The American Civil Liberties Union of Maine has filed a lawsuit that says the state is failing to meet its constitutional obligations to ensure poor defendants have access to effective lawyers.

The Maine Commission on Indigent Legal Services oversees that system, and its executive director and eight commissioners are named as defendants in the complaint filed Tuesday. The plaintiffs are five people who are incarcerated in county jails. They are seeking class action status.

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 that 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 who are government employees.

“While there are many skilled and committed defense attorneys in Maine, MCILS has failed in its constitutional and statutory obligation to supervise, administer and fund a system that provides effective representation to indigent defendants throughout the entire criminal legal process,” the complaint says.

Filed in Kennebec County Superior Court, the lawsuit takes particular issue with the commission’s “lawyer of the day” program, which provides attorneys for initial appearances in which defendants often enter their first pleas. Those hearings are particularly important for people who are in jail because the lawyer of the day can advocate for their release and negotiate bail. The complaint says that program is not necessarily unconstitutional on its face, but rather under-resourced to the point of deficiency.

“On any given day, as few as two lawyers may be on hand to meet with over 80 defendants,” the complaint says. “This regime violates the Sixth Amendment because it does not come close to providing an adequate number of lawyers to even meet with – let alone provide competent representation to – defendants in need of counsel concerning the implications of potential pleas or advocacy on bail and conditions of release.”

The complaint also says the five incarcerated people have struggled to reach their appointed attorneys to talk about their cases and do not have faith in their representation. For example, one plaintiff has been in jail for nine months for allegations related to firearms possession and bail violations. The complaint said his appointed attorney does not return his calls and has not filed any motions on his behalf, and the man does not even know when his next court date is. His family is now attempting to put enough money together for him to hire a private lawyer.

The lawsuit does not focus on the actions of individual lawyers or name them as defendants. Instead, the plaintiffs say MCILS does not have the systems in place to identify when attorneys are failing to provide effective service to their clients. The complaint says the state has not set or enforced standards, evaluated the performance of rostered attorneys or provided adequate pay.

“Maine has failed in its duty to train, supervise and ensure the lawyers it assigns to defend poor people’s freedom are qualified for this essential task,” said Zachary Heiden, chief counsel at the ACLU of Maine. “This failure has created two systems of justice: one for the wealthy, and one for the poor. But the Constitution demands equal justice.”

Justin Andrus, the commission’s executive director, said Tuesday that he could not yet respond to the allegations in the lawsuit. But he said he has been advocating for major shifts in the state’s model for providing defense lawyers to indigent clients since he stepped into his role a year ago. The Maine Legislature has funded some initiatives, but not all.

“I simply see the lawsuit as a vehicle to perhaps achieve the same end that we’ve been seeking,” Andrus said.

The Legislature’s Judiciary Committee has been working this session to develop bills that could address problems at the commission. Andrus presented to the committee again Tuesday afternoon, just hours after the lawsuit was filed. The members spent most of their time talking about the proposals on the table rather than the litigation, but it still loomed large in their conversation.

“This is the time,” said Rep. Jeff Evangelos, an independent from Friendship. “Baby steps aren’t going to fix this. The lawsuit proves it. They’re the agency that got the lawsuit, but we’re the problem. Us, meaning myself included, our inability to pass legislation that’ll remedy these deficiencies and the ability of our chief executives to get behind us. We’ve got 10 or 15 days to get that changed.”

“Bring some big proposals forward, Justin,” he added.

A spokesperson for Gov. Janet Mills deferred to the Maine Attorney General’s Office and did not answer a question about what steps the governor would take to address the problems identified by the ACLU of Maine and other entities.

Maine formed the Commission on Indigent Legal Services in 2009. A decade later, a working group found that the commission did not perform 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.

In 2020, 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.

The commission has been making changes in response to these reports, and Andrus has repeatedly talked about setting up a hybrid system made up of both public defenders and appointed private lawyers. The Legislature added jobs to the understaffed office last year and increased the hourly rate for appointed attorneys from $60 to $80. But those actions fell short of expert recommendations, and lawmakers have yet to fund a proposal to open the state’s first public defender office in Kennebec County.

Attorneys who represent indigent clients in the federal courts make $158 an hour, nearly double the rate at MCILS.

The Judiciary Committee is working with Andrus to formalize proposals that might be approved during this legislative session. One such idea is roving public defenders who could travel to rural counties to take appointments when local attorneys aren’t available. They have discussed increasing the hourly rate for defense attorneys and finding other ways to give them the same resources that are currently available to prosecutors, from subscriptions to legal research tools to health insurance. Their hourly rate is expected to cover all their costs, including benefits and support staff.

Dozens of lawyers have stopped taking cases in recent years due to low morale, high caseloads, pandemic stress and other factors. Right now, roughly 280 attorneys are available to take appointments for all case types statewide. The commission appoints lawyers not just for adult criminal defendants but for juvenile defendants, parents in child protective cases and indigent people facing involuntary commitment to psychiatric hospitals.

Andrus said he is worried that the ACLU lawsuit will only exacerbate the trend of attorneys removing themselves from the roster. He stressed that defense attorneys in Maine do excellent work.

“This is not an indictment of any particular attorney,” he said. “It’s an indictment of the system.”

The ACLU of Maine has threatened for years to file a lawsuit, and Heiden said the organization decided to do so now because of the slow progress of reform.

“We decided that nothing other than a lawsuit is going to bring the necessary change,” Heiden said.

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