Wyoming News Exchange

Wyoming News Exchange

Wyoming Supreme Court hears public defender arguments


By Isabella Alves

Wyoming Tribune Eagle

Via Wyoming News Exchange


CHEYENNE — The Wyoming Supreme Court heard arguments Wednesday morning in a case that could decide the future of public defender representation in the state.

The court case between State Public Defender Diane Lozano and Campbell County Circuit Judge Paul Phillips began in May, when Lozano declared the public defender’s office unavailable for misdemeanor cases due to heavy caseloads and an understaffing crisis.

Phillips then found Lozano in contempt of court for refusing to take misdemeanor cases, and is fining her a total of $1,500 each day public defenders aren’t available for misdemeanor cases.

Wyoming Deputy Attorney General Michael James McGrady represented Lozano, and Phillips was represented by attorneys John Masterson, Hampton O’Neill and Alaina Stedillie.

The high court will issue a formal opinion on the case at a later date.

During Wednesday’s oral arguments, McGrady and O’Neill argued the meaning of the term “unavailable” as it pertains to the Public Defender Act. In the act, it states the public defender can declare themselves unavailable, though the attorneys debated what merits this unavailability.

O’Neill argued that public defenders can only be unavailable if they have a conflict of interest with the case they’re appointed to represent. He said if the public defender was able to become unavailable in other situations, it would inject “chaos” into the judicial system.

In response, Justice Kate Fox asked how chaos would be a factor if the public defenders would still be declaring themselves unavailable due to conflict versus workload, and also wondered if the Legislature intended for the word “unavailable” to only mean if there’s a conflict.

O’Neill said Lozano’s decision was “speculative,” arguing she couldn’t know for certain if a public defender would have provided ineffective assistance of counsel due to their caseload.

He then referenced the American Bar Association rule of professional conduct that said counsel can only withdraw if they will undoubtedly provide ineffective assistance of counsel, which doesn’t imply any speculation.

Chief Justice Michael Davis asked if that meant someone’s rights would have to be violated “really good” for this rule to come into play. O’Neill said this is what case law requires.

Fox asked if it is the court or the public defender who gets to decide when they’re unavailable. O’Neill said if the court isn’t the entity that gets to decide when the public defender is unavailable, the court, such as the circuit court, becomes emasculated.

He said the court should be in charge of ensuring the Sixth Amendment right to counsel, not the public defender’s office. Justice Keith Kautz said if the question of availability is based on funding for enough lawyers in the public defender’s office, then that seems like a question for the Legislature.

It should be noted Gov. Mark Gordon’s proposed 2021-22 biennium budget contains a $6 million increase for the public defenders office budget to help meet the rising demand for public defenders.

However, McGrady said this isn’t a funding issue.

He said the Campbell County public defender’s office suffered a 40% reduction in staff within 22 days. He said there literally weren’t enough lawyers to take more cases.

In the contempt order Phillips issued against Lozano, he said there wasn’t an act cited for the violation. He said the contempt order was stylized as a civil contempt order, but the fine levels were criminal.

Davis asked McGrady if there was any way to purge the fines that Phillips ordered, and McGrady replied that the language Phillips used in the order doesn’t contemplate a way to purge the fine. Kautz said if Lozano complied with the order, then there wouldn’t be a fine, but McGrady said they didn’t know about the fine until after the order was issued.

McGrady said the issues at hand were both constitutional and ethical; taking on misdemeanor cases wasn’t really an option, he said.

McGrady said the public defender is also the best one to decide their availability, noting this is the first time something like this has happened.

Davis also brought up the prior issues with staffing in the Natrona County public defender’s office, and mentioned a contempt order wasn’t issued from that county when Lozano raised her concerns to those judges.

The case stems from a situation where the circuit court in Campbell County found two people in two separate misdemeanor cases qualified for public defender representation. The circuit court then appointed the public defender’s office to the two cases, which resulted in Lozano declaring her office unavailable.

Lozano raises three issues for the Supreme Court to rule upon, while the circuit court argues there is only one issue at hand: whether it has the ability to hold a lawyer in contempt of court for ignoring court orders.

The Circuit Court also said Lozano is in contempt because she never entered a motion to withdraw as counsel in the two misdemeanor cases. However, Lozano argues she didn’t have to enter a motion to withdraw because she never made an entry of appearance in either case.

“The State Public Defender’s Office never recognized representation,” the lawsuit stated. “As a matter of fact, it had attempted to preemptively address the issue that it would not be able to accept representation, but the circuit court balked.”

The contrasting interpretations highlight the question of whether a court appointment for a public defender constitutes an entry of appearance, which now must be decided by the Wyoming Supreme Court justices.

In its argument, the circuit court maintains that it controls the entire judicial process, including how people are deemed eligible for public defenders.

“Allowing (Lozano) to control whether, if or when cases are assigned to her – by declaring herself ‘unavailable’ – is completely contrary to this foundational principle,” the circuit court stated in its brief. “Typically, lawyers freely recognize and acknowledge the court’s unquestioned authority to control the judicial process in every case.”


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