The state commission responsible for overseeing criminal defense attorneys who take court-appointed clients has voted to support a new settlement with a Maine civil rights group.

The Maine Commission on Indigent Legal Services approved the proposed settlement with the American Civil Liberties Union of Maine at its monthly meeting Monday afternoon, though the terms of the agreement were not released and still need to be approved by a judge. 

The ACLU of Maine sued the commission in March 2022, saying the state wasn’t honoring its Sixth Amendment obligations to provide effective counsel to those who are entitled to it. The ACLU was later granted class-action status.

The two parties have been discussing a settlement for more than a year. They reached their first deal in August, but Kennebec County Superior Court Justice Michaela Murphy rejected it weeks later. Murphy said she appreciated the agreement’s long-term approach to systemic reform, but that it offered no emergency relief to the thousands of class members involved, any number of whom may be deprived of meaningful legal representation.

A spokesperson for the ACLU said the latest proposal hadn’t been filed in court yet and declined to provide and discuss the proposal. A spokesperson for the Office of the Maine Attorney General, which is representing the commission in the lawsuit, did not immediately respond to a request for the document.

Commission members voted to support the proposed settlement after an hour-long executive session, after which there was little public discussion. Chair Joshua Tardy said he was supporting the new deal after “careful deliberation.”

He declined to discuss provisions of the new agreement before it’s been considered and approved by Murphy.

“My decision to support the proposed settlement is really a combination of things I’ve stated on record. It’s based on the advice of counsel and the recommendation of the (MCILS) director, as well as my own participation in various judicial settlement conferences,” Tardy said after the meeting.

Commissioner Donald Alexander was the only member to vote against the agreement, saying in a phone interview Monday night that the new deal maintains much of the regulatory framework included in the last one.

He remains opposed to prioritizing public defense positions, and dedicating commission staff and resources to gathering more data for what he said are “past” issues. He thinks the agreement gives too much authority to the ACLU of Maine that other advocacy groups haven’t been granted, and that the agreement fails to consult state agencies who have the authority to give the commission more funding, citing the governor’s office.

“Because they’re the ones who have to make the decision to pay the money,” Alexander said.

Both MCILS and the ACLU of Maine have said they would rather settle than go to trial.

At a hearing in September about how to move forward after the judge rejected the first settlement, an attorney for the ACLU said any future agreement would likely maintain a regulatory framework outlined in the original proposal, which established a timeline for the commission to consider, adapt and enforce standards for the private attorneys who handle a majority of the state’s court-appointed work.

The original agreement also would have allowed the ACLU to provide the commission with its own recommendations for minimum attorney qualifications, the process for addressing conflicts of interest, complaints and performance standards. The ACLU also would have provided the commission with recommendations to improve its “lawyer of the day” program, where attorneys represent indigent defendants during their initial appearance, before the court can locate a more permanent defense attorney.

It also called on the commission to continue advocating for more resources from the Legislature and to issue regular reports on its progress.

“We do still believe, however, that a negotiated resolution of this case will provide meaningful and effective relief to the people of Maine,” ACLU of Maine Chief Counsel Zachary Heiden said at the time. “We’re going to try the best we can to try to refashion the proposed settlement agreement, working with counsel for the defense, into something that the court can approve.”

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