Lawsuit against Luzerne County for not providing adequate funding for its Office of Public Defender
Court/Assoc.: Court of Common Pleas, Pennsylvania Commonwealth Court, Pennsylvania Supreme Court
Attorneys/Firms: Vernon Francis, Michelle Hart Yeary, Catherine Wigglesworth, Nathan McClLellan, Sean McConnell (Dechert LLP); David Rudovsky (Kairys, Rudovsky, Messing & Feinberg, LLP); Kimberly D. Borland (Borland & Borland, LLP); Witold Walczak, Mary Catherine Roper, & Molly Tack-Hooper (ACLU of Pennsylvania)
The ACLU of Pennsylvania filed a class action lawsuit on April 10, 2012, against Luzerne County, alleging that gross and chronic underfunding of its Office of the Public Defender (OPD) had led to widespread violations of poor criminal defendants' constitutional right to adequate counsel. The lead plaintiff in the case was Al Flora, Jr., the chief public defender of Luzerne County. The lawsuit requested emergency relief for the OPD, which was stretch so thin that it had had to turn away some indigent criminal defendants because it could not handle the cases it had.
The Honorable Joseph Augello of the Luzerne County Court of Common Pleas held a hearing on the request for emergency relief on May 10, 2012. On June 15, 2012, Judge Augello entered an Order and Opinion in which he said the OPD was “approaching crisis stage” and granted some of the relief the plaintiffs sought. He ordered the county to lift the hiring freeze that had prevented the OPD from filling vacant positions, to immediately provide confidential meeting space for OPD clients and lawyers, and ordered the county to provide counsel for the people turned away from the OPD, either by hiring private counsel or by expanding the OPD. But he also ordered that the OPD could not turn away any more indigent clients. Finally, he ordered the parties to meet and come up with a plan to fix the problems with the OPD.
The parties attended mediation for many months, but the county would not agree to any plan to fix the OPD. Instead, it replaced Al Flora as chief public defender in April 2013 and then asked the court to dismiss the case, arguing that only the chief public defender could sue the county over the condition of the OPD. The ACLU filed a separate suit on behalf of Al Flora arguing that his firing violated the First Amendment.
On October 22, 2013 , Judge Augello dismissed the case, agreeing with the county that since Al Flora was no longer the chief public defender, there was no one who could bring suit to force the county to provide more resources to the OPD. Plaintiffs appealed to the Pennsylvania Commonwealth Court, arguing that the clients of the OPD – the people most at risk because of the underfunding of the office – were entitled to bring suit to protect their rights. On October 14, 2014, the Pennsylvania Commonwealth Court affirmed Judge Augello’s ruling, holding that the OPD’s clients could not bring suit to demand adequate funding for the OPD. Plaintiffs asked the Pennsylvania Supreme Court to hear the case.
On June 30, 2015, the Pennsylvania Supreme Court agreed to hear the case to decide whether public defender clients may bring suit to prevent the violation of their right to counsel. The case name was changed to Kuren v. Luzerne County to reflect the fact that Al Flora is no longer a plaintiff.
The Department of Justice, the American Bar Association, the National and Pennsylvania Associations of Criminal Defense Lawyers and the Innocence Network have all filed “friend of the court” briefs arguing that criminal defendants have the same right as other people to go to court to ask for protection when their constitutional rights are violated.
On September 28, 2016, the PA Supreme Court ruled that public defender clients have the right to sue counties to force them to provide adequate funding to their public defender’s offices.