Wyoming Reverses Contempt Of Public Defender For Declining Cases

The Wyoming Supreme Court has reversed a contempt of a public defender

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.

The court held that the public defender did not have a legal or ethical obligation to seek withdrawal from cases where no appearence had been entered.

As to declining cases

The public defender is in the best position to know its resources, including its attorneys, the skills and experience of its attorneys, and the weight and complexity of each office’s caseload. We see little to be gained by requiring an evidentiary hearing for each individual case in which the public defender declares its unavailability based on those factors that are uniquely within its knowledge. As the circuit court noted in its contempt order, in the short time between the public defender’s notice of unavailability and the issuance of its order on May 23, the court made nearly three dozen appointments of private counsel. A hearing in each case would have required an expenditure of court and public defender resources that would not serve the interests of judicial economy and would have further depleted the public defender’s resources.

And ethics

The public defender testified to her actions during the roughly two months between when the Campbell County office lost three of its attorneys and her letter declaring the office’s unavailability. During that time she did the following: consulted with bar counsel concerning her ethical obligations, considered her options under the Public Defender Act, requested permission to fill the vacant positions and took steps to do that, consulted with the Governor’s office, consulted with her budget director, and reviewed caseloads in other offices to see if she could draw attorneys from elsewhere. We disagree that the time it took  the public defender to respond to the situation in Campbell County belies the seriousness of the problems.

We cannot fault the public defender for investigating other options before declaring the office’s unavailability. That it took time to decide that the only option was to declare the office unavailable does not undermine the public defender’s evidence that the ethical concerns were real and imminent. Ms. Lozano testified concerning the public defender’s caseload policies and that the Campbell County office was at 168% of the maximum caseload. Counsel for the Wyoming State Bar testified that the public defender’s policies on caseloads “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.” The field supervisor for the Campbell County office testified to instances in which he had appeared on behalf of an indigent defendant without having read the file and without knowing enough about the defendant’s circumstances to present available defenses. Based on the unrefuted evidence, the concerns that the Campbell County office could not adhere to its ethical obligations without some relief were not speculative.

Thus

In sum, section 105(b) affords the public defender discretion to decline an appointment or appointments. In exercising that discretion, there is no requirement, statutory or otherwise, that the public defender show an individualized injury in fact or meet the Strickland post-conviction showing of prejudice.

Justice Kautz concurred

No evidence before the circuit court established that the public defender could comply with the orders. To the contrary, the evidence absolutely established there was no available public defender, as the majority opinion recognizes. The evidence did not show Ms. Lozano willfully failed to provide a public defender for Mr. Johnson or Mr. Stricker, but instead showed she could not reasonably do so. The threshold requirement of willful failure to comply was not met here. There simply was no evidence which could support a finding that there was an available public defender when the Johnson and Stricker appointments occurred. As a result, the circuit court’s order of contempt must be reversed.

Our review should end at this point. It does not matter whether the statutes authorize Ms. Lozano to unilaterally declare unavailability, or require her to establish unavailability to the court.

(Mike Frisch)