Public defender shortage hits close to home

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SANDPOINT — Boundary County may get a helping hand from its neighboring county to the south to address its public defender shortage.

Public officials from both Bonner and Boundary counties met to discuss the first draft of a memorandum of understanding (MOU) for a potential joint public defenders office for the two counties. The draft MOU will be reworked and, depending on how long that process takes, it may be included in the Bonner County commissioners meeting next Tuesday for approval.

“Attorneys are hard to come by. It seems like they’re everywhere until you need one,” said Bonner County Commissioner Jeff Connolly.

Boundary County Commissioner Dan Dinning, who is friends with Connolly, said the pair had discussed how best to address Boundary’s shortage over the last few years. Connolly is spearheading the effort in Bonner County and was the only Bonner County commissioner present.

Also present were Tevis Hull, Boundary County chief deputy prosecutor; Tim Bertling, Boundary County commissioner; Bill Wilson, Bonner County legal advisor; Luke Hagelberg, Bonner County chief public defender; and Susan Jensen, Bonner County public defender.

Boundary County has had difficulty attracting and retaining public defenders and reached out to Bonner County to see if there was a way for the two counties to team up.

Last fall, judges in Boundary County had to conscript local attorneys for public defense work.

“That didn’t make friends,” Dinning said.

Bertling agreed. “They don’t like going from $250 an hour to $85,” he said.

Possible conscription for public defense is part of a lawyer’s obligation when they are approved to practice in Idaho.

Dinning said Boundary County has had to contract with attorneys and does not have any resident staff for their public defense office.

Having an understaffed public defense office could be considered malpractice, Hull said. However, he said the liability ultimately sits with the state of Idaho, not the county, should a malpractice suit occur.

Idaho passed legislation last year to take over public defense from the counties.

In 2015, the American Civil Liberties Union of Idaho sued the state, alleging that the current public defense for indigent defendants was inadequate and unconstitutional.

In April of last year the Idaho Supreme Court ruled unanimously in favor of the ACLU in Tucker v. State of Idaho.

Consequently, House Bill 735 was passed this year and will repeal the current funding scheme, the “Charity and Indigent Fund Levy,” from all of Idaho’s counties’ tax rolls, replacing it with funds from the state-wide sales tax.

In theory, the law takes effect in 2025. Until then, the counties will continue to be required to provide for public defenders. That is quite difficult for most rural counties, said Dinning, who also sits on the state’s Public Defense Commission Board.

In addition to a less competitive salary in comparison to other legal work, the commute to Boundary County has also been a dissuading factor, officials said. Many attorneys have had to commute from Kootenai County.

“We contract either Kootenai or Bonner County people — and there’s always turnover to try and find somebody who wants to travel to Bonners Ferry within the parameters of our budget,” Dinning said.

“It’s just becoming public service for them. They do it because they want. … Last fall we didn’t have enough attorneys to handle the caseload,” Dinning said.

Connolly said the agreement may help Bonner County as well.

“The other part of this, too, is that hopefully this will benefit Bonner County,” Connolly said. “We can streamline our operation even more to get a higher end attorney that then can share some of the load. … We [could then] shift [a junior attorney] to Boundary County if it’s a lot of misdemeanors or different things like that.”

In February, Boundary County Prosecutor Andrakay Pluid said that Boundary County needs at least three public defenders, especially if there is a crime with multiple people charged. The three public defenders may be exhausted with multiple defendants or there are conflicts of interest and a public defender can't represent someone.

After Wednesday’s meeting, Connolly said the courts encouraged the two counties to work together.

“At the end of the day we want to provide the best public defense we can,” he said.