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Wilbur v. City of Mount Vernon

United States District Court, W.D. Washington

December 4, 2013

JOSEPH JEROME WILBUR, et al., Plaintiffs,
v.
CITY OF MOUNT VERNON, et al., Defendants

For Joseph Jerome Wilbur, a Washington resident, Jeremiah Ray Moon, a Washington resident, Angela Marie Montegue, a Washington resident, individually and on behalf of all others similarly situated, Plaintiffs: Beth E Terrell, LEAD ATTORNEY, Jennifer Rust Murray, Toby James Marshall, TERRELL MARSHALL DAUDT & WILLIE PLLC, SEATTLE, WA; Darrell Scott, LEAD ATTORNEY, Matthew J. Zuchetto, SCOTT LAW GROUP, SPOKANE, WA; Breena Michelle Roos, J. Camille Fisher, James F Williams, PERKINS COIE (SEA), SEATTLE, WA; Nancy Lynn Talner, Sarah A Dunne, ACLU OF WASHINGTON, SEATTLE, WA.

For City of Mount Vernon, a Washington municipal corporation, Defendant: Andrew G Cooley, LEAD ATTORNEY, Adam Rosenberg, Brian Christopher Augenthaler, Jeremy W Culumber, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA; Kevin Lee Rogerson, CITY OF MOUNT VERNON, MOUNT VERNON, WA.

For City of Burlington, a Washington municipal corporation, Defendant: Andrew G Cooley, LEAD ATTORNEY, Adam Rosenberg, Brian Christopher Augenthaler, Jeremy W Culumber, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA; Scott Glen Thomas, OFFICE OF THE CITY ATTORNEY, BURLINGTON, WA.

For Mr. Morgan M. Witt, Interested Party: John W. Murphy, LEAD ATTORNEY, Brett Murphy Coats Knapp McCandlis & Brown, PLLC, MOUNT VERNON, WA.

Richard M Sybrandy, Interested Party, Pro se, Mount Vernon, WA.

For Daniel B Heid, Amicus: Daniel B Heid, AUBURN CITY ATTORNEY'S OFFICE, AUBURN, WA.

For United States of America, Amicus: Deborah Leff, Jocelyn Samuels, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC; Jonathan Smith, Judith C Preston, Paul Killebrew, Roy L Austin, Jr., Winsome Geraldine Gayle, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, WASHINGTON, DC; Lawrence Kupers, LEAD ATTORNEY, ACCESS TO JUSTICE INITIATIVE, DEPARTMENT OF JUSTICE, WASHINGTON, DC.

For Mountain Law, Party Objecting to Subpoena, Objector: Anthony David Gipe, SCHEER & ZEHNDER LLP, SEATTLE, WA.

OPINION

Page 1123

MEMORANDUM OF DECISION

Robert S. Lasnik, United States District Judge.

The Sixth Amendment to the United States Constitution provides that " [i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Plaintiffs filed this lawsuit in Skagit County Superior Court in order to challenge the constitutional adequacy of the public defense system provided by the City of Mount Vernon and the City of Burlington. The defendant municipalities removed the case to federal court on July 5, 2011. Testimony on this matter was heard by the Court commencing on June 3, 2013, and concluding on June 18, 2013. Additional briefing closed in August of 2013.[1]

At trial, plaintiffs set out to prove that the Cities of Mount Vernon and Burlington are regularly and systematically failing to provide effective assistance of counsel to indigent persons charged with crimes, thereby violating both the federal and state constitutions and necessitating injunctive relief. Defendants took the position that, whatever defects may have existed in their public defense systems before 2012, they have taken significant steps to improve the representation provided, including contracting with a different law

Page 1124

firm to provide defense services, hiring additional public defenders, and paying them more. The Court must determine whether a constitutional right has been violated, whether the Cities are responsible for the violation, and what the appropriate remedy is.

FINDINGS OF FACT

Plaintiffs have shown, by a preponderance of the evidence, that indigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation. The period of time during which Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting. Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public. There is almost no evidence that Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare. In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.[2] The appointment of counsel was, for the most part, little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant. To the extent that " adequate representation" presumes a certain basic representational relationship, there was a systemic failure in the Sybrandy and Witt era. Adversarial testing of the government's case was so infrequent that it was virtually a non-factor in the functioning of the Cities' criminal justice system.

