Case 3:12-cv-00665-ARC Document 14 Filed 04/19/12 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AL FLORA, JR., Plaintiff

HONORABLE A. RICHARD CAPUTO

v.
LUZERNE COUNTY and ROBERT C. LAWTON, COUNTY MANAGER, in his official capacity,

CIVIL ACTION - LAW

Defendants.

NO. 3:12-CV-00665

STIPULATION

1. Plaintiff Al Flora, Jr. ("Plaintiff Flora") commenced this action by Verified

Complaint on April 10, 2012, alleging: (1) that he is the Chief Public Defender

for Luzerne County; (2) that Defendants had threatened to fire him because of

his First Amendment protected activity; and (3) that Defendants' plans to

discharge him would violate the public policy of Pennsylvania and constitute

wrongful discharge.

2. Also on April 10, 2012, Plaintiff Flora filed a Motion for Preliminary Injunction

seeking to enjoin Defendants from taking adverse action against him.

3. Defendants deny that they have threatened Plaintiffs employment or taken any

action against him that would violate his First Amendment rights or the public

policy of Pennsylvania.

Case 3:12-cv-00665-ARC Document 14 Filed 04/19/12 Page 2 of 6
4. With respect to Plaintiffs position with the County, the parties stipulate: a. The voters of Luzerne County (the "County") in 2009 approved a changed in the structure of County government; b. Pursuant to such a referendum, the County was required to transition to a Home Rule Charter; c. Pursuant to such a transition, a Home Rule Transition Committee was put in place to handle the administration of the conversion to the new government structure under the Home Rule Charter; d. The Home Rule Transition Committee notified current holders of appointed offices that their previous appointments to office would expire by virtue of the adoption of the Home Rule Charter and that the County intended to advertise such positions and fill them in accordance with the process(es) set forth in the new charter; e. Pursuant to such transition, the Home Rule Transition Committee prepared a job description for the position of County Public Defender, also known as Chief Public Defender, and posted such description on the County website in October 2011 in conjunction with the solicitation of applications for such position;
2

Case 3:12-cv-00665-ARC Document 14 Filed 04/19/12 Page 3 of 6
f. The Home Rule Transition Committee sent a written notice to Plaintiff Al Flora, Jr. ("Plaintiff Flora") of such intention and invited him to apply for re-appointment;
g. On October 20,2011, Plaintiff Flora submitted a letter of interest in obtaining appointment to the position of Chief Public Defender under the new charter;
h. The Home Rule Transition Committee continued to solicit and to receive applications for the position of Chief Public Defender through midDecember 2011 ;
1. The Home Rule Transition Committee has referred the application for the position of Chief Public Defender to the County Manager;
J. The County Manager, Defendant Robert Lawton, did not assume his duties until February 24,2012;
k. The County Manager has the authority under section 4.0SA of the Home Rule Charter to recommend candidates as heads of Executive Departments to the County Council for confirmation to a permanent appointment, including the position of Chief Public Defender;
1. The County Manager has not yet exercised his authority under section 4.0SA to make recommendations for Chief Public Defender to the
3

Case 3:12-cv-00665-ARC Document 14 Filed 04/19/12 Page 4 of 6
County Council and is not in a position to make such a recommendation in the near future; m. The County Manager has the authority under section 4.08C of the Home Rule Charter to make an interim appointment to the position of Chief Public Defender, which appointment is effective for ninety (90) days; n. The County Manager has yet to exercise the authority to make an interim appointment and Plaintiff Flora remains under consideration for both an interim appointment and for recommendation for confirmation to County Council; o. Until such time as the County Manager exercises his authority either to make a recommendation to County Councilor to make an interim appointment, Plaintiff Flora continues to act as Chief Public Defender; p. The County initiated a hiring process for the office of Chief Public Defender prior to and independent of any comments and/or criticisms of Plaintiff Flora relating to the funding and/or operations of the Office of Public Defender. q. The County is entitled to pursue the hiring process for the position of Chief Public Defender previously initiated, and the County Manager may make an interim appointment in accordance with the provisions of the
4

Case 3:12-cv-00665-ARC Document 14 Filed 04/19/12 Page 5 of 6
Home Rule Charter or a recommendation to the County Council for a permanent appointment. 5. It is further stipulated that Plaintiff Flora shall remain in his current capacity until such action by the County Manager. 6. It is further stipulated that Plaintiff Flora will not be subjected to any adverse employment action in retaliation for First Amendment protected activity. 7. Based upon the representations and stipulations contained herein that Plaintiff Flora has to date suffered no wrongful termination and is not currently in imminent danger of termination, the parties stipulate to the withdrawal of Plaintiff Flora's Motion for Preliminary Injunction (Docket Document 3) without prejudice to Plaintiff Flora's right to seek relief in response to the future actions of the Defendants with respect to his position.
5

Case 3:12-cv-00665-ARC Document 14 Filed 04/19/12 Page 6 of 6

8. It is further stipulated that the parties agree to not seek attorneys' fees relative to this Stipulation and/or the Motion for Preliminary Injunction. By signing this Stipulation, the parties reserve the right to attain attorneys' fees in the event this federal action proceeds to trial and/or Plaintiff Flora renews his Motion for Preliminary Injunction.

BY THE PARTIES:
For Plaintiff Al Flora, Jr.
lsi Mary Catherine Roper Mary Catherine Roper American Civil Liberties Foundation of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106 Tel.: (215) 592-1513 ext. 116 Fax: (215) 592-1343 mroper@aclupa.org

For Defendants Luzerne County and Robert C. Lawton, County Manager
lsi John G. Dean John G. Dean Elliott Greenleaf & Dean 201 Penn Avenue Suite 202 Scranton, PA 18503 570-371-5290 Fax: (570) 969-2890 jgd@elliottgreenleaf.com

6

 
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Case 3:12-cv-00665-ARC Document 3 Filed 04/10/12 Page 1 of 7

UNIT ED ST A T ES DISTRIC T C OURT F OR T H E MIDDL E DISTRIC T O F PENNSY L V ANIA

:

A L F L O RA, JR., Chief Public Defender :

Of Luzerne County

:

: No. 12-cv-

Plaintiff,

:

: ELECTRONICALLY FILED

v.

:

:

LUZ ERNE C OUNT Y and ROBERT C. :

LAWTON, COUNTY MANAGER,

:

in his official capacity,

:

:

Defendants

:

:

P L A I N T I F F¶S= M O T I O N F O R PR E L I M I N A R Y I NJU N C T I O N 1. Plaintiff hereby moves, pursuant to Fed. R. Civ. P. 65, for entry of a
Preliminary Injunction to enjoin Defendants from terminating his employment on account of his public statements and his lawsuit against them regarding funding for the Luzerne County Office of the Public Defender ³23'´ 2. Plaintiff is the Chief Public Defender of Luzerne County, and has been since May 2010. He has repeatedly, but fruitlessly, petitioned Defendant County for additional resources for the OPD and warned that the OPD attorneys are

1

Case 3:12-cv-00665-ARC Document 3 Filed 04/10/12 Page 2 of 7
so overworked that they cannot properly represent all of the indigent criminal defendants in Luzerne County. 3. Beginning in December 2011, Plaintiff Flora informed the Court of Common Pleas that the OPD would decline appointments in most new criminal cases EHFDXVHRIWKH23'¶VLQDELOLW\WRSURYLGHFRQVWLWXWLRQDOO\DGHTXDWH representation. The OPD currently approves new applications for representation only from indigent adult defendants with homicide or felony sex offense charges, or individuals who are incarcerated or subject to extradition. The OPD also continues to provide representation to individuals in mental health, state parole, county probation/parole revocation, and juvenile cases. The OPD has continued representation in all cases that the OPD was handling before December 19, 2011. 4. ,QUHVSRQVHWKH&RXQW\¶V,QWHULP0anager, Tom Pribula, publicly threatened that the County Manager and County Council would remove Plaintiff Flora from his position LIKHGLGQRWSURYLGH³FRRSHUDWLRQ´ 5. Plaintiff Flora will, today, commence suit in the Luzerne County Court of Common Pleas to compel the County and County Manager to provide additional resources for the OPD. 6. Defendants¶ threat to terminate Plaintiff Flora in retaliation for his legal
2

Case 3:12-cv-00665-ARC Document 3 Filed 04/10/12 Page 3 of 7
action for additional funding violates the public policy of this Commonwealth, as well as 3ODLQWLII¶V)LUVW$PHQGPHQWULJKWVWRVSHDNIUHHO\ and to petition the government for redress of grievances. 7. Plaintiff incorporates by reference the facts alleged in the Verified Complaint. 8. Plaintiff also incorporates herein by reference the legal arguments contained in the Memorandum in Support of Motion for Preliminary Injunction. Plaintiff has satisfied the four-part test for granting a preliminary injunction. 9. As is more fully set forth in the accompanying legal memorandum, Plaintiff is are likely to prevail on the merits of his claims XQGHU3HQQV\OYDQLD¶V Wrongful Discharge tort and the First Amendment. 10. Plaintiff will suffer irreparable harm unless the requested injunctive relief is granted. 11. Since the Defendant are a political subdivision and its agent, they have no legally-cognizable interest in violating the public policy of the Commonwealth or in suppressing constitutionally-protected speech and petition. 12. Granting Plaintiff the requested preliminary relief will not result in any foreseeable harm to Defendants or the public.
3

Case 3:12-cv-00665-ARC Document 3 Filed 04/10/12 Page 4 of 7
13. Plaintiff, through undersigned counsel, gave notice to Vito DeLuca, the acting Solicitor for Luzerne County, on April 10, 2012, that Plaintiff would be filing this action and seeking preliminary injunctive relief.
14. This being a non-commercial case involving a relatively small amount of money, and the balance of hardships favoring the Plaintiff, the Fed. R. Civ. P. 65(c) security bond requirement should be waived. Elliot v. Kiesewetter, 98 F.3d 47, 59-60 (3d Cir. 1996); Temple University v. White, 941 F.2d 201, 219-20 (3d Cir. 1991).
4

Case 3:12-cv-00665-ARC Document 3 Filed 04/10/12 Page 5 of 7

WHEREFORE, Plaintiff respectfully requests that this Court enter a preliminary injunction to enjoin Defendants from terminating Plaintiff from his position as the Chief Public Defender for Luzerne County.

Date: April 10, 2012.

Respectfully submitted,
/s/ Mary Catherine Roper Mary Catherine Roper Attorney ID 71107 Hilary J. Emerson Attorney ID 311823 AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 (T) 215.592.1513 ext. 116 (F) 215.592-1343 mroper@aclupa.org
Witold J. Walczak Attorney ID 62976 AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Telephone: (412) 681-7736 vwalczak@aclupa.org
Attorneys for Plaintiff

5

Case 3:12-cv-00665-ARC Document 3 Filed 04/10/12 Page 6 of 7
CERTIFICATE OF COMPLIANCE WITH LOCAL RULES I certify that on April 10, 2012, counsel for Plaintiffs sought concurrence in this motion as required by L.R.7.1, from the Acting Solicitor and presumed counsel for Defendants, Vito DeLuca, and that counsel did not concur.
/s/ Mary Catherine Roper Mary Catherine Roper
6

Case 3:12-cv-00665-ARC Document 3 Filed 04/10/12 Page 7 of 7
CERTIFICATE OF SERVICE I, Mary Catherine Roper, hereby certify that on this 10th day of April 2012, I emailed copies of the foregoing Motion for Preliminary Injunction, along with the Memorandum and proposed order in support thereof and the Verified Complaint, to counsel for Defendant: Vito DeLuca Acting Solicitor, Luzerne County 200 North River Street Wilkes-Barre, PA 18711-1001
/s/ Mary Catherine Roper Mary Catherine Roper
7

Case 3:12-cv-00665-ARC Document 3-1 Filed 04/10/12 Page 1 of 3

UNIT ED ST A T ES DISTRIC T C OURT F OR T H E MIDDL E DISTRIC T O F PENNSY L V ANIA

:

A L F L ORA, JR., Chief Public Defender :

Of Luzerne County

:

: No. 12-cv-

Plaintiff,

:

: ELECTRONICALLY FILED

v.

:

:

LUZERNE C OUNT Y and ROBERT C. :

LAWTON, COUNTY MANAGER,

:

in his official capacity,

:

:

Defendants

:

:

ORDER GRANTING INJUNCTION

AND NOW, this _____ day of ________________ 2012, after due consideration

of Plaintiff¶s Verified Complaint, Motion for Preliminary Injunction and Brief in

Support thereof, the Plaintiff and Defendants having appeared before the Court by

their attorneys and presented argument and evidence; and it further appearing that

Plaintiff will suffer immediate and irreparable harm, and injury and damage from

Defendants¶ conduct unless Defendants are enjoined and restrained as requested in

Plaintiff¶s motion, it is hereby ORDERED, ADJUDJED and DECREED as

follows:

1.

The Court makes the following findings:

Case 3:12-cv-00665-ARC Document 3-1 Filed 04/10/12 Page 2 of 3

a. There is a likelihood that Plaintiff will succeed on the merits

of his claims that 'HIHQGDQW¶Vthreatened termination of his employment would

violate both Pennsylvania public policy and Plaintiff¶s First Amendment rights.

b. Substantial and irreparable injury to Plaintiff will follow

unless this order is entered;

c. As to the relief granted below, greater injury will be inflicted

upon Plaintiff by the denial of relief than will be inflicted upon Defendants by the

granting of relief;

d. Plaintiff has no adequate remedy at law; and

e. The public interest will be served by the injunction.

2.

IT IS THEREFORE ORDERED THAT Defendants, together with

their representatives, agents, servants, and all others acting on its behalf or in

concert with it, be and hereby are ENJOINED and RESTRAINED, until

further Order of the Court, from terminating Plaintiff from his position as the

Chief Public Defender of Luzerne County.

3.

This being a non-commercial case involving a relatively small

amount of money, and the balance of hardships favoring the Plaintiff, the

Fed. R. Civ. P. 65(c) security bond requirement is hereby waived. Elliot v.

Kiesewetter, 98 F.3d 47, 59-60 (3d Cir. 1996); Temple University v. White,

941 F.2d 201, 219-20 (3d Cir. 1991).

2

Case 3:12-cv-00665-ARC Document 3-1 Filed 04/10/12 Page 3 of 3

4.

Plaintiff, by his attorneys, agents or others designated by it, may

serve copies of this Order upon Defendants and upon any person acting in

concert or participating with them in the activities referred to above.

BY THE COURT _________________________________________ Caputo, J.

3

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© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6M6N6QS82?documentName=3.xml

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UNIT ED ST A T ES DISTRIC T C OURT F OR T H E MIDDL E DISTRIC T O F PENNSY L V ANIA

:

A L F L O R A, JR. Chief Public Defender of :

Luzerne County

:

:

Plaintiff,

:

:

v.

:

:

LUZERNE C OUNT Y and ROBERT C. :

LAWTON, COUNTY MANAGER,

:

in his official capacity,

:

:

Defendants

:

:

No. 12-cvELECTRONICALLY FILED

M E M ORANDUM O F L A W IN SUPPORT O F M O TION F OR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
Table of Authorities .......................................................................................... iii Introduction ....................................................................................................... 1 Procedural History ............................................................................................ 1 Statement of Facts ............................................................................................. 1 Statement of Questions Presented..................................................................... 2 Argument........................................................................................................... 3
A. Plaintiff Is Likely To Succeed On His Claim That His Discharge Would Violate Public Policy And Be Void Under Pennsylvania Tort Law ........................................................................................... 4
B. Plaintiff is Likely To Succeed On The Claim That His Discharge Would Be Unlawful Retaliation For Exercising His First Amendment Rights To Speak And To Petition The Government ... 13
C. Plaintiff Will Suffer Irreparable Harm In The Absence Of Injunctive Relief ................................................................................ 20
D. Any Potential Harm Defendants May Suffer Does Not Outweigh 3ODLQWLII¶VFirst Amendment Right To Free Expression Or The &RPPRQZHDOWK¶V3XEOLF3ROLF\,QWHUHVW,Q3URWHFWLQJ3ODLQWLII )ORUD¶V$FWLRQV .................................................................................. 21
E. The Public Interest Is Best Served By Allowing Individuals To Exercise Their First Amendment Rights and Preventing Public Officials From Terminating Employees Who Refuse To Act In Violation Of TKH3XEOLF¶V,QWHUHVW .................................................. 21
Conclusion ........................................................................................................ 23
ii   

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C ases

TABLE OF AUTHORITIES

Ake v. Oklahoma, 470 U.S. 68 (1985) .......................................................................8 Allegheny Energy, Inc. v. D Q E, Inc., 171 F.3d 153 (3d Cir. 1999) ..........................3 American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000) «««««8   Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001) .........................................18 Ballas v. City of Reading, 2001 WL 73737 (E.D. Pa. 2001) ...................................12 Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).......................................14 Brozovich v. Dugo, 651 A.2d 641 (Pa. Commw. Ct. 1994) ......................................5 Cisco v. United Parcel Servs., Inc., 476 A.2d 1340 (Pa. Super. Ct. 1984) .............12 City of San Diego v. Roe, 543 U.S. 77 (2004) .................................................. 14, 16 Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006) ................................................8 Connick v. Meyers, 461 U.S. 138 (1983).................................................................17 Cuyler v. Sullivan, 446 U.S. 335 (1980)....................................................................9
'DXSKLQ&RXQW\3XE'HIHQGHU¶V2IILFHY&RXUWRI&RPPRQ3OHDVRI'DXSKLQ County, 849 A.2d 1145 (Pa. 2004) .......................................................................11
  
Davenport v. Reed, 785 A.2d 1058 (Pa. Commw. Ct. 2001) ..................................12 Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................20 Evitts v. Lucey, 469 U.S. 387 (1985) .....................................................................8, 9 F razer v. United States, 18 F.3d 778 (9th Cir. 1994) ................................................8 Garcetti v. Ceballos, 547 U.S. 410 (2006) ...................................................... passim
iii   

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Geary v. U.S. Steel Corp., 319 A.2d 174 (Pa. 1974) .................................................4 Hill v. Kutztown, 455 F.3d 225 (3d Cir. 2006) ................................................. 14, 17 Hunter v. Port Auth. of Allegheny County, 419 A.2d 631
(Pa. Super. Ct. 1980) .........................................................................................6, 12 Kimmelman v. Morrison, 477 U.S. 365 (1986) .........................................................9 Mamlin v. Genoe, 17 A.2d 407 (Pa. 1941) ................................................................5 McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005) ........................................... 17, 18 McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000) .........4, 5 Novosel v. Nationwide Insurance, 721 F.2d 894 (3d Cir. 1983) ...............................5 2¶'RQQHOO v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989).................................... 18, 19 Pickering v. Bd. of Educ., 391 U.S. 563 (1968)................................................ 14, 22 Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996) .......................................... 13, 14, 19 Reuther v. Fowler & Williams, Inc., 386 A.2d 119 (Pa. Super. Ct. 1978) ............6, 7 Sasinoski v. Cannon, 696 A.2d 267 (Pa. Commw. Ct. 1997)..................................11 Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223 (3d Cir. 2011) ...............3 Strickland v. Washington, 466 U.S. 668 (1984) ....................................................8, 9 Turner v. Letterkenny Fed. Credit Union, 505 A.2d 259 (Pa. Super. Ct. 1985) .......5 United States v. Treasury Employees, 513 U.S. 454 (1995)....................................22 Veno v. Meredith, 515 A.2d 571 (Pa. Super. Ct. 1986) ...........................................12 Watters v. City of Philadelphia, 55 F.3d 886 (3d Cir. 1995)...................................18 Weaver v. Harpster, 975 A.2d 555 (Pa. 2009) ......................................................4, 5
iv   

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Wheat v. United States, 486 U.S. 153 (1988) ............................................................8 Statutes 16 P.S. § 9960.3 .........................................................................................................7 16 P.S. § 9960.4 .........................................................................................................7 16 P.S. § 9960.6 ...................................................................................................7, 16 Constitutional Provisions Pa. Const. art. I, § 9....................................................................................................7 Other Authorities 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE
AND PROCEDURE 2948.1 (2d ed. 1995) .................................................................20
v   

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INTRODUCTION Plaintiff, the Chief Public Defender for Luzerne County, seeks injunctive relief to SURWHFWKLVMRELQOLJKWRI'HIHQGDQW&RXQW\¶VWKUHDWWRILUHKLPLIKHGRHVQRW ³FRRSHUDWH´ZLWKWKH&RXQW\¶VUHIXVDOWRSURYLGHDGHTXDWHIXQGVIRUWKH Luzerne County Public Defender¶V Office ³23'´. Plaintiff is filing suit today against the County seeking to compel the County to increase resources for the OPD and has reason to believe that doing so will subject him to retaliatory action by the County.
PRO CEDURAL HIST ORY This action was commenced by Verified Complaint on April 10, 2012.
STATEMENT OF FACTS Plaintiff incorporates herein by reference the facts set forth and Exhibits attached to his Verified Complaint.
1   

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ST A T E M ENT O F QUESTIONS PRESENT ED 1. Whether Plaintiff is likely to succeed on his claim that his discharge
would violate public policy and be void under Pennsylvania tort law? 2. Whether Plaintiff is likely to succeed on his claim that his discharge
would be unlawful retaliation for exercising his First Amendment rights to speak and to petition the government? 3. Whether Plaintiff will suffer irreparable harm in the absence of injunctive relief? 4. Whether any potential harm Defendants may suffer does not outweigh PODLQWLII¶VFirst Amendment rights or the CRPPRQZHDOWK¶VSXEOLF policy interest in protecting Plaintiff FORUD¶VDFWLRQV? 5. Whether the public interest is best served by allowing individuals to exercise their First Amendment rights and preventing public officials from terminating employees who refuse to act in violation of the SXEOLF¶VLQWHUHVW?
2   

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ARGUMENT 7KHFRXUW¶V issuance of a preliminary injunction depends on four factors: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting preliminary relief is in the public interest. Allegheny Energy, Inc. v. D Q E, Inc., 171 F.3d 153, 158 (3d Cir. 1999). As the Third Circuit Court of Appeals recently explained, a pODLQWLII³QHHGV only to show a likelihood of success on the merits (that is, a reasonable chance, or probability, of winning) to be granted relief. $µOLNHOLKRRG¶GRHVQRWPHDQPRUH OLNHO\WKDQQRW´Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (emphasis in original). Balancing the factors in this First Amendment matter, in which irreparable harm to Plaintiff and the public is certain and severe and Defendants¶potential hardship is speculative and minor, the Court should grant the requested injunction because Plaintiff is likely to succeed on the merits.
3   

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A. Plaintiff Is Likely To Succeed On His Claim That His Discharge Would Violate Public Policy And Be Void Under Pennsylvania Tort Law.
Plaintiff Flora is likely to succeed on his wrongful discharge claim because his termination would violate a clear public policy mandate. Removing Mr. Flora for advocating publicly ± including through legal action ± for the funding necessary for the OPD to function in accordance with constitutional, statutory, and professional standards would contravene the Commonwealth¶VLQWHUHVWLQthe fulfillment of those standards.
3HQQV\OYDQLD¶V3XEOLF3ROLF\([FHSWLRQTo At-Will Employment In Pennsylvania, an employment relationship is presumed at-ZLOO³DEVHQWD VWDWXWRU\RUFRQWUDFWXDOSURYLVLRQWRWKHFRQWUDU\´Geary v. U.S. Steel Corp., 319 A.2d 174, 176 (Pa. 1974); Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009). However, an employee can maintain a cause of action for wrongful discharge under Pennsylvania common law by demonstrating that ³some public policy of this Commonwealth is impOLFDWHGXQGHUPLQHGRUYLRODWHGEHFDXVHRIWKHHPSOR\HU¶V termination of the employee.´ McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 289 (Pa. 2000) (emphasis in original). ³>7@KHSUHFLVHH[WHQWWR ZKLFKSXEOLFSROLF\OLPLWVDQHPSOR\HU¶VIUHHUHLJQRYHUKLVEXVLQHVVFDQRQO\EH
4   

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GHWHUPLQHGRQDFDVHE\FDVHEDVLV´Turner v. Letterkenny Fed. Credit Union, 505 A.2d 259, 260 (Pa. Super. Ct. 1985).
³7KHULJKWRIDFRXUWWRGHFODUHZKDWLVRULVQRWLQDFFRUGZLWKSXEOLFSROLF\ H[LVWVµRQO\ZKHQDJLYHQSROLF\LVVRREYLRXVO\IRURUDJDLQVWWKHSXEOLFKHDOWK safety, morals or welfare that there is a virtual unanimity of opinion in regards to LW¶´Weaver, 975 A.2d at 563 (citing Mamlin v. Genoe, 17 A.2d 407, 409 (Pa. 1941)). A claimed violation of public policy must implicate an interest of the Commonwealth, not only an interest of the terminated employee, to overcome the presumption of at-will employment. McLaughlin, 750 A.2d at 288-89. Recognized sources of public policy include the Pennsylvania Constitution, court decisions, and statutes. Weaver, 975 A.2d at 563. ,QGHHG³[n]o more clear statement of public policy exists than that expressed in the Pennsylvania &RQVWLWXWLRQ´Brozovich v. Dugo, 651 A.2d 641, 644 (Pa. Commw. Ct. 1994).
Pennsylvania courts have recognized ³SXEOLFSROLF\H[FHSWLRQVWRDW-will employment where the wrongful discharge claims have involved infringements on statutory and constitutional rights.´Weaver, 975 A.2d at 563. Public policy SURKLELWVDQHPSOR\HH¶VGLVFKDUJHZKHUHQHFHVVDU\WRSURWHFWWKHULJKWVWRtrial by jury, due process, and political expression and association. See, e.g., Novosel v. Nationwide Insurance, 721 F.2d 894, 899-900 (3d Cir. 1983) (SODLQWLII¶V
5   

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termination IRUSROLWLFDOYLHZVDQGUHIXVDOWRSDUWLFLSDWHLQHPSOR\HU¶VOREE\LQJ effort violated public policy concerning importance of political expression and association); Hunter v. Port Auth. of Allegheny County, 419 A.2d 631, 635 (Pa. Super. Ct. 1980) (violation of due process under PA Constitution when defendant refused to hire plaintiff due to pardoned misdemeanor conviction); Reuther v. Fowler & Williams, Inc., 386 A.2d 119, 120 (Pa. Super. Ct. 1978) (trial by jury).
The most analogous cases are, of course, those involving the proper functioning of the court system. In Reuther v. Fowler & Williams, Inc., the Superior Court found that the public policy exception protected an employee who had been fired for complying with a jury summons. The court held that the constitutional right to a jury trial and a state statute requiring individuals summoned for jury duty to appear provided the requisite expression of public interest because of the MXU\¶Vvital role in the judicial process. 386 A.2d at 120-21. The cRXUWUHDVRQHG³>W@KHMXU\V\VWHPDQGMXU\VHUYLFHDUHRIWKHKLJKHVW importance to our legal process. . . . In our view, the necessity of having citizens freely available IRUMXU\VHUYLFHLVMXVWWKHVRUWRIµUHFRJQL]HGIDFHWRISXEOLF SROLF\¶DOOXGHGWRE\RXU6XSUHPH&RXUWLQGeary v. United States Steel Corp. ´ Id. 7KXV³WKLV&RPPRQwealth recognizes a cause of action for damages resulting
6   

