Thursday, June 11, 2009


Weighing in on the Indigent Defense Fund

Below is a copy of a letter sent to over twenty members of the General Assembly earlier this afternoon. I thought I probably should include it on the blog, since it's the most substantial thing I wrote today.

June 11, 2009

Lt. Governor Ron Ramsey
1 Legislative Plaza
Nashville, Tennessee 37243-0219

Dear Ron:

I greatly appreciate your meeting with me last week; I value your perspective and explanations on many issues important to all Tennesseans, including our method of nominating appellate judges. Given all that you currently have on your plate, I realize what a valuable commodity time has become and would like to express my gratitude for the hours spent with us in Knoxville last Friday.

I write today to articulate my concern over reported cuts in Governor Bredesen’s proposed budget to the Indigent Defense Fund. I believe my record of support for cuts in the Tennessee budget, a budget which has unfortunately ballooned under Governor Bredesen, has been well-documented, which I hope supports my claim that any cuts to the Indigent Defense Fund will almost certainly bring unintended consequences that could short-circuit our state judicial system and cost the State more in the long run.

The Indigent Defense Fund (IDF) is a necessary evil in Tennessee’s budget, but its importance grows as our national economy suffers. The constitutional rights enjoyed by our citizens include the right to counsel when they are threatened with deprivation of their liberty; when the State files charges of a criminal nature or threatens to incarcerate a father or mother for failing to pay child support, counsel is appointed by the trial court to represent that person’s interests. While the Public Defender’s offices of the various judicial districts represent a good deal of the criminal defendants in these cases – and they do an admirable job in the face of growing budgetary pressures – ethics requires that private counsel be appointed when cases involve co-defendants, when the victim of the crime is a former or current client of the Public Defender’s office, or when another conflict of interest arises that disqualifies the Public Defender’s office from representing that particular defendant. In addition, the IDF also pays for the Guardians ad Litem (GALs) and attorneys for indigent parents in juvenile court cases, furthering the State’s interest in protecting Tennessee children from abuse and neglect. While public perception may not recognize the importance of attorneys for indigent individuals in Tennessee, the need remains when constitutional issues – such as life, liberty, and the right to parent one’s child – are at stake.

I believe that many attorneys who do not take appointments by judges greatly appreciate the work of those of us who allow for our practices to be overloaded with appointed cases. I recently spoke with one particular trial judge who was a member of the defense bar prior to taking the bench many years ago. He reminded me that the hourly rate, which is about 1/6 of the hourly billable rate for most privately retained attorneys, has not changed since he was in practice. I respectfully do not write today to ask that this rate be changed, as it would not be prudent to do so during these trying economic times. I only ask that the General Assembly fund the IDF to the level where we can meet the needs of our fellow citizens, even if it means that we have to work the increased amount of hours to maintain our commitments to our firms, families, and loved ones.

The IDF was not fully funded for the past budgetary cycle. In late April, attorneys who routinely accept court appointments began receiving letters from the Administrative Office of the Courts (AOC) that served as notice that the IDF would be out of money by May 10, 2009. This basically meant that attorneys who work with our least fortunate of citizens were suddenly reconfiguring their finances with the prospect of not being paid for work already performed for over two months of the year (until the new fiscal year begins in July). Our firm was one of the lucky ones. We have built in reserve funds over the years to prepare us fiscally for just such an occurrence. We will survive until the next fiscal year and continue with our “legal ministry” as we try to help Tennessee’s citizens in the trial and juvenile courts. However, some of our colleagues were not as fortunate and have been forced to move on to more profitable pursuits. I know of one attorney who took hundreds of juvenile court cases who has been forced to declare bankruptcy.

This exodus from the appointed rolls is of great concern to me. With fewer attorneys taking appointed cases because of the threat of not being paid for their work by an insolvent IDF, those of us who remain will inherit even greater caseloads than what we currently carry. That in turn will lead to more continuances and more stress on a judicial system already pushed to the brink. Cases that take longer to resolve will result in defendants – most of whom cannot make bail – remaining in jail longer and further overcrowding our jails. With jails such as Blount County’s operating at nearly 150% capacity, judges will be forced to face the unenviable task to remedy the situation, and some will have to turn to the choice currently posited by Governor Schwarzenneger of California – jettisoning countless convicts into society prior to their debt to society having been fulfilled. Longer juvenile court cases will lead to children being in custody for more time than the system is accustomed, and that in turn will lead to greater expense for the Department of Children’s Services. Without going into too many details, I foresee the proposed cuts in the IDF as leading to more expenses for other lines of the budget that might outpace the initial “savings” to the State.

I understand that the State is in a difficult position with this year’s budget, and I applaud most of the cuts. I want to make sure that you know of our problems in Tennessee’s trial courts, as well. We have seen an increase in the number of cases in our courts since our nation’s economy ventured into recession. While we have experienced moderate increases on criminal dockets, where we have seen the highest volume of new cases is in regards to people falling behind on their child support obligations and with abusive situations involving children. (The child support problem is easily explained as more people lose their jobs and fall behind on their payments. Why more people physically, sexually, and emotionally abuse their children during down economic times is a mystery to me.) More overall cases means more demands on the IDF, which is certainly one reason that the IDF was insolvent only ten months into the twelve month fiscal year. Given our current national economy, I cannot foresee our recent problem being alleviated in the 2009-2010 fiscal year. If the proposed cuts are allowed to stand, I hasten to speculate in which month the IDF will be insolvent in 2010.

I worry that we rush to judgment on this issue in the trial courts, which is the level of the judiciary that bears the burden in dealing with the vast majority of Tennesseans. We have concentrated a great deal of time to an issue near and dear to the hearts of many political activists – both conservative and liberal – in the method of selection of our appellate judges during this session, but the truth is that most cases involving Tennesseans never see a courtroom above the circuit or chancery level. If the General Assembly wishes to make budget cuts involving the judicial system, I recommend looking into possible cuts in the appellate system, such as diminishing or eliminating the post-conviction relief system or somehow taxing attorneys fees for those indigent appellate litigants (such as in the appeals of termination of parental rights cases) to the parties themselves instead of having the IDF foot the bill. In short, I believe there are some ways to make cuts in the system that would only impact a few people but would leave the vast majority of litigants represented and their rights intact. Under an abundance of caution, however, I believe that these potential cuts need to be studied and deferred to a later budget, as we should not act in haste.

Thank you for your time in considering what I believe to be an issue of importance to all Tennesseans. As always, if you have any questions or concerns, please feel free to contact me at your convenience. Until I next have the pleasure of speaking with you, I remain

Truly Yours,

Robert L. Huddleston

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