This situation was the natural, foreseeable, and expected result of the caseloads the attorneys handled. Sybrandy and Witt, both of whom also had private practices (Mr. Witt spent only 40% of his time providing public defense services), each closed approximately 1,000 public defense cases per year in 2009, 2010, and 2011 and often spent less than an hour on each case. Although both counsel testified that they did not feel rushed or overworked, it is clear that, in light of the sheer number of cases they handled, the services they offered to their indigent clients amounted to little more than a " meet and plead" system. While this resulted in a workload that was manageable for the public defenders, the indigent defendants had virtually no relationship with their assigned counsel and could not fairly be said to have been " represented" by them at all. The Cities, which were fully aware of the number of public defenders under contract, remained wilfully blind regarding their overall caseloads and their case processing techniques. The City officials who administered the public defense contracts did not feel it was necessary for them to know how many

Page 1125

non-public defense cases Sybrandy and Witt were handling, the number of public defense cases they were assigned, or even whether the defenders were complying with the standards for defense counsel set forth in the Cities' own ordinances and contracts. Even when Sybrandy and Witt expressly declined to provide basic services requested by the Cities -- such as initiating contact with their clients and/or visiting in-custody defendants -- the Cities were not particularly concerned.[3] Eric Stendal, the contract administrator for the City of Mount Vernon, testified that as long as things were " quiet and good" and there was no significant increase in the costs the Cities incurred for their public defense system, defendants were happy with the arrangement and continued to contract with Sybrandy and Witt.

After this lawsuit was filed, Sybrandy and Witt were no longer willing to provide public defense services for the Cities. The Cities issued a request for proposals and ultimately hired Mountain Law to provide the necessary services. Mountain Law came on-line in April 2012 with two attorneys. The evidence regarding initial caseloads varies significantly: the Cities negotiated the new public defense contract on the assumption that over 1,700 cases would be transferred from Sybrandy and Witt during the transition period, but Mountain Law's caseload statistics show that it was assigned approximately 1,100 cases. Whatever the true numbers, it is clear that by the end of May each of the two public defenders was handling well over 400 cases. By the end of 2012, Mountain Law had added a third attorney and another 963 cases. The Cities were kept apprised of these numbers. They were also aware that, on June 15, 2012, the Supreme Court of Washington established 400 unweighted misdemeanor cases per year as " the maximum caseload[] for fully supported full-time defense attorneys for cases of average complexity and effort," assuming a " reasonably even distribution of cases throughout the year." Because the 400 caseload limit would not be effective until September 1, 2013, neither Mountain Law nor the Cities were particularly concerned that Michael Laws and Jesse Collins were each handling over 500 cases at any given time between April and August 2012. The mantra during that period and continuing through trial was that Mountain Law would continue to work toward the 400 annual caseload limit by adding attorneys as needed. As of the time of trial, Mountain Law had added two additional attorneys (one in August 2012 and another in March 2013), presumably reducing the per attorney caseload to some extent. The preponderance of the evidence shows, however, that Mountain Law continues to handle caseloads far in excess of the per attorney limits set forth in the Supreme Court's guidelines.[4]

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The Court does not presume to establish fixed numerical standards or a checklist by which the constitutional adequacy of counsel's representation can be judged. The experts, public defenders, and prosecutors who testified at trial made clear that there are myriad factors that must be considered when determining whether a system of public defense provides indigent criminal defendants the assistance required by the Sixth Amendment. Factors such as the mix and complexity of cases, counsel's experience, and the prosecutorial and judicial resources available were mentioned throughout trial. The Washington Supreme Court took many of the relevant factors into consideration when it imposed a hard cap on the number of cases a public defender can handle over the course of a year:[5] the 400 caseload limit applies as long as counsel handles only misdemeanor cases, is employed full-time in public defense, is handling cases of average complexity and effort, counts every matter to which he or she is assigned to provide representation,[6] is fully supported, and has relevant experience. Where counsel diverges from these assumptions, the caseload limit must be lowered in an attempt to protect the quality of the representation provided.

