Impasse on funding leaves legal services for Maine’s poor in limbo

Justin Andrus, shown outside the Sagadahoc County Courthouse in Bath on Friday, is the interim executive director of the Maine Commission on Indigent Legal Services. The commission says it needs more money to fix failings noted by experts and a watchdog agency, but Gov. Janet Mills has said she does not want to give the commission more money until it fixes its problems. Gregory Rec/Staff Photographer

Justin Andrus keeps telling people that he didn’t actually want this job. He didn’t apply to be the executive director at the Maine Commission on Indigent Legal Services, and he almost turned down the request to take on the interim position.

“I did not believe that I could do the job that was constitutionally mandated without the funding,” Andrus said. “It has turned out that was the case.”

The U.S. Supreme Court has held that any person who is charged with a crime and facing potential jail time has the right to a lawyer, and the government is obligated to pay if that person cannot. Maine is the only state that provides those legal services solely with private attorneys who are reimbursed by the state instead of public defenders. The Commission on Indigent Legal Services oversees that system, and it is in crisis.

The commission says it needs millions of dollars to address financial and constitutional problems identified by independent experts and the state’s own watchdog agency. The governor says she doesn’t want to give the commission more money because of those problems. If legislators don’t break that chicken-and-egg cycle, a lawsuit might.

“As an organization, the ACLU of Maine is focused on solutions,” Zach Heiden, chief counsel at the civil liberties group, said. “But we’re also an organization that knows how to find our way to the courthouse when we have to, and it’s starting to look like we have to here.”

Caught in the balance are lawyers who represent indigent people in criminal matters, child protective cases and involuntary commitments. The commission roster currently includes about 375 attorneys who handle roughly 30,000 new cases each year. One of them is Cory McKenna of Portland, who said at a recent public meeting and in an interview that many lawyers are feeling demoralized, sometimes by the commission itself.

“I look forward to being able to prove to both the public at large, our clients and the state that we have an excellent court-appointed system, and the only way to do that is to have the staffing adequate enough to be able to show that service is being delivered at the highest level and that the representation is the quality that I know it is,” he told the Legislature’s Government Oversight Committee last month.

States use a variety of models to provide legal services to the poor. Some rely on public defender offices, while others use a hybrid system with public defenders and contract attorneys. The Sixth Amendment Center reported that public defenders offices can make it easier to predict costs and supervise attorneys. But those offices face their own problems when underfunded or understaffed, and they too have been subject to scrutiny and litigation.

Maine formed the Commission on Indigent Legal Services in 2009. A decade later, a working group found the commission did not have systemic oversight and evaluation of attorneys, and the state hired the nonpartisan Sixth Amendment Center to complete an independent assessment. In 2019, the center published a sweeping report about Maine’s system of providing legal defense to the poor. The many identified problems included a lack of supervision for attorneys and gaps in representation for clients. Last year, the state’s Office of Program Evaluation and Government Accountability published the first report of its own investigation, which found that the commission lacked organizational structure and established policies for attorney billing.

Justin Andrus, photographed outside the Sagadahoc County Courthouse in Bath on Friday, is the interim executive director of the Maine Commission on Indigent Legal Services. The commission says it needs more money to fix failings noted by watchdog groups, but Gov. Mills has said she does not want to give the commission more money until it fixes its problems. Gregory Rec/Staff Photographer

The commission has been making changes by expanding its board, developing new billing standards and reviewing policies. In the fall, the former executive director submitted a budget request to the governor’s office that would double the commission’s annual spending. Its baseline budget for the current year was $17.6 million, and its request for next year is more than $35 million. The increase would act on recommendations from the Sixth Amendment Center by establishing the state’s first public defender office in Kennebec County and another statewide for appellate and post-conviction review cases. It also would add 10 positions in the commission office — more than tripling the staff — and give attorneys a raise in their hourly rate from $60 to $100.

But the Maine Monitor reported in November that Gov. Janet Mills was reluctant to give money to the commission without more accountability. John Pelletier, the former executive director, stepped down in December. Mills unveiled an $8.4 billion budget proposal in January that is mostly flat and does not include any increase for the commission.

Spokeswoman Lindsay Crete said the governor, who is the former attorney general, is interested in discussing a public defender project and other proposed reforms. Crete highlighted unspent funds due to a decrease in court work during the pandemic, and she said Mills is considering whether any of that money can be spent on additional staff for the commission.