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when an employee is discharged for having performed his obligation of jury VHUYLFH´Id. at 120.
Here, as in ReutherWKHFRQGXFWWKDWZRXOGWULJJHU3ODLQWLII)ORUD¶V WHUPLQDWLRQLVFRPSOHWHO\FRQVLVWHQWZLWK3HQQV\OYDQLD¶VFRQVWLWXWLRQDODQG VWDWXWRU\GLUHFWLYHVUHJDUGLQJLQGLJHQWGHIHQVHDVZHOODV3ODLQWLII)ORUD¶V obligations under the Pennsylvania Rules of Professional Conduct. 3HQQV\OYDQLD¶V,QWHUHVW,Q(QVXULQJ$GHTXDWH,QGLJHQW'HIHQVH,V(PERGLHG,Q The Pennsylvania Constitution, The Public Defender Act, Court Decisions, The
Rules Of Professional Responsibility, And Even A Recent Report F rom The Joint StatH*RYHUQPHQW&RPPLVVLRQ¶V7DVN)RUFHAnd Advisory Committee On
Services To Indigent Criminal Defendants. The Pennsylvania Constitution guarantees the right to counsel in criminal prosecutions. Pa. Const. art. I, § 9. The Public Defender Act (the ³$FW´UHTXLUHV the governing body of every county in Pennsylvania (except Philadelphia) to appoint a public defender to provide representation for indigent criminal defendants prosecuted in its county. 16 P.S. §§ 9960.3, 9960.4. The County, WKURXJKWKHSXEOLFGHIHQGHULVUHVSRQVLEOHIRU³IXUQLVKLQJOHJDOFRXQVHOLQ [enumerated] cases, to any person who, for lack of sufficient funds, is unable to REWDLQOHJDOFRXQVHO´LQFOXGLQJ³DQ\RWKHUVLWXDWLRQVZKHUHUHSUHVHQWDWLRQLV FRQVWLWXWLRQDOO\UHTXLUHG´36. As the Act expressly references, the &RXQW\¶VREOLJDWLRQWRSURYLGHLQGLJHQWGHIHQVHWUDFNVWKH&RPPRQZHDOWK¶V
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constitutional obligation to provide a criminal defense to those it prosecutes who
cannot afford to obtain counsel themselves:
[W]hen a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth $PHQGPHQW¶VGue process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. Ake v. Oklahoma, 470 U.S. 68, 76 (1985). The Pennsylvania right to counsel ± and
to adequate counsel ± mirrors that under the Sixth Amendment to the U.S. Constitution. Commonwealth v. Sneed, 899 A.2d 1067, 1075-76 (Pa. 2006).
The obligation to provide for criminal defense includes the obligation to
SURYLGHIRUUHSUHVHQWDWLRQWKURXJKRXWWKHGHIHQGDQW¶VFULPLQDOFDVHCriminal
GHIHQGDQWVDUHHQWLWOHGWR³PRUHWKDQMXVWWKHRSSRUWXQLW\WREHSK\VLFDOO\ DFFRPSDQLHGE\DSHUVRQSULYLOHJHGWRSUDFWLFHODZ´F razer v. United States, 18 F.3d 778, 782 (9th Cir. 1994); accord Evitts v. Lucey, 469 U.S. 387, 395 (1985).
,QGLJHQWGHIHQGDQWVPXVWEHUHSUHVHQWHGE\DQDWWRUQH\³ZKRSOD\VWKHUROH QHFHVVDU\WRHQVXUHWKDWWKHWULDOLVIDLU´Evitts, 469 U.S. at 395 (quoting Strickland v. Washington, 466 U.S 668, 685 (1984)). ³>7@KHHVVHQWLDODLPRIWKH$PHQGPHQW is to guarantee an effective advocate for each criminal defendant . . . .´ Wheat v. United States, 486 U.S. 153, 159 (1988) (emphasis added). The Sixth Amendment
8   

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UHTXLUHVGHIHQVHFRXQVHOZKRFDQ³SOD\[] a role that is critical to the ability of the DGYHUVDULDOV\VWHPWRSURGXFHMXVWUHVXOWV´Strickland, 466 U.S. at 685. And it H[SHFWVGHIHQVHFRXQVHOWRUHQGHUVHUYLFHVWKDWZLOOPDNH³WKHDGYHrsarial testing SURFHVVZRUNLQWKHSDUWLFXODUFDVH´Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (internal citation omitted).
³%HFDXVHWKH right to counsel is fundamental to a fair trial, the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist WKHGHIHQGDQWWRREWDLQDIDLUGHFLVLRQRQWKHPHULWV´Evitts, 469 U.S. at 395³$ party whose counsel is unable to provide effective representation is in no better SRVLWLRQWKDQRQHZKRKDVQRFRXQVHODWDOO´Id. at 3967KHUHIRUH³LQDGHTXDWH assistance doHVQRWVDWLVI\WKH6L[WK$PHQGPHQWULJKWWRFRXQVHO´Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)8QOHVVDQDFFXVHGKDVDQDWWRUQH\³DEOHWR invoke the procedural and substantive safeguards that distinguish our system of MXVWLFHDVHULRXVULVNRILQMXVWLFHLQIHFWVWKHWULDOLWVHOI´Id. at 343 (internal citation omitted).
The Pennsylvania Rules of Professional Responsibility also dictate proper attention, diligence, and communication during the course of criminal representation. See Compl. at ¶¶ 30-34. )LQDOO\WKH&RPPRQZHDOWK¶Vparticular concern with indigent defense in Luzerne County is illustrated by the December
9   

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2011 report of the -RLQW6WDWH*RYHUQPHQW&RPPLVVLRQ¶V7DVN)RUFHDQG$GYLVRU\ Committee on Services to Indigent Criminal Defendants. That report indicated that the OPD is operating under excessive workloads and would require an additional 8.5 full-time attorneys to meet nationally recognized standards. (This number does not include the four current, budgeted vacancies that Plaintiff Flora has not been authorized to fill.) See Compl. at ¶ 44. 3HQQV\OYDQLD¶VPublic Policy Of E nsuring Adequate Indigent Defense Would Be ³Implicated, Undermined, Or Violated´,I3ODLQWLII)ORUD:HUH7HUPLQDWHG)RU
H is Public Statements And Legal Action. Removing Plaintiff as Chief Public Defender would violate the foregoing public policies and interests of the Commonwealth, and is, therefore, subject to the public policy exception to the at-will employment doctrine. Plaintiff Flora has not sought any personal gain in his campaign for adequate funding for the OPD. His actions ± from informing the County of the need for additional funding, to declining additional cases while the OPD remains under-resourced, to making the dire situation of the OPD known to the public, to, finally, filing suit ± have one purpose only: ensuring that the OPD can meet its constitutional, statutory, and professional obligations. To allow the County to punish him for his efforts would ensure that no one could rescue the OPD.1
                                                                                                                    
1 Plaintiff, as the Chief Public Defender of Luzerne County, is the only
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Preliminary Injunctive Relief Is An Appropriate Way Of Protecting 3HQQV\OYDQLD¶VPublic Policy Of E nsuring Adequate Indigent Defense.
Injunctive relief is the appropriate remedy for Plaintiff Flora ± indeed, he
seeks no other. In Sasinoski v. Cannon, for instance, the Commonwealth Court
affirmed the grant of a permanent injunction that reinstated the Public Defender
when the County Manager improperly placed him on administrative leave. 696
A.2d 267, 268, 272 (Pa. Commw. Ct. 1997). While Sasinoski addressed the issue
of who had the authority to terminate the Public Defender and not whether he was
wrongfully discharged, the Court noted that
[A]ctions that disrupt the Office of the Public Defender, that threaten the rights of the clients served and that pose an interference in the functioning of the court system cannot [sic] be tolerated. . . . [T]he &RXUWKHUHE\DIILUPVWKHWULDOFRXUW¶VRUGHUUHVWRULQJWKH3XEOLF Defender to his office and enjoining [defendant] from further interference with the Public Defender in the discharge of his duties.
Id. at 272. Pennsylvania courts have entertained requests for injunctive relief in
wrongful discharge cases. See Davenport v. Reed, 785 A.2d 1058, 1061 (Pa.
                                                                                                                                                                                                                                                                                                                                                                                      
person, apart from the indigent defendants the OPD serves, with standing to bring suit to compel the County to provide the resources necessary for him to fulfill his statutory and constitutional obligations. See Dauphin County Pub. DefHQGHU¶V Office v. Court of Common Pleas of Dauphin County, 849 A.2d 1145, 1148-49 (Pa. 2004) SXEOLFGHIHQGHUKDGVWDQGLQJWRSXUVXHZULWRISURKLELWLRQEHFDXVH³WKH Public Defender . . . has the statutory obligation to provide legal representation to financially eligible criminal defendants. . . . [T]here is a clear causal connection EHWZHHQWKH$GPLQLVWUDWLYH2UGHUDQGWKH3XEOLF'HIHQGHU¶VGLPLQLVKHGDELOLW\WR make eligibility determinations and to provide representation to the defendants of itVFKRLFH´
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Commw. Ct. 2001) (reinstatement sought); Ballas v. City of Reading, 2001 WL 73737, 1 (E.D. Pa. 2001) (reinstatement sought); Cisco v. United Parcel Servs., Inc., 476 A.2d 1340, 1341 (Pa. Super. Ct. 1984) (reinstatement sought); Hunter, 419 A.2d at 632 LQMXQFWLRQVRXJKWWRHQMRLQ³>GHIHQGDQW@IURPUHIXVLQJWRDGPLW >SODLQWLII@WRLWVEXVGULYHUWUDLQLQJFODVVDQGUHIXVLQJWRHPSOR\>SODLQWLII@´ Therefore, an injunction is the appropriate remedy in this case to prevent Manager /DZWRQ¶VZURQJIXOGLVFKDUJHRI0U)ORUDDVWKH&KLHI3XEOLF'HIHQGHURI/X]HUQH County.
7KH6XSHULRU&RXUWKDVQRWHGWKDW³>V@RPHSXEOLFSROLFLHVDUHRIJUHDWHU importance than others. It follows that the more important the public policy implicated by the discharge, the harder it will be to assert a sufficient separate and OHJLWLPDWHEXVLQHVVUHDVRQWRMXVWLI\WKHGLVFKDUJH´Veno v. Meredith, 515 A.2d 571, 581, n.5 (Pa. Super. Ct. 1986). There are few public policies more compelling than the assurance of due process and adequate representation for indigent criminal defendants. For all of these reasons, Plaintiff Flora is likely to succeed on his claim that his discharge would violate Pennsylvania public policy.
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B. Plaintiff Is Likely To Succeed On The Claim That His Discharge Would Be Unlawful Retaliation For Exercising His First Amendment Rights To Speak And To Petition The Government
As the Supreme Court has consistently held, the First Amendment protects a public employee¶s right to speak as a citizen addressing matters of public concern. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Indeed, the importance of promoting the public¶s interest in receiving the well-informed views of government employees, is such that the First Amendment interests at stake extend beyond the individual speaker. Id. at 419. These First Amendment interests ³limit[] the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.´ Id. Accordingly, when the government acts as employer, it violates its employees¶ free-speech rights if it takes adverse action against an employee in retaliation for that employee¶s protected speech. See, e.g., Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996).
A public employee¶s speech is protected by the First Amendment only if the employee spoke as a citizen on a matter of public concern and the government employer did not have ³an adequate justification for treating the employee differently from any other member of the general public´ as a result of his
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statements. Garcetti, 547 U.S. at 418.2 See also Hill v. Kutztown, 455 F.3d 225,
241-42 (3d Cir. 2006) (³A public employee¶s statement is protected activity when
(1) in making it, the employee spoke as a citizen, (2) the statement involved a
matter of public concern, and (3) the government employer did not have an
adequate justification for treating the employee differently from µany other
member of the general public¶ as a result of the statement he made.´) (quoting
Garcetti, 547 U.S. at 421). In addition to satisfying these requirements, a public
employee must show that the protected activity was a substantial or motivating
factor in the alleged retaliatory action. Pro, 81 F.3d at 1288.
                                                                                                                    
2 The Supreme Court recently held that claims of retaliation for the filing of a VXLWDJDLQVWDSXEOLFHPSOR\HUDUHJRYHUQHGE\WKHVDPHVWDQGDUG³7KHframework used to govern Speech Clause claims by public employees, when applied to the Petition Clause, will protect both the interests of the government and the First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, the employee¶s First Amendment interest must give way, as it does in speech cases. City of San Diego v. Roe, 543 U.S. 77, at 82±83, 125 S.Ct. 521 (2004) (per curiam). When a public employee petitions as a citizen on a matter of public concern, the employee¶s First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. Pickering v. Bd. of Educ., 391 U.S. 563, 568, supra, at 568, 88 S. Ct. 1731 (1968). If that balance favors the public employee, the employee¶s First Amendment claim will be sustained. If the interference with the government¶s operations is such that the balance favors the employer, the employee¶s First Amendment claim will fail even though the petition is on a matter of public concern.´Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2500 (2011).
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1HLWKHU3ODLQWLII¶V7KUHDWVTo Sue The County Nor The Suit Itself Were Pursuant To H is Employment Duties
The Supreme Court provided guidance as to what constitutes speaking as a citizen as opposed to an employee in Garcetti, which held that public employees do not speak as citizens when they ³make statements pursuant to their official duties.´ Id. at 421. The Court explained that:
Restricting speech that owes its existence to a public employee¶s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. . . . Refusing to recognize First Amendment claims based on government employees¶ work product does not prevent them from participating in public debate. Id. at 421-22.
Garcetti bars a claim for First Amendment retaliation only where the HPSOR\HH¶V speech ³owes its existence to a public employee¶s professional responsibilities.´ Id. at 421. Reasoning that government employers should be able to exercise ³control over what the employer itself has commissioned or created,´ the Court crafted a rule to ensure that government employers would be able to direct the performance of their employees¶ official communications. Id. at 421-23 (explaining that ³[o]fficial communications have official consequences,´ so ³[s]upervisors must ensure that their employees¶ official communications are
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accurate, demonstrate sound judgment, and promote the employer¶s mission´). These are communications that an employee is ³paid to perform.´ Id. at 421.
3ODLQWLII)ORUDZDVDSSRLQWHG&KLHI3XEOLF'HIHQGHUWRRYHUVHHWKH23'¶V provision of legal representation. See 16 P.S. § 9960.6. His duties do not include threatening to sue his employer, nor, in fact, filing suit. It is of no moment that 3ODLQWLII¶V communications were based on information that he learned as a result of his position. One of the foremost reasons for protecting public-employee speech is to safeguard the public¶s right to receive information from those most knowledgeable on the subject:
Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public¶s interest in receiving informed opinion as it is the employee¶s own right to disseminate it. Roe, 543 U.S. at 82 (citation omitted); see also Garcetti, 547 U.S. at 419 (³The Court has acknowledged the importance of promoting the public¶s interest in receiving the well-informed views of government employees engaging in civic discussion.´). 3ODLQWLII¶VVSHHFKDQGOHJDODFWLRQ therefore, satisfy *DUFHWWL¶s first requirement.
16   

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Plaintiff¶s Speech Touched On A Matter Of Public Concern. 3ODLQWLII¶VVSHHFKDQGKLVODZVXLWXQTXHVWLRQDEO\DUHDERXWDPDWWHURISXEOLF concern, as is demonstrated by the abundant authority cited above establishing that Pennsylvania public policy demands the provision of adequate representation to indigent criminal defendants. The Public¶s Interest In Addressing The Problems With The Luzerne County Office Of The Public Defender Outweighs Any Interest The County Has In Compelling Plaintiff¶V³&RRSHUDWLRQ´ In Maintaining The 2IILFH¶V6HYHUH
Underfunding. In communicating his concerns about the under-funding and resulting deficiencies of the OPD, Plaintiff Flora spoke as a citizen on a matter of public concern. See Garcetti, 547 U.S. at 418. Accordingly, the &RXQW\¶VWKUHDWWR terminate him is unconstitutional retaliation unless the County ³had an adequate justification for treating [Flora] differently from any other member of the general public.´ Id.; Hill, 455 F.3d at 242. To determine whether the County had an adequate justification for disciplining Plaintiff Flora for his protected conduct, the Court must consider whether Plaintiff¶s and the public¶s ³interests in the speech outweigh the [County¶s] countervailing interests in the µefficiency and integrity in the discharge of official duties, and [in maintaining] proper discipline in the public service.¶´ McGreevy v. Stroup, 413 F.3d 359, 365 (3d Cir. 2005) (quoting Connick v. Meyers, 461 U.S. 138, 150-51 (1983)). The County ³bears the burden of
17   

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justifying the [discipline], which µvaries depending upon the nature of the employee¶s expression.¶´ Baldassare v. New Jersey, 250 F.3d 188, 198 (3d Cir. 2001) (quoting Watters v. City of Philadelphia, 55 F.3d 886, 895 (3d Cir. 1995)). See also McGreevy, 413 F.3d at 365 (³The µmore tightly the First Amendment embraces the speech the more vigorous a showing of disruption must be made.¶´) (citation omitted).
The County cannot meet this burden. As an initial matter, the County can claim no legitimate interest in preventing its Chief Public Defender from taking every lawful step necessary to ensure that indigent defendants in Luzerne County are afforded constitutionally adequate representation. And though the County may have a general interest in preventing employees from DLULQJWKH&RXQW\¶V³GLUW\ laundry,´ that interest is necessarily limited:
[I]t would be absurd to hold that the First Amendment generally authorizes . . . officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office. . . . [T]he balancing test articulated in Pickering is truly a balancing test, with office disruption or breached confidences being only weights on the scales.
Baldassare, 250 F.3d at 200 (quoting O¶Donnell v. Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989)). There is no reason to believe that 3ODLQWLII¶V statements or suit will disrupt the efficiency and integrity in the discharge of the 23'¶V official duties. See McGreevy, 413 F.3d at 365. To the contrary,
18   

!aaassseee     333: :111222-­-­-cccvvv-­-­-000000666666555-­-­-AAARRR!              DDDooocccuuummmeeennnt t     444              FFFi il leeeddd     000444/ /111000/ /111222              PPPaaagggeee     222444     ooof f     222999
3ODLQWLII)ORUD¶VLQVLVWHQFHRQSURSHUIXQGLQJDQGRQUHGXFLng OPD attorney caseloads can only promote the operations of the OPD.
3ODLQWLII)ORUD¶V)LUVW$PHQGPHQW3URWHFWHGActivity Is A Substantial Or Motivating F actor In The Threatened Retaliatory Action
There is no question that, should Plaintiff be terminated at this point, the reason will be his outspoken opposition to and legal action to undo the hobbling of the OPD through fiscal starvation. Plaintiff is a highly regarded criminal defense attorney with decades of experience in the OPD. He has been a highly efficient and conscientious manager of that office. He rescued the County from ignominy DIWHUWKH³NLGVIRUFDVK´VFDQGDOE\ILQGLQJIXQGLQJIRUDQd establishing a model Juvenile Unit. The only thing that has changed about Plaintiff Flora is that he has sued the County for the resources he needs to operate the OPD in accordance with constitutional strictures. And that is the reason the Interim County Manager threatened to fire him.
The burden, therefore, shifts to the Defendants to ³establish that [they] would have taken the adverse employment action regardless of whether the employee had engaged in the protected conduct.´ Pro, 81 F.3d at 1288; see also O¶Donnell, 875 F.2d at 1060-61 (in a public-employee speech case, government ³bears the burden of justifying the [disciplinary action]´). The County cannot establish that it would have terminated or taken other action against Plaintiff if he did not sue the County. And hence, any additional reason proffered by the County
19   

!aaassseee     333: :111222-­-­-cccvvv-­-­-000000666666555-­-­-AAARRR!              DDDooocccuuummmeeennnt t     444              FFFi il leeeddd     000444/ /111000/ /111222              PPPaaagggeee     222555     ooof f     222999
will constitute nothing more than a post hoc justification invented in the face of litigation.
C. Plaintiff Will Suffer Irreparable Harm in the Absence of Injunctive Relief
³The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.´ Elrod v. Burns, 427 U.S. 347, 373-374 (1976) (emphasis added). See also American Civil Liberties Union v. Reno, 217 F.3d 162, 180 (3d Cir. 2000) (generally, in First Amendment challenges, plaintiffs who meet merits prong of test for a preliminary injunction ³will almost certainly meet the second, since irreparable injury normally arises out of the deprivation of speech rights.´), rev¶d on other grounds, Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE 2948.1 (2d ed.1995) (³When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.´). Defendants¶ threat to fire Plaintiff Flora, an experienced and dedicated Public Defender and the only Luzerne County Chief Public Defender willing to speak out about the need for change in the office, sends an unmistakable message not only to him, but to all County employees: keep your mouth shut if you see high-level County officials engaged in wrongdoing. Unless this Court grants the requested preliminary injunction to enjoin the Defendants¶ termination of Plaintiff, the right of Plaintiff and the rights of all
20   

!aaassseee     333: :111222-­-­-cccvvv-­-­-000000666666555-­-­-AAARRR!              DDDooocccuuummmeeennnt t     444              FFFi il leeeddd     000444/ /111000/ /111222              PPPaaagggeee     222666     ooof f     222999
County officials trying to meet their obligations to the public to comment on matters of public concern will be chilled.
D. Any Potential Harm Defendants May Suffer Does Not Outweigh 3ODLQWLII¶V)LUVW$PHQGPHQW5LJKWTo F ree E xpression O r The &RPPRQZHDOWK¶V3XEOLF3ROLF\,QWHUHVW,Q3URWHFWLQJ3ODLQWLII )ORUD¶V$FWLRQV
Defendants can point to no evidence that they will be irreparably harmed if Plaintiff remains the Chief Public Defender of Luzerne County pending the resolution of this lawsuit. Plaintiff has a distinguished history with the OPD and has been a highly efficient and conscientious manager of that office. He rescued WKH&RXQW\IURPLJQRPLQ\DIWHUWKH³NLGVIRUFDVK´VFDQGDOE\ILQGLQJIXQGLQJIRU and establishing a model Juvenile Unit. Nothing he has done and nothing Defendants can point to undermines 3ODLQWLII¶V ability to perform in his position. And because the Defendants are a governmental unit and its agent, they have no legally cognizable interest in suppressing Plaintiff¶s constitutionally protected rights.
E. The Public Interest Is Best Served By Allowing Individuals To Exercise Their First Amendment Rights And Preventing Public Officials F rom Terminating Employees Who Refuse To Act In V iolation O f TKH3XEOLF¶VInterest.
Because there exists a need for ³informed, vibrant dialogue in a democratic society[,] . . . widespread costs may arise when dialogue is repressed.´ Garcetti, 547 U.S. 419. The contributions of governmental employees to that dialogue is
21   

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essential to informing the public about the conduct and operation of publicly funded agencies, as public employees are often the ³most likely to have informed and definite opinions´ about those operations. Id. (quoting Pickering, 391 U.S. at 572).
A ³large-scale disincentive to Government employees¶ expression . . . imposes a significant burden on the public¶s right to read and hear what the employees would otherwise have written and said.´ United States v. Treasury Employees, 513 U.S. 454, 470 (1995). Denying the injunction will contravene the public interest because it will deter public officials from speaking out about how &RXQW\EXGJHWDU\GHFLVLRQVDIIHFWWKHSXEOLF¶VLQWHUHVWVDQGULJKWV, thus burdening the public¶s right to hear this important information. The Court should thus grant the injunction to ensure that public discourse on this quintessential government function is not unduly chilled.
In addition, of course, the authorities cited above to demonstrate the public policy in favor of constitutionally adequate indigent defense establish the public interest in preventing the termination of Plaintiff.   
22   

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C ONC LUSION For all the foregoing reasons, Plaintiff respectfully requests that this Court issue the requested injunction.
Respectfully submitted,

Dated: April 10, 2012.

/s/ Mary Catherine Roper MARY CATHERINE ROPER PA ID No. 71107 HILARY EMERSON PA ID No. 311823 American Civil Liberties Union of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106 Tel.: (215) 592-1513 ext. 116 Fax: (215) 592-1343 mroper@aclupa.org hemerson@aclupa.org
WITOLD J. WALCZAK PA ID No. 62976 American Civil Liberties Union of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213 Tel.: (412) 681-7864 Fax: (412) 681-8707 vwalczak@aclupgh.org

23   

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULES I certify that this brief complies with the length requirements of L.R. 7.8(b), in that it contains less than 5000 words, exclusive of tables and certifications. The body of this brief contains 4,831 words.
/s/ Mary Catherine Roper Mary Catherine Roper
24   

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© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6M6N6QS82? documentName=4.pdf&amp;fmt=pdf

 
 Case 3:12-cv-00665-MEM Document 26 Filed 03/05/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AL FLORA, JR., Plaintiff

HONORABLE MALACHY E. MANNION

v.
LUZERNE COUNTY and ROBERT C. LAWTON, COUNTY MANAGER, in his official capacity,

CIVIL ACTION - LAW

Defendants.

NO.3:12-CV-00665

STIPULATED ORDER OF DISMISSAL

1. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiffs

Complaint in the above-captioned matter is hereby dismissed.

2. It is further stipulated that the parties agree to bear their own costs and attorneys' fees.

BY THE PARTIES:
For Plaintiff Al Flora, Jr.
lsi Mary Catherine Roper Mary Catherine Roper American Civil Liberties Foundation of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106 Tel.: (215) 592-1513 ext. 116 Fax: (215) 592-1343 mroper@aclupa.org

Case 3:12-cv-00665-MEM Document 26 Filed 03/05/13 Page 2 of 2

For Defendants Luzerne County and Robert C. Lawton, County Manager
/s/ John G. Dean John G. Dean Deborah H. Simon /s/ Deborah H Simon Elliott Greenleaf & Dean 201 Penn Avenue Suite 202 Scranton, PA 18503 570-371-5290 Fax: (570) 969-2890 j gd@elliottgreenleaf.com dhs@elliottgreenleaf.com

IT IS SO ORDERED: Dated: - - - - - -

Hon. Malachy E. Mannion, United States District Court for the Middle District of Pennsylvania

2

 
 Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AL FLORA, JR., Chief Public Defender Of Luzerne County
Plaintiff,
v.
LUZERNE COUNTY and ROBERT C. LAWTON, COUNTY MANAGER, in his official capacity,
Defendants.