While a hard caseload limit will obviously have beneficial effects and the Washington Supreme Court's efforts in this area are laudable, the issue for this Court is whether the system of public defense provided by the defendant municipalities allows appointed counsel to give each case the time and effort necessary to ensure constitutionally adequate representation for the client and to retain the integrity of our adversarial criminal justice system. Mount Vernon and Burlington fail this test. Timely and confidential input from the client regarding such things as possible defenses, the need for investigation, mental and physical health issues, immigration status, client goals, and potential dispositions are essential to an informed representational relationship. Public defenders are not required to accept their clients' statements at face value or to follow every lead suggested, but they cannot simply presume that the police officers and prosecutor have done their jobs correctly

Page 1127

or that investigation would be futile. The nature and scope of the investigation, legal research, and pretrial motions practice in a particular case should reflect counsel's informed judgment based on the information obtained through timely and confidential communications with the client. A failure of communication precludes the possibility of informed judgment. If actual, individualized representation occurs -- as opposed to a meet and plead system -- the systemic result is likely to be more adversarial testing of the prosecutor's case throughout the proceeding and a healthier criminal justice system overall. Again, no hard and fast number of pretrial motions or trials is expected, but when the number of cases going to trial is both incredibly small (in absolute and comparative terms) and wildly out of line with the number of trials that occurred in nearby (and sometimes overlapping) jurisdictions, it may be, and in this case is, a sign of a deeper systemic problem.

A number of defendants' witnesses, including former Pierce County Executive and Prosecutor John Ladenburg, pointed out that the adequacy of counsel cannot fairly be judged in a vacuum: the Court must also take into consideration the resources available to the other side. If, in a time of fiscal constraint, the prosecutor is also overwhelmed and/or the municipal jail cannot accommodate any more inmates, the resulting plea offers are likely to be as good as or better than the public defender could negotiate even if he or she spent untold hours on legal research and investigation.[7] The Court does not dispute the fact that many, if not the vast majority, of the plaintiff class obtained a reasonable resolution of the charges against them. The problem is not the ultimate if plaintiffs were alleging that counsel had affirmatively erred and obtained a deleterious result, the Sixth Amendment challenge would have been brought under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rather than Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The point here is that the system is broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned. Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence case may appear to be effective advocacy, but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status. It is the lack of a representational relationship that would allow counsel to evaluate and protect the client's interests that makes the situation in Mount Vernon and Burlington so troubling and gives rise to the Sixth Amendment violation in this case.

Given the fiscal constraints imposed on both sides of the criminal justice equation

Page 1128

in Mount Vernon and Burlington, it is not surprising that the Mountain Law attorneys had to adopt some of the same time-saving and " efficient" case management practices that dominated the Sybrandy and Witt era in order to handle the caseload they inherited in April 2012 and the additional cases that have been assigned to them each and every month thereafter. The evidence is clear that Mountain Law, while more willing to conduct an initial interview with their clients, is simply unable to do so in a majority of cases. Although Mountain Law staff schedule a meeting with the client as soon as the case is assigned, the attorneys' courtroom and other commitments often make it impossible to hold the meeting before the client's first appearance. Thus, the public defenders often meet their clients for the first time in the courtroom, sometimes with a plea offer already in hand. At that point, there is really no opportunity for a confidential interview, the client may or may not understand the proceedings, and the public defender is unprepared to go forward on the merits of the case. The client is given a choice between continuing the hearing so he or she can meet with the public defender or to accept whatever offer happens to be on the table.[8] While there is some evidence of investigations, legal research, and an uptick in the number of cases set for trials in Mount Vernon and Burlington since Mountain Law took over, the numbers are still shockingly low. Mr. Laws apparently spoke to only three or four witnesses in the whole of 2012, a review of fifty Mountain Law case files showed no documentation of any legal analysis or research, and there is evidence of only one pre-trial motion and five or six trials in 2012.

