Luzerne County Chief Public Defender Albert J. Flora Jr., along with three indigent adult criminal defendants, has filed a class action suit against the county and County Manager Robert C. Lawton for what they allege is "deliberate indifference to the funding needs" of the Adult Unit of the Luzerne County Public Defender’s Office.
The suit claims the office’s ability to represent adult defendants has suffered while its juvenile representation has seen marked improvement because of grant funding following the county’s "kids-for-cash" scandal.
The 50-page complaint in Flora v. Luzerne County , filed Tuesday in Luzerne County Common Pleas Court, alleges that the county’s failure to respond to the office’s call for increased funding "has led to a grossly underfunded and thus overwhelmed Office of the Public Defender, resulting in the provision of sub-constitutional representation to many indigent criminal defendants and the complete deprivation of representation to many others."
According to the complaint, the lack of funds drove the office to institute a policy in December 2011 of denying applications for representation in all cases except those involving homicide, felony sex offenses, extradition, mental health, state parole, county probation/parole revocations, juveniles and incarcerated adult defendants.
"Defendants’ failure to provide adequate resources for the defense of indigent adult criminal defendants has deprived numerous such defendants, including plaintiffs Samantha Volciak, Yolanda Holman and Charles Hammonds, of representation, thereby violating their right to counsel under the Sixth and 14th amendments to the U.S. Constitution as well as their right to counsel under the Pennsylvania Constitution," the complaint alleges.
All of the plaintiffs are seeking a writ of mandamus ordering the county to lift a current hiring freeze on the office and to increase the office’s funding, according to the complaint.
Volciak, Holman and Hammonds have also brought civil rights claims on behalf of similarly situated indigent adult criminal defendants who have been denied representation by a county public defender because of funding constraints.
Those plaintiffs are seeking injunctive relief ordering the county to pay for private counsel to represent them in their criminal cases, according to the complaint.
Flora also filed a separate suit against the county on Tuesday in the U.S. District Court for the Middle District of Pennsylvania, seeking a preliminary injunction barring the county from firing him in retaliation for filing the suit in county court.
The federal complaint cites remarks made by the county’s interim manager, Thomas Pribula, at a January budget meeting and first reported by the Wilkes-Barre Times Leader in which Pribula said he believed Flora would sue over lack of funding to the Public Defender’s Office and noted that the county had the power to replace Flora for a "lack of cooperation" if it chose to.
According to the complaint in county court, Flora became chief public defender in May 2010, taking over for Basil Russin, who had "tried in vain since 2007 to secure additional funding for the OPD from the county."When he became chief public defender, Flora was focused on improving juvenile representation in the county in the wake of the "kids-for-cash" scandal, according to the complaint.
Following the May 2010 report of the Interbranch Commission on Juvenile Justice, according to the complaint, Flora was able to obtain grants from the state Commission on Crime and Delinquency and the Luzerne-Wyoming Counties Mental Health/Mental Retardation Program, which he used to form a separate Juvenile Unit by hiring an attorney, two social workers, a secretary and an investigator.
Flora was also forced to move an attorney from the Adult Unit to the Juvenile Unit and has since been denied authorization by the county to fill that vacancy on the adult side, the complaint alleges.
In June 2010, according to the complaint, Flora provided the county and its commissioners with a report detailing the lack of funding for the Adult Unit.
In his 2011 budget proposal, Flora advocated for the hiring of two appellate attorneys to the Adult Unit because the two trial lawyers on staff lacked experience in handling appeals, according to the complaint.
In his 2012 budget proposal, Flora again asked for two appellate attorneys and two more secretaries on the adult side to no avail, according to the complaint.
In December 2011, the office began declining representation in some cases, informing defendants that while they were eligible for counsel, a lack of funding prevented the office from providing counsel to them, according to the complaint.
"To date, the office has declined representation to over 300 eligible criminal defendants," the complaint alleges.
In January, the county decreased the office’s funding from $2.68 million in 2011 to $2.36 million, which would have forced the office to cut four positions. But Flora was able to use his $2.5 million allotment from a county-approved tax increase to avoid staff cuts, according to the complaint.
The county did institute a hiring freeze in February, however, preventing Flora from filling the four current vacancies in his office, the complaint alleges.
In March, according to the complaint, one of the office’s part-time attorneys informed Flora that he could no longer accept cases reassigned as a result of vacancies because his caseload was already full.According to the complaint, the office handled 4,361 new cases, including county probation and parole revocation proceedings, in 2011 alone.
Witold "Vic" Walczak, legal director for the ACLU of Pennsylvania, which is co-counsel for the plaintiffs in the county suit and sole plaintiffs counsel in the federal suit, said the funding issue "ultimately stems from the fact that Pennsylvania is the only state that provides no funding or oversight for indigent defense. They’ve left counties to their own devices."
"What made this a particular target for us is that the office managed to improve the Juvenile Unit to the point where it’s now getting awards, but that was done in part by savaging the resources of the Adult Unit," Walczak said.
Lawton could not be reached for an immediate comment late on Tuesday afternoon.