No. 12-cvELECTRONICALLY FILED

VERIFIED COMPLAINT Introduction
Plaintiff, the Chief Public Defender for Luzerne County, seeks injunctive relief to protect his job in light of the Defendants' threat to fire him ifhe does not "cooperate" with the County's refusal to provide adequate funds for the Luzerne County Office of the Public Defender. Today, plaintiff is filing a mandamus action in state comi against the County seeking to compel the County to increase

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 2 of 22
resources for the Public Defender. Plaintiff has reason to believe that this legal action will subject him to retaliatory termination by the County.
JURISDICTION AND VENUE 1. This COUli has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4). This Court has supplemental jurisdiction over the state tOli claims pursuant to 28 U.S.C. § 1367. DeclaratOlY relief is authori zed by 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57. Injunctive relief is authorized by Federal Rule of Civil Procedure 65. 2. This COUli has personal jurisdiction over the defendants, who are located in the Middle District of Pennsylvania. 3. Venue is proper in the Middle District of Pennsylvania pursuant to 28 U.S.c. § 1391(a) in that the defendants are subject to personal jurisdiction within the Middle District of Pennsylvania and the events that give rise to this action occurred within the Middle District of Pennsylvania.
PARTIES 4. Plaintiff Al Flora, Jr. has been the Chief Public Defender in the Office of the Public Defender ("OPD") of Luzerne County, Pennsylvania since May 2010. As Chief Public Defender, Plaintiff Flora is responsible for managing the OPD, which includes overseeing its lawyers and employees, establishing its policies,
2

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 3 of 22
managing its budget, and ensuring its compliance with constitutional, statutory, and professional/ethical guidelines.
5. Defendant Luzerne County is a county of the Third Class located in northeastern Pennsylvania. Effective January 2, 2012, the County transitioned to Home Rule under the governance of the present Council. Prior to January 2012, the County had an elected Board of County Commissioners ("the Commissioners").
6. Defendant Robert C. Lawton is the County Manager of Luzerne County, Pennsylvania. The County Manager maintains an office at 200 North River Street, Wilkes-Barre, PA 18711. Defendant Lawton assumed this position on February 29, 2012. He is sued in his official capacity. At all times hereinafter mentioned, these defendants were acting within the scope of their official duties and under color of state law.
FACTUAL BACKGROUND
7. The Pennsylvania Public Defender Act ("Act") requires each County to appoint a public defender, who is directed to provide legal representation to, inter alia, indigent criminal defendants, juveniles charged with delinquency and people subject to involuntary commitment. 16 P.S. §§ 9960.3, 9960.6.
8. The right to counsel anchors oUl' criminal justice system: "Without counsel, the right to a trial itself would be (of little avail' . . . . (Of all the rights that
3

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 4 of 22
an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have. ", United States v. Cronic, 466 U.S. 648, 653-54 (1984) (citing Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
9. Plaintiff Flora is the Chief Public Defender in Luzerne County, Pennsylvania. He has been with the OPD as an attorney since 1980. He became the First Assistant Public Defender in 1990 and the acting Chief Public Defender in March 2010. In May 2010, he was appointed the Chief Public Defender by the Luzerne County Board of Commissioners.
10. The OPD is divided into two units: the Adult Unit and the Juvenile Unit. Plaintiff Flora oversees both units.
11. The OPD is charged with providing representation to indigent criminal defendants in seventeen magisterial districts, the Luzerne County Court of Common Pleas, and the state appellate courts (as needed). The OPD is also responsible for providing representation in state parole, county probation/parole revocation, juvenile delinquency, and mental health civil commitment proceedings.
Plaintiff Flora's Efforts to Improve the OPD 12. When Plaintiff Flora became Chief Public Defender in May 2010, the OPD was already plagued with problems due to years of insufficient funding. Plaintiff Flora's predecessor, Basil Russin, had tried in vain since 2007 to secure
4

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 5 of 22
additional funding for the OPD from the County. From 2007 to 2010, Mr. Russin submitted weekly reports to the Luzerne County Board of Commissioners detailing the excessive OPD caseloads and staffing deficiencies, which stemmed from insufficient funding. The repolis also discussed the County's failure to fill vacancies in a timely fashion.
13. Plaintiff Flora's highest priority when he became Chief Public Defender was improving juvenile representation in the wake of the so-called "kids for cash" scandal, in which two judges of the Luzerne County COUlt of Common Pleas were convicted or pled guilty to charges that they improperly accepted money from two private, for-profit juvenile detention facilities.
14. State records reveal that between 2003 and 2008, the time period during which the "kids for cash" scandal occurred, approximately 50 percent of juveniles appeared in Luzerne County Juvenile Court without the benefit of counsel-nearly ten times the state average. Virtually all ofthe unrepresented juveniles were adjudicated delinquent. According to the December 2011 report by Joint State Government Commission's Task Force and Advisory COllUnittee on Services to Indigent Criminal Defendants, the OPD was unable to provide effective representation to juveniles during this time because of inadequate resources.
15. As pati of his effOlis to improve the quality ofjuvenile representation, Plaintiff Flora was able to obtain grant funding from the Pennsylvania Commission
5

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 6 of 22
on Crime and Delinquency and the Luzerne-Wyoming Counties Mental HealthlMental Retardation Program. These grants allowed Plaintiff Flora to create a separate Juvenile Unit by hiring one attorney, two social workers, one secretary, and one investigator to exclusively handle juvenile cases.
16. Even with this grant funding, Plaintiff Flora was forced also to transfer a senior attorney from the Adult Unit to meet the staffing needs in the Juvenile Unit. Defendants have refused to authorize Plaintiff Flora to replace this attorney in the Adult Unit, despite the fact that funding for the position exists in the current budget.
17. With a full complement of staff in the Juvenile Unit, Plaintiff Flora has been able to implement a comprehensive process for handling juvenile cases and determining juvenile eligibility for OPD representation. The Juvenile Unit is now a model unit that has earned accolades from across the state and has been recognized by the Pennsylvania Commission on Crime and Delinquency as a "Model" Juvenile Defender Unit for the state. The senior attorney in the Juvenile Unit is a member of the Board of Directors of the Juvenile Defenders Association of Pennsylvania ("JDAP"). The Juvenile Unit adheres to JDAP's Performance Guidelines for Quality and Effective Juvenile Delinquency Representation. With the resources provided by outside grant funding and the County, the OPD has been able to intervene in juvenile cases at an early stage, thereby divelting these cases
6

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 7 of 22
from court and preserving the resources of the Juvenile Unit, the County, and the judiciary.
18. Despite the success of the Juvenile Unit, the County has refused to provide Plaintiff Flora with the resources necessary to make similar and badly needed improvements to the Adult Unit.
19. In June 2010, Plaintiff Flora provided Defendant County and its Commissioners with a rep0l1 describing the significant resource shortfall at the OPD and its consequent inability to provide the representation required by the Public Defender Act and the U.S. and Pennsylvania Constitutions. The OPD's listed deficiencies included:
a. Caseloads for OPD attorneys that far exceed national maximum caseload standards;
b. An insufficient number of clerical staff; c. The County's failure to fill staff vacancies;
d. The lack of any appellate counsel, reSUlting in stafflawyers,
many of whom are not versed or trained in appellate practice, doing their own appeals; e. Physical facilities that are undersized, overcrowded, poorly maintained and not suitable for client conferences or maintaining client confidentiality; and f. Severely inadequate information technology. 20. At the conclusion of his rep0l1, Plaintiff Flora stated, "[a]bsent appropriate staff increases, the Office will begin declining applications for
7

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 8 of 22
representation within 60 days." Plaintiff Flora's June 2010 report is attached to this Complaint as Exhibit A.
21. Plaintiff Flora discussed his June 2010 repOli at a meeting with the County Commissioners soon thereafter. The Commissioners were unhappy with Mr. Flora's report, several of them calling it "demeaning."
22. In July 2010, at the request of the Commissioners, Plaintiff Flora provided Defendant County and its Commissioners with a short-term plan to correct the OPD's staffing deficiencies and the resulting problems. Recommendations included the creation of a Juvenile Unit, hiring appellate and additional trial attorneys, and active caseload monitoring. Plaintiff Flora's July 2010 plan is attached to this Complaint as Exhibit B.
23. In his 2011 budget proposal, Plaintiff Flora recommended hiring two attorneys to handle appeals because the trial attorneys, who had (and still have) little to no appellate experience, were responsible for their own appeals. He also requested an additional investigator and a secretary "to help alleviate staffing/caseload problems and provide better ratio oflawyers to support staff to insure effective assistance of counsel." The County denied his requests.
24. Plaintiff Flora's 2012 budget again requested two appellate lawyers, along with two secretaries, to start rectifying the severe staffing shortage in the Office.
8

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 9 of 22
Currently office has no appellate lawyers creating significant ethical issues for supervisory counsel. Two appellate lawyers would bring office into compliance with ABA standards on Public Defense Delivery Systems as relating to appeals. Office still understaffed on adult side re: trial lawyers and does not meet ABA standards. Two additional secretaries seriously needed on adult side given large volume of cases. Currently, office has 4 clerk steno's on adult side with each steno handling over 1,000 cases per year. Adequate support staff essential to allow counsel to [sic] perform duties effectively.
Defendants once more denied Plaintiff Flora's requests.. 25. Because of Defendants' refusal to provide minimum funding and
resources to the OPD, Plaintiff Flora was forced to take action to limit caseloads in
order to provide constitutionally adequate criminal defense to at least some
indigent defendants in Luzerne County.
The Public Defender's Office Has Been Forced To Decline Cases In Order To Comply With Ethical Rules And Professional Standards
26. On December 12,2011, Plaintiff Flora sent a letter to the President
Judge of the Luzerne County Court of Common Pleas stating that he would begin
declining certain cases on December 19, 2011 , because of a lack of OPD resources.
27. Beginning on December 19th, the OPD started declining cases,
advising defendants in writing that although they were eligible for counsel, the
OPD could not accommodate their request due to a lack of resources. The OPD
currently approves new applications for representation only from indigent adult
defendants with homicide or felony sex offense charges, or individuals who are
9

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 10 of 22
incarcerated or subject to extradition. The OPD also continues to provide representation to individuals in mental health, state parole, county probation/parole revocation, and juvenile cases. The OPD has continued representation in all cases that the OPD was handling before December 19, 2011.
28. To date, the Office has declined representation to over three hundred (300) eligible criminal defendants.
29. To date, conflict counsel have not been appointed to represent defendants whom the OPD has declined to represent as a result of the December 19,2011 policy. Upon information and belief, the Court of Common Pleas does not have sufficient resources to provide conflict counsel for so many defendants.
30. Plaintiff Flora's policy to limit new cases to address excessive workloads is neceSSaIY in light of the ethical and constitutional rules under which Plaintiff Flora and the OPD operate. His policy is required by the Pennsylvania Rules of Professional Conduct and the ethical guidance provided to public defenders by the American Bar Association and the National Legal Aid and Defender Association.!
31. Pennsylvania Rule of Professional Conduct 1.1 states that "[a] lawyer shall provide competent representation to a client. Competent representation
I The American Bar Association's Ten Principles ofa Public Defense Delivery System is attached to this Complaint as Exhibit C. The NLADA Guidelines are attached to this Complaint as Exhibit D.
10

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 11 of 22
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Plaintiff Flora's policy is necessary to ensure that OPD attorneys' caseloads are not so overwhelming that they preclude the attorneys from providing clients with representation involving sufficient preparation and thoroughness to satisfy the requirements of Rule 1.1.
32. Pennsylvania Rule of Professional Conduct 5.1 states that "[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct." Plaintiff Flora's policy is necessary to ensure that the OPD attorneys over whom Plaintiff Flora has supervisory authority comply with Rule 1.1.
33. American Bar Association Ethics Opinion 06-441 2 states that the Rules of Professional Conduct relating to competency "provide no exception for lawyers who represent indigent persons charged with crimes." American Bar Association Ethics Opinion 06-441 also provides that "[a] lawyer's primary ethical duty is owed to existing clients. Therefore, a lawyer must decline to accept new cases, rather than withdraw from existing cases, if the acceptance of a new case will result in her workload becoming excessive."
34. American Bar Association Ethics Opinion 06-44l further states that "[i]f any subordinate lawyer's workload is found to be excessive, the supervisor 2 The American Bar Association's Ethics Opinion 06-441 is attached hereto as Exhibit E.
11

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 12 of 22
should take whatever additional steps are necessary to ensure that the subordinate lawyer is able to meet her ethical obligations in regard to the representation of her clients."
35. On February 28, 2012, Plaintiff Flora sent a letter to the President Judge of the Luzerne County Court of Common Pleas requesting "the court's immediate assistance ... to assign outside or conflict counsel to provide representation in [mental health] cases." The part-time attorney who handled mental health cases resigned on February 20, 2012, and another attorney, largely untrained in mental health law, has been temporarily assigned to these cases. This is one of the four funded vacancies that Plaintiff Flora is seeking to fill.
36. On March 16, 2012, one of the OPD's palt-time attorneys advised Plaintiff Flora that he would no longer accept cases that had been reassigned due to current or upcoming vacancies. The attorney stated that he could not provide ethical representation to indigent defendants ifhe added more cases to his already heavy workload. Even with the December 19, 2011, policy in effect for three months, this part-time attorney had approximately 115 open cases as of March 16, 2012.
The County Has FUither Decreased Funding For The Public Defender's Office Since That Office Began Declining Cases
37. In January 2012, Luzerne County reopened its budget pursuant to its transition to Home Rule. The Interim County Manager gave all county offices a
12

Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 13 of 22
bottom-line figure within which to allocate their funding. The OPD was given $2.36 million, a nearly twelve percent (12%) decrease from its $2.68 million 2011 budget. The loss in funds would have required the OPD to cut four positions, jeopardizing the adequate staffing in the Juvenile Unit as some of its employees would have had to be shifted to the Adult Unit.
38. After the Council approved a two-percent tax increase, Plaintiff Flora was able rearrange his new allotment of$2.5 million (a 6.7% decrease from 2011) to maintain current staffing levels. Preserving existing positions in the OPD required Plaintiff Flora to reduce his expert witness budget from $100,000 to $72,000. (The OPD spent approximately $170,000 on expert witnesses in 2011.) This budget reduction will have a substantial impact on the OPD's ability to retain experts in capital and juvenile cases, both of which frequently require expelt testimony. The OPD will likely have to petition the Court to direct the County to pay expelt fees once the OPD has exceeded its budget for this expense.
39. Plaintiff Flora submitted his new budget under protest, declaring Current staffing levels and existing caseloads, prevent this office fi'om providing level of representation required by ethical standards and by Federal and State Constitutions. As such, office is ethically required to withdraw from existing cases or refuse new cases. Letter ofJanuary 3, 2012 from American Council of Chief Defenders to County Council supports position. Budget submitted in protest for reasons as already stated in previous memos and reports to County and Court. Cannot reduce staffing any further.
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40. In February 2012, the Interim Manager permitted Plaintiff Flora to advertise the three funded attorney vacancies in the Adult Unit.3 As the County had instituted a hiring freeze in February 2012, the Interim Manager did not allow Plaintiff Flora to fill these vacancies.
41. Defendant Lawton, the new County Manager, has also not permitted Plaintiff Flora to fill these vacancies.
Current State of the Luzerne County Public Defender's Office 42. National standards and Rules of Professional Responsibility define proper legal representation to indigent criminal defendants at all critical stages of the proceedings against them as requiring, among other things, that defense counsel: (a) have adequate knowledge of the relevant areas of the law; (b) be assigned to their clients as early in the criminal, delinquency, or mental health proceeding as possible; (c) be present at every critical stage of their cl ients' proceedings; (d) conduct reasonable factual and legal pre-trial investigations into the charges against their clients, pursue available formal and informal discovery procedures, and use appropriate and necessary experts; (e) consult with their clients to elicit relevant information about the case, to inform clients of their rights,
3 There are currently four funded vacancies due to the March 27,2012 resignation of a full-time attorney in the Adult Unit.
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and to enable clients to make informed decisions about the direction of their cases;
and (t) perform their work with reasonable diligence and promptness.
43. The NLADA Performance Guidelines require criminal defense
attorneys, in part:
a. To have "sufficient time, resources, knowledge and experience to offer quality representation to a defendant in a patticular matter... . [and] to keep the client informed of the progress of the case ...." Guideline 1.3.
h. To engage in an initial interview with their clients. During this interview, the attorney is expected to "be familiar with the elements of the offense and the potential punishment, where the charges against the client are already known" and to have obtained all available relevant documents. Guideline 2.2.
c. To appear at the arraignment. Guideline 3.1. d. To be familiar with the facts of the case prior to appearing at the
preliminary hearing. Guideline 3.2. e. To promptly conduct an independent investigation of the facts of the
case, including interviewing witnesses and retaining experts, when necessary. Guideline 4.1. f. To pursue formal and informal discovery as soon as practicable. Guideline 4.2. g. To file a variety of pretrial motions, when appropriate. Guidelines 5.1-5.3. h. To engage in comprehensive trial preparation. Guideline 7.1.
44. OPD attorneys are currently unable to meet the NLADA Performance
Guidelines due to the excessive workloads they face. Indeed, the December 2011
repOlt of the Joint State Government Commission's Task Force and Advisory
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Committee on Services to Indigent Criminal Defendants indicated that the OPD is operating under excessive workloads and would require an additional 8.5 full-time attorneys to meet nationally recognized standards. 4 This number does not include the four current, budgeted vacancies that Plaintiff Flora has not been authorized to fill.
45. Because Defendants have refused to provide the necessary funding and resources, the OPD cannot provide representation that satisfies the above standards and therefore cannot provide legal representation to indigent criminal defendants at all critical stages ofthe proceedings against them in accordance with its constitutional, statutory, and professional obligations. In particular:
a. OPD lawyers are frequently unable to interview or meet with their clients prior to a preliminary hearing and have no contact whatsoever with their clients between court appearances;
b. OPD lawyers are often able to conduct no discovery or only minimal discovery;
c. OPD lawyers are often able to engage in no motion practice or only minimal motion practice;
d. OPD lawyers are unable to muster adequate information to engage in effective plea negotiations;
e. OPD lawyers are able to engage in only minimal trial preparation; and
4 A Constitutional Default: Services To Indigent Criminal Defendants In Pennsylvania, Report Of The Task Force And Advisory Committee On Services To Indigent Criminal Defendants December 2011, is attached hereto as Exhibit F.
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f. OPD lawyers are required to conduct their own appeals despite lacking adequate training and resources to do so effectively, resulting in missed deadlines and dismissed appeals.
These deficiencies have only gotten worse as the OPD's resources have been reduced by defendants. And, of course, since the OPD has begun declining new cases, there are hundreds of indigent defendants who have no representation at all in their ongoing criminal cases.
Plaintiff Flora's Threats to Sue and The County's Threat to Retaliate 46. In December 2011, Mr. Flora spoke to local newspaper reporters about his decision to decline new cases while the OPD's resources precluded adequate representation of new clients. He stated, among other things, that he would consider suing the County if there were no other way to obtain adequate funding for the OPD. Those comments were reported on December 20, 2011in a local newspaper, the Times Leader.. 47. A few weeks later, on January 8, 2012, Mr. Flora's willingness to sue the County, if necessary, to obtain adequate funding for the office was again repOlied by the Times Leader. 48. Mr. Flora's comments did not go unnoticed. At a meeting about the proposed budget revision in late January 2012, the County's Interim Manager, Thomas Pribula, in discussing the proposed cuts to all cOUli offices, stated that he believed that Plaintiff Flora would sue the County because the County would not
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augment the OPD's budget. He went on to note that the Public Defender is selected by the County Manager with County Council confirmation, and that they could replace Mr. Flora ifthere was a "lack of cooperation."s Those remarks were reported in the Times Leader on January 27,2012.
49. Since learning of Mr. Pribula's "lack of cooperation" comment, Mr. Flora has refrained from making public comments regarding his concerns about the OPD's insufficient funding. Prior to Mr. Pribula's statement, Mr. Flora would advocate for the OPD without hesitation at public meetings and in the media, explaining how the County's failure to adequately fund the OPD was compromising the rights of indigent defendants. He is now concerned that such comments would cost him his job. Mr. Flora currently does not speak at public meetings and only provides cautiously worded statements to the media that do not contain his professional opinions about OPD operations.
50. Plaintiff Flora is even more concerned that his lawsuit against the County, seeking greater funding for the OPD, will precipitate his removal from office.
51. The threatened retaliation for speech and for Plaintiff Flora's efforts to fulfill his constitutional, statutory and professional responsibilities creates a
S At the same meeting, Council member Edward Brominski, who had voted for the more austere amended budget with no tax increase, said, "The DA, courts and public defender - they don't intimidate me."
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profound chill on expression by Plaintiff Flora and others within the OPD, sending a message that "lack of cooperation" with the County's budget choices - however they affect the constitutional rights of criminal defendants - will be punished, thereby creating irreparable harm.
52. Moreover, if Plaintiff Flora is removed from office, he no longer will have standing to pursue relief for the OPD and its clients, thus silencing the most powerful voice for the rights of Luzerne County criminal defendants. There is no legal remedy available to obviate this chill on free speech, a matter that has a substantial impact on the public's interest in having a Public Defender that is independent and willing to advocate for the OPD's clients. Expeditious injunctive relief, under the circumstances of this case, is both necessary and appropriate.
CLAIMS 53. The threatened termination of Plaintiff Flora would violate his rights under the First and Fourteenth Amendments to the United States Constitution as made actionable against such defendants pursuant to the Civil Rights Act of 1871, 42 U.S.c. § 1983. Similarly, the threatened termination of Plaintiff Flora would constitute Wrongful Discharge under Pennsylvania's tort law. 54. Plaintiff Flora is entitled to declaratory and injunctive relief to prevent irreparable harm - the loss of his First Amendment rights - and to protect the public's interest in knowing the facts about the OPD.
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REQUESTED RELIEF On the basis of the foregoing, Plaintiff Al Flora, Jr. requests the following:
(a) The issuance of a temporary restraining order to prevent his removal from the position of Chief Public Defender for Luzerne County;
(b) The issuance of preliminary and permanent injunctions; (c) an order awarding the Plaintiff the costs incurred in this litigation,
including attorney's fees pursuant to 42 U.S.C. § 1988; and (d) such other relief as the Court deems just and proper.
Respectfully submitted,
/s/ Mary Catherine Roper MARY CATHERINE ROPER PA ID No. 71107 HILARY EMERSON PA ID No. 311823 American Civil Libelties Foundation Of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106 Tel.: (215) 592-1513 ext. 116 Fax: (215) 592-1343 mroper@aclupa.org hem erson@aclupa.org
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Case 3:12-cv-00665-ARC Document 1 Filed 04/10/12 Page 21 of 22
WIToLD J. WALCZAK PA ID No. 62976 American Civil Libeliies Foundation Of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213 Tel.: (412) 681-7864 vwalczak@aclupa.org
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VERIFICATION

I swear on penalty of perjury that the statements of fact made in the

foregoing Verified Complaint are true and conect to the best of my knowledge.

Al Flora, Plaintiff

'itiJ/~ Date

22

 
 Kuren v. Luzerne County, 637 Pa. 33 (2016) 146 A.3d 715

637 Pa. 33 Supreme Court of Pennsylvania.
Adam KUREN and Steven Allabaugh, on Behalf of Themselves and All Others Similarly Situated, Appellants v. LUZERNE COUNTY of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in His Official Capacity, Appellees
Adam Kuren and Steven Allabaugh, on Behalf of Themselves and All Others Similarly Situated, Appellants v. Luzerne County of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in His Official Capacity, Appellees
No. 57 MAP 2015 |
No. 58 MAP 2015 |
ARGUED: April 6, 2016 |
DECIDED: September 28, 2016
Synopsis Background: Indigent criminal defendants sought writ of mandamus and injunctive relief, alleging that inadequate funding by county of office of public defender deprived indigent defendants of right to counsel. The Court of Common Pleas, Luzerne County, No. 04517, Augello, Senior Judge, dismissed complaint. Criminal defendants appealed. The Commonwealth Court, Nos. 2072 C.D. 2013, 2207 C.D. 2013, 103 A.3d 125, Leavitt, J., affirmed. The Supreme Court granted allocatur.
Holdings: The Supreme Court, Nos. 57 MAP 2015, 58 MAP 2015, Wecht, J., held that:
as matter of first impression in Pennsylvania, a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office, so long as the class action plaintiffs demonstrate the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.

allegations by indigent criminal defendants were sufficient to support complaint for injunctive relief requiring county to provide adequate funding to public defender’s office; and
writ of mandamus was not available to indigent criminal defendants to compel county to provide adequate funding to public defender’s office.
Decision of Commonwealth Court affirmed in part, reversed in part; case remanded.
Baer, J., filed a concurring opinion.
Procedural Posture(s): On Appeal.
**717 Appeal from the Order of the Commonwealth Court at No. 2072 CD 2013 dated October 14, 2014, Reargument Denied December 2, 2014, Affirming the Order of Luzerne County Court of Common Pleas, Civil Division, at No. 04517, April Term, 2012 dated October 22, 2013.
Appeal from the Order of the Commonwealth Court at No. 2207 CD 2013 (cross to Nos. 2072 CD 2013) dated October 14, 2014, Reargument Denied December 2, 2014, Affirming the Order of Luzerne County Court of Common Pleas, Civil Division, at No. 04517, April Term, 2012 dated October 22, 2013.
Attorneys and Law Firms
Marrisa Boyers Bluestine, Esq., Temple University School of Law, Terence Martin Grugan, Esq., Ballard Spahr, LLP, for The Innocence Network & The PA Innocence Project, Amicus Curiae.
Paulette Brown, Esq., Edward W. Madeira Jr., Esq., Eli Mordecai Segal, Esq., Pepper Hamilton LLP, for American Bar Association, Amicus Curiae.
Arleigh Pritchard Helfer III, Esq., Paul H. Titus, Esq., Schnader Harrison Segal & Lewis, LLP, for National Assoc. of Criminal Defense Lawyers & PA Assoc. of Criminal Defense Lawyers, Amicus Curiae.
Nathaniel Pollock, Esq., for United States, Department of Justice, Civil Rights Division, Washington, DC, Amicus Curiae.
Kimberly D. Borland, Esq., Borland & Borland, L.L.P., Vermon L. Francis, Esq., Sean Patrick McConnell, Esq.,
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Kuren v. Luzerne County, 637 Pa. 33 (2016) 146 A.3d 715
Katherine Elizabeth Unger, Esq., Michelle Hart Yeary, Esq., Dechert, LLP, Dina L. Hardy, Esq., Hangley Aronchick Segal Pudlin & Schiller, Mary Catherine Roper, Esq., David Rudovsky, Esq., Kairys, Rudovski, Messing & Feinberg, Martha Meredith Tack–Hooper, Esq., ACLU of Pennsylvania, Witold J. Walczak, Esq., American Civil Liberties Union of PA, for Adam Kuren, Steven Allabaugh, and all others similarly situated, Appellant.
James C. Crumlish III, Esq., Deborah Hart Simon, Esq., Elliott Greenleaf & Siedzikowski, P.C., John G. Dean, Esq., for Luzerne County and Robert C. Lawton, Appellees.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

The question that we confront today is whether a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office. Pursuant to Gideon and its progeny, and because remedies for Sixth Amendment violations need not await conviction and sentencing, we hold that such a cause of action exists, so long as the class action plaintiffs demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

OPINION
JUSTICE WECHT
*37 The Sixth Amendment to the United States Constitution safeguards some of our basic liberties. Among its protections is the guarantee that, “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.” U.S. Const., Amend VI. In the seminal case of Gideon v. Wainwright, the United States Supreme Court held that this bedrock right extended to state courts by application of the Due Process Clause of the Fourteenth Amendment. 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Since Gideon, the Sixth Amendment has required not only federal courts but state courts as well to provide counsel to all those who are criminally accused but who cannot afford to pay for an attorney.
The Public Defender Act, 16 P.S. § 9960.3, requires each Pennsylvania county to maintain a public defender’s office charged with fulfilling Gideon’s dictates. These offices are chronically underfunded and understaffed, and are hard-pressed to meet the baseline demands of the Sixth Amendment, *38 raising the disconcerting question of whether counties are complying **718 with Gideon. In this case, the trial court stated that “[t]o describe the state of affairs in the Office of the Public Defender as approaching crisis stage is not an exaggeration.” Trial Court Opinion, 6/15/2012, at 16.

I. Background1
In May 2010, the Luzerne County Board of Commissioners appointed Al Flora, Jr., Esq., an attorney who served in the Luzerne County Office of Public Defender (“OPD”) for approximately thirty years, to be Chief Public Defender. When Flora assumed the Chief’s position, the OPD already was riddled with problems stemming from understaffing and underfunding, deficiencies most prominently displayed at the time by the OPD’s inability to represent juveniles facing delinquency petitions. A report prepared in the aftermath of *39 the notorious “Kids for Cash”2 scandal detailed the OPD’s abject inability to represent accused juveniles, noting that approximately fifty percent of juveniles appearing in Luzerne County’s Juvenile Court were unrepresented. Eventually, Flora was able to secure funding to create a Juvenile Unit within the OPD in order to reduce the office’s deficiencies in representing juveniles. However, in order to staff this new unit, Flora had to transfer a senior attorney out of the OPD’s Adult Unit. Although funding existed to replace the senior attorney in the Adult Unit, Luzerne County officials rebuffed Flora’s request for authorization to fill the position, thus leaving the Adult Unit understaffed to tackle its increasing caseload.
In June 2010, Flora submitted a report to the Luzerne County Board of Commissioners regarding the state of the OPD. In the report, Flora outlined his belief that, for want of sufficient resources and funding, the OPD could not provide adequate representation to Luzerne County’s indigent criminal defendants in a manner sufficient to satisfy the Public Defender Act, the Sixth Amendment to the United States Constitution, or **719 Article I, Section 9 of the Pennsylvania Constitution.3 In his report, Flora
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Kuren v. Luzerne County, 637 Pa. 33 (2016) 146 A.3d 715
noted that the lack of resources created rampant deficiencies in representation, including the following:
1. Caseloads for OPD attorneys exceeding national standards;
2. Insufficient support staff;
3. Insufficient number of attorneys due to Luzerne County’s refusal to authorize hiring;
4. Lack of appellate attorneys, requiring trial attorneys untrained in appellate practice to litigate appeals;
5. Facilities unsuitable for confidential meetings with indigent defendants; and
*40 6. Inadequate information technology.
Amended Complaint, 5/15/2013, at 12 ¶ 29. Flora informed the Commissioners that, without additional attorneys and support staff, “the [OPD] will begin declining applications for representation within 60 days.” Id. ¶ 30.
In July 2010, Flora provided the Luzerne County Board of Commissioners with a short-term plan to address the deficiencies. The plan included recommendations to hire new appellate attorneys as well as additional trial attorneys, and to create and implement a caseload-monitoring system. The Board of Commissioners denied each recommendation. Then, in his 2011 and 2012 budget proposals, Flora sought the addition of two appellate attorneys, an investigator, and a secretary. On each occasion, the Board of Commissioners rejected Flora’s requests.
In December 2011, Flora decided to implement his 2010 proposal to decline representation to certain applicants. Faced with mounting caseloads and overwhelmed attorneys, Flora directed the OPD to reject applicants who were not incarcerated and who were charged only with minor offenses. The OPD continued to refuse representation to such individuals until June 2012.
In January 2012, despite Flora’s ongoing requests, Luzerne County decreased the OPD’s funding by approximately 12%. The reduction would have required the OPD to eliminate four full-time positions from its already-strained staff. Flora was able to reallocate funds to retain those positions, but doing so significantly limited the OPD’s ability to retain experts in some matters, including capital cases and complex juvenile proceedings.