The Court finds that, as of the date of trial, the representation provided to indigent defendants in Mount Vernon and Burlington remains inadequate. The Court would have to make several unsupported assumptions regarding Mountain Law's ability to clear the backlog of cases it inherited, the distribution of cases within the office, counsels' experience and proficiency, and the number of new cases opened each month to conclude that the defenders' current caseloads allow the kind of individualized client representation that every indigent criminal defendant deserves and on which our adversarial system of criminal justice depends. Even if the Court were willing to make those assumptions, there is no evidence that Mountain Law has rethought or restructured the case management procedures that were developed during the first few hectic months of its contract with the Cities. Rather than providing an opportunity for a representational relationship to develop and following up as appropriate given the facts of each case, Mountain Law allowed the massive caseload to determine the level

Page 1129

of representation that would be afforded and has continued those practices even after adding additional attorneys.

The Court's findings should not be interpreted as an indictment of Mountain Law, its attorneys, or their legal acumen. The Court is encouraged by some of the changes Mountain Law is making in Mount Vernon and Burlington: the public defense system is definitely trending in the right direction, and the Court sees great promise in Mountain Law's dedicated young lawyers. By accepting a contract with the Cities of Mount Vernon and Burlington, however, Mountain Law became embroiled in an ongoing debate regarding the adequacy of our public defense systems in times of fiscal constraint and the meaning of the right to counsel fifty years after it was promised in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Although the right to the assistance of counsel regardless of economic status is established by the Constitution, legislative enactments are required to ensure that the right is maintained, and funding limitations imposed over the past few years are having a cumulative and adverse impact at both the state and national levels.[9] In the State of Washington, there are undoubtedly a number of municipalities whose public defense systems would, if put under a microscope, be found wanting. As defense counsel rightly pointed out, this is a test case that cannot properly be laid at Mountain Law's door. It was the confluence of factors in place in Mount Vernon and Burlington in 2011 - long before Mountain Law began providing public defense services - that brought the Cities to the attention of the ACLU and prompted this Sixth Amendment challenge.

CONCLUSIONS OF LAW

A. Right to Counsel

The Sixth Amendment to the United States Constitution provides that " [i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Page 1130

Counsel for his defense." [10] Such assistance is vital to the proper functioning of our criminal justice system: in the absence of adequate representation, the prosecution's case may not be subjected to meaningful adversarial testing and the defendant may be unable to assert other rights he may have or to pursue valid defenses. U.S. v. Cronic, 466 U.S. 648, 654, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See also Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (" The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." ). The United States Supreme Court has determined that the right to counsel is " fundamental and essential to a fair trial" and applies in both federal and state proceedings. Gideon v. Wainwright, 372 U.S. 335, 343-44, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (" [I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth." ).

Despite the broad language of the Sixth Amendment, Powell, and Gideon, it was not until 1972 that the Supreme Court made clear that the right to counsel extends to all cases in which the accused may be deprived of his liberty, whether characterized as a felony or a misdemeanor. In Argersinger v. Hamlin, 407 U.S. 25, 33, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court noted that the legal and constitutional questions involved in the prosecution of petty offenses are not necessarily any less complex than those that arise in felony cases. In addition, the sheer volume of misdemeanor cases may give rise to unique procedural challenges that threaten the fairness of the criminal justice system:

The volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result. . . . An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases. The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication. Inadequate attention tends to be given to the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction. . . . Suddenly it becomes clear that for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way. The gap between the

Page 1131

theory and the reality is enormous. . . . One study concluded that misdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel.

Id. at 34-36 (internal quotation marks and citations omitted). The Washington Supreme Court recognized the primacy of the Argersinger decision in McInturf v. Horton, 85 Wn.2d 704, 707, 538 P.2d 499 (1975), overruling an earlier opinion that held there was no right to appointment of counsel in misdemeanor prosecutions. See also Washington Criminal Rule for Courts of Limited Jurisdiction 3.1 ( " The right to a lawyer shall extend to all criminal proceedings for offenses punishable by loss of liberty regardless of their denomination as felonies, misdemeanors, or otherwise." ).

