To the Honorable Justices of the Supreme Court of the State of Minnesota:

The Board of Public Defense and the State Public Defender petition this Court for an exercise of its supervisory authority over the judicial system to help address an unprecedented crisis in the provision of public defense services. To help reduce the magnitude of this crisis, petitioners respectfully request an order requiring the following:

A. A presumption that continuances will be granted upon request in public defender cases when the defendant is out of custody, to remain in effect until July 1, 2005 or until further order of this Court.

B. A limitation on appointment of public defenders in Child in Need of Protection or Services (CHIPS) cases to one public defender per case and a prohibition on appointing individual public defenders to representation of more than one party in a CHIPS case, to remain in effect until sufficient funding to provide broader representation is obtained or until further order of this Court.

C. A requirement that no CHIPS case will be accepted for filing unless the petitioning party represents that the case has been subject to pre-petition screening, or that an emergency exists requiring the immediate commencement of the judicial process.

This request is based upon the following:

I. Introduction.

This Court has often addressed the fundamental nature of the right to the effective assistance of counsel.1 It has broadened the federal right to counsel both by applying the Minnesota constitution,2 and by use of its supervisory powers.3

The Court has also emphasized “the crucial role played by public defenders in this state’s judicial system.”4 In considering this role, it has recognized that a public defender “may not reject a client, but is obligated to represent whomever is assigned to her or him, regardless of her or his current caseload or the degree of difficulty the case presents.”5

Since 2000, total public defender case load has increased by more than 14 percent (through 2002) while, during this same period, the state’s fiscal crisis has forced a reduction in public defense attorney staff by 20 full-time equivalent positions. This, and the continuation of other trends affecting the public defense system, has created an emergency that imperils the ability of public defenders to effectively represent “whomever is assigned to her or him.”

For the reasons discussed in this petition, the relief requested is necessary to enable public defenders to accomplish their crucial role in the state’s judicial system.

2. The Petitioners.

The Board of Public Defense is the legal authority responsible for the operation of the public defense system in Minnesota. The Board recommends to the legislature the budget required to operate the statewide defense system, appoints the State Public Defender and Chief Public Defenders, and establishes standards for public defenders including caseload standards. Minn. Stat. sec. 611.215, subd. 2. There are seven members of the Board of Public Defense, four of whom are attorneys appointed by the Supreme Court and three of whom are public members appointed by the governor. The members of the Board are: R. Peter Madel, Jr. (public member and Board Chair), Laura S. Budd (public member), Molly Haugen (public member), Jonathan Jasper (attorney member), the Honorable A.M. Keith (attorney member), Larry E. Reed (attorney member), and Nancy Vollertsen (attorney member).

The State Public Defender is John Stuart. He is charged with supervising the operation, activities, policies and procedures of the public defense system in Minnesota. Minn. Stat. sec. 611.24. Mr. Stuart was a trial public defender for more than 111/2 years before being appointed State Public Defender in 1989. The mission of the State Public Defender, and the public defense system he supervises, is to provide quality criminal and juvenile legal defense services to indigent clients through a cost effective, independent, responsible and efficient public defender system.

3. The Public Defense System.

In considering solutions to the public defense crisis, it is helpful to understand how the public defense system has evolved. That evolution, both through legislative enactment and the opinions of this Court, strongly supports the current Minnesota model for delivery of public defense services - a state- funded, independent, system made up of a mix of full-time and part-time defenders.

Its History

Minnesota has led the nation in creating the right to counsel for indigent people accused of crimes. Almost 100 years before Gideon v. Wainwright established a federal constitutional right to counsel for indigent adults charged with felonies, the Minnesota legislature passed a law requiring counsel for those facing charges punishable by death or a state prison term. In 1917, adult defendants charged with gross misdemeanors also became eligible for counsel funded by the public. Importantly, that same year the legislature created a public defenders office in counties with a population of 300,000 or more people.6

This system of representation depended upon appointed counsel. The county attorney had to certify that the proposed client could not afford an attorney. The Court had to appoint counsel one case at a time. Each county had to pay the bills for cases originating there.

