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               Click here for complete Senate Bill 146

                      BILL SUMMARY: SB 146
                  MONTANA PUBLIC DEFENDER ACT
             Prepared by Sheri Heffelfinger, Research Analyst, Bill Drafter
                       Montana Legislative Services Division
                                      June 2005

       The Montana Public Defender Act is Chapter 449, Laws of Montana, 2005.

                                      Overview
Scope of system


Under the Montana Public Defender Act (Act), the current locally controlled
patchwork of direct judicial appointment of counsel, contracting for counsel, or
staffed public defender offices is replaced by a single statewide system of
assigned counsel. The system will be supervised by an independent commission
and administered by an Office of State Public Defender through regional offices.
Under statewide supervision, public defender services may be provided by state-
employed public defenders or by private attorneys on contract with regional or
state offices of the Office of State Public Defender. This change will encompass
all courts and all cases in which a party is entitled by law to counsel at public
expense (i.e., all felony and misdemeanor criminal cases as well as civil cases
involving child abuse and neglect, juvenile delinquency, involuntary civil
commitment, and guardianship cases in which a party is entitled counsel at
public expense. (Section 4 of the Act consolidates current law and identifies who
is entitled to a public defender in which types of cases. Section 4 also provides
internal references to each Montana Code Annotated statute that provides for the
party's right to public defender services.)


Commission oversight


The Act establishes an 11-member state Public Defender Commission
(Commission) to "supervise and direct" the statewide system. The Commission
hires a state Chief Public Defender and must "approve a strategic plan" for the
delivery of public defender services across the state. The Commission must also
"establish statewide standards for the qualification and training of attorneys
providing public defender services". The standards must consider the criteria
stated in the Act to ensure that attorneys assigned as public defenders (whether

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state-employed or private contract attorneys) are qualified and competent to
handle the cases they are assigned. The standards must also provide for
caseload parameters, performance criteria, and performance evaluation
protocols. (See Sections 3 through 6 of the Act.)


Flexible delivery model


The Act gives the Commission flexibility to establish up to 11 public defender
regions and to determine how best to deliver public defender services within
each region. The Act states that public defender services may be delivered by
"state employees, contracted services, or other methods ... in a manner that is
responsive to and respective of regional and community needs and interests".
(See Section 3(4) of the Act.) The Office of State Public Defender and its regional
offices have the authority to contract for any services required. However, the Act
specifies that the contracts must meet certain standards adopted by the
Commission and that contracting must be done "fairly and consistently" through a
competitive process. The Act further specifies that a contract may not be
awarded based solely on the lowest bid or provide compensation based solely on
a fixed fee irrespective of the number of cases assigned. (See Section 12 of the
Act.)


Appellate defense


Under the Act, the current Appellate Defender Commission is dissolved and its
functions consolidated under the Public Defender Commission. An Office of
Appellate Defender will be established within the Office of State Public Defender.
The Chief Public Defender will hire the Chief Appellate Defender, who must
supervise the Office of Appellate Defender and "ensure that when a court orders
the office to assign an appellate lawyer or when a defendant or petitioner is
otherwise entitled to an appellate public defender, the assignment is made
promptly to a qualified and appropriate appellate defender who is immediately
available to the defendant or petitioner when necessary". This changes current
law by providing that all appellate work will be handled by the Office of Appellate

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Defender instead of by the trial-level public defenders. (See Section 9 of the Act.)


Indigence determination


The Act provides a uniform process for determining indigence and makes the
Public Defender Commission responsible for establishing procedures and rules
to "ensure that the eligibility determination process is fair and consistent
statewide". Instead of the judiciary determining indigence and eligibility, the
Office of State Public Defender (through its regional offices or using contract
services) will review a detailed financial statement and an affidavit provided by
the party for whom counsel was assigned. If the party is determined to not be
eligible, the court order for the assignment of counsel may be rescinded by the
court. However, a party is entitled to full public defender services unless or until
the order is rescinded. The Act defines indigence by stating that a person is
indigent if the person's gross household income is at or less than 133% of federal
poverty guidelines or if the disposable income and assets of the person and the
person's household are "insufficient to retain competent private counsel without
substantial hardship" to the person or the person's household. Any
determination by the Office of State Public Defender is subject to judicial review.
(See Section 14 of the Act.)


Funding


The statewide public defender system created by the Act is funded in the state's
budget. The budget for FY 2006 (a partial year of certain startup costs) is
$727,220 and for FY 2007 (a full year of all costs) $13,870,218. Some of the
state's costs will be offset by county and city funding provided for through a one-
time reduction of each county's and city's entitlement share payment. The
entitlement share payment is the amount that the state "refunds" to local
governments from revenue collected by the local governments and forwarded to
the state under a law intended to simplify state and local accounting. Under the
Act, the entitlement share reductions totaled $1,560,110 for all counties, $73,764
for consolidated governments, and $786,259 for cities (for a grand total of

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$2,420,133). The six largest counties will be audited so that actual costs may be
identified. The entitlement share reductions for these counties may be adjusted
(increased or decreased) by the next legislature based on the audit findings and
after consultations between certain legislative committees and stakeholders.
(See Sections 21 and 72.)


Transition timeline


Under the Act, the Governor was to have appointed the Public Defender
Commission by July 1, 2005. The Commission has until December 31, 2005, to
hire a Chief Public Defender, and the Office of State Public Defender must
become fully operational by July 1, 2006. Local public defenders from city- and
county-staffed public defender offices may elect to become state employees
effective July 1, 2006. The Act directs the Appellate Defender Commission and
the Public Defender Commission to work together beginning July 1, 2005, and to
manage caseloads so that by July 1, 2006, Office of Appellate Defender
functions and caseloads are transferred to the appellate office created under the
Office of State Public Defender. The old appellate defender statutes will be
repealed effective July 1, 2006.


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