Mere appointment of counsel to represent an indigent defendant is not enough to satisfy the Sixth Amendment's promise of the assistance of counsel. While the outright failure to appoint counsel will invalidate a resulting criminal conviction, less extreme circumstances will also give rise to a presumption that the outcome was not reliable. For example, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, if there is no opportunity for appointed counsel to confer with the accused to prepare a defense, or circumstances exist that make it highly unlikely that any lawyer, no matter how competent, would be able to provide effective assistance, the appointment of counsel may be little more than a sham and an adverse effect on the reliability of the trial process will be presumed. Cronic, 466 U.S. at 658-60; Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940).

B. Municipal Liability under Section 1983

Under 42 U.S.C. § 1983, a municipality is a person and may therefore be liable for a constitutional deprivation. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).[11] Although a municipality may not be sued under § 1983 simply because an employee inflicted constitutional injury, where the injury is the result of a policy or custom of the municipality, the injury-generating acts are " properly speaking, acts of the municipality -- that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (internal quotation marks omitted). Discrete decisions by a government official with ultimate authority over the matter in question generally give rise to official municipal policy for purposes of § 1983. Id. at 480-81.

The Court finds that the public defense system in Mount Vernon and Burlington has systemic flaws that deprive indigent criminal defendants of their Sixth Amendment right to the assistance of counsel. Although counsel are appointed in a timely manner, the sheer number of cases has compelled the public defenders to adopt case management practices that result in most defendants going to court for the first time -- and sometimes accepting a plea bargain -- never having had the opportunity to meet with their attorneys in a confidential setting. The attorney represents the client in name only in these circumstances, having no idea what the

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client's goals are, whether there are any defenses or mitigating circumstances that require investigation, or whether special considerations regarding immigration status, mental or physical conditions, or criminal history exist. Such perfunctory " representation" does not satisfy the Sixth Amendment. See Strickland, 466 U.S. at 691 ( counsel have a Sixth Amendment duty to conduct a reasonable investigation or to make a decision, based " on informed strategic choices made by the defendant and on information supplied by the defendant," that a particular investigation is unnecessary); Cronic, 466 U.S. at 658-60; Avery, 308 U.S. at 446; Powell, 287 U.S. at 58 (" It is not enough to assume that counsel thus precipitated into the case thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Nether they nor the court could say what a prompt and thorough-going investigation might disclose as to the facts." ); Hurrell-Harring v. State of New York, 15 N.Y.3d 8, 930 N.E.2d 217, 224, 904 N.Y.S.2d 296 (N.Y. 2010) (recognizing that " [a]ctual representation assumes a certain basic representational relationship," such that the failure to communicate and/or appear at critical stages of the prosecution may be reasonably interpreted as nonrepresentation rather than ineffective representation).

Having found that plaintiffs' Sixth Amendment rights were violated, the Court must determine whether the Cities are responsible for the constitutional deprivation. Plaintiffs have shown that the constitutional deprivations at issue here were the direct and predictable result of the deliberate choices of City officials charged with the administration of the public defense system. Intentional choices made while negotiating the public defender contracts and allocating funds to the public defender system left the defenders compensated at such a paltry level that even a brief meeting at the outset of the representation would likely make the venture unprofitable. And the Cities knew it. When Mountain Law took over the public defense contract, the Cities estimated there would be approximately 1,700 cases transferred from Sybrandy and Witt and yet chose a proposal pursuant to which they would pay only $17,500 per month. That works out to $10 per case for April 2012, with the per case rate reduced in future months by each additional case assigned to Mountain Law. Mountain Law had (and still has) every incentive to close cases as quickly as possible and to minimize the time spent on each case. While every attorney, whether privately or publicly retained, must be cognizant of costs when choosing a course of action, defending an indigent criminal defendant -- any indigent criminal defendant -- on $10 per month inclusive of staff, overhead, and routine investigation costs makes it virtually impossible that the lawyer, no matter how competent or diligent, will be able to provide effective assistance.[12]

Legislative and monitoring decisions made by the policymaking authorities of the Cities ensured that any defects in the public defense system would go undetected or could be easily ignored. Despite receiving monthly reports listing case assignments, types of cases, dispositions, and hours worked on each case, the administrators made no effort to calculate the number of cases assigned to Mountain

