An agreement aimed at reforming Maine’s system for providing attorneys to poor defendants hit another snag Friday as the judge overseeing a years-long lawsuit said she still had concerns about the deal.

The Maine Commission on Indigent Legal Services and the American Civil Liberties Union of Maine have been working for more than a year to reach a settlement they hope will address Maine’s failing system of matching lawyers to poor defendants, but the judge appeared unconvinced by their latest attempt at compromise.

“I fully understand how hard you have all worked to get to where you all are and the good faith that has been displayed on both sides,” Kennebec County Superior Court Justice Michaela Murphy told the attorneys during a hearing on the parties’ second proposed settlement agreement. “But you still are asking this court to provide a remedy that is highly unusual and may be ultimately unenforceable – and illegal.”

The ACLU of Maine sued the Maine Commission on Indigent Legal Services in March 2022, saying the state agency failed to meet its constitutional duty to provide legal representation to Mainers who can’t afford their own lawyers. The class-action lawsuit stems from an ongoing crisis in the state’s indigent legal defense system, where hundreds of private attorneys are no longer willing to take on court-appointed cases, leaving some poor defendants without legal representation.

As of Monday, more than 215 indigent criminal defendants in Maine were waiting for an attorney, including 50 who are in custody, according to data from the court system.

But on Friday lawyers for both sides said there were reasons for optimism. They pointed to plans to create several new public defender offices around the state in the coming years, which they said would bring Maine’s indigent defense system in line with the rest of the country.

The latest proposed settlement would still pause the class-action suit for four years, giving the ACLU time to help the commission implement a plan to improve data collection and attorney training and performance.

“We’re confident that if this settlement goes forward and the defendants begin implementing these steps, it’s going to make a real difference,” Zachary Heiden, chief counsel for the ACLU of Maine, told Murphy.

The justice said she was satisfied that the parties had addressed most of the issues she laid out in her rejection of their first proposed settlement in September, including concerns that the deal would block plaintiffs from bringing another case if they continued to be denied legal help. But she remained skeptical that the deal, which hinges partly on a promise from the commission to lobby the Legislature for new laws and additional funds that could help address the shortage of lawyers, is legally enforceable.

She questioned whether a court ordering a government agency to advocate for certain policies would violate the First Amendment rights of its employees, especially those who may take office years after the settlement agreement was crafted. And she expressed doubt that she could ever possibly judge whether the commission is making its “best effort” to push the Legislature for funds.

“I just don’t know what that means,” she said. “Does that mean you have to bring sleeping bags to the appropriations table?”

Assistant Attorney General Sean Magenis, who is representing the commission, pushed back on Murphy’s concerns. He said the agreement was written so that the court would never need to order the commission to do anything – if the commission eventually decided not to carry out its part of the deal, the remedy would simply be the resumption of the lawsuit.

STATE SAYS DELAY POINTLESS

He said the proposed settlement addressed the concerns listed in the plaintiff’s complaint to the extent possible, given the commission’s limited powers. The agency does not have the authority to fund new public defender positions and must secure resources from the Legislature.

“Continued litigation in this case removes resources from MCILS and their staff of nine to roll out their public defenders officers,” Magenis said. He argued it was pointless to delay a settlement decision until the conclusion of the upcoming legislative session, an idea that Murphy floated several times.

The judge, who referred to the case as a “vexing legal problem,” appeared sympathetic but largely unswayed. She asked both sides to try to find examples of cases in Maine, and the other states where a judge approved a settlement agreement that required a government agency to advocate for particular policies.

Those briefs will be due on Jan. 15 – after a Maine Supreme Judicial Court justice is expected to rule on a separate case regarding Mainers’ constitutional rights to legal counsel.

After the hearing, Heiden said that the parties will continue to work toward a settlement that could preclude a complicated trial followed by a lengthy appeal process. But he added that his team was committed to fighting for improvements in Maine’s indigent defense system whether or not Murphy approves the deal.

“Whether it is this week or this month or next year or the following year,” he said, “we are going to be there to make sure the state lives up to its obligations under the Constitution.”

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