February 2013 Bar Bulletin
 
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February 2013 Bar Bulletin

50 Years after Gideon v. Wainwright

County Plan Would End Nonprofit Defender Program

By Robert C. Boruchowitz

 

How should King County, which many people think has the finest county-based public defender system in the country, celebrate the 50th anniversary next month of the Gideon v. Wainwright decision establishing that states must provide counsel for poor people in felony cases?

Rather than celebrating that anniversary and congratulating the four existing nonprofit defender offices that have been recognized as among the best in the nation, King County Executive Dow Constantine has proposed to close those programs and replace them with two county government divisions. His idea is to end by July 1 the highly regarded program that has been in place for 42 years. The proposal would have to be approved by the County Council.

On January 16, the King County Bar Association Board of Trustees passed a resolution voicing its "grave concerns" about the proposal "regarding independence, conflicts of interest and disruption." The Board also expressed its ongoing support for a public defense system that maintains independence, and avoids conflicts and client disruption, and said it "will play an active role in the ongoing debate over this issue."

Not yet addressed in the proposal, which was developed without any public input or discussion, is how the disintegration of the existing offices would affect their work in Seattle Municipal Court, which relies on three of the four offices to provide representation for more than 5,000 people each year, or their work in state sex offender commitment cases. In fact, the Municipal Court judges have written to Constantine urging a "more collaborative and deliberative process" and saying it is impossible to make such a dramatic switch by July.

The County's position is that because of a proposed lawsuit settlement on pension rights under which the defenders in the four offices will be recognized as county employees with benefits as of July, it cannot keep the nonprofit structure. But the lawyers for both the County and the plaintiffs have said that the settlement does not require a change in the nonprofit structure.

The County acknowledges that the structure of public defense is not part of the settlement, which must be approved by the County Council and the Pierce County Superior Court, but says "it is untenable and without precedent to have hundreds of County employees working for several large private organizations."

Yet County Budget Director Dwight Dively told Seattle Weekly that there are various possibilities for public defense after the settlement, including "multiple" county agencies that might have "government structures different from traditional county agencies." According to the paper, he said an agency might be run by its own board or commission as a public development authority.

The directors of the four defender offices sent a letter to the King County Council stating, "Re-structuring is not required by the Dolan decision and not necessary to ensure public defenders receive fair pension and medical benefits." They pointed out that their employees now are receiving Public Employee Retire­ment System benefits and there is no need to change the structure. They also pointed out that Wash­ington State Bar Association employees are in PERS, but WSBA is independently governed. Further­more, Public Defender Service employees in Washing­ton, D.C., receive federal benefits, but are not federal employees.


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