Page 1133

Law or to evaluate the nature or extent of the services provided under the contract. After this litigation was filed, the City of Mount Vernon twice amended its ordinance related to the provision of public defender services, both times removing what little " teeth" the previous ordinances had. For example, in January 2012, the City jettisoned its previously acknowledged obligation to develop " a procedure for systematic monitoring and evaluation of attorney performance based on published criteria" in favor of a newly-found concern that such monitoring and evaluation " is not practical nor consistent with attorney/client privilege nor the constitutional rights of indigent defendants." Tr. Exs. 45 and 147. In November 2012, Mount Vernon deleted references to specific duties of the public defenders, redefined " case" to exclude from the caseload calculation matters that would clearly count toward the 400 unweighted limit under the Supreme Court's Standards for Indigent Defense, and removed the requirement that the public defenders report hours worked on and the disposition of each case.

The Court finds that the combination of contracting, funding, legislating, and monitoring decisions made by the policymaking authorities for the Cities directly caused the truncated case handling procedures that have deprived indigent criminal defendants in Mount Vernon and Burlington of private attorney/client consultation, reasonable investigation and advocacy, and the adversarial testing of the prosecutor's case. The Cities are therefore liable under § 1983 for the systemic Sixth Amendment violation proved by plaintiffs. See Miranda v. Clark County, 319 F.3d 465 (9th Cir. 2003) (finding that county could be liable for constitutional deprivations arising from funding and case assignment policies); Clay v. Friedman, 541 F.Supp. 500, 502, 505-06 (N.D.Ill. 1982) (finding that administrative head of public defender's office could be liable for non-representative decision-making and that county could be liable for promulgating policies and customs that led to the constitutional deprivation).[13]

C. Injunctive Relief

Plaintiffs have succeeded on the merits of their claim, establishing both a systemic deprivation of the right to the assistance of counsel and the Cities' responsibility for the deprivation.[14] In order to obtain injunctive relief, plaintiffs must also show irreparable injury and the inadequacy of available legal remedies. Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988). This burden is easily met here. A system that makes it impossible for appointed counsel to provide the sort of assistance required by the Sixth Amendment works irreparable harm: the lack of an actual representational relationship and/or adversarial testing injures both the indigent defendant and the criminal justice system as a whole. The exact impacts of the constitutional deprivation are widespread but difficult to measure on a case by case basis, making legal remedies ineffective. See Walters v. Reno, 145 F.3d 1032, 1048 (9th Cir. 1998).

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This Court has broad authority to fashion an equitable remedy for the constitutional violations at issue in this case. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ( " Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." ). The Court has considered whether merely declaring that a constitutional right has been violated would be enough to work a change in defendants' conduct, such that affirmative injunctive relief would be unnecessary. Having carefully considered the testimony of the Cities' officials and reviewed the recent legislative and contractual developments, the Court has grave doubts regarding the Cities' ability and political will to make the necessary changes on their own. The Cities' unwillingness to accept that they had any duty to monitor the constitutional adequacy of the representation provided by the public defenders, their steadfast insistence that the defense services offered by Sybrandy and Witt were not just adequate, but " outstanding," their surprisingly slow response to the pendency of this litigation and the Supreme Court's adoption of specific caseload limits, and their budgetary constraints all lead to the conclusion that a declaration will not be sufficient to compel change.

The Court is sensitive to the Cities' interests in controlling the manner in which they perform their core functions, including the provision of services and the allocation of scarce resources. Having chosen to operate a municipal court system, however, defendants are obligated to comply with the dictates of the Sixth Amendment, and the Court will " not shrink from [its] obligation to enforce the constitutional rights of all persons." Brown v. Plata, __ U.S. __, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011) (internal quotation marks omitted). A continuing injunction is hereby entered against defendants as follows:

-- Within seven days of the date of this Order, the officials charged with administering the public defense contracts in Mount Vernon and Burlington and all full- and part-time public defenders in those municipalities shall read the Washington Defender Association's 2007 Final Standards for Public Defense Services with Commentary (http://www.defensenet.org/about-wda/standards).