In early 2012, a number of attorneys resigned from the OPD. Because Luzerne County implemented a hiring freeze in February of that year, Flora could not fill the positions. By April, the OPD staff consisted of only four full-time attorneys, thirteen part-time attorneys, three investigators, four secretaries, one receptionist, and one office administrator. The OPD continued to operate with five unfilled attorney positions, *41 three full-time and two part-time. Most of the attorneys who worked for the OPD did not have their own desks, telephones, or computers. One part-time attorney informed Flora that he could not accept any more cases because, due to his current caseload, he could not satisfy his ethical duties to any additional defendants.
The cases continued to amass. Yet, despite Flora’s efforts, no additional funding was forthcoming, and none appeared likely. Faced with no other option, and believing that the attorneys working for the OPD could not meet their ethical and professional obligations, Flora turned to the courts for relief.
**720 On April 10, 2012, Flora, in his capacity as Chief Public Defender, along with plaintiffs Samantha Volciak, Yolanda Holman, Charles Hammonds (collectively, the “plaintiffs” or “original plaintiffs”), and on behalf of unnamed but similarly situated individuals, filed a class action lawsuit against Luzerne County and Robert Lawton, its County Manager (collectively, “Appellees”). Other than Flora, the plaintiffs identified themselves as persons charged with crimes in Luzerne County, each of whom qualified for the OPD’s services. The OPD could not provide these plaintiffs with representation due to the inadequate funding and depleted resources plaguing the office. Flora and the other plaintiffs sought a writ of mandamus compelling the county to lift the hiring freeze and to increase funding to the OPD to a level that would enable the OPD to provide adequate representation to every qualified applicant. Simultaneously, the plaintiffs brought a claim under the federal Civil Rights Act, see 42 U.S.C. § 1983, and Article I, Section 9 of the Pennsylvania Constitution, seeking an injunction against Appellees requiring the immediate appointment of private counsel to assist them in their defenses and requiring additional funding to satisfy the OPD’s obligation to ensure that all qualified applicants receive competent legal representation.
Two days later, on April 12, 2012, Flora and the original plaintiffs filed a motion for a peremptory writ of mandamus and a preliminary injunction, along with a brief in support of *42 the motions. On April 30, 2012, Appellees filed preliminary objections to the complaint, including, inter alia, an objection to the trial court’s
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Kuren v. Luzerne County, 637 Pa. 33 (2016) 146 A.3d 715
jurisdiction, an objection to the standing of each plaintiff to sue, and a demurrer, alleging that Flora and the other plaintiffs had failed to state a claim upon which relief could be granted. On May 10, 2012, following additional briefing and supplementation, the trial court convened a hearing to allow the parties to present oral argument on the motion for a peremptory writ of mandamus and a preliminary injunction.
On May 16, 2012, the trial court appointed a Master to preside over settlement negotiations. On May 24, 2012, the trial court overruled each of Appellees’ preliminary objections after determining that the objections lacked merit. The court directed Appellees to file an answer to the class action complaint within thirty-five days.
Shortly thereafter, on June 15, 2012, the trial court found that Flora and the original plaintiffs were entitled to both a peremptory writ of mandamus and a preliminary injunction, and entered a corresponding order to remain in force until the class action suit was resolved. The order mandated the following actions:
(a) [Appellees] shall not prevent the public defender from filling vacant funded positions;
(b) [Appellees] shall review the operations and staffing of the [OPD] and provide a plan to meet the constitutional obligations for indigent representation in accordance with the principles set forth in [a corresponding opinion by the court];
(c) [Appellees] shall submit a report to [the trial court] within a reasonable time outlining [their] plan to meet [their] constitutional obligations in regard to the operation, staffing and expenses of the [OPD];
(d) [County Manager Lawton] is directed to provide adequate office space in order to permit confidential communications between assistant public defenders and indigent criminal defendants within 30 days of the date of this order; and
*43 **721 (e) [Flora and the OPD are] not permitted to refuse representation to qualified indigent criminal defendants.
Order, 6/15/2012 (emphasis in original). With regard to the individual plaintiffs, the trial court ordered Appellees to allocate the funding necessary to ensure that each such plaintiff received court-appointed, private counsel for the duration of his or her criminal proceedings. Id.
On June 28, 2012, Appellees answered the complaint. On January 29, 2013, Appellees filed a petition for a pre-trial

conference. In that petition, Appellees explained that, at the time of the trial court’s June 15, 2012 order, they already had commenced meeting with the District Attorney’s office to discuss and initiate a plan to ensure that every indigent defendant in Luzerne County is provided with representation. Additionally, Appellees detailed the following actions that they took after the trial court’s mandate:
(a) Facilities:
– On July 13, 2012, the County’s engineer met with Chief PD Flora to review facilities in Penn Place and provided Chief PD Flora with keys to two conference rooms to use to conduct confidential meetings.
Result:
– OPD now has space where it can conduct confidential meetings with clients that is convenient to its offices.
– In January 2013, the County began moving the Register of Wills Office out of its space in Penn Place in order to expand OPD’s offices.
* * *
– The County has complied with the Court’s Order regarding OPD’s immediate needs and has taken concrete steps toward expanding and improving the facilities available to the OPD.
(b) Backlog:
– In a period of approximately 30 days, the County’s counsel met with the District Attorney and worked on a framework for disposing of the cases in the backlog and thereafter with the assistance of the Court Administrator *44 and Conflict Counsel, approximately 500 indigent [defendants] secured representation and disposition of their cases.
(c) Staffing:
– The County authorized and approved the posting and advertising for the 5 attorney opening positions.
– The County agreed that Attorney Flora could convert the openings that were previously held by part time attorneys to full time positions (because the salaries of the departing part timers were sufficient to cover entry level full time attorneys).
– The County waived the application of the newly
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Kuren v. Luzerne County, 637 Pa. 33 (2016)
146 A.3d 715
adopted Personnel Code to the filling of attorney vacancies in OPD.
– The County’s Human Resource Director assisted Attorney Flora in evaluating and ranking the candidates.
– The County authorized OPD to hire an expert in providing training for Public Defender Offices to conduct an in-house training for OPD’s newly hired Assistant Public Defenders.
Petition for Pre-trial Conference, 1/29/2013, at 3-4 ¶ 7. Appellees further alleged that the court-ordered mediation sessions were failing, in large part due to unwillingness on the part of Flora and the plaintiffs to make any concessions. Appellees believed that the mediation process had “run its course” and evolved into a “forum for Plaintiffs to raise petty grievances **722 and to avoid working cooperatively with the established mechanisms and realities of the County’s governmental system.” Id. at 4, ¶ 13. Appellees asserted that the most prudent course of action was to begin the process of preparing for trial. Flora and the original plaintiffs rejected the view that they were not negotiating in good faith, and consented to a pre-trial conference and to setting the case on a path for trial.
Following a March 26, 2013 pre-trial conference, the court scheduled trial for June 24, 2013. However, on April 25, 2013, Flora and the plaintiffs filed a praecipe to remove Volciak and Holman from the case, wherein they noted that both of these *45 individuals sought to discontinue their claims voluntarily and without prejudice. The praecipe further stated that plaintiffs believed that Hammonds also would voluntarily discontinue his claim, but that, at the time of the praecipe, Hammonds had been transferred to the Allegheny County Jail and had not yet formally consented to the discontinuation. Because of the efforts undertaken by Appellees as described above, each of these plaintiffs had been provided with a criminal defense lawyer and no longer suffered from the deprivation of counsel that was alleged in the complaint.
After the pretrial conference, Lawton designated Steven M. Greenwald to serve as Chief Public Defender. Flora was formally terminated on April 17, 2013. The Luzerne County Board of Commissioners confirmed Greenwald on April 29, 2013. In light of these events, Flora and Hammonds, who still had not been removed as plaintiffs, filed a motion to amend their class action complaint on May 1, 2013. Over the objection of Appellees, the trial court granted the motion to amend the complaint, without prejudice to Appellees’ right to file preliminary objections to the amended complaint.

On May 15, 2013, Flora and Hammonds filed an amended complaint naming Joshua Lozano, Adam Kuren, and Steven Allabaugh (hereinafter “Appellants”) as replacement plaintiffs for Volciak and Holman. Each of these three individuals was indigent and facing criminal charges in Luzerne County, and each had been assigned an attorney by the OPD. However, Appellants alleged that, due to the financial straits of the OPD, and the limited time and resources that the OPD’s attorneys could devote to each case, the representation that Appellants would receive as their cases progressed would not meet constitutional norms.
By the time that the amended complaint was filed, Flora had implemented several measures to mitigate the costs associated with operating the OPD, and had continually sought assistance from potential funding sources. For instance, Flora applied for grants and reallocated funds to purchase computers for OPD lawyers. Flora also began sending OPD attorneys to initial bail hearings in an effort to decrease the amount of *46 time that defendants spent in jail, an initiative which saved Luzerne County money that could have been allocated to the OPD, but was not. Flora then worked with the OPD attorneys to shift the workload from busier lawyers to those with a lighter caseload to ensure that defendants were receiving the best representation possible. As noted above, however, Flora was fired as Chief Public Defender nonetheless.
Flora’s attempts to reduce the burden on the OPD did not substantially alleviate the growing crisis. Caseloads continued to mount, but no increase in funding was in the offing. When the amended complaint was filed, the OPD employed ten full-time attorneys, eleven part-time attorneys, three investigators, four secretaries, one receptionist and one office administrator. **723 Two of the full-time positions were funded only until early 2014, when they would revert to part-time positions.
In the amended complaint, Appellants detailed the effects that the inadequate funding had upon the OPD’s ability to meet its constitutional mandate. Appellants first delineated six essential components of competent “legal representation” that offices servicing indigent defendants require in order to comply with the Sixth Amendment: (1) the attorneys must have adequate knowledge of the relevant areas of the law; (2) the attorneys must be assigned to represent indigent clients at the earliest possible stage; (3) the attorneys must be present at every critical stage of the client’s case; (4) the office and attorneys must be able to conduct reasonable factual and legal pre-trial investigations, pursue and comply with the discovery rules, and utilize investigators when necessary;
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(5) the attorneys must be able to consult with their clients to discuss the material aspects of the case, as well as the client’s substantive and procedural rights, to ensure that the client is making informed decisions regarding the case; and (6) the attorneys must be able to perform their work with reasonable diligence and promptness. These criteria, according to Appellants, comprised the necessary elements of constitutional representation of indigent defendants. Due to the lack of funds and resources, Appellants alleged that the OPD could not satisfy any one of *47 these six criteria, let alone all of them, and, therefore, could not provide constitutionally adequate representation.
Regarding the first component, adequate knowledge of the relevant law, Appellants pleaded that the OPD could not sufficiently train its attorneys in the Adult Unit because there simply were no funds to do so. Those attorneys who were tasked with capital cases were required to pay out of their own pocket for the continuing legal education required for capital-qualified attorneys. Moreover, even though the OPD recently had hired one appellate attorney, many of the trial attorneys nonetheless had to brief, file, and argue the appeals that arose from their trial dockets. Because the OPD lacked the time and resources for appellate training, these trial attorneys were underqualified to perform appellate litigation, often proceeding without proficiency in the rules of appellate procedure and governing case law. As a result, the attorneys often missed deadlines or otherwise failed to comply with the technical requirements of an appeal. The time required to pursue appeals also critically reduced the OPD attorneys’ time to consult with clients and prepare for trials.
As to the criterion of early assignment to clients, Appellants averred that the ongoing constraints upon the OPD prevented the assignment of attorneys to assist clients at initial arraignments. This stage, Appellants pointed out, is a critical one, at which the right to counsel attaches. See Amended Complaint, 5/15/2013, at 19 (citing Rothgery v. Gillespie County, 554 U.S. 191, 213, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008)).
With regard to the third criterion, Appellants maintained that the OPD could not furnish counsel at all critical stages of the clients’ proceedings. Appellants asserted that the heavy caseload and inadequate resources and manpower prevented the OPD attorneys from best serving their clients’ interests at the pre-trial stages. Due to the heavy caseload, OPD attorneys frequently had to postpone hearings, which delayed cases and often forced indigent clients to spend more time in jail than they would have had counsel been more available. Additionally, their

overwhelming caseloads denied OPD attorneys the time necessary to consult adequately and fully **724 with clients *48 before those individuals had to make critical, life-altering decisions. The clients were forced to make these decisions without a full understanding of the facts of their cases, the elements of their crimes, or the potential defenses available to them. Finally, the caseloads created trial schedules that prohibited consistent representation; often, substitute attorneys filled in for unavailable attorneys while lacking critical information about the clients or the cases.
Next, Appellants asserted that the OPD attorneys were unable to conduct reasonable factual investigations and discovery. Time constraints often prevented any investigation. Even when an attorney obtained discovery materials, he or she rarely had any time to review the materials rigorously. Attorneys frequently entered into plea negotiations on behalf of their clients without a full understanding of the cases.
The attorneys themselves lacked the time or resources to interview witnesses, visit crime scenes, or otherwise investigate the facts alleged by the Commonwealth. The OPD also lacked the investigators necessary to perform these critical functions. At the time of the amended complaint, the OPD employed three investigators to service twenty-one attorneys and the 4000 new cases that come to the OPD every year. By way of comparison, the Luzerne County District Attorney’s Office employed ten detectives, who assisted twenty-six attorneys. OPD investigators often could not perform investigative duties during the work day because they were required to perform administrative duties, such as entering information into a case management system or delivering mail, due to the lack of support staff.
Regarding the fifth component, consultation with clients, Appellants averred that OPD attorneys lacked the resources to conduct in-person visits at the jail, and had to consult with incarcerated clients via video conferences, which are not confidential. Moreover, many clients met their attorney for the first time immediately before their preliminary hearing, and without any meaningful, confidential discussion about the case or the nature of the hearing itself. After the preliminary hearing, OPD attorneys rarely contacted their clients in the approximately *49 three months between the hearing and the status conference, or between the status conference and the pre-trial conference. Clients were left in the dark during these critical months. Similarly, Appellants maintained that the OPD attorneys were not available for substantive meetings with clients before either trial or sentencing. Stated differently, the OPD attorneys were not
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Kuren v. Luzerne County, 637 Pa. 33 (2016)
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able to maintain regular or sustained contact with their clients, which substantially hindered the attorney-client relationship and compromised the ability to present an effective defense or to negotiate favorable plea agreements.
As to the final component, Appellants pleaded that the OPD attorneys were unable to perform their work with reasonable diligence and promptness. Motions were not filed on time, and were rarely accompanied by a full review of discovery materials. Plea negotiations similarly were uninformed. Trial preparation was hasty, and often came too late to uncover the facts necessary to mount an effective defense.
Appellants detailed the workload required of each OPD attorney. In 2010 and 2011, the OPD received over 4,000 new criminal cases, 2,000 of which were felonies. There were also over 1,000 carry-over cases from prior years. In addition, the OPD processed appeals, mental health commitment proceedings, and parole hearings. Each case requires out-of-court preparation, consultation, investigation, and, in some instances, travel. This caseload had **725 to be managed by twenty-one attorneys, a majority of whom were part-time employees.
Appellants next addressed the other problems that plagued the OPD due to underfunding. The OPD was unable to employ enough social workers, paralegals, assistants, clerical workers, or other necessary support staff. Many attorneys lacked desks, phones, or private workspaces. The circumstances improved after the County took efforts to comply with the trial court’s order granting the preliminary injunction, including providing spaces for confidential communications. Nonetheless, facilities necessary to operate a constitutionally adequate office were not provided.
*50 Based upon these averments, Appellants raised three counts in their amended complaint. In count I, Appellants sought a writ of mandamus compelling Luzerne County to provide sufficient funding to enable the OPD to satisfy its constitutional mandate. Supporting this count, Appellants specifically averred that the OPD attorneys frequently were:
a. unable to interview or meet with clients prior to preliminary hearings;
b. unable to contact their clients between court appearances;
c. unable to conduct significant investigation or discovery;

d. unable to engage in significant motion practice;
e. unable to gather information needed for effective plea negotiations;
f. unable to engage in sufficient trial preparation; and
g. unable to [ ] litigate appeals because of a lack of appellate experience.
Amended Complaint, 5/15/2013, at 34, ¶ 106. In count II, Appellants alleged a violation of the Civil Rights Act. See 42 U.S.C. § 1983. Specifically, Appellants claimed that Appellees’ refusal to provide the OPD with adequate funding resulted in a violation of the indigent plaintiffs’ right to counsel pursuant to the Sixth and Fourteenth Amendments to the United States Constitution. Finally, in count III, Appellants asserted a violation of the right to counsel enshrined in Article I, Section 9 of the Pennsylvania Constitution, for the same reasons set forth in counts I and II.
In their prayer for relief, Appellants sought a writ of mandamus and a permanent injunction compelling Appellees to provide whatever funding was necessary to meet the demands of representing the indigent population being charged with crimes in Luzerne County, attorneys’ fees pursuant to 42 U.S.C. § 1988, and any other relief that the court saw fit.
On June 3, 2013, in light of the federal section 1983 claim raised by plaintiffs, Appellees removed the case to the United States District Court for the Middle District of Pennsylvania. See 28 U.S.C. § 1441 (“[A]ny civil action brought in a State court of which the district courts of the United States have *51 original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”). However, on August 26, 2013, upon Appellants’ motion, the District Court remanded the matter to state court for disposition.
On September 11, 2013, Appellees filed preliminary objections to the amended complaint. Specifically, Appellees contended, inter alia, that Flora lacked standing because he no longer was the Chief Public Defender in Luzerne County; that the individual plaintiffs lacked standing to contest government budgeting; and that Appellants had failed to state a cause of action under either their claim for mandamus relief or their claims of constitutional violations. Regarding mandamus, Appellees **726 noted that, to be entitled to mandamus, a party must demonstrate a clear right to relief. Because budgetary decisions are discretionary, private citizens do
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not have a clear right to any form of relief, thus precluding a mandamus remedy. As to the alleged constitutional violations and the request for a permanent injunction, Appellees argued that Appellants had failed to demonstrate that they suffered any present injuries, the likelihood of immediate or irreparable harm, or the unavailability of other remedies at law.
Shortly thereafter, Appellees filed a motion to disqualify plaintiffs’ counsel. According to the Appellees’ motion, counsel for plaintiffs went to the Luzerne County Correctional Facility and met with individuals who were represented by the OPD without the permission of the OPD attorneys representing those individuals, in an effort to find new plaintiffs to be named in the lawsuit. Appellees alleged that this interaction violated, inter alia, Pennsylvania Rule of Professional Conduct 4.2, which provides that, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Pa.R.P.C. 4.2.
*52 Following briefing by both parties on the preliminary objections and the motion to disqualify counsel, the trial court heard oral arguments on October 8, 2013. On October 21, 2013, the trial court denied the motion to disqualify plaintiffs’ counsel. On the following day, October 22, 2013, the trial court sustained Appellees’ preliminary objections to Flora’s and the individual plaintiffs’ standing, and sustained Appellees’ preliminary objection upon the basis that Appellants had failed to state a cause of action for mandamus or a constitutional violation. The trial court dismissed the amended complaint. Contemporaneously, the trial court issued an opinion explaining the basis for its rulings.
On November 20, 2013, Appellants filed a notice of appeal from the order sustaining Appellees’ preliminary objections. On December 2, 2013, Appellees filed a cross-appeal from the order denying their motion to disqualify plaintiffs’ counsel. On December 19, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a), in which the court incorporated the rationale set forth in its October 22, 2013 opinion.
In a published decision, the Commonwealth Court unanimously affirmed the trial court. Flora v. Luzerne Cty., 103 A.3d 125, 140 (Pa. Cmwlth. 2014). The court first held that Flora lacked traditional standing to sue Appellees. Citing Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655, 660 (2005), the Commonwealth Court explained that Flora was not

personally aggrieved by Luzerne County’s alleged failure to fund the OPD, and therefore could not establish that he had a “substantial, direct, and immediate interest in the outcome of the litigation.” Flora, 103 A.3d at 131–32 (quoting Pittsburgh Palisades, 888 A.2d at 660).
The court then held that Flora also lacked taxpayer standing. In order to establish such standing, a taxpayer must demonstrate that (1) the governmental action would otherwise go unchallenged; (2) those directly and immediately affected by the complained-of expenditures are beneficially affected and not inclined to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no other persons are better situated to assert the *53 claim. Id. at 132 (citing Consumer Party of Penna. v. Commonwealth, 510 Pa. 158, 507 A.2d 323, 329 (1986), abrogated on other grounds by **727 Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383 (2005)). The court explained that the individual plaintiffs’ claims—that they were deprived of, or would be deprived of, effective assistance of counsel—could be addressed in the individual criminal cases. Hence, the deprivations would not go unchallenged. Second, the court noted that Flora no longer is the Chief Public Defender, and that the new Chief Public Defender could choose to pursue any claims available to the office. Finally, the court noted that the claims could be addressed through other channels, most notably the annual budgetary process. For these reasons, the court held that Flora could not satisfy the test to establish taxpayer standing.
The court then turned its attention to the individual plaintiffs’ standing and examined whether they had stated a cause of action. The court summarized the parties’ arguments, and then, without explanation, declared that “[t]he argument on standing merges with the question of whether the amended complaint states a claim upon which relief can be granted.” Id. at 133. Accordingly, the court considered the two issues together.
The court initially directed its attention to the Sixth Amendment, and the circumstances under which a defendant traditionally could obtain relief for a violation of the right to counsel. The court noted that, pursuant to Gideon, states must provide an indigent defendant with an attorney, and that the state must do so at the earliest point at which a defendant has the right to have an attorney present. Id. (citing Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009)). Hence, if a state does not provide a lawyer to an indigent defendant, the accused may bring a claim of actual denial of counsel. Id. (citing United States v. Cronic, 466 U.S. 648, 649, 104
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Kuren v. Luzerne County, 637 Pa. 33 (2016)
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S.Ct. 2039, 80 L.Ed.2d 657 (1984)).
The court next explained that, per Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), indigent defendants are entitled to effective assistance of *54 counsel; if counsel fails in that duty, the remedy is a new trial. To be entitled to relief under Strickland, a defendant must demonstrate that his attorney “performed below a standard of objective reasonableness and that counsel’s performance resulted in actual prejudice to the defendant.” Flora, 103 A.3d at 134 (citing Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052). Such a claim, the court pointed out, can be brought only after the defendant has been tried and convicted. In some instances, as the United States Supreme Court explained in Cronic, a lawyer’s performance falls so far below the constitutional baseline that prejudice can be presumed without an objective examination of trial counsel’s actual performance. Still, this too may occur only after the defendant has been convicted. Neither decision, according to the Commonwealth Court, addressed whether an indigent defendant can seek prospective relief.
Regarding such a claim, the Commonwealth Court considered three cases from other jurisdictions that have recognized a prospective cause of action for a violation of the right to counsel: Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), Hurrell–Harring v. New York, 15 N.Y.3d 8, 904 N.Y.S.2d 296, 930 N.E.2d 217 (2010), and Duncan v. Michigan, 284 Mich.App. 246, 774 N.W.2d 89 (2009). In Luckey, the United States Court of Appeals for the Eleventh Circuit held that class action plaintiffs who sought additional funding could proceed with their lawsuit, because, although they could not prove ineffective assistance of counsel in advance of trial, they nonetheless could suffer harm as a result of **728 inadequate pre-trial representation. The Court of Appeals held that, to proceed, such plaintiffs had to show a likelihood of substantial and immediate irreparable injury and the inadequacy of a remedy at law. In Hurrell–Harring, the New York Court of Appeals held, inter alia, that Strickland applies only in the post-conviction setting, and is distinguishable from pre-trial claims challenging whether states were meeting their “foundational obligation under Gideon” to provide competent legal counsel. Hurrell–Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 222. Hence, the Court allowed a claim that the criminal defense lawyers were *55 so overburdened that no attorney-client relationship could have existed. In Duncan, the Michigan Court of Appeals rejected the view that Strickland provided the exclusive avenue for relief for violations of the right to counsel. It allowed the case to proceed in order to permit the plaintiffs to show the “existence of widespread and

systemic instances of actual or constructive denial of counsel.” Duncan, 774 N.W.2d at 124.
The Commonwealth Court found the majority holdings in these cases to be unpersuasive. Instead, it agreed with the dissents in Hurrell–Harring and Duncan. The dissent in Hurrell–Harring rejected the premise that systematic underfunding creates a Sixth Amendment violation, explaining that “constructive denial of counsel is a branch from the Strickland tree, with Cronic applying only when the appointed attorney’s representation is so egregious that it’s as if [the] defendant had no attorney at all.” Hurrell–Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 229 (Pigott, J., dissenting). In the Hurrell–Harring dissent’s view, lumping together multiple claims of pretrial ineffective assistance of counsel did not create one unified claim of systematic failure. The dissent in Duncan would have found that prejudice is a necessary showing in any Sixth Amendment claim, and that Strickland provides an adequate remedy for any alleged violations.
The Commonwealth Court agreed with these dissents, citing three reasons. First, the court pointed out that the United States Supreme Court has never recognized a constructive denial of counsel claim in a civil case seeking prospective relief in the form of increased funding for an entire public defender’s office. Flora, 103 A.3d at 136. In Strickland, Cronic, and Gideon, the defendant sought a new trial for himself, not increased funding for an office. Second, the court explained that, even if a claim for funding was cognizable, Appellants failed to satisfy the requisite standard in their amended complaint. Invoking a Strickland prejudice standard, the court determined that Appellants’ allegations of inadequate representation by the OPD attorneys did not create circumstances that are “so likely [to create prejudice] that case-by-case inquiry into prejudice is not worth the cost.” *56 Flora, 103 A.3d at 137 (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052). Similarly, in the Commonwealth Court’s view, Appellants did not prove that they have suffered or will suffer irreparable harm; rather, they asserted only their fear that they might not be represented adequately. This, the court held, was speculation; it was not harm.
Third, the Commonwealth Court highlighted the United States Supreme Court’s pronouncement that the purpose of the right to counsel is “simply to ensure that a criminal defendant receives a fair trial.” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Hence, the Commonwealth Court held, because an indigent defendant is not entitled to perfect counsel or a perfect trial, prejudice cannot be presumed from the circumstances presented in the amended complaint.
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**729 Finally, the court held that mandamus relief is unavailable to Appellants. The court noted that, in order to obtain the extraordinary injunctive remedy of mandamus, a plaintiff first must make a very strong showing that he or she has a clear right to relief. Id. at 138 (citation omitted). Because funding is a discretionary act, Appellants could not establish the existence of a clear legal right. Further, the court expressed concerns that ordering a county to fund a particular office in a certain way could violate the separation of powers doctrine, because the judicial branch generally may not review discretionary acts of the other branches of government. Id.
We granted allocatur to review the following issues:
a. In a matter of first impression, do [Appellants] state a claim for constructive denial of counsel under the Sixth and Fourteenth Amendments to the United States Constitution, and Article 1, Section 9 of the Pennsylvania Constitution, based on chronic and systemic deficiencies in the operation of Luzerne County’s Office of the Public Defender that deprive them and the class they seek to represent of their right to effective assistance of counsel?
b. Do [Appellants] state a claim of mandamus to compel [Appellees] to provide adequate funding for Luzerne County’s Office of the Public Defender, as required by *57 the Commonwealth’s Public Defender Act [16 Pa.C.S. §§ 9960.10-9960.13]?
See Flora v. Luzerne Cty., ––– Pa. ––––, 118 A.3d 385 (2015) (per curiam).4
As noted, the overarching question presented in the first issue is whether there exists a cause of action for injunctive relief compelling a county to increase public defender funding in response to prospective claims of right to counsel violations. This is a question that this Court has never had occasion to resolve. The parties and amici present several arguments relevant to such a claim.
Appellants contend that the Commonwealth Court erroneously held that a violation of the right to counsel can be remedied only after trial and conviction upon a showing of Strickland prejudice. To the contrary, Appellants assert, there are multiple remedies available for violations of the rights guaranteed by the Bill of Rights and the Fourteenth Amendment, including injunctive relief. In such circumstances, the plaintiffs must show “both denial of a right and the need for an injunction to remedy on-going violations.” Brief for Appellants at 19 (citing Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974)).