Organization of the modern public defense system was catalyzed by Gideon. When Chief Justice Oscar Knutson heard the Gideon case was pending, he told a colleague: “We’ve got to get going! These decisions are going to require action.” Ultimately, Chief Justice Knutson testified in the legislature in favor of a bill to establish district systems of public defense, to begin operations on July 1, 1965.7

The 1965 public defender act provided far more independence to the lawyers doing the actual work. The judges of each district —excluding Hennepin and Ramsey County, which had established their own systems of indigent defense — could vote to establish a public defender system. If they did, the Judicial Council would appoint a district public defender to hire assistants and handle the cases. Each county in the district would supply money to the public defense budget, based on its population.8 The same bill greatly simplified the provision of appellate counsel by creating the Office of the State Public Defender.

In 1967, the Minnesota Supreme Court extended the right to counsel to people charged with misdemeanors, five years before the U.S. Supreme Court did so in Argersinger v. Hamlin. In 1969, sec. 611.26 was amended to allow the judges in a judicial district to opt in to the district method for misdemeanor and juvenile public defense services. In 1981 the Judicial Council was abolished and replaced by a State Board of Public Defense. In 1985, this Court ruled that once a district had opted into the public defense system, it could not revoke that decision.9

In 1989, the legislature assumed the responsibility of providing partial state funding for the public defender system to provide felony and gross misdemeanor representation in all 10 judicial districts. Juvenile and misdemeanor representation was already provided in the 2nd District (Ramsey County) and the 4th District (Hennepin County), and would now also be provided in the 8th District. The legislature appropriated approximately $17,000,000 for district public defense to provide these services. The money was obtained in part from counties which gave up property tax relief in order to have the state assume this responsibility.

In 1993, the legislature provided the funding required for the public defense system to handle juvenile and misdemeanor cases in the 3rd District and the 6th District. In 1994, the legislature mandated that the State Board of Public Defense assume responsibility for juvenile and misdemeanor public defense in the remaining Judicial Districts in Minnesota. From that point forward, state employees would provide public defense services to eligible adults and juveniles in 85 counties. County employees, supported by state funds, had the responsibility for proving public defense services in the remaining counties, Hennepin and Ramsey.

In 1995, the State Board of Public Defense won the NLADA and ABA’s Clara Shortridge Foltz Award, named after America’s first public defender, for its dramatic improvements to public defense in Minnesota.

The Organizational Structure Today

The public defense system has ten trial districts, one for each judicial district, and an appellate office. Each district is supervised by a chief public defender appointed by the Board. The public defense system has 346.75 full time equivalent (FTE) trial lawyers available.10 It’s principal offices are located in Apple Valley, (1st District), St. Paul (2nd District), Rochester (3rd District), Minneapolis (4th District), Mankato (5th District), Duluth (6th District), St. Cloud (7th District), Willmar (8th District), Bemidji (9th District), and Anoka (10th District). The appellate office is in Minneapolis as is the administrative office. The districts also operate 14 smaller offices in small cities such as Owatonna, Crookston, and Brainerd.

The public defense system places a very heavy emphasis on direct client services and allocates only the minimum resources required for administration of a system with 540 state employees.11 Central administration consists of the State Public Defender, the Board’s Chief Administrator, the Information Services (computers and data collection) Director, one Human Resources Director, a Government Relations Manager, who also handles a part time public defender caseload, a Budget Director and a Training Director. The administrative office also has 3 non-lawyer support staff and 5 network technicians. All the Chief Public Defenders and the manager of the appellate office have caseloads.

4. The Supreme Court’s View of Public Defense

This Court has had occasion to directly consider public defense in four opinions that are of importance to the evolution, the philosophy, and the day-to-day operation of the public defense system.

In re Office of Dist. Pub. Defender for the First Judicial Dist., 373 N.W.2d 772 (1985).

This case provided the Court an opportunity to consider the structure of the public defense system. It involved a dispute between the judges of the First Judicial District and the Board of Public Defense about who should be appointed Chief Public Defender. When the judges’ preferred candidate was not chosen by the Board, they attempted to withdraw from the public defender system.

