DeWolfe v. Richmond ( 2012 )

HARRELL, J.,

concurring and dissenting, in which ADKINS, J, joins.

Reflecting on one point a rigidity that I find unacceptable (see Majority op. at 432-36, 76 A.3d at 979-81),¹ the otherwise righteous Majority opinion turns a deaf ear to the plea of the Office of the Public Defender (“OPD”) that, should the Court affirm the judgment of the Circuit Court for Baltimore City, a stay be granted of the enforcement of the right declared in this case so that the OPD has “time to secure adequate resources to provide effective representation at initial bail hearings,” to the end of not affecting adversely the OPD’s ongoing other responsibilities. The Majority finds the prospect of further proceedings in the Circuit Court to flesh-out the details of the remedy for Petitioners’ newly-declared right or, in the alternative, a stay, unparalleled in Maryland jurisprudence. (Majority op. at 435-36, 76 A.3d at 980-81— “Moreover, we have not uncovered any instance in which we have delayed implementation of a substantive right, much less one that affects an indigent defendant’s statutory right to public defender representation, out of concern for the financial costs attendant to implementation of that right. And the Public Defender has not been able to direct us to any Maryland authority for such a position.”).²

It is unclear whether the Majority believes that it lacks discretion to grant relief to the OPD or whether it is merely unpersuaded to do so. Judge Adkins and I, on the other hand, are persuaded to exercise our discretion to urge that a stay of modest duration should have been part of this Court’s judgment.

As the OPD summarized in its opening brief:

It is undisputed that the Public Defender’s attorney caseloads are stretched to — and even beyond in some instances — the acceptable limit. In 2009, the Office was out of compliance with the Maryland caseload standards in 11 districts (out of 12 for district court cases and 10 districts for circuit court cases. The Public Defender estimates that, should the circuit court’s ruling be affirmed, there could be thousands of initial bail hearings per year, for which the Office would have to provide representation on a 24-hour-a-day, seven-days-a week basis at the Baltimore City Central Booking facility[³] [Internal citation omitted.]

Further, in its reply brief, the OPD foresees (and Judge Adkins and I agree) that the “Office’s persistent and severe resource constraints would, absent some further remedy, render it unable to supply counsel at initial bail hearings while still meeting its constitutional and ethical representation obligations, including to provide effective assistance of counsel, at later, critical stages [of criminal proceedings].”

Because the Court identifies a statutory right, rather than one grounded in constitutional law, consideration should be given to the ramification that the Legislature and Governor, having not heretofore provided budgetarily for implementation of this right, must do so. The Legislature meets once a year normally, between January and April. Although supplemental appropriations to an annually adopted State budget are possible, in either the case of the annual budget or supplementary appropriations, the process of formulation, vetting and adoption of those actions is not as instantaneous relatively as the issuance of our mandate in this case. In addition, the Governor and the Legislature have a few other matters and priorities to balance during each annual (or the infrequent special) legislative session. To refuse to give any weight to these realities, along with the current state of the out-of-standards performance by the OPD of its pre-existing undertakings, invites application to the Court’s opinion in this case of the cliched metaphor of the “ostrich’s head in the sand.”

The tasks confronting implementation of the Court’s holding are not limited to the OPD. Consideration of the venues in State and local detention facilities, where initial appearances are held, may need to be assessed for new construction or reconstruction in order to balance additional attorney participation by the OPD and security objectives.

Although Judge Adkins and I concur with the Majority opinion’s holdings regarding: (1) recognition of the declared statutory right of indigent persons to have the effective assistance of counsel from the OPD for the bail hearing portion of initial appearances before District Court Commissioners; (2) the inappropriateness of res judicata effect on subsequently-sought injunctive relief for future violations of the statutory right declared here; and (3) declining to vacate the declaratory judgment and remanding this matter to the Circuit Court for Baltimore City for further proceedings to flesh-out the remedy,⁴ we part company with our colleagues who refuse the OPD’s request for a stay. Rather, we would have granted a stay of the judgment until 30 June 2012,⁵ during which period, the OPD, the Governor, the Legislature and others must do what needs to be done to effectuate the right declared here. During the stay, we would expect the OPD, in addition to efforts to insure the full execution of the right declared here on or after 30 June 2012, would formulate and carry-out a “best efforts” initiative, using its existing resources, to represent indigent persons for bail consideration purposes at initial hearings before Commissioners.⁶

Judge ADKINS authorizes me to state that she joins the views expressed in this concurring and dissenting opinion.

1 . I am reminded of the royal pronouncement uttered by the actor Yul Brynner in the movie "The Ten Commandments" (1956), who, in the character of Pharaoh Ramseses II of Egypt, said:

So let it be written;

So let it be done.

2 . The Majority opinion, at 432-36, 76 A.3d at 979-81, analyzes only the OPD’s request for further proceedings in the trial court to flesh-out implementation of the remedy; however, the reasons given by the Majority opinion for rejection of that request are claimed to apply with like result to deny the OPD’s alternative request for a stay (Op. at 435-36, 76 A.3d at 981).

3 . As the Majority opinion makes clear, "our holding applies with equal force to initial appearances before Commissioners throughout Maryland.” Majority op. at 439-40, 76 A.3d at 983.

4 . We join the Majority in rejecting this form of relief sought by the OPD because of our concern that such "further ¡judicial] proceedings” could become a vehicle of enduring delay before the right is implemented. The courts need not officiate over the inevitable negotiations that must occur. Although not an apt analogy, we do not wish to foster the sort of delays in implementation that followed the Supreme Court's "all due haste” direction in the arena of school desegregation.

5 . This date was selected because it is the eve of a new State fiscal year, by which time the upcoming regular legislative session of 2012 will have been completed and any enacted bills should have been signed into law by the Governor (or vetoed).

6 . As an example, perhaps (if the Rules allow) an OPD attorney or attorneys could supervise directly volunteer law students in aid of maximizing representation at implicated bail hearings.