Zach Heiden, chief counsel at the ACLU of Maine, right, testifies in favor of LD 1101 during an emergency public hearing Wednesday before the Legislature’s Judiciary Committee. Joe Phelan/Kennebec Journal

An apparent compromise bill aimed at solving key issues in Maine’s public defense system had too many deal-breakers for almost anyone to fully endorse it during a public hearing Wednesday.

Lawmakers are considering an emergency proposal to require the Maine Commission on Public Defense Services to pay all attorneys doing court-appointed work, including those a judge selects without vetting from the commission. It would also authorize the commission to hire three new administrative and five new public defense positions at an estimated cost of more than $3 million over the next two years.

But the bill — aimed at meeting both the commission’s needs and the demands of Gov. Janet Mills — only seemed to increase the divide between the two parties. The Legislation needs support from two-thirds of each chamber to pass.

Maine has struggled for years to find enough attorneys to represent people who cannot afford their own, and a judge recently announced plans to begin releasing people from jail who don’t have lawyers after declaring it a constitutional violation.

Superior Court Justice Michaela Murphy has given the commission until April 3 to come up with a plan to provide attorneys for unrepresented defendants. Anyone without a lawyer after that will start going through a review process and could be released from jail.

Mills and commission leaders have been at odds on how to best approach the crisis for months. While the commission has repeatedly insisted it needs more resources, Mills has argued it’s not doing enough.

“We need to honor the rights of both the people who are incarcerated and also the right of residents of our state to live in safety,” said Sen. Anne Carney, D-Cape Elizabeth, who co-sponsored the bill as a co-chair of the Judiciary Committee.

OBJECTIONS FROM ALL SIDES

Mills, a former prosecutor who also worked as a court-appointed defense attorney, has repeatedly criticized the commission’s eligibility and caseload rules and said she would refuse to allocate any new funding unless those changed.

Mills “has supported substantial increases in funding for public defense services in the last four years, and yet the Maine Commission on Public Defense Services (MCPDS) has continued to struggle to meet the need,” her attorney, Gerald Reid, wrote in submitted testimony to lawmakers.

Under the proposed bill, any attorney who is deemed “qualified” by a judge and is willing to take on court-appointed defendants must be reimbursed by the state, regardless of whether they’ve been vetted by the commission.

Julie Finn, who testified on behalf of the judicial branch, told lawmakers that she expects the change would only help a limited number of cases.

Mills and many court officials — including Supreme Judicial Court Chief Justice Valerie Stanfill — say judges have always possessed an “inherent authority” to appoint nonrostered attorneys.

When an unrepresented Auburn man released from custody last year violated his bail conditions that barred him from contacting a woman, eventually leading to a fatal shootout with police, Mills questioned why a district court judge hadn’t just appointed him a lawyer herself.

Jim Billings, the executive director of the commission, criticized any proposal that would require him to reimburse unapproved attorneys doing court-appointed work.

“Why would anyone renew with our program next July if they don’t have to put up with any of our rules, programs, billing, any of that?” Billings said.

He also raised concerns about billing and oversight, asking lawmakers how the commission would know what they’re paying for.

Tina Nadeau, a Portland defense attorney who is director of the Maine Association of Criminal Defense Lawyers, said the bill’s efforts to allocate more funding to public defense was noble but the rest is “problematic.”

She cited several reports, including one by the 6th Amendment Center, that warned of Maine’s current crisis and criticized a historic lack of regulation for attorneys representing poor Mainers.

“And what did this committee do? They rolled up their sleeves, took to heart those recommendations, and made necessary changes,” Nadeau told lawmakers Wednesday, adding that many of the eligibility requirements and recent caseload limits were enacted by the commission as a result of those criticisms — and at the Legislature’s request.

“To completely eliminate any qualifications or oversight by the commission, and yet require the commission to pay these people, it makes no sense,” Nadeau said.

‘INSTITUTIONAL PROTECTION’

Mills’ office also asked lawmakers to amend the bill to “make clear that the attorneys employed by the Commission serve at the pleasure of the Executive Director,” instead of local “district defenders,” the more experienced attorneys who have been hired to lead the state’s five new public defense offices.

But three of those lead attorneys told lawmakers that could undermine their work and remove important collective bargaining protections.

Jesse Archer, who leads the public defenders in Androscoggin, Franklin and Oxford counties, said the attorneys worry the change would scale back their buffer with the executive branch.

“It’s scary to not have some sort of institutional protection. The amendment that the governor is asking for is a union-busting amendment, to get rid of some of the protections our attorneys need to have to do what they need to do,” Archer said. “Someone charged with murder or sexual assault deserves the same outstanding defense as a person who can afford an attorney. We can’t pick and choose.”

Mills’ office did not respond to a message asking about those objections. In her office’s written testimony, she said the provision “will ensure that the Executive Director (of the commission) is well-positioned to deploy resources however may be necessary to address this crisis.”

Her proposed amendment also included additional language to establish parity between any new public defense position salaries and what prosecutors are paid, after the prosecutors’ association recently complained to lawmakers that they are having a hard time hiring new attorneys because of the pay disparity.