In ruling they could not, this Court reviewed the public defender statute, Minn. Stat. sec. 611.26 (1984), and emphasized that the system the judges wished would “conflict with the policy favoring professional independence of defense counsel embodied in Standard 5-1.3 of the American Bar Association’s Standards for Criminal Justice.” Id. at 776-7.12 The Court concluded that:

The control sought by the judges of the First Judicial District over the appointment of the district public defender, evidenced by their insistence that the board appoint their recommended candidate and by their response to the failure of the board to so appoint, is contrary both to the statute and to the policy favoring the professional independence of defense counsel who serve indigent clients.

Id. at 777.

Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993).

Dziubak brought a legal malpractice action against his public defenders. In this context, the Court considered whether immunity from malpractice was appropriate for public defenders. The Court recognized that a “public defender is appointed to protect the best interests of her or his client and must be free to exercise independent, discretionary judgment when representing the client without weighing every decision in terms of potential civil liability.” Id. at 775. What distinguished a public defender from a private lawyer, and what prompted the Court to provide malpractice immunity to public defenders, was a recognition of two critical factors.

First, “a public defender may not reject a client, but is obligated to represent whomever is assigned to her or him, regardless of her or his current caseload or the degree of difficulty the case presents.” Id. The Court noted that a caseload study of public defender offices had revealed that “[P]ublic defenders in Minnesota, with few exceptions, are working substantially above capacity with insufficient time to devote to their cases and their clients. Workload is too high in every district given the current level of staff. * * * And things are getting worse in this regard.” Id. (quoting The Spangenberg Group, Weighted Caseload Study for The State of Minnesota Board of Public Defense at 20 (1991)).

Second, “public defenders are limited in their representation by the resources available to their office. Public Defender offices are grossly under-funded.” Id.at 776.

Kennedy v. Carlson, 544 N.W.2d 1 (Minn. 1996).

A chief public defender brought an action seeking a declaratory judgment that the Minnesota public defender funding statutes violated the constitutional rights of indigent criminal defendants to the effective assistance of counsel by not providing sufficient funding for his office. Summary judgment had been granted in his favor. This Court’s analysis began with a recognition of the “crucial role played by public defenders in this state’s judicial system,” and that it was “concerned that adequate funds be available for public defense services to indigent juveniles and adults.” Id. at 3. The Court concluded that there had not been a substantial showing of injury in fact to either the public defender or the office’s clients and reversed the summary judgment order.

In re Stuart 646 N.W.2d 520 (Minn. 2002).

A public defender sought discharge from a case where the defendant had an unencumbered interest in real property worth more than $100,000. In its analysis, the Court considered the constitutional right to counsel as well as its prior decisions concerning the public defense system:

It is out of this concern for the right to counsel that we must jealously guard the resources of the SPD, and not provide counsel to those who are able to afford an attorney. The right to counsel necessarily encompasses the right to effective assistance of counsel, which requires time and preparation. When an ineligible defendant is provided with services by the public defender, those finite resources are improperly diverted from the representation of other clients of the public defender. Almost ten years ago we recognized that state funding for the Board of Public Defense has not kept pace with the increased workloads and responsibilities of our public defender system. Dziubak v. Mott, 503 N.W.2d 771, 775 (Minn.1993) (“Workload is too high in every [public defender] district given the current level of staff.”) (quoting The Spangenberg Group, Weighted Caseload Study for the State of Minnesota Board of Public Defense 20 (1991)). The SPD asserts that not only has this situation not improved, it has perhaps gotten worse. For these reasons, qualification of applicants is essential so that the resources of the public defender system are not unnecessarily depleted by people who, in their own right, can obtain legal counsel with their own resources. Therefore, courts must not appoint counsel for a defendant who is financially capable of retaining counsel on his own but refuses to hire an attorney.

In re Stuart, 646 N.W.2d at 524-5.

5. The Public Defense System Crisis.

Public defense is in crisis. That crisis directly affects the ability of the public defense system to fulfill its primary mission of providing quality criminal and juvenile legal defense services to indigent clients. The crisis has been spawned by several factors, none of which is within the control of the Board of Public Defense or the State Public Defender.

