a reasoned implementation of the principles that have been carefully developed by the ABA on a national level." He added:

I think the policies do support a way of measuring when an attorney’s caseload gets to the point where the attorney has no ethical choice but to decline representation. Rule 1.16 makes it clear that an attorney should not undertake representation if he can’t comply with the Rules of Professional Conduct. And the ultimate point at which he can’t provide effective representation is when your caseload is so high that you are not able to adequately and professionally represent each of your clients.

[¶8] The field supervisor for the local public defender office also testified. He explained the difficulties created by the local office’s understaffing and excessive caseload and cited specific instances in which he felt he had been inadequately prepared because of his caseload.

Q. Based upon your understanding of the attorneys that work in the Public Defender’s Office here, what do you think the impact would be on the morale if the office was to deal with an ethical complaint about an attorney having too many cases, excessive caseloads?

A. I am always – I’m not sure if I phrase the right word but maybe apprehensive that a complaint is going to come about me because I have cases where I appear and I have not ever met the client before the hearing. I meet them in the hall five minutes before and [sic] him or her, and just last week I had a probation revocation and I met the client less than five minutes before that hearing. I’d never even seen him before. I had not had time to review his history at all. All I knew essentially was what was hanging over

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