BATON ROUGE (CN) - The Louisiana Public Defender Board sued 23 New Orleans judges who fail to collect a $35 fee from criminal defendants who appear before them. The fee, which is mandatory, helps fund public defenders offices, and the judges' refusal to collect it has resulted in "critical underfunding" of the New Orleans Public Defender's Office, according to the complaint.
Louisiana is the only state that doesn't fund most of the cost of indigent defense through state and local budgets. Instead, most of its money comes from the courts themselves, through traffic fees and fines and - in theory - in $35 fees from criminal defendants.
Louisiana in 2007 enacted a law that requires all state or parish judges to "assess a fee of $35 on all defendants who are convicted after trial, pled guilty or nolo contendere or forfeit bond," with the exception of traffic tickets, according to the complaint in East Baton Rouge Parish Court. (Louisiana parishes are equivalent to other states' counties.)
The complaint adds: "This $35 statutory fee is mandatory and its assessment cannot be waive by any judge. This fee goes toward the funding of the public defenders office, as the statute states."
But the 23 defendant judges refuse to assess or collect the fees.
The judges "routinely fail to assess the fee or they 'waive' the fee, which they are without the power and authority to do," the complaint states.
The Louisiana Public Defender Board handles more than 50,000 cases a year. The average annual salary for a public defender is $40,000.
The judges' failure to collect the $35 fee "affects the Orleans Public Defender's ability to provide effective representation to all indigent defendants in the criminal, juvenile, and municipal courts of Orleans Parish," the board says.
The Public Defender Board was created in 2007 after a funding crisis spurred by Hurricane Katrina saw nearly the entire staff of the public defenders office laid off.
"By refusing to follow the law by assessing and collecting the mandatory $35 fee, the judges are contributing to the crisis that New Orleans' public defense is facing and, potentially, putting the entire criminal justice system at risk," chief public defender , Derwyn Bunton, a plaintiff, said in a statement on the Orleans Parish Public Defender Board website.
"We don't take pleasure in suing judges, but, in this case, they left us no choice," Board Chairman Frank Neuner said in the statement. "Over a period of several months, board representatives and staff met with a number of judges independently and made a presentation to the entire bench to try to come to an agreement on a way to address the fee collection issue. Judicial inaction and a developing funding crisis forced us to act."
The Public Defender Board, created by the Legislature in 2007, was given regulatory authority over all aspects of Louisiana's public defense system, according to the statement. "Along with this authority, the board has great responsibility to the Legislature and, ultimately, to the people of Louisiana. A fair and effective criminal justice system requires the state to provide qualified counsel to eligible defendants who cannot afford representation," it states.
The New Orleans Public Defender office provides legal representation to 90 percent of defendants in New Orleans, with a staff and budget less than half that of the District Attorney's Office.
"The Legislature imposed the $35 fee in an effort to shift part of the costs of representation from Louisiana's taxpayers to the people using the criminal court system. If judges are not assessing the amounts that the Legislature intended, the costs of representation fall heavily upon Louisiana's taxpayers. The board is doing what it can to keep from increasing that burden. The only way to do that was to file suit," Neuner said.
The board seeks writ of mandamus. It wants the judges to collect the $35 fee and remit the money on a monthly basis, or explain to the court why they are not required to do so.
The board is represented by Lauren Godshall with Stone Pigman Walther Wittmann of New Orleans.
Named as defendants are the Hon. Julian Parker, chief judge of Section G, and the Hons. Laurie White, Lynda Van Davis, Benedict Willard, Frank Marullo Jr., Keva Landrum-Johnson, Robin Pittman, Camille Buras, Karen Herman, Darryl Derbigny, Arthur Hunter Jr., Terry Alarcon, and magistrate Gerard Hansen, all of the Orleans Parish Criminal District Court; the Hons. Paul Sens, Sean Early, Deisree Charbonnet, and Joe Landry, of the New Orleans Municipal Court; and the Hon. Ernestine Gray, chief judge, and the Hons. Mark Doherty, Tracy Flemings-Davillier, Lawrence LaGarde Jr., Tammy Stewart, and Candice Bates Anderson, of Orleans Parish Juvenile Court.