-- The Cities of Mount Vernon and Burlington shall, within thirty days of the date of this Order, re-evaluate their existing contract for the provision of public defense in light of the Court's findings and ensure that the document encourages and is no way antithetical to a public defense system that allows for private attorney/client communications at the outset of the relationship and the ability to follow up as appropriate given the circumstances, including the client's status, input, and goals. While the standards adopted by the Washington Supreme Court and the experiences of the Washington Defender Association will undoubtedly inform any evaluation of the adequacy of defendants' system going forward, the constitutional benchmark cannot be reduced to a number, and the Court declines to adopt a hard caseload limitation. The critical issue is whether the system provides indigent criminal defendants the actual assistance of counsel, such that defendants have the opportunity to assert any rights or defenses that may be available to them and appropriate adversarial testing occurs.

-- The Cities shall hire one part-time Public Defense Supervisor to work at least twenty hours per week. The Public Defense Supervisor may be either a contractor

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or a part-time employee, but the funds for this position shall not come out of the existing budget for public defense services. The parties shall have sixty days from the date of this Order to reach agreement on selection of a Public Defense Supervisor. The Public Defense Supervisor will be part of the attorney/client confidential relationship between Mountain Law and its clients, but will not be part of the Mountain Law firm. The Public Defense Supervisor may not have worked previously for the Cities, Mountain Law, Baker Lewis, or any of the Cities' witnesses or attorneys. The Public Defense Supervisor must have a minimum of five years of experience as a public defender, including jury trial experience. If the parties fail to reach agreement within sixty days from the date of this Order, each side shall submit the names and resumes of two candidates willing to serve as the Public Defense Supervisor to the Court, which will then select the Public Defense Supervisor.

-- The duties of the Public Defense Supervisor shall include:

1. Supervision and evaluation of whether the public defenders are making contact (in-person or by phone) in a confidential setting with each new client within 72 hours of appointment. If contact cannot be made within that time period, the Public Defense Supervisor shall document the reason(s) for the failure and whether an opportunity for confidential communications occurred prior to the client's first court hearing. The Public Defense Supervisor will also take steps to ensure that the public defenders perform the following tasks when they first meet with a client following a new case assignment: (i) advise the client of the right to jury trial and right to a speedy trial; (ii) advise the client of the elements of the charge and that the prosecutor must prove each element beyond a reasonable doubt to obtain a conviction; (iii) advise the client of the right to present a defense; (iv) advise the client that it is solely the client's decision whether to accept or reject any plea offer; and (v) discuss with the client any potential witnesses or avenues of investigation.

2. Monthly supervision and evaluation of the first contact with clients, documenting whether the public defenders are determining if each client: (i) appears competent to proceed with the court process; (ii) has a sufficient literacy level to understand written court documents such as the guilty plea form and sentencing orders; (iii) needs an interpreter; and (iv) is a non-citizen in need of expert immigration advice from the WDA or another source.

3. Monthly supervision and evaluation of whether the public defenders are responding appropriately to information provided by the client and discovery obtained in each case, including pursuing additional discussions with the client, investigations, medical evaluations, legal research, motions, etc., as suggested by the circumstances.

4. Establishing a policy for public defenders to respond to all client contacts and complaints (including jail kites), including the length of time within which a response must occur. The Public Defense Supervisor shall review any and all client complaints obtained from any source and the public defender's response. Use or non-use of any particular complaint process shall in no way be considered a waiver of the client's rights. The Public Defense Supervisor shall establish a process for clients to pursue a complaint if the Public Defense Supervisor fails to resolve it to the client's satisfaction.

5. Monthly supervision and evaluation of whether the public defenders are appropriately using interpreters and translators before any decisions are made by the client.

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6. Supervision and evaluation of courtroom proceedings to ensure that the public defenders are fulfilling their role as advocate before the court on the client's behalf.

7. Supervision and evaluation of whether the public defenders are fully advising clients of their options regarding possible dispositions, including information on treatment services, any options for a less onerous disposition based on treatment, explanations of plea offers, the consequences of a conviction, conditions that are normally imposed at sentencing, any applicable immigration consequences, and any other consequences about which the client has expressed concern.

