ALBANY – Deferring to state policy makers, a deeply divided state appellate court yesterday dismissed a suit contending that New York had abdicated its constitutional duty to provide legal representation to indigent criminal defendants.

“There can be little doubt that what plaintiffs seek in this action — a massive overhaul of this state’s public defense system — has obvious and ominous implications for the constitutional principle of separation of powers,” Justice E. Michael Kavanagh wrote for a 3-2 majority of the Appellate Division, Third Department, in Hurrell-Harring v. State of New York, 505670. “Their claim, if granted, necessarily involves the judicial assumption of traditional legislative priorities.”

The Third Department decision will be published Monday.

The panel’s majority concluded that it is a “fundamental misunderstanding” of constitutional guarantees of a defendant’s right to counsel in a criminal action to argue, as the plaintiffs did, that the funding and administration of indigent defense programs violate defendants’ Sixth and Fourteenth Amendment rights.

“How these programs are funded and administered does not necessarily implicate the constitutional right to counsel and, as such, the claims made in this action on behalf of these plaintiffs are not justiciable,” Justice Kavanagh wrote.

Rather, the majority concluded, they are the prerogative of the executive or legislative branches of governments.

Attorneys for the plaintiffs said yesterday they would appeal to the state Court of Appeals.

The panel took six months to decide the case, an uncharacteristically long time by Third Department standards, and its ruling reflected an unusually sharp difference of opinion.

Justice Karen K. Peters wrote in dissent that it was not the plaintiffs who misunderstood the constitutional dimensions of the right to counsel, but her three colleagues in the majority.

“In our opinion, the majority’s view as to what is encompassed by this right may aptly be characterized as myopic,” Justice Peters held.

With the litigation still in early stages, Justice Peters wrote that the plaintiffs had shown sufficient evidence of receiving ineffective legal counsel for the case to go forward.

The plaintiffs argued that defendants sometimes are not represented at arraignment; lose their right to appear before a grand jury when it is waived without their consent by appointed counsel; and lack the opportunity to confer in a meaningful way with counsel who, in any case, may not independently investigate their cases.

Justice Peters argued that these and other complaints “set forth clear deficiencies that, without question, implicate plaintiffs’ right to counsel under our Federal and State Constitutions.”

She continued, “Justiciability of the instant claim is even more compelling given that the constitutional right at issue is so interwoven with, and necessarily implicates, the proper functioning of the court system itself. That is, the Judiciary has a heightened responsibility to act where, as here, the subject of the dispute involves ‘the operation and administration of the courts by the courts.’”

Justices John A. Lahtinen and William E. McCarthy joined Justice Kavanagh in the majority. Justice Leslie E. Stein joined Justice Peters’ dissent.

Various Violations Claimed

The New York Civil Liberties Union brought the suit on behalf of 20 indigent plaintiffs who claimed various violations of their constitutional rights because of the representation they received, or did not receive (NYLJ, Nov. 9, 2007).

They include Kimberly Hurrell-Harring, a nurse from Rochester facing a six-month jail sentence for allegedly trying to smuggle marijuana to her boyfriend in a state prison in Washington County. The NYCLU argues that the woman, who pleaded guilty, received minimal representation from a local public defender.

The suit contended that since being given the responsibility of providing effective legal representation to criminal defendants unable to afford counsel in 1965, New York City and the 57 counties outside the city have “abdicated” their duty to indigent defendants in violation of the federal and state Constitutions.

The suit argued that without statewide funding, staffing and performance standards, the quality of legal representation provided through Legal Aid societies, public defense offices and assigned counsel has varied widely, often to the detriment of defendants and the criminal justice system.

The NYCLU and pro bono attorneys at Schulte Roth & Zabel, who also argued on behalf of the plaintiffs, in general endorsed the 2006 recommendations of the Commission on the Future of Indigent Defense Services on improving the criminal defense system.

That commission, appointed by then-Chief Judge Judith S. Kaye, recommended scrapping the county-based approach and replacing it with a state-funded system governed by consistent regulations and standards (NYLJ, June 29, 2006).

The Legislature has shown little interest in implementing the commission’s proposals.

Few Reversals

As noted by Justice Kavanagh in his ruling yesterday, the plaintiffs in Hurrell-Harring asked in their motion for a preliminary injunction that the state be directed to establish caseload and workload limits for public defense attorneys, guarantee that every eligible indigent criminal defendant be assigned a public defense attorney within 24 hours of arrest, ensure that investigators and experts are made available to aid defense efforts and that minimum qualifications and training standards be established for appointed defenders.

Justice Kavanagh wrote that the plaintiffs’ requests, while made “under the color of constitutional reform,” all failed to “address the question as to whether an individual’s Sixth Amendment right to counsel has been violated in the underlying criminal action.”

While it is not unprecedented for courts to intervene in such circumstances, it has only been where the need for relief is “both manifest and emergent,” the court held.

“Plaintiffs have simply not made such a showing in this action,” Justice Kavanagh said.

In a footnote in the majority ruling, the judges noted that a “cursory” search of Lexis and Westlaw had revealed that out of about 900 appeals of criminal convictions over the past three years in the five counties involved in the NYCLU suit, ineffective assistance of counsel was raised as an issue in 140 cases. Only twice were convictions reversed on ineffective representation grounds, according to the court.

In her dissent, Justice Peters dismissed that research as “simply irrelevant” to the issues presented in yesterday’s case, which she said is about whether the plaintiffs have stated a cause of action for “prospective relief based on a substantial and imminent threat of the deprivation of their constitutional rights” and those of persons similarly situated.

Both NYCLU attorney Christopher Dunn and Schulte Roth partner Gary Stein said they would appeal to the Court of Appeals.

“The majority was unwilling to confront the constitutional crisis plaguing the state’s indigent defense system,” Mr. Dunn said. “But we are confident that the Court of Appeals will see this case very differently. Systemic reform cases often take many, many years.”

Mr. Stein said Justice Peters “got it right and we believe the Court of Appeals will agree.”

Assistant Attorney General Victor Paladino defended the state. A spokesman for Attorney General Andrew Cuomo declined comment.

The decision reversed Albany Supreme Court Justice Eugene P. Devine’s decision rejecting the state’s attempt to have the suit dismissed (NYLJ, Aug. 12, 2008).

Third Department panels typically hand down rulings within about six weeks of when oral arguments are heard. The Hurrell-Harring matter was argued on Jan. 15 before four justices instead of the usual five, however, because of the absence of one judge.

Under court rules, a fifth judge, Justice McCarthy, was “vouched in” at some point following oral arguments, as customarily will be done when it becomes apparent that four-member panels are likely to deadlock 2-2 when deciding cases, court officials said yesterday.