Criminal defense budget cuts raise legal concerns.

Byline: Bill Bishop The Register-Guard

PORTLAND - If the state budget were to collapse again, is that grounds for a federal lawsuit?

A three-judge panel of the 9th U.S. Circuit Court of Appeals made it clear Monday that the answer to that question certainly is not clear.

At least not until they rule in a lawsuit that claims the Oregon Legislature violated constitutional rights earlier this year when it slashed funding for criminal defense lawyers for poor people accused of certain crimes. The budget cut, amounting to 30 percent over a four-month period, delayed thousands of criminal prosecutions statewide until a new two-year budget kicked in on July 1.

So what is the problem, the appeals judges repeatedly asked lawyers for both sides in a nearly hourlong hearing. Courts are back up to full speed, the poor are getting lawyers and the backlog of cases is melting.

Plenty, said Portland lawyer Tom Christ, representing opponents of the Legislature's budget-cutting strategy.

The stage already is set for a repeat of last year's reduction in legal help for the poor, Christ said.

The current state budget hinges on an $800 million income tax surcharge that almost certainly will be defeated at the polls, Christ said. Lawmakers, in the closing hours of their record-long session, passed a law that will take away $14.4 million from the $161 million fund that pays poor people's lawyers if the tax is rejected, Christ told the judges.

"That will put them substantially below where they were last year, which, of course, proved to be inadequate," Christ argued. "The Sixth Amendment (right to a lawyer) is not just there in good times; it doesn't disappear when money gets tight."

Nonsense, said Assistant Attorney General Janet Metcalf, who urged the appeals court to find that no one's constitutional rights currently are threatened by anything the state Legislature is doing. The suit should be dismissed because there is no problem, she said. Any wrong done to individuals can be fixed by appeals in individual cases in state court, according to legal briefs in her case.

So far, Metcalf's side is ahead. U.S. District Judge Michael Hogan ruled in May that the issue is one for state courts to address on a case-by-case basis and federal judges should stand back.

Opponents are hypothesizing that a problem exists, Metcalf said. Appeals courts are not allowed to take action where no one is being harmed.

Besides, Metcalf told the judges on Monday, this time around is a lot different.

Even if the legal defense fund takes a $14 million hit, the impact can be absorbed over more time than last year's reduction, Metcalf said. Administrators will have time to adjust. The system won't collapse as it did in the final months of the past budget, she said.

"The great length of time will allow ... solutions that are less drastic," Metcalf said.

In questions to the lawyers, the appeals judges never questioned the merits of the constitutional arguments, only whether the threshold for judicial action is reached by an imminent collapse of the legal defense system. "There is no constitutional right to a certain level of funding," Judge Susan Graber said in court.

Judge Ronald Gould asked whether state leaders couldn't decide simply to prosecute fewer people as a solution. Senior Judge Cynthia Holcomb Hall similarly questioned how anyone can be certain Oregon's budget crisis will repeat itself.

The appeals court, recognizing the potential importance of the case, sped up the appeals process - cutting the usual yearlong procedure to three months. However, there was no indication Monday when a ruling might come.