Caseload growth

The state public defense system has a clear statutory mandate. It must provide the services specified in Minn. Stat. sec. 611.14 and Minn. Stat. sec. 611.25. In essence, public defenders must provide trial representation to adults and juveniles in misdemeanor, gross misdemeanor and felony cases, to juveniles over 10 years of age in CHIPS cases, and appellate representation to adults and juveniles in gross misdemeanor and felony cases. In recent years, fulfilling its responsibility to provide quality representation to its clients has become increasingly difficult due to the steady increase in these cases and other cases in which public defenders provide representation.

The Board of Public Defense case load standard for a full-time public defender caseload is 400 case units per year, a unit approximating the work involved to provide representation in one misdemeanor case. A-1. This standard is based both on the Spangenberg Group, Weighted Caseload Study for The State of Minnesota Board of Public Defense (1991), and the American Bar Association Standards for Criminal Justice: Providing Defense Services, sec. 5-5.3, Third Edition (1992). A-1.13

In 2000, public defenders reported working a total of 280,357 case units, an average of 757 case units per full-time equivalent (FTE) lawyer.14 In 2001, the total case load was 294,569 case units, with an average of 795 case units per FTE. In 2002, the total number of case units was 320,222, an average of 864 per FTE. An average of 915 case units per FTE is projected for 2003. One result of this high case load is that in 2002 public defenders worked 53,000 hours more than those reflected by the organization’s FTE complement. A-1.15

Many of these extra hours fall on the backs of part-time public defenders. The impact on these lawyers is particularly acute because they are often located in rural communities, are the only public defenders available in the area, and have private practices that are adversely affected by the extra hours required by their “part-time” public defender work. A letter from part-time defender Bruce Biggins to his supervisors reflects the plight of these lawyers. A-4.

In addition to the growth in caseload, defender resources have been strained by several other factors. Since 1997, 18 new judgeships have been established. This added 18 new courtrooms that public defenders need to staff. No additional public defender staffing accompanied the increase in judgeships.

Prison population, which reflects both an increase of serious felony prosecutions and increased sentences, has soared over the last 10 years. The adult inmate population averaged about 3500 in 1992. In 2002 it averaged nearly 7000.

Increased cost of insurance

Public defense shares with other employers the burden of large annual increases in the cost of health insurance for its employees. Insurance costs rose 13 percent in fiscal 1997, 21 percent in 1998, 21 percent in 1999, 19 percent in 2000, 19 percent in 2001, 16 percent in 2002 and 24 percent in fiscal 2003. Insurance cost increases that occurred in January of 2002 and January of 2003 have added $1,600,000 to the annual financial obligations of the public defense system; none of this has been addressed through additional funding. A-2.

Staff reductions

The state’s fiscal crisis and the increasing cost of health insurance have led to reduction in attorney staff. The reduction has been forced by both the attrition that occurred following the unallotment-based hiring freeze, and through layoffs. The number of FTE assistant public defenders has been reduced by 20 since 2002. A-2.

CHIPS cases and the Children’s Justice Initiative

There has been a significant increase in the number of CHIPS cases. CHIPS cases are particularly difficult for the public defense system to handle because several individuals in a single case may have the right to counsel. In 1995, public defenders handled 4,055 CHIPS cases. In 2002, public defenders handled 10,278 CHIPS cases. The average number of public defenders per CHIPS court filing has increased from .7 in 1994 to 1.7 in 2002. A-2.

The case pressures on public defenders has increased beyond what is reflected in these statistics. The advent of the Children’s Justice Initiative (CJI) has fast-tracked the judicial process in CHIPS cases in many counties. CJI places additional service expectations on public defense including earlier appointment of public defenders, a “no continuance policy,” and vertical representation whereby public defenders “stay with the same family.” Minnesota State Courts, 2001-02 Annual Report, p. 3. While CJI goals are laudable, at present staffing levels the public defense system cannot fulfill the role envisioned for it in CJI and still meet its constitutional and statutory obligations.

Impact on Ability to Serve Clients

These factors have directly affected the ability of the public defense system to represent its clients adequately.

The impact of the crisis in the public defender system on the justice system is serious. The Legislative Auditor asked district judges to report what they considered to be the factors responsible for delay in the criminal justice system. The factors reported by 70 percent of judges were “too few public defenders” and attorneys having “too little time to prepare.” January 2001 Legislative Auditor’s Program Evaluation Report on the District Court, p. 78. Fewer judges (66 percent) identified “too few judges” as a cause for delay. Id.