“For now, however, she feels that simply adding General Fund dollars, especially during a pandemic-driven budget shortfall, to a program that is flawed and lacking in accountability will not increase the quality of representation in Maine’s courts,” Crete wrote in an email.

Andrus, who started his temporary position in January, has repeatedly appealed to legislators in his first weeks on the job. He has emphasized that more employees are needed to help with the quality assurance, attorney training, mentorship and billing oversight that have been lacking with just four people currently in the office. He also warned the pandemic has stalled criminal cases and created a significant backlog, so “a flood” could be coming when the courts are able to operate at full capacity. He said at this time last year, there were about 18,000 total cases pending in the state’s criminal docket. Now, there are more than 27,000.

The executive director of the Sixth Amendment Center has also testified recently about his continued concerns with Maine’s system. David Carroll warned legislators that he has heard from people across the country who are interested in the executive director opening, but some are not applying because they are concerned the job will be a losing battle.

“Do you believe we can solve our problems without more money?” Rep. Jeff Evangelos, an independent from Friendship, asked during that public hearing.

“No,” Carroll answered.

Andrus will continue to make his pitch Monday at a public hearing in front of the Legislature’s Appropriations and Financial Affairs Committee.

“What I’m going to do is use my time here to do my best to build a structure, and hand it to the Legislature and the executive, and tell them this is what we need,” Andrus said. “More than that, I cannot do. However beautiful a system we might brainstorm, it will not be implemented with the staff we have now.”

The Judiciary Committee will be able to make recommendations about what to spend on the commission in the next budget, and legislators there have been more open to that plea than the governor. Its members have already supported a proposal to add two positions to the office in the supplemental budget for this year.

Sen. Lisa Keim, a Republican from Dixfield, said Friday that she still has questions – for example, why should the first public defender office be in Kennebec County, instead of the busier Cumberland County? – but she supports the request for more employees in the commission office and even the public defender concept.

“We have to be really cognizant of the fact that everyone in government has been asked to do more with less, but nobody has been asked to do so much with so little as MCILS,” said Keim, who has been involved on this topic for years.

Keim said the governor’s decision to keep the commission’s budget level in her proposal “isn’t acceptable.”

“I don’t think they’re going to get their ask, but I know that they’re going to get more,” she said.

Rep. Thom Harnett, a Gardiner Democrat who is House chairman of the Judiciary Committee, agreed the commission needs more staff to do its job and said he is interested in setting up at least one public defender office. Most private attorneys provide legal services “in a very professional and highly competent manner,” he said, and a complete revamp of the current system could cause some to stop taking these cases because they don’t want to be exclusively public defenders. But something has to change.

“If we have a flawed system, I don’t think we can morally say, well, we’ll fix it a little bit at a time until we get where we want to be,” Harnett said. “It’s not an acceptable approach to me.”

He also said this debate is “not a partisan issue.”

“I’m not going to belittle the dire fiscal situation we’re in,” Harnett said. “But I look at our committee, which is Democrats, Republicans and an independent. They all agreed that this needs to be addressed and addressed right now.”

Whether their recommendations make it into the final budget remains to be seen. The two legislators who serve as chairwomen of the Appropriations and Financial Affairs Committee said Friday that it is too early to know how they might respond to those requests.

“This is a good opportunity for the advocates of improving the program to begin to make their case. … We’ll be definitely listening,” Sen. Cathy Breen, a Falmouth Democrat, said. “We’ve got many, many folks coming before us for the biennium budget.”

“It’s important when we think about the commission to have a strong understanding of its past, its present and where it’s headed, and how any money we might allocate out could really be impactful,” said Rep. Teresa Pierce, also a Democrat from Falmouth.

Attorneys from the ACLU of Maine are also listening. In a recent public hearing, Heiden ticked off a list of states where American Civil Liberties Union affiliates have sued over inadequate indigent legal defense in the last 20 years, from Montana in 2002 to Missouri just last year. In an interview, he wouldn’t say more specifically if or when the ACLU of Maine would file a similar complaint in this state, but he emphasized that step could be avoided.

“The government has the power and responsibility to fix this,” Heiden said in an interview. “They don’t need to spend millions of dollars in court costs to have a judge tell them so.”

The budget process will take months to complete. What happens if, at the end, the state doesn’t give the commission money to make changes?

“I don’t know,” Andrus said, pausing for a long moment. “I don’t know.”