SJC faces tricky constitutional challenge in indigent defense case

High court must reckon with clash of fundamental principles

THE STATE’S HIGHEST COURT is wrestling with a case centered on how to guarantee a fundamental constitutional right of the judicial system — the right of criminal defendants, even those too poor to hire a lawyer, to be represented by an attorney. But both sides in the case, as well as the SJC justices who must rule on it, seem to agree that the ultimate solution to the problem doesn’t actually rest with the court but instead with the budget-writing powers of the Legislature. That’s raising a second constitutional issue — the separation of powers limiting the reach of different branches of government — and presenting a challenge for the court to craft a ruling that upholds one fundamental constitutional principle without overstepping another.

The case involves a chronic shortage of attorneys to represent indigent clients in the Springfield District Court. The cause, all parties agree, is the low state compensation rates for lawyers handling such cases. The SJC justices who heard the case earlier this month signaled that their ruling is likely to urge the Legislature to raise the payment rates, which have barely budged in 10 years.

But a lawyer for private attorneys in Hampden County who take indigent defense cases argued that to ensure defendants’ access to counsel, the SJC should not just call on lawmakers to increase rates, but should order an increase — a move that would insert the court into the business of appropriating state funds that is the domain of the legislative branch. 

“That’s a further step” and would put the case “right there in separation of powers territory,” said Lawrence Friedman, a professor at New England Law who specializes in constitutional law. 

The problem came to a head in June, when officials in the Springfield office of the state agency charged with overseeing legal representation for poor defendants told the chief judge of the district court that there were not enough private attorneys coming forward to handle cases, and the agency’s limited number of staff lawyers were too overloaded with cases to take on more clients. 

“This appears to be one of the few problems that money can solve,” said Supreme Judicial Court Chief Justice Ralph Gants.

When Judge John Payne ordered the Committee for Public Counsel Services office to nonetheless continue providing lawyers for indigent defendants being brought to the court, the agency sought an emergency ruling from the SJC. In late June, Justice Kimberley Budd issued an order based on an SJC ruling from a very similar case brought by the agency in 2004, also in the Hampden County courts.

In the earlier case, which was brought after CPCS said it had no capacity take on additional indigent clients, the court set forth a process that has become known as the “Lavallee protocol,” named for the lead client in the case. Under the protocol, any defendant held for seven days prior to a bail hearing without a lawyer must be released, and cases must be dismissed for defendants whose charges have been pending for 45 days without being assigned lawyer.

That stopgap measure was intended to ensure that defendants’ rights weren’t violated. It was also aimed at prodding lawmakers to step forward to develop, in the words of the SJC ruling, “a permanent remedy for what can now fairly be seen as a systemic problem of constitutional dimension.” The court balked at the request by CPCS to venture into separation-of-powers territory and order an increase in funding for indigent defense. Instead, the SJC ruling said, hopefully, The Legislature is keenly aware of the defendants’ constitutional right to counsel, and of the demands that right makes on the public treasury.”

An increase in rates for private lawyers, also known as bar advocates, soon followed, but the Legislature did not make good the recommendations of a state commission for regular increases in each of the next three years, according to CPCS.

All of which puts Hampden County and the SJC, in the current case, right back where they were.

“A fifteen-year journey has led Hampden County back to the place it began: indigent defendants without counsel,” reads a brief filed in the case by the Hampden County bar advocates.

Along with the stopgap imposition by the SJC of the Lavallee protocol, CPCS approved emergency funding of $424 per day for bar advocates who agree to staff the arraignment sessions in the Springfield. As a result, says the agency, the number of indigent defendants without counsel in Hampden County went from 169 in early July to just 3 by September 10. At least two defendants have been released because of the Lavallee rule.

But everyone agrees that these are all temporary fixes, while the root problem is the state-set payment of $53 an hour for handling district court cases, a rate that has only increased by $3 over the last 10 years. 

With compensation rates stagnant and a limited pool of attorneys to start with in Western Mass., the number of days covered by bar advocates for initial arraignments in Springfield District Court dropped from 1,034 in fiscal year 2016 to 442 in 2019, according to a brief filed by CPCS.