“Too few public defenders” has had a troubling impact on people of color. In its landmark report in 1993, this Court’s Race Bias Task Force noted that:

The fact that public defender caseloads are so consistently heavy works to the detriment of people of color as well. People of color often report feeling that their public defenders care little about them and lack the time to give their cases the attention they require.

Minnesota Supreme Court Task Force on Racial Bias in the Judicial System, Final Report, May 1993, p. 40. One of the recommendations made by the Task Force was that sufficient public defender funding be provided to reduce caseloads to the ABA standards for criminal defense. Id. at 43. The exact opposite has happened. The average public defender now has a caseload more than double that recommended by the ABA and the Board of Public Defense weighted caseload study .

The steadily increasing caseload pressure has eroded the quality of public defense services. One reflection of this is the resignation of experienced public defenders who can no longer endure the pressure of their caseloads and the demands of the courts to move cases through the justice system. A-8, A-11. Public defenders report that they simply cannot handle the number of cases they are responsible for. A-8.

The reality of this is starkly reflected in a January 2003 resignation letter submitted by Rockwell J. Wells, a 9th District Public Defender. A-8. Mr. Wells reported that in the 11 months prior to his resignation he had handled 727 cases including 135 felonies, 53 gross misdemeanors, 343 misdemeanors, 136 adult probation violations and 27 juvenile cases. He said: “The anxiety, stress and depression brought on by my caseload eventually convinced me that my job was killing me.” He resigned to become an assistant county attorney. Unfortunately, Mr. Wells’ situation is not unique. In recent weeks, the type of pressure he reports has resulted in additional resignations of experienced public defenders. A-11.

Another reflection of these pressures is the increase in ethical complaints about public defenders serious enough to prompt investigation by the Lawyer’s Board. Chief Public Defender Fred Friedman, who represents public defenders in discipline matters, reports that complaints “against public defenders by clients and judges to the Board of Professional Responsibility have increased.” A-11. Chief Public Defender Friedman also reports that judges have become increasingly frustrated with public defenders’ inability to avoid scheduling conflicts and have chosen to address their frustration by imposing fines on public defenders. A-11.

6. Actions of the Board of Public Defense to Address Crisis

The Board of Public Defense has attempted to address this crisis by consistently asking for funding to increase the number of pubic defenders. During the 2003 legislative session, the Board asked for an additional 102 FTE lawyers for district, trial level, defense. A-2. In the absence of required funding, the Board has adopted the following priorities:

a. Constitutionally mandated criminal defense services for in-custody clients.

b. Statutorily mandated criminal defense services for in-custody clients.

c. Constitutionally mandated criminal defense services for out-of-custody clients.

d. Statutorily mandated criminal defense services for out-of-custody clients.

e. Other statutorily mandated services.

f. Other services as approved by the Board of Public Defense.

7. Temporary Measures for Reducing the Magnitude of the Crisis.

Supervisory Powers

The Supreme Court may exercise its supervisory authority to insure the fair administration of justice.16 It has used this authority to correct injustice arising from the peculiar facts of an individual case.17 More importantly, in the context of the requests made in this petition, it has used its authority to address broad problems in the criminal justice system.18

The circumstances presented in this petition create a broad problem for the criminal justice system that is as challenging as any this Court has addressed in the past. Just as this Court has used its supervisory power to rise to past challenges, it must do so here. Implementation of the measures requested will help alleviate this crisis. They will do so in the following manner:

Continuances for out-of-custody clients

The prioritization plan adopted by the Board of Public Defense recognizes that those most in need of immediate help are those in the physical custody of the state. Individuals who are in pretrial detention are often those charged with more serious offenses and/or those who have had prior encounters with the criminal justice system. This element of the proposed order will permit public defenders to focus their available time upon the clients who stand accused of the most serious offenses. This will not only assist the public defense system to continue to function, it will facilitate the judicial process and the prosecution function by focusing limited resources upon the most serious cases.