8. Supervision and evaluation of whether the public defenders are maintaining contemporaneous records on a daily basis showing the amount of time spent on each task for each case, recorded in tenth-of-an-hour increments.

9. Quarterly supervision and evaluation of whether cases are being allocated to each public defender fairly and in consideration of existing workloads, the seriousness of the charge(s), any factors that make the case more complex or time-consuming, and the attorney's experience level.

10. Quarterly selection and review of fifteen randomly chosen files from each public defender to ensure that the necessary tasks are being performed and documented, with appropriate time being spent on each task. The Public Defense Supervisor shall conduct a quarterly meeting with each public defender to advise how their performance can be improved based on the file review.

11. Collecting data on a quarterly basis showing: (i) the frequency of use of investigators and expert witnesses; (ii) the number of motions on substantive issues that are filed and the outcome of each motion; (iii) the frequency with which cases are resolved by outright dismissal or a nonconviction disposition; (iv) the frequency of pleas to a lesser charge; and (v) the number of trials (broken down by bench vs. jury trials) conducted and the outcome of the trials.

12. Conducting a quarterly analysis of whether the Cities' public defense system (i) provides actual representation of and assistance to individual criminal defendants, including reasonable investigation and advocacy and, where appropriate, the adversarial testing of the prosecutor's case and (ii) complies with all provisions of the public defense contract and all applicable provisions of the Cities' ordinances and regulations. The Public Defense Supervisor shall meet with the officials charged with administering the public defense contract to advise how the Cities' performance can be improved based on the quarterly analysis.

13. Submission of biannual reports to the parties explaining: (i) whether all of the duties specified above have been performed in the most recent six-month period, and if not, why not, including a specific discussion of each duty that has not been performed and the Public Defense Supervisor's recommendations for how to achieve compliance; (ii) whether the Cities' public defense system (a) provides actual representation of and assistance to individual criminal defendants, including reasonable investigation and advocacy and, where appropriate, the adversarial testing of the prosecutor's case and (b) complies with all provisions of the public defense contract and all applicable provisions of the Cities' ordinances and regulations, and if not, why not, including a specific discussion of each item where the Cities fall short and the Public Defense Supervisor's recommendations for how to achieve compliance. The Public Defense Supervisor shall submit his

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or her first report to the parties six months after the date of this Order. The Public Defense Supervisor shall continue to submit a report every six months thereafter for a period of 24 months or until the Court orders otherwise.

-- Twelve months, 24 months, and 34 months after the entry of this Order, the Cities shall provide fifty case files, randomly selected by the Public Defense Supervisor, to plaintiffs' counsel so that they may evaluate the Cities' compliance with this Order and whether the Public Defense Supervisor is properly performing his or her duties. This Court shall retain jurisdiction over this case for three years from the date of entry of this Order, and this injunction shall remain in effect for that period. However, if the Public Defense Supervisor's annual reports show prior to that date that the system provides indigent criminal defendants actual representation by and assistance of counsel, such that defendants have the opportunity to assert any rights or defenses that may be available to them and appropriate adversarial testing occurs, defendants may petition the Court to dismiss the case and terminate the injunction at that point in time.

-- If plaintiffs believe that the Cities' efforts to provide an adequate system of public defense are not trending in the right direction or a dispute arises as to compliance with the injunctive provisions of this Order, plaintiffs' counsel shall notify defendants in writing of any objections they have regarding the Cities' efforts or compliance. Within fourteen days of receipt of the objections, the parties shall meet and confer to discuss and attempt to resolve the dispute. If the parties are not able to resolve the objections, plaintiffs may file a motion seeking appropriate relief. The motion shall be noted for consideration on the third Friday after filing, the motion and opposition pages shall not exceed 24 pages, and the reply shall not exceed twelve pages.

CONCLUSION

It has been fifty years since the United States Supreme Court first recognized that the accused has a right to the assistance of counsel for his defense in all criminal prosecutions and that the state courts must appoint counsel for indigent defendants who cannot afford to retain their own lawyer. The notes of freedom and liberty that emerged from Gideon's trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.


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