indigent defense need-blind justice by Yarek Waszul

Illustration by Yarek Waszul

Last month, I reported that attorney Larry Hammond and others are seeking to establish an Arizona indigent defense commission. The unfilled need is dire, he said, and growing worse. He asked the State Bar to step up and create a body that will study and propose alternatives. (The Bar is considering it.)

So timely, a New York Times article this Sunday explored two states’ responses to the crushing problem. Here is how Adam Liptak opens his piece on Need-Blind Justice:

“Fifty years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to lawyers paid for by the government. But the court did not say how the lawyers should be chosen, how much they should be paid or how to make sure they defended their clients with vigor and care.”

“This created a simple problem and a complicated one. The simple one is that many appointed lawyers are not paid enough to allow them to do their jobs. The solution to that problem is money.”

“The complicated problem is that the Gideon decision created attorney–client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.”

“Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.”

“The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.”

“The county calls it ‘client choice.’ Another name: Gideon vouchers.”

Read Liptak’s whole story here.

It was Justice Louis Brandeis who mused that states could serve as laboratories for democracy, where they might try “novel social and economic experiments without risk to the rest of the country.” It seems that Washington and Texas are doing just that, all in service to a problem affecting countless residents.

Two questions arise:

  1. Which approach, if either, offers the greatest likelihood of success?
  2. Where is Arizona’s approach? Will it be one of those two, or an entirely different strategy that a new commission may devise?

In Arizona Attorney Magazine, we’d like to cover the developing conversation. So what do you think?

President Obama signs health care overhaul

It took seven minutes for the first lawsuit to be filed against the new federal health care overhaul. Seven minutes from the time that our southpaw commander-in-chief inscribed his signature, until the clerk’s filing stamp was affixed in a federal court in Florida.

All together, 13 state attorneys general filed the suit in the Northern District of Florida. The lead plaintiff was Bill McCollum, Florida’s Attorney General. The defendants are the U.S. Departments of Health & Human Services, Treasury, and Labor. Also named were Kathleen Sibelius, Timothy Geithner and Hilda Solis as the respective Secretaries of those departments. (Virginia filed a separate lawsuit.)

Much will be made in the coming weeks of the causes of action and their relative strength or weakness. Essentially, the suit alleges that the federal government has: violated states’ rights by an unconstitutional expansion of federal power; levied a capitation or direct tax; and mandated that individuals have health insurance coverage or pay a tax penalty. It seeks a declaratory judgment and, of course, reasonable attorneys’ fees and costs.

Having prevailed in being able to alter federal results (in the election context), Florida state officials decidedly did not believe that turnabout was fair play. Don’t tread on me, y’know.

Among other things, the suit claims that the new law “commandeer[s] the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.” And “The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans.”

Florida Attorney General Bill McCollum

Put that way, the new health care law does sound a bit odd. Prohibiting inactivity? Taxing a failure to engage? Entire portions of modern society might be affected. If this law gets its legs under it, idleness and indolence could, well, grind to a halt. The White House forgets, at its own peril, that the sluggish can get tetchy when you alter their immobility.

Well, I leave social engineering and its opposition to the wisdom of other commentators. I’m more interested in the civil practice side of all this. Because this lawsuit and the blinding speed with which it was filed open up brave new cubicles into legal practice.

Now, I’m only mildly naïve, so I know, of course, that this brief was written well in advance of the law’s enactment. The 13 attorneys general, solicitors general, deputies, and outside counsel from Baker Hostetler were able to draft at their leisure—at least, as much leisure as is ever possible in modern multistate complex litigation that challenges prevailing wisdom and warns of dire circumstances. As Witkin instructs, Discontent ain’t easy.

But, just for fun, let’s construct a pretend legal scenario. Let’s do the math on this brief and its seven-minute evolution.

First, let’s assume arguendo that no time was required to transmit it to the clerk’s office. (That’s not ever true, of course, even in electronic filing, but it’s more enjoyable this way.)

Second, let’s assume that no pesky minutes or seconds were consumed in a mad dash to research or to Shepardize. The words, we must believe, sprang whole from the mind of Zeus—and his associates.


5,387 words divided by 7 minutes = x

OK, that may be too easy. I mean, you don’t have to be Louis Brandeis or Potter Stewart to cobble a brief together in seven minutes. This is 2010, man, where lawyers do more and more with less and less (See Downturn). Let’s raise the stakes, using our own experience of harried law practice.

