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Fees for public defenders are in hands of high court
by Elizabeth Stawicki, Minnesota Public Radio
December 3, 2003

An assistant Hennepin County public defender on Wednesday asked the Minnesota Supreme Court to strike down as unconstitutional a law that charges the poor from $50 to $200 for public defender services. The Legislature passed the law last year to raise an estimated $7 million to partially fund the state's public defender system. The system is struggling under state budget cuts and soaring caseloads.

St. Paul, Minn. — Shawnatee Tennin was arrested on charges of misdemeanor prostitution. She was told that if she wanted a public defender, she'd be liable for a $50 co-pay. Tennin said she couldn't afford the fee because she received only $250 dollars a month from public assistance; she'd have to represent herself in court.

Assistant Hennepin County public defender Geoffrey Isaacman took up Tennin's case, challenging the co-payment law by arguing it undermines the 40-year-old landmark U.S. Supreme Court ruling that guarantees defendants the right to an attorney even if they cannot afford one.

"First, it creates a cost while it seems rather small is significant for those who are indigent. And second and equally importantly, it takes away the discretion of the district court to insure all defendants who appear before it, in fact, get justice," he said.

Under a previous co-payment law which assessed a $28 fee for all cases, judges had the discretion to waive the fee up front if the defendant was too poor to pay it. Issacman says that discretion was eliminated in the new law. He says as a result, the new co-payments have had a chilling effect on whether defendants choose to use public defender services or represent themselves.

"Miss Tennin in this particular case thought she had no real prospects for earning the money to be able to pay the $50 co-pay in the future. So the prospect of incurring a debt, which she knew she wouldn't be able to pay initially, caused her to decline the services of the public defenders office," according to Issacman.

The attorney general's office, which represents the state in this case, argues the law is constitutional. Assistant Attorney General Thomas Ragatz says while it may not be expressly written into the law, judges do have the ability to exempt the poor from the co-payment, by refusing to collect it. He says the only difference between the previous co-payment law and the new one, is a requirement that defendants must pay if their financial situation improves.

"So that if on the day you show up for a public defender and you're indigent but on the next day you win the lottery, you still have to pay. Under the old system, once there was a waiver, that was the end of the story and this closes that loophole for those clients who come to the public defender and plead indigency," according to Ragatz.

Ragatz also said that the Minnesota Supreme Court could rule that the indigent defendants don't have to be forced to pay what they can't pay.

"And now you're asking us to put in what the Legislature took out?" asked Justice Russell Anderson.

Ragatz said he's asking the court to accept that the law allows judges discretion to waive the fee by simply not collecting it. He says the difference is not if judges can waive the fee, just when.

"This statute tries to raise more revenue by leaving it open to collecting the fee later if the circumstances change. And we're not saying you should take that away. Judges are still not going to be able to say on day one I find that you can't afford this, therefore I'm waiving it. What judges will say is, 'I find you can't afford this I'm not going to make you pay it, but you're under an obligation to inform me if your circumstances change," he said.

Even though Hennepin County's public defender is challenging the co-payment law, the state's chief public defender wants it upheld. He says it would prevent more layoffs on an already strapped system that's down 20 attorneys. In October, public defenders as a group asked the Supreme Court, for emergency relief from high caseloads by allowing them to delay some criminal cases. That ruling is still pending.

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