Appellants first address whether Strickland is an available remedy for the specific claims that they have raised. Appellants note that Strickland addressed two questions: (1) whether there was a right to effective assistance of counsel; and (2) if so, what legal standard governs when that right was violated but the defendant has been convicted and is seeking a new trial. Once the Supreme Court answered the first question in the affirmative, it then was required to balance the interest of the defendant in receiving effective assistance of counsel (including counsel’s professional discretion in choosing and employing trial strategies) against the state’s interest in avoiding retrial of a defendant whose counsel’s ineffectiveness had no *58 material effect on the outcome of the trial. To address the **730 latter circumstance, the Supreme Court established the prejudice standard. Consequently, according to Appellants, Strickland applies only in the post-conviction context. In the pre-trial context, the state does not have the same interest in avoiding retrial, and Strickland has no application.
Whether the right was violated, and whether the violation should result in a particular remedy, are two separate issues. Appellants assert that a violation of the right to counsel can occur at any time, and, because Strickland was limited to the specific balancing of interests that emerge in the post-conviction context, different remedies must be available.
Appellants also maintain that Strickland and Gideon create a range of rights that is broader than those that can be vindicated solely in post-conviction proceedings. For instance, Appellants point out that a lawyer may fail to file motions, interview witnesses, or investigate facts, each of which failures might violate the right to effective representation. Yet, it would be difficult, and often impossible, to prove that any such failures caused Strickland-type prejudice, rendering such violations forever irremediable.
Appellants further note that post-conviction remedies apply only to violations that affect the outcome of the trial, and provide no equitable relief for systematic or structural violations of the right to counsel that occur during pretrial proceedings. Moreover, Appellants explain, many defendants will suffer a pretrial violation of the right to counsel, but will never file a petition for post-conviction relief, either because they pleaded guilty or because their sentences expired during direct appeal. Appellants contend that, without the ability to seek a pretrial remedy, countless violations of the right to counsel due to systematic failures in public defender offices will occur
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and will remain unchallenged. Relying upon Luckey and Duncan, Appellants argue that the inability of a defendant to demonstrate Strickland-type prejudice does not mean that the defendant has not suffered harm, which occurs any time the right to counsel is violated.
*59 Finally, Appellants assert that the averments in their amended complaint establish that the systematic underfunding of the OPD resulted in the constructive denial of counsel to them and to the class that they represent. Their averments highlight routine failures of counsel, including the inability to meet with clients, investigate defenses, or prepare for trial. In the amended complaint, Appellants do not target individual attorneys, nor do they detail specific instances of such failures. Rather, Appellants argue that the chronic underfunding has created systematic constraints on the OPD, which prevent that office’s attorneys from providing competent and effective legal representation during the pretrial stages, a deficiency which, they contend, is sufficient to state a claim for prospective injunctive relief.
Appellants are supported by numerous amici curiae. The United States Department of Justice maintains that a civil claim for constructive denial of counsel is cognizable under the Sixth Amendment. The Department asserts that a claim for constructive denial of counsel is “both legitimate and rooted in U.S. Supreme Court case law.” Amicus Brief for the United States at 12 (citing Cronic, 466 U.S. at 659–60, 104 S.Ct. 2039). Prospective injunctive relief for such a claim is viable, argues the Department:

(1) when, on a system-wide basis,

the traditional markers of

representation—such as timely and

confidential consultation with

clients, appropriate investigation,

and meaningful adversarial testing

of the prosecution’s case—are

absent or **731 significantly

compromised; and (2) when

substantial

structural

limitations—such as a severe lack

of resources, unreasonably high

workloads, or critical understaffing

of public defender offices—cause

that absence or limitation on

representation.

Id. at 11. In the Department’s view, when the totality of

the circumstances indicates a “system-wide problem of nonrepresentation,” i.e., the appointment of counsel is merely cosmetic and the defendant has a lawyer in name only, prospective relief must be available.
*60 In their amicus brief, the Innocence Network and the Pennsylvania Innocence Project (collectively, “the Innocence Project”) argue that underfunding of public defenders’ offices threatens the adversarial truth-determining process. They note that inadequate representation is the largest contributor to erroneous convictions. Overburdened attorneys cannot provide the representation necessary to ensure that innocent defendants are not convicted in circumstances where competent counsel would secure an acquittal. Similarly, attorneys without the time and resources necessary to provide a meaningful defense all too often negotiate disadvantageous guilty pleas quickly to reduce their caseloads, often encouraging even innocent defendants to accept pleas in order to avoid delays in the resolution of cases and to abbreviate pretrial incarceration. Like Appellants, the Innocence Project argues that Strickland does not—and was not intended to—address pretrial claims of systematic ineffectiveness. Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, also is not a viable vehicle to address systematic pretrial failures due to the strict procedural hurdles that a defendant seeking relief must overcome, including the requirement that the person be serving a sentence not only when relief is sought but throughout the sometimes lengthy period required to dispose of PCRA claims. See id. § 9543(a)(1).
The National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers (collectively, “the Associations”) argue that Appellants adequately have pleaded a claim of constructive denial of counsel in their amended complaint. The Associations join Appellants in arguing that Strickland cannot remedy prospective civil claims of constructive denial of counsel. The Associations maintain that “[t]o suggest that the Sixth Amendment cannot be enforced except where deficient representation led to a wrongful conviction both contravenes [United States Supreme Court precedent] and demonstrates a misconception of the role of defense counsel in the adversarial criminal justice system.” Amicus Brief for the Associations at 15. The Associations assert that such a view “also underestimates the power *61 of the courts to ensure that rights are not systematically violated in addition to their important role in affording individualized remedies after a violation [has] occurred.” Id.
Finally, the American Bar Association (“the ABA”)
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echoes the other amici and Appellants in calling upon this Court to recognize a cause of action where the public defender workloads and lack of funding prevent indigent defendants from receiving the “actual, non-trivial representation that Gideon demands.” Amicus Brief for the ABA at 7. The ABA notes that “52 years of post-Gideon history and precedent show that individual, retrospective ineffective assistance of counsel claims brought after trial cannot address chronic, systemic problems such as those alleged in this case.” Id. The ABA argues that Strickland-type post-conviction relief not only would fail to remedy the civil claims asserted by Appellants, but also would fail to hold a **732 public defender’s office or the funding county to account for non-compliance with Gideon. Strickland can provide a remedy only to one person at a time. Such sporadic, piecemeal rulings are unlikely to compel public defender’s offices to make necessary changes, or to induce counties to provide the resources necessary to provide meaningful legal representation to indigent defendants.
Appellees respond that the Sixth Amendment is not as broad as Appellants portray it to be. They maintain that a state violates the right to effective assistance of counsel only by interfering “in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” Brief for Appellees at 19 (citing Strickland, 466 U.S. at 686, 104 S.Ct. 2052). An indigent defendant can make a pretrial attack on the effectiveness of his attorney only if he or she demonstrates prejudice so obvious and substantial that it amounts to a constructive denial of counsel. Id. at 20 (citation omitted).
Regarding Appellants’ specific claims, Appellees point out that Appellants have not alleged in any way that they were deprived of counsel. To the contrary, Appellants Kuren and Allabaugh both have been assigned counsel by the OPD. Their respective attorneys have entered appearances and filed discovery *62 motions. Furthermore, Appellants cannot direct this Court’s attention to any particular action by their lawyers that amounts to ineffective assistance. Rather, Appellants expressed dissatisfaction with the attorneys assigned to them, and “believed” that counsel ultimately would not devote enough attention to their cases. Appellees contend that these claims are conjectural and fall short of establishing constructive denial of counsel. Appellants frame their pleadings in terms of what they believe might happen, or as presumptions amounting to nothing more than generalized allegations, rather than concrete claims upon which relief can be granted.
Appellees also argue that Appellants’ claims are not ripe

for review. Appellees do not contend that a civil cause of action for prospective relief is never cognizable. Rather, Appellees argue that the United States Supreme Court’s decision in O’Shea provides the test that Appellants must satisfy; to wit, a plaintiff seeking prospective relief must demonstrate “the likelihood of substantial and immediate irreparable injury and inadequacies of legal remedies.” O’Shea, 414 U.S. at 502, 94 S.Ct. 669. Appellees urge us to conclude that Appellants’ claims are too speculative to satisfy this test. The only time that Appellants, or anyone else in the class, were deprived of the right to counsel was when Flora, himself, rejected indigent applicants for representation. To date, as no deprivations have occurred by virtue of the Appellees’ actions or decisions, and because Appellants have not pleaded any facts that are more than speculative, Appellants’ claims are not ripe for review.5
II. Discussion
We begin, as we must, with the parameters and purposes of the right to counsel protected by the Sixth Amendment to the United States Constitution.6 The Amendment **733 guarantees that, *63 “[i]n all criminal prosecutions,” an accused shall enjoy the right “to have the assistance of counsel for his defence.” U.S. Const., Amend. VI. “No one doubts the fundamental character” of the right. Luis v. United States, ––– U.S. ––––, 136 S.Ct. 1083, 1088, 194 L.Ed.2d 256 (2016). The right to counsel “is one of the safeguards of the Sixth Amendment deemed necessary to [e]nsure fundamental human rights of life and liberty,” and serves as one of the “essential barriers against arbitrary or unjust deprivation of human rights.” Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). “The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ ” Id. (citing Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)).
“The essence of this right ... is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.” Michigan v. Harvey, 494 U.S. 344, 348, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990) (citations omitted). “[O]nce the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” Montejo, 556 U.S. at 786, 129 S.Ct. 2079 (citing United States v. Wade, 388 U.S. 218, 227–28, 87
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S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).
[T]he Court has also recognized that the assistance of counsel cannot be limited to participation in a trial; to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself. Recognizing that the right to the assistance of counsel is shaped by the need for the assistance of counsel, [the Court has] found that the right attaches at earlier, “critical” stages in the criminal justice process “where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.” *64 United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (quoted in United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)). See, e.g., Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). And, “[w]hatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him ....” Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). This is because, after the initiation of adversary criminal proceedings, “ ‘the government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.’ ” Gouveia, supra (quoting Kirby v. Illinois, supra).
Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) (citations modified; emphasis added). The denial of the right at any stage constitutes a structural defect that must be remedied, because any such error “affec[ts] the framework within which the trial proceeds.” **734 United States v. Gonzalez–Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (citations omitted).
Writing for the United States Supreme Court in Johnson, Justice Hugo Black explained the significance of the right to counsel:
[The right to counsel] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when

brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly, and necessary to the lawyer [ ] to the untrained layman [ ] may *65 appear intricate, complex, and mysterious. Consistently with the wise policy of the Sixth Amendment and other parts of our fundamental charter, this Court has pointed to ‘* * * the humane policy of modern criminal law * * *’ which now provides that a defendant ‘* * * if he be poor, * * * may have counsel furnished to him by the state, * * * not infrequently * * * more able than the attorney for the state.’
The ‘* * * right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.
Johnson, 304 U.S. at 462–63, 58 S.Ct. 1019 (citing Powell, 287 U.S. at 69, 53 S.Ct. 55) (some footnotes omitted). As Justice Black noted, the benefits of the Sixth Amendment right to counsel extended at the time only to those charged in federal court. Id. at 463, 58 S.Ct. 1019.
The Sixth Amendment right to counsel remained limited to federal proceedings for another twenty-five years, until the Court issued its watershed decision in Gideon. The State of Florida charged Clarence Earl Gideon with entering into a poolroom with the intent to commit a misdemeanor, a crime that Florida law graded as a felony. Gideon, 372 U.S. at 336–37, 83 S.Ct. 792. Indigent, Gideon asked the trial court to appoint a lawyer to represent him. The trial court informed Gideon that Florida law at the time required a court to appoint counsel only when the defendant was facing a capital offense, and accordingly denied his request. Id. at 337, 83 S.Ct. 792.
*66 Gideon represented himself, performing (by the Supreme Court’s account) well for a layperson. Despite his efforts, Gideon was convicted and sentenced to five years in prison. Gideon appealed his conviction to the Florida Supreme Court, maintaining at all times that the Sixth Amendment required the state court to appoint an
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attorney to represent him in the state criminal proceeding. At the time that the Florida Supreme Court considered Gideon’s case, the United States Supreme Court’s decision in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), was the controlling precedent. In Betts, relying exclusively upon the Due Process Clause of the Fourteenth Amendment, a sharply divided Court held that the right to counsel was not so fundamental that it must be extended to the states, and that state **735 courts did not necessarily violate due process by refusing to appoint counsel to indigent defendants facing felony charges. Betts, 316 U.S. at 462, 473, 62 S.Ct. 1252. Presumably relying upon Betts, the Florida Supreme Court denied Gideon relief in an order with no opinion. Gideon, 372 U.S. at 337, 83 S.Ct. 792.
The United States Supreme Court granted Gideon’s petition for writ of certiorari, noting that Betts “has been a continuing source of controversy,” and directing the parties to address the question of whether Betts should be reconsidered. Gideon, 372 U.S. at 338, 83 S.Ct. 792. Ultimately, the Court overruled Betts, holding that, when Betts was decided, there was “ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment.” Id. at 341, 83 S.Ct. 792. The Court firmly rejected the Betts Court’s exclusion of the Sixth Amendment right to counsel from those rights that must be recognized by both federal and state courts.
Expounding upon the fundamental nature of the right to counsel, the Court explained as follows:
reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a *67 fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed,

who fail to hire the best lawyers they can to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal cases are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
Id. at 344, 83 S.Ct. 792. Holding that the Sixth Amendment right to counsel is obligatory upon the states, the Court directed states to provide lawyers for indigent criminal defendants.
It is clear that, by operating the OPD, Luzerne County facially has attempted to comply with Gideon’s mandate. The question in this case goes beyond facial compliance. This Court must decide whether the mere existence of a public defender’s office and the assignment of attorneys by that office are sufficient to satisfy Gideon. The answer is obvious: Gideon’s clear command to state courts would be a dead letter if states—or the counties that comprise them—need only go through the motions. The Court’s eloquent descriptions in Johnson and Gideon of the essential nature of the right to a lawyer would ring hollow, and would amount to empty rhetoric, if appointment of counsel for indigent defendants is but a mere formality. It is the defense itself, not the lawyers as *68 such, that **736 animates Gideon’s mandate. If the latter cannot provide the former, the promise of the Sixth Amendment is broken.
No other guarantee in the Bill of Rights that affects the criminal justice system parallels the right to counsel in its universality. That is not to say that other rights are less critical to our system of limited government and ordered
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liberty. For instance, violations of the Fourth Amendment may result in suppression of evidence, while another provision of the Sixth Amendment requires that defendants be brought to trial in a speedy manner, and the Eighth Amendment ensures that convicted defendants are not subject to cruel and unusual punishment. Even so, these latter provisions are not implicated in every criminal case. By contrast, the right to counsel plays a significant role in every single case. What is more, it is relevant at almost every stage of every criminal case. In Cronic, the Supreme Court recognized this unique pervasiveness of the right to counsel, emphasizing that “[o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive[,] for it affects his ability to assert any other rights he may have.” Cronic, 466 U.S. at 654, 104 S.Ct. 2039 (quoting Walter Schaefer’s “Federalism and State Criminal Procedure,” 70 Harv.L.Rev. 1, 8 (1956)).
The Cronic Court further explained why the right to counsel cannot be treated as a rote formality:
The special value of the right to the assistance of counsel explains why [i]t has long been recognized that the right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The text of the Sixth Amendment itself suggests as much. The Amendment requires not merely the provision of counsel to the accused, but “Assistance,” which is to be “for his defence.” Thus, “the core purpose of the counsel guarantee was to assure ‘Assistance’ at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.” *69 United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). If no actual “Assistance” “for” the accused’s “defence” is provided, then the constitutional guarantee has been violated. To hold otherwise
“could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940) (footnote omitted).
Id. at 654–55, 104 S.Ct. 2039 (footnote omitted; citations modified).
The crux of Appellants’ argument is that the inadequate funding created a system in Luzerne County where the OPD attorneys, even when assigned and appearing in

court, are so handicapped in the time and resources that they can dedicate to each defendant that their presence amounts to a mere formality. In other words, as currently funded, the OPD is systematically incapable of providing constitutionally adequate representation such that the indigent defendants who receive the OPD’s services effectively are denied counsel. Appellants make no individual claims of ineffective assistance of counsel. Rather, Appellants challenge the system itself.
In Cronic, the Supreme Court delineated two types of denial of counsel, actual and constructive. The Court explained:
Most obvious, of course, is the complete denial of counsel. The presumption that **737 counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable ....
Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so *70 small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.
Id. at 659–60, 104 S.Ct. 2039 (footnote and citations omitted).
From these precedents, certain unmistakable and undisputed principles emerge. The right to counsel is fundamental, pervasive, and necessary to protect a defendant’s right to a fair trial. The appointment of an attorney to represent an indigent defendant cannot be relegated to a mere formality. Counsel can be denied either actually or constructively. Those precepts are not controversial, and they provide the necessary backdrop for our decision.
Appellants allege that the circumstances in Luzerne County amount to a constructive denial of counsel. Although Cronic recognized such a denial as a constitutional violation, the circumstances in that case were markedly different than those present in the case at bar. Cronic addressed a post-conviction claim, and focused upon whether a post-conviction petitioner must demonstrate prejudice after being constructively denied counsel. The Cronic Court did not address whether constructive denial of counsel claims could be brought
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prospectively in a civil suit, nor did it address whether injunctive relief was a viable remedy for such a deprivation. Thus, Cronic’s value to Appellants is limited. Because this Court also has never addressed the viability of such claims, we turn our focus to the leading cases from jurisdictions that have done so, cases upon which the parties and the lower courts have relied.
In Luckey, a class claiming to represent indigent criminal defendants who had been charged with crimes or who would be charged in the future with crimes filed a section 1983 action against the governor of Georgia and other state officials alleging that:
systemic deficiencies including inadequate resources, delays in the appointment of counsel, pressure on attorneys to hurry their clients’ case to trial or to enter a guilty plea, and inadequate supervision in the Georgia indigent criminal defense system deny indigent criminal defendants their Sixth Amendment right to counsel, their due process rights *71 under the Fourteenth Amendment, their right to bail under the Eighth and Fourteenth Amendments and equal protection of the laws guaranteed by the Fourteenth Amendment.
Luckey, 860 F.2d at 1013 (capitalization modified). The United States District Court for the Northern District of Georgia dismissed the suit and held that the class failed in its complaint to state a claim for which relief could be granted. Id. The Court of Appeals for the Eleventh Circuit reversed.
The Court of Appeals first ruled that the suit was not barred by the Eleventh Amendment. The Court of Appeals then held that the class had stated a cognizable claim. The District Court had ruled that, in order to obtain prospective, injunctive relief, the class plaintiffs had to prove the **738 inevitability of constitutionally ineffective assistance by appointed counsel. Id. at 1016–17. The Court of Appeals overturned this ruling, explicitly rejecting as “inappropriate” the notion that Strickland is the governing standard in a civil suit seeking prospective relief. The Court of Appeals elaborated as follows:

The Sixth Amendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the “ineffectiveness” standard may nonetheless violate a defendant’s rights under the Sixth Amendment. In the post-trial context, such errors may be deemed harmless because they did not affect the outcome of the trial. Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief—whether the defendant is entitled to have his or her conviction overturned—rather than to the question of whether such a right exists and can be protected prospectively.
* * *
Where a party seeks to overturn his or her conviction, powerful considerations warrant granting this relief only where the defendant has been prejudiced. The Strickland Court noted the following factors in favor of deferential scrutiny of a counsel’s performance in the post-trial context: concerns for finality, concern that extensive post-trial burdens would discourage counsel from accepting cases, and concern for the independence of counsel. [ *72 Strickland, 466 U.S. at 690, 104 S.Ct. 2052]. These considerations do not apply when only prospective relief is sought.
Id. at 1017 (capitalization modified; citations omitted).
The Court of Appeals then noted that prospective relief differs from post-conviction relief in that the former seeks to prevent future harm, while the latter is an attempt to remedy an existing harm. The Court of Appeals held that, for prospective claims of constitutional violations, the class plaintiffs’ burden is to demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” Luckey, 860 F.2d at 1017 (quoting O’Shea, 414 U.S. at 502, 94 S.Ct. 669). “[W]ithout passing on the merits of [the allegations in the suit],” the Court of Appeals concluded that those allegations, as set forth above, were sufficient to state a claim upon which relief could be granted. Id. at 1018.
In Duncan, the Court of Appeals of Michigan addressed a similar set of circumstances. There, the court confronted the question of whether “the named plaintiffs, along with members of the certified class, i.e., present and future indigent defendants subject to felony prosecutions, ... have been, are being, and will be denied their state and federal constitutional rights to counsel and the effective assistance of counsel,” due to the “inadequate funding and lack of fiscal and administrative oversight.” Duncan, 774 N.W.2d at 97. In a “highly detailed complaint,” the class alleged that the indigent defense systems in several Michigan counties were “underfunded, poorly
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administered, and [did] not ensure that the participating defense attorneys have the necessary tools, time, and qualifications to adequately represent indigent defendants and to put the cases presented by prosecutors to the crucible of meaningful adversarial testing.” Id. at 99. The class averred that the system, as it existed at the time of the complaint, was deficient in, inter alia: client eligibility standards; attorney hiring; attorney training; conflict of interest guidelines; and independence from the prosecution and judiciary. These deficiencies, the class asserted, resulted in wrongful convictions, longer terms of incarceration, guilty pleas **739 lacking in evidentiary foundations, unprepared counsel at hearings and trials, and *73 introduction of evidence that should have been suppressed or ruled inadmissible had counsel had the time and resources to prepare and file pretrial motions. Id.
Additionally, the class set forth various specific instances in which appointed counsel failed adequately to represent members of the class during their criminal cases. For instance, the class noted that counsel met with clients for the first time minutes before preliminary hearings commenced; advised clients to waive hearings and rights without full, confidential discussions of the consequences of such decisions; failed to provide police reports and other discovery materials to the client; and neglected to discuss the nature and factual support—or lack thereof—of the charges against the client. The class sought relief under section 1983 and declaratory and injunctive remedies under the Michigan Constitution. Id. at 99–100.
After examining the right to counsel, including the right to effective assistance of counsel and the various stages during a criminal case at which the right attaches, the Court of Appeals considered the justiciability of the claims raised by the class.7 Regarding injunctive relief, the court employed the same test utilized by the Luckey Court, requiring a party seeking such relief to demonstrate the danger of irreparable and immediate injury with no other available remedy at law. Duncan, 774 N.W.2d at 119 (citing Pontiac Fire Fighters Union Local 376 v. City of Pontiac, 482 Mich. 1, 753 N.W.2d 595 (2008)). The Court of Appeals ultimately held that, in order for the class to succeed on the merits, the class “must prove widespread and systemic constitutional violations that are actual or imminent, constituting the harm necessary to establish justiciability.” Id. at 121. The court then explained that, in assessing “justiciable harm,” the focus must be on the allegations in the complaint. Id. at 123. To establish this category of harm, the court held, a class seeking prospective relief for widespread constitutional violations must demonstrate that court-appointed counsel’s representation does not meet “an objective

standard of reasonableness” *74 and produces “an unreliable verdict or unfair trial, when a criminal defendant is actually or constructively denied the assistance of counsel altogether at a critical stage in the proceedings, or when counsel’s performance is deficient under circumstances in which prejudice would be presumed in a typical criminal case.” Id. at 123. The Court of Appeals continued:
We further hold that injury or harm is shown when court-appointed counsel’s performance or representation is deficient relative to a critical stage in the proceedings and, absent a showing that it affected the reliability of the verdict, the deficient performance results in a detriment to a criminal defendant that is relevant and meaningful in some fashion, e.g. unwarranted pretrial detention. Finally, we hold that, when it is shown that court-appointed counsels’ representation falls below an objective standard of reasonableness with respect to a critical stage in the proceedings, there has been an invasion of a legally protected interest and harm occurs. Plaintiffs must additionally show that instances of deficient performance and denial of counsel are widespread and systemic and that they are caused by weaknesses and problems in the court-appointed, indigent defense systems employed by [the **740 counties], which are attributable to and ultimately caused by the [counties’] constitutional failures. If the aggregate of harm reaches such a level as to be pervasive and persistent (widespread and systemic), the case is justiciable and declaratory relief is appropriate, as well as injunctive relief to preclude future harm and constitutional violations that can reasonably be deemed imminent in light of the existing aggregate of harm.
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Id. at 123–24 (footnote and citation omitted).
The Duncan court acknowledged that these standards were varied and wide-ranging, but reasoned that they must be so in order to meet the numerous potential challenges that may arise when claims of “systemic” and “widespread” constitutional violations are leveled. The Court of Appeals further recognized that these standards create a hefty burden for classes to satisfy and that trial courts in the first instance will *75 have to determine the parameters of the terms “widespread” and “systemic.” Nonetheless, the class’ averments alleged a real, not hypothetical, harm that warranted permission for the lawsuit to proceed. Id. at 124.
The Court of Appeals then rejected the argument that class plaintiffs could find a remedy at law in Strickland. Relying upon Luckey and other court state decisions that also have rejected the application of Strickland to this type of case, as well as the presumption of prejudice established by the Cronic Court, the Court of Appeals explained that the Strickland rubric simply is too rigid to address the “many shapes and forms” that harm resulting from a violation of the right to counsel can take. The court noted that when Strickland—type prejudice results, justiciable harm certainly has occurred. However, harm also may occur when “there are instances of deficient performance by counsel at critical stages in the criminal proceedings that are detrimental to an indigent defendant in some relevant and meaningful fashion, even without neatly wrapping the justiciable harm around a verdict and trial.” Duncan, 774 N.W.2d at 127. Examples of such harm include unnecessarily prolonged detention before trial or plea, failure to file potentially meritorious motions, and the entry of guilty pleas lacking a factual basis.
The court then reviewed the allegations of the complaint and held that the class had sufficiently pleaded facts that, if true, justified allowing the cause of action to proceed, regardless of whether the class ultimately could prove its claims at trial.8
*76 In the case sub judice, the Commonwealth Court found the Duncan dissent persuasive. That dissent vehemently disagreed with the majority’s analysis, accusing the majority of simply reformulating Strickland to create a prospective cause of **741 action while simultaneously disavowing Strickland’s relevance. Duncan, 774 N.W.2d at 174 (Whitbeck, J., dissenting). The dissent would have required satisfaction of the Strickland formula, including the traditional proof of actual prejudice, because prejudice “is an essential element of any Sixth Amendment violation.” Id. Because the class in the case could not allege traditional prejudice

prospectively, the dissent would have held that the class did not state a justiciable cause of action.
In Hurrell–Harring, the Court of Appeals of New York noted that, at the time the case commenced, New York delegated to the counties the duty to comply with Gideon. Hurrell–Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 219. The class plaintiffs alleged that the delegation to the counties of the duty to provide indigent defendants with counsel was a “costly, largely unfunded and politically unpopular mandate” that “has functioned to deprive [indigent defendants] of constitutionally and statutorily guaranteed representational rights.” Id. The plaintiffs sought declaratory and injunctive relief; they did not seek individual relief in their respective criminal cases. The defendants sought dismissal of the action, claiming that the suit was non-justiciable. The trial court denied the motion, but the intermediate appellate court reversed the trial court’s order, and ruled that a violation of the right to counsel could not be vindicated in a civil proceeding seeking increased funding from county officials. The appellate court held that the only means to seek redress for an alleged violation of the right to counsel was in case-by-case post-conviction petitions. Id., 904 N.Y.S.2d 296, 930 N.E.2d at 219–20.
*77 The New York Court of Appeals reversed the intermediate appellate court’s decision. Before the high court, the defendants maintained their argument that the cause of action was not justiciable because: (1) claims for ineffective assistance of counsel are only cognizable when seeking relief from a criminal conviction, not before trial; and (2) claims for funding touch upon a legislative function, i.e., how funds are allocated, an area upon which courts should not intrude. The Court of Appeals rejected both of these arguments.
First, the Court of Appeals acknowledged that a Strickland-based argument had “a measure of merit.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 221. However, the court ultimately rejected the argument, holding that Strickland’s approach “is expressly premised on the supposition that the fundamental underlying right to representation under Gideon has been enabled by the State in a manner that would justify the presumption that the standard of objective reasonableness will ordinarily be satisfied.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 221. The Court of Appeals explained that the crux of a prospective cause of action is not rooted in whether counsel, individually or systematically, are ineffective under Strickland, but “rather [in] whether the State has met its foundational obligation under Gideon to provide legal representation.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 222.
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Because the plaintiffs’ claims were not predicated exclusively upon the performance-prejudice standard, the court explained, those claims, to be cognizable, must be based upon more than alleged deprivation of meaningful and effective representation. The Court of Appeals examined the pleadings, and, viewing the averments in plaintiffs’ favor, ruled that the plaintiffs had advanced more than mere allegations of deficient performance. The plaintiffs claimed that half of the class members named in the complaint did not have counsel assigned to them for their preliminary arraignments, and most of them were incarcerated because their bail **742 was greater than they could afford. Those who were assigned counsel alleged that their attorneys were unavailable to them, sometimes for months; that those lawyers waived the accused’s constitutional *78 rights without consultation; and that counsel served only “as conduits for plea offers, some of which purportedly were highly unfavorable.” Id. Attorneys frequently missed court hearings, and were unprepared when they did appear:
Actual representation assumes a certain basic representational relationship. The allegations here, however, raise serious questions as to whether any such relationship may be really said to have existed between many of the plaintiffs and their putative attorneys and cumulatively may be understood to raise the distinct possibility that merely nominal attorney-client pairings occur in the subject counties with a fair degree of regularity, allegedly because of inadequate funding and staffing of indigent defense providers.
Id. 904 N.Y.S.2d 296, 930 N.E.2d at 224. These allegations, the Court of Appeals held, went well beyond routine claims of ineffective assistance of counsel, and stated “a claim for constructive denial of the right to counsel by reason of insufficient compliance with the constitutional mandate of Gideon.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 225.
Addressing the argument that Strickland provides the only avenue for relief, the Court of Appeals responded as follows:

Collateral preconviction claims

seeking prospective relief for

absolute, core denials of the right to

the assistance of counsel cannot be

understood to be incompatible with

Strickland. These are not the sort of

contextually sensitive claims that

are typically involved when

ineffectiveness is alleged. The

basic, unadorned question

presented by such claims where, as

here, the [criminal defendants] are

poor, is whether the State has met

its obligation to provide counsel,

not whether under all the

circumstances

counsel’s

performance was inadequate or

prejudicial. Indeed, in cases of

outright denial of the right to

counsel prejudice is presumed.