Down in Florida, the group of lawyers had been reclining about, awaiting word of President Obama’s signing of this clearly flawed legislation. They sipped mint juleps (for the principals) and sweet tea (for outside counsel). But as Obama’s hand lifted off the vellum, the attorneys sprang into action.

Mint Julep

Teamwork, as everyone knows, is all when you have only seven minutes. The assembled legal team took to their tasks like gators to a bayou: Facts, Jurisdiction and Venue, Parties, Background, Causes of Action, all were assigned faster than a hurricane sweeps onshore.

But an amateur error awaited. Filing and checking the hours of the clerk’s office is a primary and essential task, but too many lawyers give it little attention, or leave it to an inexperienced colleague. That’s why you never assign the task to out-of-state counsel.

The lawyer thus tasked blithely believed they were to file—in six and a half minutes—in the Gainesville Division, serving Alachua, Dixie, Gilchrist, Lafayette and Levy counties. What an error.

When the senior lawyer pointed out that their court was in the Pensacola Division—serving Bay, Calhoun, Gulf, Holmes, Jackson and Washington counties—pandemonium broke out. Mon Dieu! Screams were heard, a handgun was brandished, and a belle inexplicably swooned upon a couch fortuitously placed beneath her ample bustle. A hound dog was heard bemoaning the injustices of our beautiful blue marble.

Calm was restored by men taking seriously the “General” portion of “Attorney General”—but not before a precious minute was lost to the sands of time.


5,387 words divided by 6 minutes = x

Given the momentous challenge, the team did remarkably well. At minute 6:15, a minor crisis was averted when it was noted that defendants Kathleen Solis and Hilda Sibelius had been transposed. And Wikipedia confirmed that Timothy Geithner’s surname contains an intuition-defying “h.” So confident was the legal team that they briefly debated—and voted down—an additional cause of action for “Spelling That Undermines the Basic Nature of God and Man.” They were high on the law—and loving it.

898 words per minute.

15 words per second.

Wow. Even among a raft of legal luminaries, these gentlemen can draft. Draft, baby, draft.

Of course, the attorneys’ fees and costs statement will likely reflect a bit more than seven minutes, but doff our hats, we must. Whatever the outcome in this states’ rights action, we salute the unwavering focus on swift and sure justice.

Read the Florida filing here

Read the Virginia filing here

The Florida Attorney General’s press release follows:

Attorney General Bill McCollum News Release

March 23, 2010
Media Contact: Sandi Copes
Phone: (850) 245-0150

Florida Attorney General McCollum Sues Federal Government Over Health Care Reform Legislation

TALLAHASSEE, FL – Attorney General Bill McCollum today filed a lawsuit against the U.S. Department of Health and Human Services, U.S. Department of Treasury and the U.S. Department of Labor alleging the Health Care Reform bill signed into law by President Obama this morning is unconstitutional. The bipartisan lawsuit was joined by 12 Attorneys General and is the first challenge of the new law.

“This bipartisan effort by Attorneys General around the country should put the Federal Government on notice that we will not tolerate the constitutional rights of our citizens and the sovereignty of our states to be trampled on,” said Attorney General Bill McCollum. “This law represents an unprecedented encroachment on the liberty of the American people, and I will pursue this litigation to the highest court if necessary.”

The Attorneys General from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota joined Florida’s lawsuit, filed today in the United States District Court for the Northern District of Florida.

The complaint alleges the new law infringes upon the constitutional rights of Floridians and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty. By imposing such a mandate, the law exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution. Additionally, the tax penalty required under the law constitutes an unlawful direct tax in violation of Article I, sections 2 and 9 of the Constitution.

The lawsuit further claims the health care reform law infringes on the sovereignty of the states by imposing onerous new operating rules that Florida must follow as well as requiring the state to spend billions of additional dollars without providing funds or resources to the state to help subsidize the cost of implementation of the law. This burden comes at a time where the Florida faces severe budget cuts to offset shortfalls in an already-strained budget.

Under the new law, Florida will be required to vastly broaden its Medicaid eligibility standards to accommodate upwards of 50 percent more enrollees, many of whom would be required to enroll or face a tax penalty. Florida’s Medicaid program currently consumes more than a quarter of the State’s financial outlays.

A copy of the lawsuit is available online at:$file/HealthCareReformLawsuit.pdf