“There’s a clear legislative fix, which is to adequately compensate people for the important good work they’re doing,” said Justice David Lowy during the November 7 oral arguments in the case.

CPCS recommended increases in bar advocate payment rates to the Legislature earlier this year. In contrast to the argument the agency made 15 years ago in the Lavallee case, when it asked the court to order pay increases, this time agency recommended that the SJC “defer to the Legislature” in the hope that it will take action on its request. 

The attorney general’s office, which is representing the Hampden County courts, took a similar stance. The SJC can “emphasize the importance of the issues presented by this case and can help spur the Legislature to act on these, just as it did in Lavallee,” Tim Casey, the attorney from Healey’s office who argued the case, told the justices.

But a lawyer representing the Hampden County bar advocates, Matthew Segal from the American Civil Liberties Union of Massachusetts, told the justices that it was not enough at this point for them to urge the Legislature to act.

Given its track record in failing to approve regular increases in the bar advocate compensation rates, “the Legislature cannot reasonably be expected to solve this problem of constitutional dimension unless it is told not only that it should, but that it must,” Segal argued to the court.

“We can only deal with what the judiciary can do, and the judiciary can’t order a pay increase,” said Justice Scott Kafker.

While Kafker’s nod to the separation of powers is broadly correct, Segal insisted that the case represents the sort of extraordinary situation in which the SJC could in fact make such a declaration. He likened it to the court’s landmark 1993 ruling in the McDuffy school funding case, which was followed within days by the governor signing the Education Reform Act that provided huge increases in aid to school districts.

As in the McDuffy case, where the court declared the state’s existing school finance system unconstitutional but held off prescribing an actual funding scheme, Segal suggested the SJC could stay a ruling declaring the current bar advocates rates unconstitutional for 60 days to give the Legislature time to act. He said anything less than that in which the court focuses on other ways to tackle the problem would be a mistake.

“There’s a risk in this case — talking about protocols and procedures — that at the end of all of this work we will have organized the deck chairs just perfectly so, but will still be heading straight toward the iceberg, and the compensation rates are the iceberg,” Segal said.  

Friedman, the New England Law professor, said the separation of powers principles under Massachusetts law “are a little blurred, and the SJC has recognized that the three branches of government are not as siloed as they are at the federal level.” 

Still, he’s skeptical that the court will cross the line from urging legislative action to ordering an increase in pay rates for indigent defense. “Even assuming the court has the authority to raise the rates,” said Friedman, “that’s opening the door to a lot of other potential instances in which litigants ask the court to fund programs, and it’s not clear to me that the court is going to be interested in going down that road.” 

Underscoring the difficulty the court would face in wading into the details of a funding solution, it’s not even clear how the SJC would determine a rate increase that would solve the constitutional requirement of ensuring enough lawyers willing to take indigent defense cases in Hampden County. While CPCS has proposed that the Legislature raise the bar advocate pay for district court cases from $53 to $60 per hour, the Hampden County bar advocates, in their brief filed in the case, call for district court rates to be increased from $53 an hour to $85 an hour.

State Sen. Jamie Eldridge, co-chair of the Legislature’s Joint Committee on the Judiciary, said the case “raises serious constitutional concerns.” Eldridge, a one-time legal aid lawyer, said he met earlier this year with CPCS officials and plans to push for an increase in bar advocates rates in the Senate budget next spring, if not sooner through a supplementary budget plan. 

“I’m hopeful that the lawsuit will spur the Legislature to take action next year to address the inequities in compensation for court-appointed lawyers,” he said. “And often it is court decisions that do push the Legislature to take action.”

His House counterpart, Rep. Claire Cronin, who co-chairs the Judiciary Committee, did not reply to several messages.

Meet the Author

Michael Jonas

Executive Editor, CommonWealth

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

SJC Chief Justice Ralph Gants concluded after 45 minutes of oral arguments that the case was, in some ways, refreshingly straightforward. “This appears to be one of the few problems that money can solve,” Gants observed wryly. 

Given the complicated — and clashing — constitutional issues swirling around the case, it seems safe to assume he and colleagues realize another well-worn aphorism also applies as the justices mull their ruling: Easier said than done.