Id. The Court of Appeals conceded that some of the claims raised in this context have in the past been litigated under the Strickland paradigm, but held that “it does not follow from this circumstance that they are not cognizable apart from the post[-]conviction context.” Id. “Given the simplicity and autonomy *79 of a claim for nonrepresentation, as opposed to one truly involving the adequacy of an attorney’s performance, there is no reason ... why such a claim cannot or should not be brought without the context of a completed prosecution.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 225–26.
Finally, the Court of Appeals rejected the argument that a claim for increased funding is not justiciable:

We have consistently held that enforcement of a clear constitutional or statutory mandate is the proper work of the courts, and it would be odd if we made an exception in the case of a mandate as well-established and essential to our institutional integrity as the one requiring the State to provide legal representation to indigent criminal defendants at all critical stages of the proceedings against them.

Id. 904 N.Y.S.2d 296, 930 N.E.2d at 227. 19

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Like the dissent in Duncan, the dissent in Hurrell–Harring would not have recognized a cause of action for prospective relief. Hurrell–Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 228 (Pigott, J., dissenting). In the dissent’s view, the constructive denial claim that the majority recognized “is nothing more than an ineffective assistance **743 of counsel claim under another name.” Id. The Hurrell–Harring dissent agreed with the majority that Strickland was inapplicable, but would nonetheless have declined to recognize a constructive denial claim premised upon Cronic’s presumed prejudice rationale. Such a claim, according to the dissent, was merely Strickland stripped of the prejudice prong, and it, too, generally should be restricted to individual claims of deficient stewardship. Hurrell–Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 229 (Pigott, J., dissenting). Interestingly, the dissent did not opine that systemic constructive denial of counsel claims can never be cognizable. The dissent merely would have held that the plaintiffs’ allegations did not rise to the level that would justify such a claim.
Unlike the Commonwealth Court, we find the majorities’ reasoning in Luckey, Duncan, and Hurrell–Harring to be persuasive, and indeed, compelling. We now hold that there is a cognizable cause of action whereby a class of indigent *80 defendants may seek relief for a widespread, systematic and constructive denial of counsel when alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel. The consequences of holding otherwise would be untenable, and would be fundamentally irreconcilable with the United States Supreme Court’s pronouncements on the role of the right to counsel in our system of justice.
Arguments to the contrary notwithstanding, Strickland does not limit claims asserting Sixth Amendment violations to the post-conviction context. The Strickland Court did not hold that post-conviction prejudice is a prerequisite for invocation of the right to counsel. Rather, prejudice in the post-conviction context largely is assessed by balancing the defendant’s right to effective assistance of counsel against the state’s interest in avoiding the burden of retrial where the ineffective assistance of counsel did not affect the outcome of the trial. Violations of the right to counsel can occur in many different ways, and remedies for such violations are not limited solely to circumstances where prejudice can be proven. Only the remedy of a new trial requires a showing of prejudice.
There is ample reason for considering Sixth Amendment violations in this manner. Because the right to a lawyer

occupies a unique station in our system of justice, we must recognize that harm necessarily inheres in the deprivation of counsel, including at the earlier stages of a criminal case. The right to counsel is as important in the initial stages of a criminal case as it is at trial. To remedy only deprivations of the latter would foster subversion of the right as soon as it has attached. As the Court of Appeals of Michigan stated in Duncan, “there are instances of deficient performance at critical stages in the criminal proceedings that are detrimental to an indigent defendant in some relevant and meaningful fashion, even without neatly wrapping the justiciable harm around a verdict and trial.” Duncan, 774 N.W.2d at 127.
In Moulton, the Supreme Court explained that “to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.” *81 Moulton, 474 U.S. at 170, 106 S.Ct. 477. It would be anomalous for us to hold that indigent defendants cannot challenge the system that is charged with providing representation during this undeniably critical time in the process. Certain types of harm are easily identifiable at this stage, harms that may not have an effect upon a trial itself. These include prolonged pretrial detention, potentially meritorious motions that go unfiled, and inadequate or nonexistent factual **744 investigation, to name a few. Without an avenue to pursue relief for these harms, and countless others that arise from pretrial deprivations of the right to counsel, the Sixth Amendment right to counsel would erode into a right without a remedy.
Harm results from every violation of the right to counsel, as it does from any impingement upon a constitutionally protected interest. Duncan, 774 N.W.2d at 123–24. In the context of this case, harm results when widespread, systematic deficiencies deprive indigent defendants of the traditional markers of legal representation, such that those defendants are constructively denied counsel. A prospective claim based upon the constructive denial of counsel will lie when the alleged harm a plaintiff, or class of plaintiffs, demonstrates is caused by a county’s failures, including failure to provide the means that ensure constitutionally adequate representation.
Because the justiciable harm alleged is prospective, in order to successfully plead the cause of action for equitable relief, a claimant must satisfy the test that the United States Supreme Court articulated in O’Shea. The claimant must demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” O’Shea, 414 U.S. at 502, 94 S.Ct. 669. As noted earlier, Appellees concede that the O’Shea test is the applicable legal standard. See Brief for Appellees at
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26. The first prong of the O’Shea test requires a party seeking injunctive relief to prove the “likelihood of substantial and immediate irreparable injury.” This is not an insignificant burden, and it is apt in light of the fact that the claimant is seeking prospective relief. Nonetheless, relief is available, because the denial of the right to counsel, whether actual, or as here, constructive, poses a significant, and tangible *82 threat to the fairness of criminal trials, and to the reliability of the entire criminal justice system.
As noted, the right to counsel is not a right that affects merely a subset of criminal cases, nor is it a right that is relevant only at certain junctures of the process. The right to be assisted by competent counsel attaches to nearly every aspect of the criminal process. For this reason, and because of the myriad circumstances in which the right can be denied or withheld, it would be impossible to delineate an exhaustive list of factors that an indigent plaintiff, or a class comprised of same, must satisfy in order to satisfy the first element of the O’Shea test. Nonetheless, we find that the standard proposed by the Department of Justice offers a workable, if non-exhaustive, paradigm for weighing such claims. The test bears repeating here. In setting forth a cause of action for prospective injunctive relief based upon the constructive denial of counsel, to prove the “likelihood of substantial and immediate irreparable injury,” the plaintiff should focus upon the following factors:

(1) when, on a system-wide basis,

the traditional markers of

representation—such as timely and

confidential consultation with

clients, appropriate investigation,

and meaningful adversarial testing

of the prosecution’s case—are

absent

or

significantly

compromised; and (2) when

substantial

structural

limitations—such as a severe lack

of resources, unreasonably high

workloads, or critical understaffing

of public defender offices—cause

that absence or limitation on

representation.

See Amicus Brief for the United States at 11.
This formulation reflects the fact that the right to counsel can be violated at nearly any time during the criminal

process, and that justiciable harm may result from any violation of the right. This does **745 not mean that every minor violation of the right necessitates injunctive relief. A plaintiff’s burden to plead “substantial and immediate irreparable” injury is a weighty one.
*83 The second prong of the test requires a plaintiff to demonstrate that no other adequate remedy at law exists for redress of the harm asserted. Appellees and the Commonwealth Court assert that Strickland provides the exclusive remedy for claims pertaining to violations of the right to counsel and that the relief it offers is sufficient. This argument ignores both the nature of Appellants’ claims and the interests that the Supreme Court sought to protect in Strickland.
In Strickland, the Court granted certiorari to “consider the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction to be set aside because counsel’s assistance at the trial or sentencing was ineffective.” Strickland, 466 U.S. at 671, 104 S.Ct. 2052. In pursuing this inquiry, the Court first recognized that the right to counsel is a fundamental right that ensures that defendants, rich and poor alike, are subjected to a fair trial. Id. at 685, 104 S.Ct. 2052. “For that reason, the Court has recognized that the right to counsel is the right to effective assistance of counsel.” Id. at 686, 104 S.Ct. 2052 (citing McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). A government can violate the right to effective assistance of counsel, for example by interfering with an attorney’s ability to make decisions regarding the course of a defense. Similarly, the attorney herself or himself can deprive a defendant of the right to counsel “simply by failing to render ‘adequate legal assistance.’ ” Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Until Strickland, the Court had not yet considered what effective assistance meant, nor the standards that a defendant must meet to prove that counsel was ineffective.
The Court explained that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. To effectuate this principle, the Court crafted a two-pronged standard for proving that trial or sentencing counsel was constitutionally ineffective:
*84 A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a
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conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defendant. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687, 104 S.Ct. 2052 (emphasis added).
Regarding the first prong of the test, the Court noted that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. Seemingly recognizing the innumerable decisions and circumstances that attorneys face in a typical case, the Court declined to delineate an exhaustive list of actions that **746 attorneys must undertake to render effective assistance. The Court then explained that appellate tribunals must be deferential in assessing counsel’s performance, and must avoid hindsight and second-guessing. Id. at 689, 104 S.Ct. 2052.
As to the prejudice requirement, the Court explained that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. 2052. To prove prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
*85 The Strickland Court crafted this test for courts to utilize when evaluating post-conviction claims of ineffective assistance of counsel. Convicted defendants stand in shoes very different from those worn by

Appellants herein. As the Strickland Court noted in its opening paragraph, it was called upon to create a test that, if successful, would require judges to set aside criminal verdicts. In other words, Strickland is outcome-based, focusing in large part upon whether the trial itself was rendered unreliable by counsel’s deficient performance. Inherent in that outcome-based analysis is the notion that states should not suffer the burden of multiple trials if counsel’s constitutional derelictions did not affect the verdict. Other considerations undergirding the deferential two-part test included the interest in the finality of criminal convictions, the potential that court-appointed counsel would not be inclined to accept cases due to the burdens of extensive post-trial litigation, and the need for the independence of counsel. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. The Strickland protocol was designed for a specific purpose: to ensure the regularity and fairness of a trial that has resulted in a criminal conviction.
Applying the Strickland test to the category of claims at bar would be illogical. Appellants are not arguing individual claims of ineffective assistance of counsel. Appellants point to no specific instances in which an attorney failed to provide constitutionally effective stewardship. Rather, Appellants’ claim centers upon the widespread and endemic inability of the OPD’s attorneys to provide counsel to indigent defendants. Appellants assert that the OPD lacks the number of attorneys and staff necessary to manage the large and increasing caseload in Luzerne County. The attorneys that the OPD does employ are so constrained in time and resources that they cannot provide the basic services that sustain and foster the attorney client relationship, and cannot devote the effort necessary to investigate and defend against the prosecution’s case. These general allegations in no way resemble the individual ineffectiveness claims that the Court considered in Strickland. There is no performance by individual counsel to evaluate, nor is there a trial, the reliability of which might be questioned. There are *86 no interests in avoiding a retrial, nor are there any decisions made by counsel that warrant deference. Appellants are challenging whether Luzerne County, via its funding, is meeting Gideon’s mandate in the first instance. This is a structural claim, not an individual one.
Strickland addresses only one aspect of the right to counsel: whether the right to counsel was violated such that the outcome of the trial was affected. However, the right to counsel “must mean more than just the right to an outcome.” Duncan, 774 N.W.2d at 126. Other harms result from the constructive denial of counsel **747 notwithstanding the fact that they do not affect the ultimate outcome of the case. As the Supreme Court recently noted in Laffler v. Cooper, Sixth Amendment
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remedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” ––– U.S. ––––, 132 S.Ct. 1376, 1388, 182 L.Ed.2d 398 (2012) (quoting United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981)). There is no way to tailor Strickland to the remedy sought by Appellants, who seek prospective relief, not a new trial. “[A] suit for an injunction deals primarily, not with past violations, but with threatened future ones; and [ ] an injunction may issue to prevent future wrong, although no right has yet been violated.” Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 72 L.Ed. 587 (1928). Prospective relief is available to protect certain rights, such as the right to counsel, even if the claims asserted by Appellants might not affect the outcome of all future trials.
In its many aspects, the fundamental right to counsel requires more than one available remedy. Moreover, harm from a violation of the right to counsel, in the form of actual or constructive denial of counsel, is not limited to the post-conviction context. Having reviewed the applicable precedents and the arguments of the parties, we find no barrier to the claims pursued by Appellants in this case. The right to counsel is the lifeblood of our system of criminal justice, and nothing in our legal tradition or precedents requires a person seeking to vindicate that right to wait until he or she has been *87 convicted and sentenced. To so hold would undermine the essentiality of the right during the pretrial process. It would render irrelevant all deprivations of the right at the earliest stages of a criminal process so long as they do not clearly affect the substantive outcome of a trial. If the right to counsel is to mean what the Supreme Court has consistently said it means, this view cannot prevail. A person has the same right to counsel at a preliminary hearing as he or she does at a sentencing hearing. It would confound logic to hold that the person can only seek redress for the latter stages of the criminal process.
III. Application
We turn now to application of the O’Shea test to the averments in Appellants’ amended complaint. Although Appellants did not structure the claims in the amended complaint according to O’Shea, it is clear to us that they have alleged facts sufficient to overcome Appellees’ demurrer. Whether Appellants can prove their allegations at trial, or even whether Appellants can produce sufficient information to overcome a motion for summary judgment,

are matters for another day, and do not factor into our decision.
As discussed above, in the amended complaint, Appellants identified six components of adequate “legal representation,” and detailed how the OPD, due to the alleged insufficient funding, failed in each instance. Appellants asserted that the OPD could not train attorneys in the relevant, developing law, nor was the OPD able to fund mandatory continuing legal education training for its capital attorneys. Trial attorneys, untrained in appellate practice, were required to appeal their own cases, which often resulted in missed deadlines, waived issues, and unpersuasive arguments. Appellants asserted that OPD attorneys were unable to appear on behalf of clients at preliminary arraignments. Their absence resulted in clients receiving higher bail orders than necessary, serving prolonged and unnecessary pretrial incarceration, and being read a list of charges that the clients did not understand.
*88 **748 Appellants asserted that the mounting caseload that saddled the OPD’s attorneys prevented those attorneys from appearing at hearings, or required multiple postponements. The delays increased the anguish and anxiety attending those facing criminal charges. More importantly, the delays unnecessarily extended pretrial incarceration. The attorneys’ time was so taxed by their caseload, Appellants claimed, that, even when the attorneys were available, they were often unprepared and unable to provide meaningful advice. The same time constraints precluded the attorneys from investigating the facts and defenses of each case, and rendered them incapable of advising clients regarding constitutional rights and the effects that flow from decisions such as whether to plead guilty or whether to testify at trial.
Appellants also alleged that the attorneys’ lack of time often resulted in insistence upon plea bargains that were unfavorable to the defendant or unsupported by law or fact. The OPD similarly lacked the investigatory resources to perform functions necessary to assist the attorneys. Further, the investigators that the OPD did employ often could not provide investigative services because they were too busy performing administrative tasks that resulted from the OPD’s lack of support staff.
As well, Appellants averred that the OPD’s attorneys did not have the time or resources to conduct jail visits or in-person, confidential communications with their clients. The attorneys were forced to conduct video-conferences, which lacked the confidentiality necessary to form and maintain attorney-client relationships. There was no sustained, meaningful communication between attorneys
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and the indigent clients.
Appellants also contended that the attorneys, due to the lack of personnel and time, routinely missed filing deadlines, and often filed documentation without first completing a full review of the case materials and conducting a meaningful interview with the client. Similarly, trial preparation, when it occurred, was conducted at the last minute, too late to uncover and investigate potentially meritorious defenses.
*89 At this stage, we must accept these factual allegations as true. See Robinson Twp., supra, n.1. So viewed, it is evident that Appellants have alleged that, on a system-wide basis, the traditional markers of representation being provided by the OPD either are absent or significantly compromised. Furthermore, the limitations, and in some cases absences, of counsel are a result of the substantial structural deficiencies that result from a lack of adequate funding. Consequently, Appellants have demonstrated the “likelihood of substantial and immediate irreparable injury,” and have stated a claim upon which relief can be granted. Further, based upon our discussion above, it also is clear that Strickland is not an available source of relief, and that no other remedy at law exists to redress Appellants’ claims.
Appellees concede that the O’Shea test is applicable to Appellants. However, Appellees maintain that Appellants cannot satisfy the first prong of that test, principally because the injuries cited by Appellants are conjectural and based only upon abstract injury. This argument ignores the language of the O’Shea test. When seeking prospective relief, a plaintiff need not prove actual injury. That plaintiff must only demonstrate “the likelihood” of the injury. Hence, the fact that Appellants cannot point to a specific instance of an indigent client being actually deprived of the right to counsel is not fatal to the claim. Appellants have demonstrated that the system-wide deficiencies have created circumstances in which the constructive **749 denial of counsel is imminent and likely, if not all but certain.
We have no doubt that Luzerne County is not alone in facing budgetary limitations, and that the OPD is not the only public defender’s office that faces financial constraints. It is fair to say that both entities are not outliers in Pennsylvania. We recognize that our decision could prompt similar lawsuits in many of Pennsylvania’s sixty-seven counties. However, the potential burden of such litigation cannot outweigh our Commonwealth’s obligation to comply meaningfully and completely with Gideon. Our “inherent authority to ensure that indigent defendants receive constitutionally adequate assistance of

*90 counsel,” Commonwealth v. McGarrell, 624 Pa. 625, 87 A.3d 809, 810 (2014) (per curiam) (Saylor, J., dissenting) (quoting State v. Young, 143 N.M. 1, 172 P.3d 138, 140 (2007)), and our obligation to assure that appointed counsel amounts to more than a mere formality, trump the correlative burden of litigation.
Moreover, the prospect that additional lawsuits could follow our decision arises largely from the fact that Pennsylvania holds the dubious distinction of being the only state in the nation that continues to rely exclusively upon local, rather than state-wide, funding of public defender’s offices. See Nat’l Right to Counsel Comm., Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, CONST. PROJECT at 54 (2009).9 This funding structure necessarily leads to variations in the availability and quality of indigent representation from one county to the next. At the most fundamental level, compliance with Gideon should not—cannot—depend upon the county in which a crime is alleged. It is no surprise that statewide funding lies “at the core of nearly every reform recommendation” pertaining to improving the quality of indigent defense. See McGarrell, 87 A.3d at 811 n.3 (citing Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, supra at 11-12). In any event, we are not free to disregard the central role that the right to counsel plays in a system of justice predicated upon the fairness of trials merely because lawsuits may be brought to enforce that right.
Now that we have recognized the viability of a cause of action for prospective injunctive relief seeking additional funding, we also must consider the second question upon which we granted review. This issue effectively requires us to determine whether a writ of mandamus is a viable remedy for Appellants’ *91 claims. On this point, Appellants argue that courts possess the authority to issue the writ to compel Luzerne County to fund the OPD. Appellants recognize that a writ of mandamus is an extraordinary remedy, because it works to compel a public official to perform a certain action. Nonetheless, Appellants maintain that the importance of their claims justifies issuance of the writ.
Appellants first argue that the Public Defender Act imposes a duty upon a county to create a public defender’s office, staffed with a chief public defender and outfitted with the equipment necessary to function in accordance with constitutional requirements. According to Appellants, funding is essential to carrying out this statutory obligation. Hence, indigent defendants have a clear right to an operational **750 public defender’s office, one in which the attorneys can provide
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constitutionally effective representation on a system-wide basis.
Appellees argue that Appellants have not, and cannot, prove an entitlement to a writ of mandamus because funding, regardless of its purpose, is a discretionary act. The right to mandamus arises only to direct a governmental official to perform an act as to which there is a clear legal duty. According to Appellees, no one has a clear legal right to a discretionary act. Appellees maintain that “the judicial branch, as an independent branch of government, has inherent power to compel the legislative branch to furnish sufficient funds for reasonable judicial functioning only in exceptional cases in which underfunding poses a genuine threat to the judiciary’s ability to adequately administer justice.” Brief for Appellees at 38 (emphasis in original) (citing Jiuliante v. County of Erie, 540 Pa. 376, 657 A.2d 1245, 1250 (1995)). The judiciary otherwise lacks the general power to direct funding, even based upon a purported statutory obligation. The request for funding in this case does not affect Luzerne County’s ability to administer justice. At best, Appellees allege, the funding affects the OPD’s ability to function. Finally, Appellees maintain that Appellants can seek other remedies for their claims, including *92 seeking relief for individual claims of ineffective assistance of counsel under the PCRA.
The Commonwealth Court held that mandamus was not an available form of relief. The court determined that Appellants had not demonstrated a clear right to relief. Moreover, in line with Appellees’ argument, the court concluded that Appellants could seek relief under Strickland or the PCRA to remedy any instances of constitutionally ineffective assistance of counsel. The court further explained that Luzerne County’s budgetary decisions are inherently discretionary, and, therefore, are not subject to judicial compulsion through writs of mandamus. Flora, 103 A.3d at 138.
The Commonwealth Court also noted that “the writ of mandamus sought in the amended complaint may violate the doctrine of separation of powers.” Id. The court explained that each branch of government, independent and co-equal with one another, possesses the authority to exercise functions that generally are immune from intrusion by the other branches. The judiciary, for instance, only may direct a legislative body to provide funding when the lack thereof makes it impossible to comply with statutory or constitutional obligations, and only when there is a “genuine threat to the administration of justice, that is, a nexus between the legislative act and the injury to the judiciary, not merely a theoretical encroachment by the legislature.” Id. at 138 (quoting

Beckert v. Warren, 497 Pa. 137, 439 A.2d 638, 643 (1981)). The “lack of an appropriation must, itself, be an unconstitutional omission.” Id. With these standards in mind, the Commonwealth Court held that Appellants had failed in the amended complaint to aver such “an extreme refusal of [Luzerne County] to appropriate funds.” Id. at 139. The court concluded that the amended complaint failed to elevate the contested funding from a discretionary act to a constitutional obligation. Id.
Ultimately, we agree with the Commonwealth Court and Appellees that the writ of mandamus is not an available remedy in this case, albeit for quite different reasons. “Mandamus is an extraordinary writ that will only lie to compel *93 official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the **751 defendant, and want of any other appropriate and adequate remedy.” Jackson v. Vaughn, 565 Pa. 601, 777 A.2d 436, 438 (2001) (citation omitted).
While this Court has said that mandamus will not lie to compel discretionary acts, this has usually been interpreted to mean that while a court may direct that discretion be exercised, it may not specify how that discretion is exercised nor require the performance of a particular discretionary act. The writ cannot be used to control the exercise of discretion or judgment by a public official or administrative or judicial tribunal; to review or to compel the undoing of an action taken by such an official or tribunal in good faith and in the exercise of legitimate jurisdiction, even though the decision was wrong; to influence or coerce a particular determination of the issue involved; or to perform the function of an appeal or writ of error. We have indicated that the writ should not be granted in doubtful cases, and that it entails the application of equitable principles by the court asked to issue the writ.
In short, mandamus is chiefly employed to compel the performance (when refused) of a ministerial duty, or to compel action (when refused) in matters involving judgment and discretion. It is not used to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of an action already taken. Mandamus is a device that is available in our system to compel a tribunal or administrative agency to act when that tribunal or agency has been sitting on its hands. It must not be turned into a general writ of error or writ of review lest we further encourage interlocutory and piecemeal appellate review, or multiple appeals with their attendant burdens and delays.
Penn. Dental Ass’n v. Commonwealth Ins. Dep’t, 512 Pa.
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Kuren v. Luzerne County, 637 Pa. 33 (2016) 146 A.3d 715
217, 516 A.2d 647, 652 (1986) (internal citations and quotation marks omitted; emphasis in original).
*94 We need not delve into the more complicated questions of whether the requested funding in this case exclusively is a discretionary act or whether compelling a county to provide funding would violate separation of powers. Indeed, we do not need to consider the first two mandamus requirements, because the issue readily may be resolved by considering only the final requirement. As noted, to be entitled to a writ of mandamus, in addition to the other requirements, Appellants must demonstrate that there is no other adequate or appropriate remedy at law. We reject Appellants’ arguments for mandamus simply because there is another remedy at law: the cause of action that we have recognized earlier in this opinion. If Appellants ultimately can prove that they are entitled to injunctive relief, the remedy afforded will be the same as if a court issued a writ of mandamus: increased funding. Hence, the fact that the cause of action provides constructively the same remedy as plaintiffs seek in mandamus, as such, renders a writ of mandamus unavailable to Appellants.
IV. Conclusion
We recognize for the first time in Pennsylvania a prospective cause of action enabling indigent criminal defendants to prove that the level of funding provided by a county to operate a public defender’s office has left that office incapable of complying with Gideon, creating the likelihood of a systematic, widespread constructive denial of counsel in contravention of the Sixth Amendment to the United States Constitution. We further hold that Appellants have sufficiently averred facts to state a claim upon which injunctive relief **752 can be granted. Because the Commonwealth Court held otherwise, we reverse that portion of the Commonwealth Court’s decision.
In light of our recognition of this new cause of action, Appellants have a viable legal avenue for the relief that they seek. As such, the writ of mandamus is not available to Appellants. We affirm the portion of the Commonwealth Court’s decision holding the same.
*95 The case is remanded to the trial court for proceedings consistent with this opinion. Jurisdiction is relinquished.

Chief Justice Saylor and Justices Todd, Donohue and Dougherty join the opinion.
Justice Baer files a concurring opinion.
Justice Baer, Concurring.
I concur in the result. Like the Majority, I would reverse the Commonwealth Court’s order and remand the case to the trial court for further proceedings, as I too conclude that Appellants’ amended complaint avers sufficient facts to survive Appellees’ preliminary objection in the nature of a demurrer. However, the rationale I employ in reaching this conclusion differs significantly from the Majority’s reasoning. More specifically, in my view, the disposition of this appeal requires a straight-forward application of well-settled principles of law regarding mandamus actions and the standards that govern preliminary objections.
The crux of Appellants’ amended complaint is that Luzerne County’s failure to fund adequately the county’s Office of Public Defender (“OPD”) has rendered the OPD incapable of providing indigent defendants with effective assistance of counsel.
In terms of relief, Appellants requested as follows:
A writ of mandamus and permanent injunction compelling [Appellees] to provide necessary funding to allow the OPD to hire additional trial attorneys and support staff as well as upgrade the physical and technological resources such that the OPD is capable of providing representation to all qualified indigent defendants prosecuted in Luzerne County that satisfies standards set by the U.S. and Pennsylvania Constitutions[.]
Amended Complaint, 5/15/2016, at 38.
Regarding their request for injunctive relief, Appellants seek an order compelling Appellees to perform an affirmative act and mandating a course of conduct which would result in *96 an adequately funded OPD. Accordingly, Appellants desire a mandatory injunction. See BLACK’S LAW DICTIONARY 800 (8th ed. 2004)
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(defining “mandatory injunction” as an “injunction that orders an affirmative act or mandates a specified course of conduct”).1
**753 However, Appellees are Luzerne County (a government entity) and its county manager (a government official). Consequently, if the trial court were to grant Appellants’ request for a mandatory injunction and require Appellees to fund the OPD appropriately, then it necessarily would be compelling official performance of an allegedly mandatory duty. Thus, for all intents and purposes, the only relief Appellants actually seek is a writ of mandamus. See Fagan v. Smith, 615 Pa. 87, 41 A.3d 816, 818 (2012) (“The writ of mandamus exists to compel official performance of a ministerial act or mandatory duty.”); see also Sodus Cent. Sch. Dist. v. Kreps, 468 F.Supp. 884, 885 (W.D.N.Y. 1978) (stating that, when a plaintiff seeks a mandatory injunction against a government official, “it is a suit in the nature of mandamus and all of the common law restrictions on the use of mandamus is applicable”); Vann v. Hous. Auth. of Kansas City, Mo., 87 F.R.D. 642, 668 (W.D. Mo. 1980) (“When a mandatory injunction against a government official is sought, all of the common law restrictions on mandamus apply.”). I, therefore, am of the opinion that we must view this matter as a mandamus action.
*97 Moving forward and as relevant to this appeal, Appellees filed preliminary objections in the nature of a demurrer, claiming that Appellants’ complaint fails to state a cause of action. The trial court sustained the objection, and the Commonwealth Court affirmed that decision. This Court granted allowance of appeal to review these decisions.
In order to determine whether the trial court properly sustained Appellees’ preliminary objection in the nature of a demurrer, we must decide whether, based upon the facts pleaded in Appellants’ complaint, it is clear and free from doubt that Appellants will be unable to prove facts legally sufficient to establish a right to mandamus relief. See Mazur v. Trinity Area Sch. Dist., 599 Pa. 232, 961 A.2d 96, 101 (2008) (stating that, in examining the propriety of an order sustaining a preliminary objection in the nature of a demurrer, an appellate court’s standard of review is de novo, and its scope of review is plenary; and further explaining that a court “may sustain preliminary objections only when, based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief”). In performing this task, we must accept as true all well-pleaded facts alleged in the complaint and every inference that is fairly deducible from those facts. Id.