The order requested would establish a presumption that continuances shall be granted upon request when the defendant is a public defender client and is out of custody. It would permit a trial court to deny a continuance when it believes there is good cause to do so, but this Court’s order should make it clear that the presumption that favors continuances will be rebutted only in unusual circumstances.

The use of a presumption to address a problem of this nature is not unprecedented. In State v. Peart, 621 So.2d 780 (La.1993), the Court addressed a seriously under-funded New Orleans public defense system. It concluded that “the provision of indigent defense services ... is in many respects so lacking that defendants who must depend on it are not likely to receive the reasonably effective assistance of counsel the constitution guarantees.” Id. at 783. The Court mandated pretrial hearings for indigent criminal defendants and imposed a presumption of ineffectiveness of counsel. Unless the presumption could be rebutted, trial was barred.19 Interestingly, the Court noted that Peart’s lawyer, who was deemed presumptively ineffective, had “represented 418 defendants during a 7-month period.” Id. This is an average of 60 clients per month. Compare this to Mr. Wells’ report that he had represented individuals in 727 cases in an 11 month period - an average of 66 clients per month.

The presumption requested is a temporary measure. It is hoped that sufficient funding will eventually be obtained to make immediately available the quality representation envisioned by this Court as fundamental to an effective system of public defense. Unfortunately, that cannot be accomplished now without deferring less pressing and less serious matters until there is time available to provide representation in those cases. This request implicates a number of rules and statutes that are listed at A-12 of this petition.20

Limitation on CHIPS appointments

CHIPS representation has been particularly difficult for public defenders because several individuals can have a right to counsel in a single case.21 As noted, in 2002 an average of 1.7 defenders were required for each CHIPS filing. As also discussed, the problem of managing limited public defense resources to provide this service has been aggravated by the advent of the Children’s Justice Initiative (CJI). The simple reality is this: there are not enough public defenders to continue to provide representation to multiple parties in CHIPS cases and also fulfill the constitutional and statutory responsibilities of the public defense system. Limiting public defender representation to one lawyer per CHIPS case will help public defenders to continue to provide effective representation in these matters, albeit on a more limited scale, and still meet their statutory responsibilities.

If this Court issues the order requested, it should also direct trial courts not to appoint individual public defenders to represent more than one person in a CHIPS case. A bright-line rule will avoid placing public defenders in conflict situations and assure that the spirit as well as the letter of this service limitation is honored. This request implicates a number of rules and statutes that are listed at A-16 of this petition.

Pre-filing screening of CHIPS petitions

This measure will preserve judicial and prosecution assets as well as public defender assets. It requires that district court administrators not accept CHIPS petitions for filing unless the petitioner represents in the petition that the case has been subject to a pre-petition screening process. Pre-petition screening of CHIPS cases has already been implemented in a number of counties including Olmsted County. It has resulted in fewer CHIPS filings in those counties because it facilitates the resolution of issues and concerns without invoking the judicial process. Implementing this measure on a statewide basis will further reduce the number of CHIPS cases being litigated.

Petitioners recognize that there are some cases in which the interests of the child or children require immediate judicial involvement. In such cases, the petitioner would assert that pre-petition screening was not appropriate because the welfare of the child required the immediate involvement of the court or, as permitted by Minn. Stat. sec. 260C.148, that an emergency filing is necessary based upon allegations of acts of domestic child abuse. This request implicates a number of rules and statutes that are listed at A-18 of this petition.

8. Conclusion and Request for Relief.

This Court must act. The relief requested is a reasonable measure for addressing a terrible problem. Anything less than the relief requested will fail to vindicate this Court’s firmly held positions on the right to counsel and the importance of an effective public defense system.

Respectfully Submitted by:

________________________ Dated	________________________ John M. Stuart State Public Defender License No. 0106756 331 2nd Ave. S., Suite 900 Minneapolis , MN 55401 Phone: (612) 349-2565
________________________ Dated	________________________ Kevin Kajer Chief Administrator Board of Public Defense 331 2nd Ave. S., Suite 900 Minneapolis , MN 55401 Phone: (612) 349-2565
	On Behalf of Petitioners

1 State v. Costello, 646 N.W.2d 204, 209 (Minn. 2002); State v. McGath, 370 N.W.2d 882, 885 (Minn. 1985); State v. Borst, 154 N.W.2d 888 (Minn. 1967).

