Wyoming Supreme Court sides with public defender


CHEYENNE – Wyoming State Public Defender Diane Lozano's actions limiting which cases her office takes do not place her in contemp­t of court.

That's according to a Wyoming Supreme Court opinion issued Wednesday that sets a precedent for the ability of Lozano's office to exercise its discretion when it comes to deciding when it can represent defendants.

Lozano was previously being held in contempt by Campbell County Circuit Court Judge Paul Phillips after she said her office could no longer provide representation for misdemeanor cases due to a heavy caseload and understaffing.

The dispute stems from May 2019, when Lozano was originally held in contempt and the case was appealed to the Wyoming Supreme Court. The case had oral arguments before the high court Nov. 20.

Lozano declined to comment on the Supreme Court’s opinion per her ethical obligation not to make extrajudicial comments on cases.

The Supreme Court examined the issue of whether the circuit court erred in ruling that Lozano must accept all appointments for indigent defendants, unless the appointing court rules otherwise. Ultimately, the Supreme Court found that the circuit court was in the wrong and reversed the contempt order against Lozano.

Lozano was being fined $1,500 per day by Phillips as long as she held that the public defender’s office was unavailable for representation. Part of this case stemmed from Phillips ordering Lozano’s office to represent two misdemeanor defendants, after Lozano told him her office wasn’t available to accept new clients due to attorneys’ workload.

The Supreme Court’s opinion, in part, centers on the circuit court’s analysis of the Wyoming Public Defender Act. In doing so, the Supreme Court offered its own analysis of the act.

The parts of the act that are analyzed are sections 104 and 105, which describe that the “public defender shall represent as counsel any needy person who is under arrest for or formally charged with having committed a serious crime ...” and those provisions.

In section 105, the Supreme Court examined the language of the act pertaining to what it meant concerning when the public defender is available or unavailable.

The circuit court found the language in section 104 required the public defender to accept all court appointments, and she couldn’t declare herself unavailable. But the Supreme Court found the circuit court’s interpretation of the act is flawed because it failed to examine section 104 in the act’s context.

Lozano had sent a letter to the circuit court in May 2019, explaining that she had to declare her Campbell County field office unavailable for representation. In the letter, she stated that 4.5 attorneys were handling the caseload of 7.5 attorneys.

For this reason, the public defender couldn’t provide ethical representation to any more defendants and to do so would put the attorneys’ professional licenses at risk. She added that if attorneys continued to work outside their caseload thresholds, it went against the American Bar Association’s Rules of Professional Conduct.

Jefferson Coombs, the Campbell County public defender field officer supervisor, had testified that he had cases where he hadn’t met his client until five minutes before their court hearing. He said he would meet them in the hall before the hearing without ever having a chance to review their history – he only knew what was hanging over their head.

“Every time I do a trial, I try to take as many notes as I can in the file of all the things that I wish I could have done to prepare and didn’t so that if there’s an ineffective assistance claim it, at least, lists down there what I wished I could have done,” he testified. “I don’t tell my clients this, but most of the time, especially on misdemeanor cases, I’ve never read their police report. I’ve never watched their videos from the police. I’ve had no time to really investigate their case at all, and maybe I should be telling them that I haven’t done that, but I – I have chosen not to.”

The Supreme Court said that the plain language and the history of the act describes an indigent person’s right to representation, and section 104 doesn’t create a court’s appointment authority or state the public defender had to accept every appointment. This right to representation isn’t dependent on a court’s appointment of a public defender, and a potential appointment is only meant to help determine if a defendant is invoking their right to an attorney.

“When the section 104(a)(ii) reference to a court appointment is read in context, it plainly is not intended to be a statement of the court’s authority to appoint the public defender,” the opinion stated. “We likewise do not view section 104(a) as a mandate that the public defender accept all appointments.”

In the two misdemeanor cases Lozano’s office was ordered to represent, the Supreme Court found that the public defender didn’t attend any court proceedings as counsel for the defendants, didn’t place its name on any motions or pleadings in the case, and never filed a written motion of appearance in the cases.

For this reason, the Supreme Court found that the public defender never entered an appearance as attorneys for either misdemeanor defendant, and therefore didn’t have to enter a motion to withdraw as counsel in those cases.

The high court added that an appointment order by the circuit court doesn’t change this fact because the public defender’s office was never representing these clients, thus didn’t need the court’s permission to withdraw.

The public defender’s office was also determined to be the authority on its availability, according to the Supreme Court opinion, and not the circuit court.

“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,” the opinion stated. “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.”

The high court also added that it disagreed with the circuit court’s statements that the public defender has to prove injury or prejudice before declaring themselves unavailable. This train of thought presumes an attorney cannot take actions to prevent an ethical violation, but has to commit the violation before getting relief.

This type of thinking is against an attorney’s ethical obligations and goes against the Sixth Amendment to the U.S. Constitution, which guarantees the right to adequate representation of counsel, the opinion said.

“Moreover, we do not see that allowing the public defender to determine its availability before accepting an appointment will devolve into the chaos or shirking of responsibility that was predicted during oral argument,” the opinion said. “Just as the public defender has an ethical obligation to decline representation when it will result in a violation of the rules of professional conduct, it also has a countervailing obligation not to avoid an appointment except for good cause.”

Ultimately, because the circuit court never issued a lawful order, it couldn’t hold Lozano in contempt.

Justice Keith Kautz added a section to the Supreme Court’s opinion, stating he is specifically concurring with the majority of the arguments made in the high court’s opinion, but got to those results somewhat differently.

He said he didn’t find it necessary to participate in statutory analysis, but focused on the circuit court’s err of its “construction of the relevant statutes,” and said the circuit court abused its discretion when it found Lozano in contempt because that ruling went against the evidence she presented when she stated her office wasn’t available.

However, Kautz said he disagreed that the public defender should be the one determining the office’s availability. His interpretation of that statute “intends for the court to make the final decision about availability.”

But Kautz found the circuit court abused its discretion by not finding Lozano’s office unavailable to represent misdemeanor cases, even though she presented evidence that there weren’t any public defenders available.

Due to this abuse of discretion, he also agreed the contempt order should be reversed against Lozano.

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