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Counties may sue state over cuts to public defender system

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Park Rapids, 56470
Park Rapids Minnesota PO Box 111 56470

You cheapskate. See you in court.

That was the gist of an e-mail sent to county administrators this week by the Association of Minnesota Counties (AMC), which suggested suing the state over cuts to the public defender system.

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AMC maintains costs in child protection cases should be incurred by the state, not cash-starved counties. The organization said it will sue to prove its point and to get counties out from under an estimated $5 million to $8 million in legal fees that could come due.

Monday, massive cuts to the public defender system went into effect to erase a $3.8 million deficit. The State Board of Public Defense voted last month to stop representing parents in all new cases of Termination of Parental Rights (TPR) and Children in Need of Protection Services (CHIPS).

The board's rationale is that it's not mandated by law to take those cases and it needs to expend its limited resources assisting incarcerated people awaiting criminal trials.

AMC urged county officials to boycott paying for indigent defense counsel - after paying the legal defense bills as they come due. While that may sound like a schizophrenic strategy, AMC thinks counties should step up until formal action is taken on a statewide level.

Hubbard County coordinator Jack Paul suggests a collective action might be premature because not all counties will be negatively affected in the short term. He said Hubbard County is well prepared to accept the burden.

AMC, in the e-mail, urged each county to protest cuts for attorneys in child protection cases that the state will now shift to counties to pay for.

"As you move forward we are encouraging the counties in each district to set up a meeting with the chief judge to express your concern about the issue," the communiqué said.

The e-mail then suggested a lawsuit would force the state to find the funding for those court-appointed attorneys.

"Our position has been and will continue to be that we recognize and support that these children and adults need to have representation so it's not a question of whether they should or should not be represented," said AMC executive director Jim Mulder.

"Our issue is who should pay for it. They should be paid for with state dollars, not county property taxes."

Paul wondered about the logistics of taking the state to court. "I don't know who we would sue," Paul said. "The county can't sue the state. Can one arm of government sue another?"

Some legal research confirmed that it can, Paul learned from an attorney he consulted for a second opinion.

At stake are more than 7,100 child protection cases in which the parties need representation, if 2008 trends follow last year.

Hubbard County has lost the equivalent of a full-time public defender due to the cuts, but Paul doesn't believe there's a crisis in the criminal justice system as many attorneys have maintained.

"I think they're making a mountain out of a molehill," he said. "This came up in '03 and it never affected us."

So far Hubbard County has not been asked to pick up the tab of any attorney in a child protection case but the county has ample funds available when the time arises, Paul said.

"If we get a lot of cases and have to appoint a lot of attorneys on it it'll probably be a big deal but I'm going to guess we'll have $30,000 to carry forward next year," he said, referring to the county's legal defense budget.

To date, only $13,000 has been used of a budgeted $48,000.

AMC is rallying support for a plan to first pressure the state Legislative Advisory Commission, made up of the governor, house speaker, senate majority leader and finance chairs of both chambers. It wants an emergency declaration that would result in the funding.

But AMC's two-pronged approach would also pressure judges to order the state to pay for indigent counsel in child protection cases.

"I don't think they foresaw this was going to happen," Mulder said. "I don't think the legislators did, the governor did, that the Board of Public Defense was going to make this decision."

The last resort would be a lawsuit seeking injunctive relief. Essentially AMC would also seek a court order formally declaring that the cases are state responsibilities and then requesting reimbursement for county funds expended.

Mulder said the state can be sued for breaking the law. AMC believes the state is violating provisions of state laws by passing some legal costs of public defenders onto the counties.

"We're very hopeful they're going to have empathy for the issue of moving this onto property tax, which is already overburdened," Mulder maintained of the Legislative Advisory Committee.

Paul isn't too concerned about the debate - yet. "They send e-mails out once a month," he said of the AMC. "This last one was saying they're hoping the counties would collectively say we're not going to do this but there's not much we can do about it."

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