2 Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991).

3 Cox v. Slama, 355 N.W.2d 401 (Minn. 1984); Hepfel v. Bashaw, 279 N.W.2d 342 (Minn. 1979).

4 Kennedy v. Carlson, 544 N.W.2d 1, 3 (Minn. 1996).

5 Dziubak v. Mott 503 N.W.2d 771, 775 (Minn. 1993).

6 Act of April 21, 1917, ch. 496, sec.sec. 1-7, 1917 Minn. Laws 835-36 (codified as amended at Minn. Stat. sec. 611.12 (1988)).

7 Foster and Anderson Eds., For the Record, 150 Years of Law and Lawyers in Minnesota, p. 217 ( MSBA 1999).

8 See Minn. Stat. sec. 611.26 (1965).

9 In Matter of the Office of District Public Defender, 373 N.W.2d 772 (1985).

10 This assumes that managing attorneys carry a 25 percent caseload, as recommended by the Spangenberg Group, Weighted Caseload Study for The State of Minnesota Board of Public Defense (1991).

11 In relating this number to the number of FTE lawyers, it must be kept in mind that there are many part-time employees in the public defense system. The state employees consist of 10 chief public defenders, 350 attorneys and managing attorneys, 16 dispositional advisors, 34 investigators, 63 legal secretaries and office managers, 15 paralegals, and 33 law clerks.

12 This standard, is now embodied in ABA Standards for Criminal Justice: Providing Defense Services, sec. 5-1.3, Third Edition (1992).

13 The ABA standard states that public defenders should not accept workloads that interfere with the rendering of quality representation or that lead to a breach of professional obligations. It also states that if workload reaches the point where quality representation is compromised, or professional obligations cannot be met, the public defense organization “must take such steps as may be appropriate to reduce their pending or projected caseloads, including the refusal of further appointments.” Id. at sec. 5-5.3(b). The Commentary to sec. 5-5.3 articulates numerical standards, including 400 misdemeanor cases per year or 150 felony cases per year. This numerical standard had first been adopted by the National Advisory Commission on Criminal Justice Standards and Goals, Courts (1973). Interestingly, the Commentary also notes that the ABA Special Committee on Criminal Justice in a Free Society had recommended this set of numerical standards, but had reduced the acceptable number of misdemeanor cases per year from 400 to 300 because the earlier standards had been adopted before the full impact of the U.S. Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25 (1972) (requiring counsel in any case in which imprisonment may be imposed).

14 The Board of Public Defense statistics presented in this petition are reflected in the affidavit of Kevin Kajer, the Chief Administrator of the Board of Public, which is found at A-1of this petition.

15 The growth in case load is graphed at A-3.

16 State v. Costello, 646 N.W.2d 204 (Minn. 2002); See also Minn. Stat. sec. 2.724, subd. 4 (granting “general supervisory authority” to the Chief Justice over the state courts).

17 Shorter v. State, 511 N.W.2d 743 (Minn. 1994).

18 See e.g. State v. Costello, 646 N.W.2d at 214 (prohibiting questioning of witnesses by jurors); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (mandating recording of custodial interrogation); State v. Williams, 525 N.W.2d 538, 549 (asserting the ability to monitor and scrutinize sentencing practices to insure that defendants of color are not given harsher sentences); Cox v. Slama, 355 N.W.2d 401 (Minn. 1984) (establishing right to counsel at state expense in child support contempt cases with real possibility of incarceration); Hepfel v. Bashaw 279 N.W.2d 342 (Minn. 1979) (establishing right to counsel at state expense in paternity actions); State v. Borst, 154 N.W.2d 888 (establishing right to counsel at state expense in misdemeanor cases where incarceration a possibility).

19 Similarly, in State v. Smith, 681 P.2d 1374, 1378 (Ariz. 1984), the Court created a presumption that the Sixth Amendment was violated when convictions were obtained and a low-bid system for selecting public defenders was in place.

20 These are the rules and statutes that petitioners have identified as being implicated. There may be additional rules and statues relevant to this measure, and to each of the other measures requested in this petition.

21 Minn. Stat. sec. 260C.163, subd. 3.