Legislature proposes diverting local funds to public defender's office

A proposal in the Montana Legislature would divert funds from counties across Montana and put them into the state Office of the Public Defender, through an amendment attached to HB 2.

Office of Public Defender Director Rhonda Schaffer said the office has had a tough time staying within budget even after trimming $7 million in expenditures.

The state has provided the office a supplemental fund of $7 million.

Hearings are underway in Helena in the Legislature’s Joint Appropriations Subcommittee on the Judicial Branch, Law Enforcement and Justice, on the amendment, which would force cities, counties and local governments to pay more of OPD’s costs.

“The county can’t afford for the state to take our money,” Hill County Commissioner Mike Wendland said. “Counties can’t keep bailing out our state because of these projects. It’s not fair for the state to take our county’s entitlement money and use it to fund the public defenders.”

According to its official website, OPD “provides representation to criminal defendants, children moving through foster care, elderly people who are being institutionally committed, death penalty defendants and others.”

County commissioners from around the state are fighting against the amendment.

“Local governments in Montana are forced to make difficult funding decisions each day,” Madison County Commissioner and Montana Association of Counties President Jim Hart said. “With our limited resources, we need to hold our departments accountable to stay within appropriation limits and manage the public’s resources effectively and efficiently.”

MACo and League of Cities and Towns said that local officials were not part of the discussion when the state changed how the cost would be divided up and the OPD budget would play out.

“The increasing costs for the public defender system have been legislatively authorized each biennium based on the Legislature’s determination that additional resources, staff, contracted services and operational dollars were necessary to grow the state Public Defender system,” MACo Executive Director Eric Bryson said. “Counties don’t have additional revenues from income tax to cover this ongoing shortfall. When your public defender costs increase based on increased criminal behavior, so do ours.”

According to a recently published press release, “Members of the Part D Joint Appropriations Subcommittee (on judicial branch, law enforcement, and justice) heard testimony from OPD that local ordinances are driving up the cost of counsel in Montana.”

At the heart of the amendment is the idea that counties that use up more OPD resources would see a bigger share of the costs extended to them.

“Cost-cutting measures have been put in place,” Schaffer said, adding that “while the number of cases has decreased, we are spending more time on the cases. … Our public defenders handle an average of 160 to 180 cases.”

A Yale study has shown that most fees that defendants convicted of a crime are charged to pay for public defenders end up getting waived by the judge, meaning that money which would go to fund the OPD is not going there.

“Here in Montana, while convicted felons we represent are required to pay a fee to reimburse our office, they can usually get the fee waived if they can’t afford it,” Schaffer said.

Wendland said the facts don’t back up the idea of charging the local government.

“Rationale for taking this money is not shown in the decreasing caseload,” Wendland said.

Hart said the state should not be passing the buck to the local governments.

“The state needs to figure out a better way to find the money to fund their own departments, before they attempt to take money away that belongs to the counties,” he said.