Judge to hear views on funding for public defenders.

Byline: Bill Bishop The Register-Guard

The maxim says: "Justice delayed is justice denied." But is it?

That's the question facing U.S. District Judge Michael Hogan, who is hearing legal arguments today and could rule in a lawsuit to force Oregon's lawmakers to restore about $10 million in funding to pay for defense lawyers for low-income people charged with crimes.

The case could set a precedent for other state legislatures that are grappling with budget-cutting decisions because Oregon's lawmakers appear to be the first to consciously delay legal appointments for purely economic reasons.

Opponents of the decision argue that constitutional rights should not rise and fall in rhythm with fickle state budgets; that equal protection and due process under the law are paramount in funding priority to roads, schools, public health and all else in state budgets.

The Oregon attorney general argues that a delay is not a denial of constitutional rights because prosecutors reap no advantage over poor suspects due to the lag. They also argue that federal judges have no power to dictate state budget decisions.

"There is a lot of notice nationwide," said Kate Jones, spokeswoman for the National Association of Criminal Defense Lawyers. "People are talking about it. They are shocked that a state would deal with a budget situation by essentially declaring a hiatus on a constitutional right. That is very surprising."

American Bar Association President Alfred Carlton Jr. said he is unaware of any other state that has delayed legal representation for poor defendants as a budget-cutting option. While the association has no formal policy on the question, Carlton said he believes the Oregon policy undermines judicial independence and the quality of justice.

"It threatens the very fabric of American justice," he said.

While any decision by Hogan will serve as a precedent for other similar challenges to funding decisions, it won't pre-determine those decisions, Carlton said. And the legal questions in the lawsuit won't be cut-and-dried, he added.

"It's a tough question," Carlton said. "The real question is whether there have been any constitutional rights abridged or denied."

The issue is the state's budget reduction plan, which took away money earmarked to pay lawyers for poor people charged with a wide range of offenses such as writing bad checks, credit card fraud, theft and drug possession. Under the plan, they will not be arraigned on their charges until money is available in the next budget cycle to provide a lawyer to represent them.

It's unclear whether funding will be available in the next budget cycle, under Oregon's current budget proposals for court operations. The backlog of unprosecuted criminal cases statewide may reach 28,000 before legal appointments resume, according to estimates of state court officials.

The lawsuit is actually two suits that were combined because of their common issues.

Both allege the budget plan violates federal and state constitutional rights and state statutes that guarantee legal representation for poor defendants. The legal arguments center on defendants' constitutional rights to due process and equal protection under the law. Both suits allege the plan violates state statutes that require defendants to be arraigned within 36 hours if in custody or within 96 hours if not waiting in jail.

The first was filed by the Metropolitan Public Defenders in Multnomah County on behalf of three defendants - two women charged with interfering with police during an anti-war demonstration and a man charged with theft.

The defender service also is a plaintiff, charging that the state policy blocks it from performing its duty. The Multnomah County district attorney's office is another plaintiff, charging that the state policy deprives victims of their rights, such as restitution for losses and protection from criminals.

The second lawsuit was filed by the district attorney and public defender service of Lane County and a man charged with theft. The public defenders and district attorney make similar claims as in the Multnomah County suit.

Named as defendants in the lawsuits are the state's chief justice, who issued the budget reduction plan, and Lane County judges who are implementing it.

In response, the state attorney general is arguing that the lawyers - prosecutors and defenders - have no standing in the case because their constitutional rights are not at issue.

Regarding the criminal defendants, Assistant Attorney General Stephen Bushong argues that a delay in prosecution does not give an advantage to prosecutors and does not compromise the guarantee of a fair trial for the accused. He argues that the law requires a lawyer be appointed for "critical stages" of the legal process, where "substantial rights" may be affected. Arraignment is not a critical stage, Bushong says.

The budget reduction does not violate equal protection rights because it applies equally across the board to indigent defendants, Bushong says. Equal protection does not require identical treatment, he says.

In legal briefs, Bushong urges Hogan to take the course of least resistance - to rule federal courts have no role in the issue.

He says a federal judge in a 1974 case found that an unnamed state regularly failed to bring criminal cases to trial promptly. Nevertheless, the federal judge ruled that federal courts have no supervisory authority over state courts and no power to establish how they operate. Instead, federal courts are left to deal with individual cases where defendants claim that their rights were violated in state court.

"Relief from unconstitutional delays in criminal trials is not available in wholesale lots," Bushong argues.

But plaintiffs' lawyers argue that their lawsuit is not about delay, but about the fundamental rights to due process and equal protection.

"The defendants may not issue 'orders' overruling the constitution and then claim that this challenge to those 'orders' is only a challenge to court delays," wrote Portland lawyers Elden Rosenthal and Don Marmaduke.

"The moment elected or administrative officials begin superceding constitutional rights, the citizenry must protest and the courts must intercede," they argue.

Oral arguments are slated for 11:45 a.m. in Hogan's courtroom in Eugene. Hogan may rule from the bench, delay a decision or decide that he has no authority over the matter.