As to a cause of action in mandamus, it is well-settled that a court may issue a writ of mandamus only where the party seeking the writ has a clear legal right, the responding public official has a corresponding duty, and no other adequate and appropriate remedy at law exists. Fagan, 41 A.3d at 818. Moreover, this Court has explained that mandamus can compel the performance of an official duty, “even where the existence and scope of such duties must be found and defined in the course of the mandamus action itself.” Delaware River Port Auth. v. Thornburgh, 508 Pa. 11, 493 A.2d 1351, 1355 (1985).
First, I conclude that, when viewed in the proper light, the amended complaint contains sufficient facts to demonstrate that Appellants have a clear legal right. Specifically, it is indisputable that criminal defendants are constitutionally entitled *98 to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 685–87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (recognizing that a criminal defendant’s right to counsel is the right to the effective assistance of counsel). Appellants’ complaint avers facts which, if believed, establish that they are indigent criminal defendants **754 entitled to effective assistance of counsel.
Next, the amended complaint pleads facts sufficient to demonstrate that Appellees have a duty which corresponds with Appellants’ right to effective assistance of counsel. In this regard, the amended complaint accurately highlights that, pursuant to the Public Defender Act (“Act”),2 save for Philadelphia, every county in Pennsylvania must appoint a public defender, 16 P.S. § 9960.3, who by statutory mandate must furnish legal counsel to any person who lacks sufficient funds to obtain legal counsel and who is facing criminal and related proceedings, id. at § 9960.6. To allow the public defender to accomplish this task, the Act provides him with the discretion, inter alia, to hire staff, id. at § 9960.5, and it requires the board of commissioners to provide the public defender with suitable office space, furniture, equipment, and supplies, id. at § 9960.9. Moreover, according to the amended complaint, Appellees are responsible for providing funding to the OPD so that ODP can fulfill its duties to indigent criminal defendants.
In my view, Appellants’ accurate legal statements, combined with their factual averments, are sufficient to demonstrate that Appellees have a duty to fund adequately the OPD, which corresponds with Appellants’ legal right to effective assistance of counsel. Moreover, as detailed by the Majority, the amended complaint is chock-full of allegations that Appellees have failed to fulfill this duty.
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Kuren v. Luzerne County, 637 Pa. 33 (2016) 146 A.3d 715

The last question is whether the amended complaint avers facts sufficient to establish that no other adequate and appropriate remedy at law exists. In their amended complaint, Appellants plead that they have no other adequate remedy at law. Amended Complaint, 5/15/2016, at ¶ 111. Stated succinctly, *99 in my view, the remainder of the facts averred in the complaint supports this statement.3 Thus, that element is properly plead.
For these reasons, the trial court erred by sustaining Appellees’ demurrer. I must highlight, however, that the rather simplistic manner in which I believe this appeal should be decided is dictated by the procedural posture of this case. Pleading sufficient facts to survive a preliminary objection in the nature of a demurrer is a rather low legal hurdle to clear. Providing evidence to substantiate those facts and proving the necessity of a writ of mandamus are far more challenging obstacles. Indeed, it is well-settled that mandamus is an extraordinary writ. See, e.g., Chilli v. Sch. Dist. of City of McKeesport, 334 Pa. 581, 6 A.2d 99, 99 (1939) (“Mandamus is not a remedy of absolute right, it is an extraordinary writ, discretionary with the court, and can only be obtained when there is a clear legal right in the relator and a positive duty of the defendant to be performed, and where there is no other adequate, specific or appropriate remedy; mandamus can never be invoked in a doubtful case.”).
Furthermore, assuming arguendo that Appellants ultimately can meet these high standards, fashioning a legally sound judgment will present unique problems.
Footnotes

Such a judgment only could require Appellees to **755 provide funding that meets minimum requirements necessary to allow the OPD to provide effective assistance of counsel, as that term is well-defined in cases involving collateral attacks on judgments of sentence. See, e.g., Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001).
In addition, a judgment in Appellants favor must be crafted in such a way that it does not necessitate the courts to *100 maintain continuous oversight over the manner in which the OPD is funded. See Dorris v. Lloyd, 375 Pa. 474, 100 A.2d 924, 927 (1953) (“The ordinary office of the writ of mandamus is to coerce the performance of single acts of specific and imperative duty, ... and ordinarily it is not an appropriate remedy to compel a general course of official conduct or a long series of continuous acts, to be performed under varying conditions ....”). In any event, today we simply are presented with determining whether Appellants’ complaint survives Appellees’ preliminary objection in the nature of a demurrer, and the Court has held that it does.
All Citations
637 Pa. 33, 146 A.3d 715

1

As set forth in more detail below, the class action lawsuit at issue in this case was dismissed at the preliminary objection stage.

Our standard of review is well-settled. “Upon review of a decision sustaining or overruling preliminary objections, ‘we accept as

true all well-pleaded material facts set forth in the [petition for review] and all inferences fairly deducible from those facts.’ ”

Robinson Twp. v. Commonwealth, 623 Pa. 564, 83 A.3d 901, 917 (2013) (quoting Thierfelder v. Wolfert, 617 Pa. 295, 52 A.3d

1251, 1253 (2012)). “We will affirm an order sustaining preliminary objections only if it is clear that the party filing the petition

for review is not entitled to relief as a matter of law.” Id. (citation omitted). Thus, the factual and procedural history of this case is

derived from the amended complaint. For purposes of this appeal, we accept, as we must, these histories as true.

2

See Stephanie Chen, “Pennsylvania rocked by jailing kids for cash scandal”, CNN,

http://www.cnn.com/2009/CRIME/02/23/pennsylvania.corrupt.judges/ (Feb. 24, 2009) (last visited on June 6, 2016).

3

Article I, Section 9 of the Pennsylvania Constitution provides that “[i]n all criminal prosecutions the accused hath a right to be

heard by himself and his counsel ....” Pa. Const., Art. I, § 9.

4

We did not grant review of Appellants’ claim that the Commonwealth Court incorrectly held that Flora lacked standing.

Accordingly, Flora no longer is a party to this case. The caption has been adjusted to reflect this change.

5

Before us, Appellees no longer argue, as they have consistently throughout these proceedings, that Appellants lack standing to

pursue relief.

6

We do not provide a separate discussion of the right to counsel enshrined in Article I, Section 9 of the Pennsylvania Constitution.

28

Kuren v. Luzerne County, 637 Pa. 33 (2016) 146 A.3d 715

It is now well-settled that the right to counsel recognized in Article I, Section 9 and in the Sixth Amendment of the United States Constitution are jurisprudentially coextensive. See Commonwealth v. Wholaver, 605 Pa. 325, 989 A.2d 883, 897 (2010).

7

The Court of Appeals also addressed a litany of other legal issues that are immaterial to our discussion.

8

After the Court of Appeals ruled in Duncan, the case proceeded along a complicated and presumably uncommon procedural

trajectory that ultimately resulted in the Michigan Supreme Court affirming the Court of Appeals. Initially, on April 30, 2010, the

Michigan Supreme Court, after oral argument, affirmed the Court of Appeals in a per curiam order. See Duncan v. State, 486

Mich. 906, 780 N.E.2d 843 (2010). Then, on July 16, 2010, the Michigan Supreme Court granted the State’s motion for

reconsideration, vacated the April 30, 2010 order, and reversed the Michigan Court of Appeals in another per curiam order. See

Duncan v. State, 486 Mich. 1071, 784 N.W.2d 51 (2010). In that order, the Michigan Supreme Court noted briefly that the

reversal was based upon the reasons set forth in the dissenting opinion from the Court of Appeals. Id. Finally, on December 22,

2010, the Michigan Supreme Court granted the class’ motion for reconsideration of the July 16, 2010 order. The Court again

reversed itself, and reinstated the April 30, 2010 order affirming the Court of Appeals. See Duncan v. State, 488 Mich. 957, 866

N.W.2d 407 (2010).

9

In 2009, when Justice Denied was published, Utah also required counties exclusively to fund public defender’s offices. On March

22, 2016, Utah’s governor signed into law a bill that, inter alia, established a commission to review the adequacy of indigent

representation and appropriated state funds to provide grants to Utah counties who shoulder the financial cost of providing

counsel to indigent defendants. See Utah Code §§ 77–32–801-810 (effective May 10, 2016).

1

I also highlight that Appellants’ complaint seeks a permanent, not a preliminary, injunction. This Court has explained that, in

Pennsylvania, a court may issue a permanent injunction if the party seeking it can establish a clear right to relief. Bd. of Revision

of Taxes, City of Philadelphia v. City of Philadelphia, 607 Pa. 104, 4 A.3d 610, 627 (2010). The Court further has explained that a

party seeking a permanent injunction is not required to prove either irreparable harm or the need for immediate relief, “as is

necessary when seeking a preliminary injunction[.]” Id.

The Majority concludes that, in order for Appellants to establish their right to injunctive relief, they must demonstrate “the

likelihood of substantial and immediate irreparable injury[.]” Majority Opinion at –––– – –––– (quoting O’Shea v. Littleton, 414

U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). In terms of Pennsylvania law, it seems that such a requirement is more akin

to the standard for a preliminary injunction than it is to the standard for a permanent injunction.

2

16 P.S. §§ 9960.1-9960.13.

3

As detailed by the Majority Opinion, Appellees argue that the Post Conviction Relief Act, (“PCRA”), 42 Pa.C.S. §§ 9541-9546,

provides a remedy for successful claims of ineffective assistance of counsel. This is true. However, the PCRA does not offer a

vehicle to bring the specific cause of action that Appellants present in this matter nor does it contain a remedy that would allow

for the relief that Appellants seek. Consequently, the PCRA does not supply Appellants with an adequate or appropriate remedy

at law.

29

 
 Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

103 A.3d 125 Commonwealth Court of Pennsylvania.
Al FLORA, Jr., and Adam Kuren and Steven Allabaugh, on behalf of themselves and all others
similarly situated, Appellants v.
LUZERNE COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA and Robert C. Lawton, County Manager, in his official capacity. Al Flora, Jr., and Adam Kuren and Steven
Allabaugh, on behalf of themselves and all others similarly situated v.
Luzerne County of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in his official capacity, Appellants.
Argued June 16, 2014. |
Decided Oct. 14, 2014. |
Reargument Denied Dec. 2, 2014.
Synopsis Background: County’s former chief public defender and three indigent criminal defendants sought writ of mandamus and preliminary injunction, alleging that inadequate funding of office of public defender deprived indigent defendants of right to counsel. The Court of Common Pleas, Luzerne County, No. 04517, Augello, Senior Judge, denied county’s motion to disqualify counsel, determined that plaintiffs lacked standing, that complaint failed to state a cause of action, and that current chief public defender was not indispensable party. Plaintiffs appealed, and county cross-appealed.
Holdings: The Commonwealth Court, Nos. 2072 C.D. 2013, 2207 C.D. 2013, Leavitt, J., held that:
former chief public defender lacked traditional standing;
former chief public defender lacked taxpayer standing;
indigent defendants could not recover on civil claim for constructive denial of right to counsel;
indigent defendants failed to present a clear right to relief, as was required to support request for writ of mandamus;

and
indigent defendants could not recover on civil claim for actual denial of right to counsel.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.
Attorneys and Law Firms
*128 Mary C. Roper and John S. Summers, Philadelphia, for appellants.
John G. Dean, Wilkes–Barre, and James C. Crumlish, III, Blue Bell, for appellees.
BEFORE: BONNIE BRIGANCE LEADBETTER, Judge, ROBERT SIMPSON, Judge, MARY HANNAH LEAVITT, Judge.
Opinion
OPINION BY Judge MARY HANNAH LEAVITT.
Al Flora, Jr., Adam Kuren, and Steven Allabaugh appeal the order of the Luzerne County Court of Common Pleas (trial court) granting the preliminary objections of Luzerne County and County Manager Robert C. Lawton (collectively County) to their amended complaint. The amended complaint asserts that, due to inadequate funding, the Office of Public Defender of Luzerne County is unable to represent indigent clients adequately, thereby depriving those clients of their right to counsel guaranteed by the Sixth Amendment. The trial court sustained the County’s objections that the plaintiffs lacked standing, for separate reasons, and that the complaint failed to state a cause of action. The trial court overruled the County’s objection that the plaintiffs should have joined the current Chief Public Defender as an indispensable party. The County cross-appeals the trial court’s denial of its motion to disqualify an attorney representing the plaintiffs on the basis of her alleged ethics violations.
*129 Background
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Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

On April 10, 2012, Al Flora, Jr., in his official capacity as acting Chief Public Defender of Luzerne County, and three indigent criminal defendants filed a class action complaint against the County for depriving the three indigent criminal defendants of their right to counsel under the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. The complaint was amended on May 15, 2013, inter alia, to aver that Flora was suing in his individual capacity because he was no longer employed by the County as Chief Public Defender. It also replaced the original indigent criminal defendant plaintiffs with Joshua Lozano,1 Kuren and Allabaugh (Indigent Clients) as representatives of a class comprised of “all indigent adults in Luzerne County who are or will be represented by the Office of the Public Defender from this point until the Office of the Public Defender has the funding and resources necessary to enable it to meet ethical, legal, and constitutional standards of representation.” Amended Complaint, ¶ 4; Reproduced Record at 851a–52a (R.R. ––––).
The amended complaint asserted that the Office of Public Defender, as currently funded, cannot provide adequate legal representation to indigent criminal defendants. The amended complaint generally alleged that public defenders carry caseloads that exceed the standard recommended by the American Bar Association; lack basic office resources such as individual desks and phone lines; and lack sufficient support staff. More specifically, the amended complaint alleged that public defenders are unable to provide representation at most preliminary arraignments and often must request continuances of critical proceedings, leading to longer incarcerations than might be otherwise necessary. Amended Complaint, ¶¶ 48–49, 53–54; R.R. 865a–67a. It further alleged that public defenders in Luzerne County are unable to prepare properly for their clients’ defense or to consult with them in confidence. Amended Complaint, ¶¶ 61–70; R.R. 869–872. The amended complaint requested the following relief:
[a] writ of mandamus and permanent injunction compelling [the County] to provide necessary funding to allow the [Office of Public Defender] to hire additional trial attorneys and support staff as well as upgrade the physical and technological resources such that the [Office of Public Defender] is capable of providing representation to all qualified indigent defendants

prosecuted in Luzerne County that satisfies standards set by the U.S. and Pennsylvania Constitutions.
Amended Complaint, Prayer for Relief ¶ 1; R.R. 885a. Notably, the amended complaint alleged that Flora had attempted numerous times to obtain additional resources from the County through the normal budgetary process. Amended Complaint, ¶¶ 29–37; R.R. 858a–61a. However, his requests were denied. In response, Flora adopted a policy in December 2011 that limited the clients of the Office of Public Defender to those defendants charged with homicide or felony sex offenses or who are facing extradition. Amended Complaint, ¶ 33; R.R. 860a.
With their complaint, the plaintiffs filed a request for preliminary injunction, and this was granted on June 15, 2012, after a hearing. The trial court ordered the *130 County to provide funding for unfilled vacancies within the Office of Public Defender and to provide office space adequate to allow confidential communication between public defenders and their clients. Additionally, the trial court ordered the County to appoint a lawyer to represent each of the original indigent criminal defendant plaintiffs, who had been deprived counsel under Flora’s December 2011 policy, and ordered Flora to discontinue that policy. Finally, the trial court ordered the parties into mediation, which proved unsuccessful.
On April 17, 2013, the County dismissed Flora and appointed a new Chief Public Defender.2 On May 31, 2013, the County removed the amended complaint to the United States District Court for the Middle District of Pennsylvania, but the case was remanded to the trial court on August 16, 2013.
On September 11, 2013, the County filed preliminary objections to the amended complaint and a motion to disqualify one of the Indigent Clients’ attorneys, Mary Catherine Roper, Esq. The trial court held a hearing on October 8, 2013, on both issues. Regarding the motion to disqualify, the parties stipulated to several facts, specifically that Roper: (1) met with the Indigent Clients individually in April 2013 knowing that some of them were represented by public defenders in their criminal cases, (2) did not inform the public defenders that she was meeting with their clients and (3) brought retainer or fee agreements to the meetings that were executed afterwards.
On October 21, 2013, the trial court denied the County’s motion to disqualify Roper. On October 22, 2013, the trial court sustained several of the County’s preliminary objections and dismissed the amended complaint.
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Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

Specifically, the trial court held that both Flora and the Indigent Clients lacked standing and that the amended complaint failed to state a cause of action. The trial court also held that the current Chief Public Defender is not an indispensable party. Flora and the Indigent Clients have appealed the order sustaining the County’s preliminary objections, and the County has cross-appealed the denial of its motion to disqualify Roper.
On appeal,3 Flora and the Indigent Clients raise two issues. First, they contend that the trial court erred in holding that Flora lacked standing in his individual capacity. Second, they argue that the Indigent Clients have standing to allege a deprivation of their Sixth Amendment right to counsel before a deprivation has actually occurred. On cross-appeal,4 the County argues that Attorney Roper violated several rules of professional conduct *131 and that the trial court erred in refusing to disqualify her.
Flora’s Standing
We consider, first, whether Flora has standing to pursue his claim that the Office of Public Defender is inadequately funded. The plaintiffs contend that Flora has standing under the traditional standing test and also as a taxpayer under Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979).
To have standing, a party must establish “that he has a substantial, direct, and immediate interest in the outcome of the litigation.” Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655, 660 (2005). An interest is “substantial” if the party’s interest “surpasses the common interest of all citizens in procuring obedience to the law.” Id. A “direct” interest requires a showing of a causal connection between the matter complained of and the party’s interest. Id. Finally, an “immediate” interest requires the causal connection to not be remote or speculative. Id. The key is that the person must be “negatively impacted in some real and direct fashion.” Id.
The plaintiffs argue that Flora is “aggrieved” under the traditional standing test because “his right to bring a mandamus suit was deliberately frustrated by a discharge he contends is retaliatory.” Plaintiffs’ Brief at 55. Therefore, they argue that Flora should be permitted to continue as a plaintiff unless and until the federal court rules on his retaliation claims. They also contend that the

trial court erred in relying upon Bradford Timbers v. H. Gordon Roberts, 654 A.2d 625 (Pa.Cmwlth.1995). Plaintiffs argue that Ambron v. Philadelphia Civil Service Commission, 73 Pa.Cmwlth. 628, 458 A.2d 1055 (1983), is a more applicable precedent because it dealt with the standing of a plaintiff challenging his removal, as is the case with Flora.
In Bradford Timbers, a district justice petitioned for a writ of mandamus to compel the county to make a clerical appointment to his personal staff. After the district justice filed his petition, our Supreme Court suspended him. This Court held that the district justice lacked standing to proceed with his mandamus action because he no longer had the authority to carry out the act he sought to compel. Bradford Timbers, 654 A.2d at 626. In Ambron, four police detectives challenged their transfer from the district attorney’s office to the Philadelphia police department. After three of the four officers resigned, the complaint was challenged as moot. This Court held that because the plaintiffs were “not incapable of reinstatement,” their claims were not moot. Ambron, 458 A.2d at 1056.
As the trial court noted, Flora was once Chief Public Defender and may succeed in challenging his termination as retaliatory. However, he currently has no right to manage the Office of Public Defender in any way whatsoever. In Bradford Timbers, this Court held that the suspended district justice lacked standing even though his removal was temporary. The case is stronger, here, because Flora’s removal from office is permanent. Ambron is distinguishable because Flora’s potential reinstatement is not an issue in the present litigation. We therefore agree with the trial court’s reliance on Bradford Timbers.
We conclude that Flora lacks traditional standing because he is not personally aggrieved by the County’s alleged failure to fund the Office of Public Defender adequately. He is not directly impacted by the County’s actions any more than other *132 individual citizens. As a result, his interest is not substantial, direct, or immediate.
Alternatively, the plaintiffs argue that Flora has taxpayer standing under Biester, which created an exception to the traditional standing requirements. Under this exception, a taxpayer, even one not personally aggrieved, may challenge a governmental action provided he satisfies the following requirements: (1) the governmental action would otherwise go unchallenged, (2) those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action, (3) judicial relief is appropriate, (4) redress through other channels is unavailable, and (5) no other
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Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

persons are better situated to assert the claim. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323, 329 (1986), abrogated on other grounds by Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383 (2005). All the conditions must be satisfied for a taxpayer to have standing.
The plaintiffs argue that Flora satisfies the first Biester requirement because the County could dismiss any Chief Public Defender who attempts to address the alleged funding deficiencies to the Office. Second, they argue that the public defenders and their clients will be benefited by the lawsuit, and they are either unable or unlikely to bring litigation due to the County’s past firing of Flora. Third, the plaintiffs contend that judicial relief is particularly appropriate in the present case because it involves constitutional questions. Fourth, they argue that relief through other channels is unavailable because, again, the County can stop the Chief Public Defender from filing a lawsuit by firing him. They also note that Flora spent two years lobbying the County for additional resources before filing the current lawsuit. Finally, the plaintiffs contend that a decision by the Chief Public Defender to bring a lawsuit similar to the present one would be “futile” because the County would fire him to prevent the lawsuit from going forward. In any case, because the current Chief Public Defender has not acted, Flora should be permitted to proceed with this action to fulfill the intent of Biester.
The County responds that Flora lacks standing under Biester because relief is available through other channels. The current Chief Public Defender may bring a claim under the Public Defender Act5 or seek to have attorneys appointed on a case-by-case basis. Individual indigent criminal defendants may obtain relief under the Post Conviction Relief Act6 should they receive ineffective assistance of counsel in their criminal trials.
The trial court did not err in holding that Flora lacks standing under Biester. First, whether the County has provided the Indigent Clients effective assistance of counsel will be addressed in their criminal cases. Likewise, the current Chief Public Defender may challenge the County’s actions. See, e.g., Dauphin County Public Defender’s Office v. Court of Common Pleas of Dauphin County, 578 Pa. 59, 849 A.2d 1145, 1148 (2004) (holding that public defender has standing to challenge administrative order which affects statutory obligation “to provide legal representation to financially eligible criminal defendants”). Redress is also available through the regular budgetary process. The plaintiffs’ primary argument is that the County will dismiss a Chief Public

Defender who files *133 a lawsuit, but this is speculation. Notably, if Flora is successful in his retaliation claim against the County and is reinstated, he can then bring a lawsuit in his official capacity.
In sum, we hold that Flora lacks standing in his individual capacity and the trial court properly sustained the County’s preliminary objection on this ground.
Indigent Clients’ Standing/Failure to State a Claim
Next, we consider whether the trial court erred in finding that the Indigent Clients lacked standing. They argue that they adequately pled a constructive denial of counsel claim in the amended complaint, which alleges that the County’s public defenders are unable to: interview or meet with clients prior to preliminary hearings; contact clients between court appearances; conduct meaningful investigation or discovery; engage in motion practice; gather the information needed to do effective plea negotiations; engage in sufficient trial preparation; or properly litigate appeals due to lack of experience. Amended Complaint, ¶ 106, R.R. 881a. Because they have been constructively denied counsel, the Indigent Clients believe they have a substantial, direct, and immediate interest in the resources provided to the Office of Public Defender. They explain that their action does not seek to alter how the Chief Public Defender allocates the resources available to him, but rather to compel the County to provide sufficient resources to satisfy its statutory and constitutional obligations. Additionally, the Indigent Clients contend that the amended complaint raises an actual denial of counsel claim because the Office of Public Defender does not provide representation at preliminary arraignments, the point in the criminal process where the right to counsel attaches.
The County counters that none of the Indigent Clients have yet been convicted and, therefore, have not suffered any prejudice. In addition, the County argues that mandamus relief is not available because the Indigent Clients seek to compel the appropriation of additional funds for the Office of Public Defender, which is a discretionary act. Finally, the County contends that the amended complaint’s allegations that its public defenders will not devote sufficient time to their representation do not give rise to a claim for either an actual denial or constructive denial of counsel.
The argument on standing merges with the question of
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Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

whether the amended complaint states a claim upon which relief can be granted. Accordingly, we decide the two issues together.
Right to Counsel
The Sixth Amendment of the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. The United States Supreme Court has held that states must provide indigent criminal defendants with appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right to counsel attaches once the criminal defendant is actually charged at a preliminary arraignment. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). Therefore, an indigent criminal defendant who does not receive appointed counsel may bring an actual denial of counsel claim. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Appointed counsel must provide effective representation. If an indigent criminal defendant’s appointed lawyer is ineffective, the defendant is entitled to a *134 new trial. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must prove that his attorney performed below a standard of objective reasonableness and that counsel’s performance resulted in actual prejudice to the defendant. Id. An ineffective assistance of counsel claim may be brought only after the defendant has been convicted. See id.
In Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657, decided the same day as Strickland, the Supreme Court noted that there are some cases where
the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.
Cronic, 466 U.S. at 659–60, 104 S.Ct. 2039. In Cronic,

the defendant’s retained counsel withdrew weeks before the case went to trial. His newly appointed counsel was a young lawyer with a real estate practice who had 25 days to prepare for the complex fraud case that had taken the government over four years to prepare. Nevertheless, the Supreme Court held that these facts were not sufficient to establish a presumption of prejudice. Instead, the Court cited Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as an example of where a presumption of prejudice will be shown. In Powell, the defendant’s counsel was from out-of-state and did not know the local rules of court or even the facts of the case. In these circumstances, the Supreme Court held that it can be presumed that the criminal defendant is prejudiced and, effectively, has been denied counsel.
Notably, both Strickland and Cronic were criminal appeals where the defendants were seeking to overturn their convictions; they did not seek prospective relief.
Constructive Denial of Counsel
The Indigent Clients ask this Court to recognize a new civil remedy to improve funding to a public defender’s office. In Luckey v. Harris, 860 F.2d 1012 (11th Cir.1988), the first case to recognize such a remedy, a class of indigent criminal defendants in Georgia sought to require state government to provide the funding for their defense. After the dismissal of the case, the Eleventh Circuit Court of Appeals reversed, reasoning that a criminal defendant’s “lack of counsel” claims might not rise to the level of “ineffective assistance” but the defendants could still suffer harm. Nevertheless, the court held that criminal defendants asserting that they will suffer from a lack of meaningful representation in the future must show a likelihood of substantial and immediate irreparable injury and the inadequacy of a remedy at law to proceed. Luckey was never litigated to completion because it was dismissed on grounds of abstention. Luckey v. Miller, 976 F.2d 673 (11th Cir.1992).
The New York Court of Appeals considered a constructive denial of counsel claim in Hurrell–Harring v. New York, 15 N.Y.3d 8, 904 N.Y.S.2d 296, 930 N.E.2d 217 (2010). There, several indigent criminal defendants brought a civil action asserting that they had been constructively denied their constitutional right to counsel because of the inadequate funding of several county public defender’s offices. In a 4 to 3 decision, the New York Court of Appeals allowed the case to proceed and
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Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

reversed the lower court’s dismissal. The court reasoned that Strickland’s holding that a defendant must be convicted before he brings an ineffective assistance of counsel claim was premised on the supposition that Gideon was being faithfully applied by *135 the states. The question decided in Strickland was “not [ ] whether ineffectiveness has assumed systemic dimensions, but rather [ ] whether the State has met its foundational obligation under Gideon to provide legal representation.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 222. The New York Court of Appeals noted that the complaint alleged that appointed counsel served in name only because they were chronically unavailable, unresponsive to urgent inquiries, waived important rights without consulting their clients, missed court appearances, and appeared in court unprepared to proceed. Id. These allegations, the New York court held, “raise serious questions as to whether any [attorney-client] relationship may be really said to have existed.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 224. Thus, the court distinguished Strickland. The New York Court of Appeals allowed the case to proceed, but it has not been litigated to judgment.
Similarly, in Duncan v. Michigan, 284 Mich.App. 246, 774 N.W.2d 89 (2009), aff’d on other grounds 486 Mich. 906, 780 N.W.2d 843 (2010),7 a class of indigent criminal defendants challenged the funding to several county public defender offices as so inadequate as to violate the Sixth Amendment. Specifically, the plaintiffs alleged that the county systems were “wholly lacking” regarding client eligibility standards; attorney hiring, training and retention programs; written performance and workload standards; monitoring and supervision of appointed counsel; conflict of interest guidelines; and independence from the judiciary and prosecutorial offices. Id. at 99. The Michigan Court of Appeals noted that the allegations in the complaint were detailed on specific instances of inadequate representation, limited interaction between the public defenders and their clients and waivers of client rights by counsel.
In a 2 to 1 decision, the Michigan Court of Appeals explained, first, that mandamus was available to compel governmental action because the plaintiffs were not seeking to compel an appropriation but, rather, to compel the state to provide adequate representation. The court acknowledged that funding and legislation “would seemingly appear to be the measures needed to be taken to correct constitutional violations,” but stated that “we are not prepared to rule on the issue whether the trial court has the authority to order appropriations, legislation, or comparable steps.” Id. at 111. The court allowed the case to proceed to allow plaintiffs the opportunity to show the

existence of widespread and systemic instances of actual or constructive denial of counsel and instances of deficient performance by counsel, which instances may have varied and relevant levels of egregiousness, all causally connected to defendants’ conduct.
Id. at 124. The court rejected the argument that post-conviction relief, as set forth in Strickland, provided the exclusive and proper remedy. The case has not been litigated to judgment.
*136 The dissents in Hurrell–Harring and Duncan are also worthy of review. The dissenting judge in Hurrell–Harring reasoned that inadequacies in the public defender system do not constitute a Sixth Amendment claim. The dissent noted that “[c]onstructive denial of counsel is a branch from the Strickland tree, with Cronic applying only when the appointed attorney’s representation is so egregious that it’s as if [the] defendant had no attorney at all.” Hurrell–Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 229 (Pigott, J., dissenting). The dissent concluded that “[p]laintiffs’ mere lumping together of 20 generic ineffective assistance of counsel claims into one civil pleading does not ipso facto transform it into one alleging a systemic denial of the right to counsel.” Id. 904 N.Y.S.2d 296, 930 N.E.2d at 230 (Pigott, J., dissenting).
In Duncan, the dissenting judge concluded that the relief sought by the plaintiffs would violate separation of powers because they
sought in their complaint to have the judiciary override the Michigan system of local control and funding of legal services for indigent criminal defendants.
Duncan, 774 N.W.2d at 153–54 (Whitbeck, J., dissenting). Because the plaintiffs had not yet been convicted, they had not suffered prejudice, which is necessary to pursue a Sixth Amendment claim. The plaintiffs’ right to pursue an ineffective assistance of counsel claim post-conviction, under Strickland, provided an adequate remedy. This made mandamus or injunctive relief inappropriate. Finally, the dissent noted that the Sixth Amendment does not guarantee criminal defendants an attorney of a particular
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Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

level of skill.
In the present case, the trial court explained that Hurrell–Harring was distinguishable because the New York court was “reviewing an alleged outright denial of legal counsel (not effective assistance)” at points in the criminal process where counsel was required. Trial Court op. at 11. By contrast, the amended complaint alleged that some indigent criminal defendants did not have counsel at their preliminary arraignment, which is a point in the criminal process before the right to counsel attaches. This made the claims of the Indigent Clients different from those of the plaintiffs in Hurrell–Harring. Accordingly, the real question raised by the amended complaint was not a denial of counsel but, rather, a denial of effective counsel. The trial court concluded that whether counsel was ineffective can only be determined after the criminal proceedings have ended.
We find persuasive and so accept the analyses of the dissenting judges in Hurrell–Harring and Duncan and reject as not persuasive the majority opinions in those cases. We do so for several reasons.
First, there is no precedent from the United States Supreme Court acknowledging that a constructive denial of counsel claim may be brought in a civil case that seeks prospective relief in the form of more funding and resources to an entire office, as opposed to relief to individual indigent criminal defendants. Strickland, Cronic, and Gideon were all cases where the defendants sought a new trial. As explained in the Duncan dissent, the “United States Supreme Court in Gideon and Strickland was concerned with results, not process. It did not presume to tell the states how to ensure that indigent criminal defendants receive effective assistance of counsel.” Duncan, 774 N.W.2d at 153 (Whitbeck, J., dissenting). It is unclear that such a claim will be held cognizable in any state.
Second, even assuming, arguendo, that a Sixth Amendment claim for more *137 funding to the public defender’s office is cognizable, the amended complaint does not satisfy the requisite standard. The amended complaint alleges that attorneys from the Office of Public Defender meet only briefly with indigent clients, rarely contact clients between court appearances, do not conduct significant investigation or discovery, do not engage in sufficient trial preparation, and cannot properly litigate appeals due to lack of experience. Amended Complaint, ¶ 106, R.R. 881a. These allegations do not create circumstances that are “so likely [to create prejudice] that case-by-case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. Notably,

constructive denial of counsel was not found in Cronic where the lawyer assigned to the complex white collar criminal case was new to the profession, did real estate law and was appointed 25 days before the trial for which the government had prepared for four years.
The amended complaint does not allege facts to support the inference that the Indigent Clients have or will suffer irreparable harm, but only the fear that they will not be adequately represented. This is speculation, a deficiency in the pleading that cannot be cured by amendment. Kennedy v. Carlson, 544 N.W.2d 1, 6–8 (Minn.1996) (holding that public defender’s claims were too speculative and hypothetical to pursue a denial of effective assistance of counsel). We agree with the Hurrell–Harring dissent that the “mere lumping together of 20 generic ineffective assistance of counsel claims into one civil pleading does not ipso facto transform it into one alleging a systemic denial of the right to counsel.” Hurrell–Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 230 (Pigott, J., dissenting).
Third, as noted by the Supreme Court in Strickland, “[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. Indeed, “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.” Id. at 689, 104 S.Ct. 2052 (emphasis added). These observations compel our disposition of the instant appeal. Criminal defendants are guaranteed effective assistance of counsel so that they receive a fair trial; they are not guaranteed perfect counsel or a perfect trial. Accordingly, we will not infer a presumption of prejudice in the present case.
Should the legal representation assigned to the individual Indigent Clients prove ineffective and cause them prejudice, their recourse is to bring a post-conviction Strickland claim.
Mandamus
Mandamus is an extraordinary remedy used to compel the performance of a ministerial act or mandatory duty. Chesapeake Appalachia, LLC v. Golden, 35 A.3d 1277, 1280 n. 7 (Pa.Cmwlth.2012). Mandamus requires a
7

Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

showing that: (1) the petitioner has a clear legal right to relief, (2) the official owes the petitioner a duty, and (3) there are no other adequate remedies at law. Wilson v. Pennsylvania Board of Probation & Parole, 942 A.2d 270, 272 (Pa.Cmwlth.2008). The essence of an action in mandamus is that a specific actor has a nondiscretionary duty to perform a particular act. Finn v. Rendell, 990 A.2d 100, 106 (Pa.Cmwlth.2010). Similarly, because a mandatory injunction compels a defendant to perform an act, rather than to refrain from acting, courts will *138 grant a mandatory injunction only upon a very strong showing that the plaintiff has a clear right to relief. Department of Public Welfare v. Portnoy, 129 Pa.Cmwlth. 469, 566 A.2d 336 (1989).
Here, the amended complaint does not present a clear right to relief. The Indigent Clients have an alternative remedy either through a claim under Strickland or the Post Conviction Relief Act. Similarly, the Chief Public Defender may seek relief under the Public Defender Act, which authorizes him to
arrange for and make use of the services of attorneys at law admitted to practice before the Supreme and Superior Courts of this Commonwealth and the court of common pleas of the county or counties in which they may serve, when such attorneys volunteer to act as assistants, without compensation, to enable him to carry out the duties of his office.
16 P.S. § 9960.5.
The amended complaint seeks the appropriation of additional funding to the Office of Public Defender to hire additional lawyers and staff. The County counters that its funding of the Office of Public Defender is inherently discretionary and cannot be compelled by a writ of mandamus. We agree with the County.
In addition, the writ of mandamus sought in the amended complaint may violate the doctrine of separation of powers. Our system of government is based on the concept that the legislative, executive and judicial branches of government are independent and co-equal with each other. Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193, 196 (1971). Accordingly, no branch of government may exercise the function

committed to another branch. Wilson v. Philadelphia School Districts, 328 Pa. 225, 195 A. 90, 93 (1937). Nevertheless, in rare circumstances one branch of government may prevent another branch from usurping the powers committed to the other branches. Beckert v. Warren, 497 Pa. 137, 439 A.2d 638, 642 (1981).
The judicial power, for example, is vested exclusively in the courts, and the taxing and spending powers are vested in the legislature. Id. at 642–43. As a “check,” however, the courts may “compel expenditures necessary to prevent the impairment of [the court’s] exercise of the judicial power or of the proper administration of justice.” Id. at 642. Therefore, in limited and exceptional circumstances, the courts may order an appropriation of funds when the legislature’s funding makes it impossible for the judiciary to comply with its statutory and constitutional obligations. Id. at 643. Specifically, our Supreme Court has held that in such a case,
[t]here must be a genuine threat to the administration of justice, that is, a nexus between the legislative act and the injury to the judiciary, not merely a theoretical encroachment by the legislature.
Id. Stated otherwise, the lack of an appropriation must, itself, be an unconstitutional omission. “Absent such circumstances, the courts are not empowered to review discretionary acts of the legislature.” Id.8
*139 The amended complaint did not allege facts to show such an extreme refusal of the County to appropriate funds. The Indigent Clients’ right to relief is far from clear. The County has provided indigent criminal defendants with counsel. Simply stated, the appropriation of additional funds to the Office of Public Defender is a discretionary act that cannot be compelled by a writ of mandamus.
Actual Denial of Counsel
We next consider whether the amended complaint has pled an actual denial of counsel claim. Paragraph 53 of the amended complaint states:
8

Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

[t]he [Office of Public Defender] is unable to provide representation or support at most preliminary arraignments, which the U.S. Supreme Court recently reaffirmed to be the point at which the right to counsel attaches. See Rothgery v. Gillespie County, 554 U.S. 191, 213 [128 S.Ct. 2578, 171 L.Ed.2d 366] (2008) (“[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”) The right to counsel under the Pennsylvania Constitution attaches at the same time as the right to counsel provided by the Sixth and Fourteenth Amendments to the U.S. Constitution. Commonwealth v. Arroyo [555 Pa. 125], 723 A.2d 162, 170 (Pa.1999).
Amended Complaint, ¶ 53; R.R. 866a. The plaintiffs argue that this allegation raises an actual denial of counsel claim.
The United States Supreme Court has established that the right to counsel attaches at the preliminary arraignment, which is the point that the defendant enters the criminal prosecutorial system. Montejo, 556 U.S. at 786, 129 S.Ct. 2079. Under Pennsylvania Rule of Criminal Procedure 540, several events occur at a preliminary arraignment. The criminal defendant is presented with a copy of the criminal complaint and, if the defendant was arrested pursuant to a warrant, a copy of the warrant and supporting affidavits. PA. R.CRIM.P. 540(C), (D).9 The defendant is read the complaint and informed of his right to counsel, including the right to have counsel assigned; the right to a preliminary hearing; and the type and conditions of release on bail, if applicable. PA. R.CRIM.P. 540(F). The defendant is not questioned about the charges. Id. Finally, a date for the preliminary hearing is determined, unless the right to the preliminary hearing is waived by a defendant represented by counsel. PA. R.CRIM.P. 540(G). After the preliminary arraignment, the defendant is given the opportunity to post bail, secure counsel, and notify others of the arrest. PA. R.CRIM.P. 540(H).
The right to counsel attaches at the preliminary arraignment, but the defendant does not have a right to counsel to represent him at the preliminary arraignment. In Rothgery, the case cited in the amended complaint, the United States Supreme Court held that

during any ‘critical stage’ of the postattachment proceedings; what makes a stage critical is what shows the need for counsel’s presence. Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.
Rothgery, 554 U.S. at 212, 128 S.Ct. 2578 (emphasis added). Justice Alito in a concurring opinion further explained that the Court has “rejected the argument that the Sixth Amendment entitles the criminal defendant to the assistance of appointed counsel at a probable-cause hearing.” Rothgery, 554 U.S. at 216, 128 S.Ct. 2578 (Alito, J., concurring). Rather, the Sixth Amendment requires “the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the defendant effective assistance at trial.” Id. at 217, 128 S.Ct. 2578 (Alito, J., concurring).
Pennsylvania’s Rules of Criminal Procedure governing the appointment of counsel in criminal cases conform to Rothgery. Rule 122 states that counsel shall be appointed “in all court cases, prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel.” PA. R.CRIM.P. 122(A)(2) (emphasis added). At a preliminary arraignment, the defendant is advised of the charges against him, given a copy of the warrant and bail is set. These events do not require the presence of counsel because no rights are affected and there is no impact on the effectiveness of counsel’s representation at trial. Therefore, there is no right to counsel at the preliminary arraignment.
In short, we conclude that the amended complaint does not state a cause of action for actual denial of counsel. It alleges that public defenders do not represent indigent defendants at every preliminary arraignment. However, it is only thereafter that the indigent criminal defendant has a right to counsel.

*140 [o]nce attachment occurs, the accused at least is entitled to the presence of appointed counsel

Conclusion The amended complaint does not state a cause of action
9

Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

for either constructive or actual denial of counsel, and the trial court correctly sustained the County’s preliminary objections. The funding at any office of public defender presents a series of political and public policy challenges, as do all programs established to serve society’s less fortunate. These questions are better resolved in the political process, which includes the County’s budgetary processes.
For these reasons, we affirm the order of the trial court sustaining the County’s preliminary objections and dismissing the amended complaint.10

ORDER AND NOW, this 14th day of October, 2014, the order of the Luzerne County Court of Common Pleas, dated October 22, 2013, is hereby AFFIRMED.
All Citations 103 A.3d 125

Footnotes

1

Joshua Lozano was named in the amended complaint as a potential class representative but he is not a party to this appeal.

2

Flora filed an action in federal court alleging retaliation claims under state and federal law and seeking reinstatement as Chief

Public Defender. The action was dismissed. Flora is appealing the dismissal of the federal claim and will refile his state law claims

in the trial court.

3

In reviewing a trial court’s grant of preliminary objections, this Court’s standard of review is de novo and the scope of review is

plenary. Mazur v. Trinity Area School District, 599 Pa. 232, 961 A.2d 96, 101 (2008). The court must accept as true all

well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts.

Id. Preliminary objections should be sustained only when, based on the facts pleaded, it is clear and free from doubt that the

complainant will be unable to prove facts legally sufficient to establish a right to relief. Id.

4

This Court exercises plenary review of a trial court’s disposition of an attorney disqualification motion. Vertical Resources, Inc. v.

Bramlett, 837 A.2d 1193, 1201 (Pa.Super.2003).

5

Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §§ 9960.1–9960.13.

6

42 Pa.C.S. §§ 9541–9546.

7

The appellate history of Duncan is complex. Initially, the Michigan Supreme Court on April 30, 2010, vacated and remanded in

part and affirmed in part the Court of Appeals’ decision. Regarding the constructive denial of counsel issue, the Supreme Court

stated that “[t]his case is at its earliest stages and, based solely on the plaintiffs’ pleadings in this case, it is premature to make a

decision on the substantive issues.” Duncan, 486 Mich. 906, 780 N.W.2d 843, 844 (2010). Therefore, the Court held that

summary disposition was inappropriate. The Court subsequently granted and vacated several reconsideration orders. Ultimately,

the court reinstated its original April 30th order. Duncan, 488 Mich. 957, 790 N.W.2d 695 (Mich.2010) ( “[W]e REINSTATE our

order in this case dated April 30, 2010, because reconsideration thereof was improperly granted.”).

8

Courts may compel additional funding if the appropriated amount is inadequate to comply with statutory or constitutional

obligations. See Kistler v. Carbon County, 154 Pa.Super. 299, 35 A.2d 733, 735 (1944) (holding that county commissioners cannot

“limit or avoid liabilities imposed upon the county by the Constitution or by statutes”). The “administration of justice” must be

construed more broadly than involving just the courts. Related entities, such as the Office of Public Defender, also participate in

the administration of justice.

9

They state:

(C) At the preliminary arraignment, a copy of the complaint accepted for filing pursuant to Rule 508 shall be given to the

defendant.

10

Flora v. Luzerne County of Com. of Pennsylvania, 103 A.3d 125 (2014)

(D) If the defendant was arrested with a warrant, the issuing authority shall provide the defendant with copies of the warrant and supporting affidavit(s) at the preliminary arraignment, unless the warrant and affidavit(s) are not available at that time, in which event the defendant shall be given copies no later than the first business day after the preliminary arraignment. PA. R.CRIM.P. 540(C), (D).

10

Because we affirm the trial court’s dismissal of the amended complaint, we need not address the question of whether the

current Chief Public Defender was an indispensable party or the County’s cross-appeal.

11

 
 Flora v. Luzerne County, 632 Pa. 145 (2015) 118 A.3d 385

632 Pa. 145 Supreme Court of Pennsylvania.
Al FLORA, Jr., and Adam Kuren and Steven Allabaugh, on behalf of themselves and all others
similarly situated, Petitioners v.
LUZERNE COUNTY of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in his Official Capacity, Respondents.
Al Flora, Jr., and Adam Kuren and Steven Allabaugh, on behalf of themselves and all others
similarly situated, Petitioners v.
Luzerne County of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in his Official Capacity, Respondents.
June 30, 2015.
Petition for Allowance of Appeal from the Order of the Commonwealth Court, Nos. 951 MAL 2014, 952 MAL 2014.
ORDER

PER CURIAM.
*146 AND NOW, this 30th day of June, 2015, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issues set forth below. Allocatur is DENIED as to all remaining issues. The issues, as stated by Petitioners, are:
(1) In a matter of first impression, do petitioners state a claim for constructive denial of counsel under the Sixth and Fourteenth Amendments to the United States Constitution, and Article 1, Section 9 of the Pennsylvania Constitution, based on chronic and systemic deficiencies in the operation of Luzerne County’s Office of the Public Defender that deprive them and the class they seek to represent of their right to effective assistance of counsel? See Pa. R.A.P. 1114(b)(3), (4).
(2) Do Petitioners state a claim of mandamus to compel Respondents to provide adequate funding for Luzerne County’s Office of the Public Defender, as required by the Commonwealth’s Public Defender Act, 16 Pa. Cons.Stat. §§ 9960.1–9960.13 (hereinafter the “Public Defender Act”)? See Pa. R.A.P. 1114(b)(2).
All Citations
632 Pa. 145, 118 A.3d 385 (Mem)

1

 
 637 Pa. 33 Supreme Court of Pennsylvania.
Adam KUREN and Steven Allabaugh, on Behalf of Themselves and All Others Similarly Situated, Appellants v. LUZERNE COUNTY of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in His Official Capacity, Appellees
Adam Kuren and Steven Allabaugh, on Behalf of Themselves and All Others Similarly Situated, Appellants v. Luzerne County of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in His Official Capacity, Appellees
No. 57 MAP 2015 |
No. 58 MAP 2015 |
ARGUED: April 6, 2016 |
DECIDED: September 28, 2016
Synopsis Background: Indigent criminal defendants sought writ of mandamus and injunctive relief, alleging that inadequate funding by county of office of public defender deprived indigent defendants of right to counsel. The Court of Common Pleas, Luzerne County, No. 04517, Augello, Senior Judge, dismissed complaint. Criminal defendants
appealed. The Commonwealth Court, Nos. 2072 C.D. 2013, 2207 C.D. 2013, 103 A.3d 125, Leavitt, J., affirmed. The Supreme Court granted allocatur.
Holdings: The Supreme Court, Nos. 57 MAP 2015, 58 MAP 2015, Wecht, J., held that:
[1] as matter of first impression in Pennsylvania, a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office, so long as the class action plaintiffs demonstrate the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.

[2] allegations by indigent criminal defendants were sufficient to support complaint for injunctive relief requiring county to provide adequate funding to public defender’s office; and
[3] writ of mandamus was not available to indigent criminal defendants to compel county to provide adequate funding to public defender’s office.
Decision of Commonwealth Court affirmed in part, reversed in part; case remanded.
Baer, J., filed a concurring opinion.
West Headnotes (10)
[1] Civil Rights Right of Action;  Nature and Grounds
Civil Rights Injunction
78Civil Rights 78VState and Local Remedies 78k1718Right of Action;  Nature and Grounds 78k1721Other particular cases and contexts 78Civil Rights 78VState and Local Remedies 78k1759Injunction 78k1762Other particular cases and contexts
A cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office, so long as the class action plaintiffs demonstrate the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. U.S. Const. Amend. 6.
4 Cases that cite this headnote
[2] Appeal and Error Objections and exceptions;  demurrer
1

30Appeal and Error 30XVIReview 30XVI(F)Presumptions and Burdens on Review 30XVI(F)2Particular Matters and Rulings 30k3892Pleading 30k3895Objections and exceptions;  demurrer (Formerly 30k917(1))
Upon review of a decision sustaining or overruling preliminary objections, the Supreme Court accepts as true all well-pleaded material facts set forth in the petition for review and all inferences fairly deducible from those facts.
3 Cases that cite this headnote
[3] Appeal and Error Defenses, objections, and exceptions in
general
30Appeal and Error 30XVIReview 30XVI(D)Scope and Extent of Review 30XVI(D)3Procedural Matters in General 30k3195Defenses, objections, and exceptions in general (Formerly 30k863)
The Supreme Court will affirm an order sustaining preliminary objections only if it is clear that the party filing the petition for review is not entitled to relief as a matter of law.
3 Cases that cite this headnote
[4] Criminal Law Right of Defendant to Counsel
110Criminal Law 110XXXICounsel 110XXXI(B)Right of Defendant to Counsel 110XXXI(B)1In General 110k1710In general
The essence of the Sixth Amendment right to counsel is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial. U.S. Const. Amend. 6.

[5] Criminal Law Critical stages
Criminal Law Adversary or judicial proceedings
110Criminal Law 110XXXICounsel 110XXXI(B)Right of Defendant to Counsel 110XXXI(B)2Stage of Proceedings as Affecting Right 110k1718Critical stages 110Criminal Law 110XXXICounsel 110XXXI(B)Right of Defendant to Counsel 110XXXI(B)2Stage of Proceedings as Affecting Right 110k1719Adversary or judicial proceedings
Once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings. U.S. Const. Amend. 6.
2 Cases that cite this headnote
[6] Civil Rights Injunction
78Civil Rights 78VState and Local Remedies 78k1759Injunction 78k1762Other particular cases and contexts
In setting forth a cause of action for prospective injunctive relief based upon the constructive denial of counsel, to prove the likelihood of substantial and immediate irreparable injury, the plaintiff should focus upon the following factors: (1) when, on a system-wide basis, the traditional markers of representation—such as timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution’s case—are absent or significantly compromised; and (2) when substantial structural limitations—such as a severe lack of resources, unreasonably high workloads, or critical
2

understaffing of public defender offices—cause that absence or limitation on representation. U.S. Const. Amend. 6.

[7] Injunction Prospective, preventive, or future-oriented
nature of remedy
212Injunction 212IInjunctions in General;  Permanent Injunctions in General 212I(A)Nature, Form, and Scope of Remedy 212k1006Prospective, preventive, or future-oriented nature of remedy
A suit for an injunction deals primarily, not with past violations, but with threatened future ones; and an injunction may issue to prevent future wrong, although no right has yet been violated.

[8] Civil Rights Pleading
78Civil Rights 78VState and Local Remedies 78k1738Pleading 78k1741Other particular cases and contexts
Allegations by indigent criminal defendants in complaint against county, detailing how office of public defender due to insufficient funding had failed in each of six components of adequate legal representation required by Sixth Amendment right to counsel, were sufficient to support complaint for injunctive relief requiring county to provide adequate funding to public defender’s office. U.S. Const. Amend. 6.
3 Cases that cite this headnote

[9]

Mandamus

Nature and scope of remedy in general

Mandamus

Existence and Adequacy of Other Remedy in General
250Mandamus 250INature and Grounds in General 250k1Nature and scope of remedy in general 250Mandamus 250INature and Grounds in General 250k3Existence and Adequacy of Other Remedy in General 250k3(1)In general
Mandamus is an extraordinary writ that will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other appropriate and adequate remedy.
5 Cases that cite this headnote
[10] Mandamus Counties or towns and their boards or officers
Mandamus County or town boards and officers
250Mandamus 250INature and Grounds in General 250k3Existence and Adequacy of Other Remedy in General 250k3(2)Remedy at Law 250k3(5)Counties or towns and their boards or officers 250Mandamus 250IISubjects and Purposes of Relief 250II(B)Acts and Proceedings of Public Officers and Boards and Municipalities 250k65County or town boards and officers
Writ of mandamus was not available to indigent criminal defendants to compel county to provide adequate funding to public defender’s office pursuant to Public Defender Act; injunctive relief based on Sixth Amendment right to counsel was adequate remedy at law and provided constructively the same remedy. U.S. Const. Amend. 6; 16 Pa. Stat. Ann. § 9960.10 et seq.
2 Cases that cite this headnote
3

All Citations

637 Pa. 33, 146 A.3d 715

4

 
 Received 09/10/2015 Supreme Court Middle District

IN THE SUPREME COURT OF PENNSYLVANIA

No. 57 MAP 2015 No. 58 MAP 2015
ADAM KUREN and STEVEN ALLABAUGH, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants v.
LUZERNE COUNTY of the Commonwealth of Pennsylvania and ROBERT C. LAWTON, County Manager, in his official capacity,
Defendants-Appellees

BRIEF FOR APPELLANTS

On Appeal from the October 14, 2014 Order of the Commonwealth Court at Nos. 2072 C.D. 2013 and 2207 C.D. 2013 (consolidated), Reargument Denied,
December 2, 2014, Affirming the October 22, 2013 Judgment of the Court of Common Pleas of Luzerne County, No. 04517, April Term, 2012

Mary Catherine Roper (Pa. 71107) Molly Tack-Hooper American Civil Liberties Foundation of Philadelphia P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 x116

David Rudovsky (Pa. 15168) Kairys, Rudovsky, Messing & Feinberg, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400

Attorneys for Appellants (additional counsel on signature page)

3403349.9.ADMINISTRATION

TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION.........................................................................1

ORDER IN QUESTION...........................................................................................1

STATEMENT OF THE SCOPE AND STANDARD OF REVIEW .......................1

STATEMENT OF THE QUESTIONS INVOLVED...............................................2

STATEMENT OF THE CASE.................................................................................2

I. FORM OF ACTION AND PROCEDURAL HISTORY ....................2

II. STATEMENT OF FACTS...................................................................8

A. Parties....................................................................................... 8

B. The Long-Standing Deficiencies in the Luzerne OPD............ 9

C. Flora Attempts to Correct the OPD’s Problems .................... 13

SUMMARY OF THE ARGUMENT .....................................................................15

ARGUMENT ..........................................................................................................18

I. CLASS PLAINTIFFS HAVE PROPERLY PLEADED CLAIMS FOR A CONSTRUCTIVE DENIAL OF COUNSEL AND FOR THE DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL RESULTING FROM THE DEFENDANTS’ FAILURE TO PROVIDE ADEQUATE RESOURCES TO THE LUZERNE COUNTY PUBLIC DEFENDER OFFICE ...........18

A. Introduction............................................................................. 18

B. The Systemic Denial of Basic Guarantees Protected by the Sixth Amendment Caused by Lack of Adequate Resources for a Public Defender Office Provides a Basis for Equitable Remedial Relief....................................................................... 19

C. The Availability of Multiple Remedies for a Constitutional Violation is a Characteristic of Our Constitutional System ... 31

D. Plaintiffs Have Properly Alleged Both Constructive Denial of Counsel and Denial of Effective Assistance of Counsel Due to Chronic and Systemic Underfunding of the Luzerne County OPD......................................................................................... 33

3403349.9.ADMINISTRATION

i

II. THE PENNSYLVANIA COURTS HAVE MANDAMUS AUTHORITY TO COMPEL THE PROVISION OF ADEQUATE RESOURCES FOR THE LUZERNE COUNTY OFFICE OF PUBLIC DEFENDER...................................................38 A. Under the Public Defender Act, Luzerne County is Required to Provide Adequate Resources to Ensure that Appellants and Similarly Situated Indigent Defendants are Provided Effective Assistance of Counsel ............................................................. 39 B. The Commonwealth Court’s Reasons for Dismissing the Mandamus Claims Are Without Merit ................................... 44 1. The Public Defender Act’s Requirement that an “Adequate” Defense Be Provided For Indigent Defendants Is a Mandatory Duty.........................................44 2. Appellants Have No Adequate Remedy at Law...................47 3. Enforcing the Public Defender Act Would Not Violate the Separation of Powers Doctrine .......................................48
CONCLUSION .......................................................................................................51
ii

TABLE OF AUTHORITIES
CASES
Allee v. Medrano, 416 U.S. 802 (1974)............................................................................................19
Amnesty Int’l v. Battle, 559 F.3d 1170 (11th Cir. 2009) ..........................................................................33
Avery v. State of Alabama, 308 U.S. 444 (1940)......................................................................................15, 22
Batson v. Kentucky, 476 U.S. 79 (1986)..............................................................................................33
Beckert v. Warren, 439 A.2d 638 (Pa. 1981).....................................................................................48
Brady v. Maryland, 373 U.S. 83 (1963)..............................................................................................32
California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 2000) ............................................................................32
Ciamaichelo v. Independence Blue Cross, 909 A.2d 1211 (Pa. 2006).....................................................................................1
City of Houston v. Hill, 482 U.S. 451 (1987)............................................................................................33
City of Los Angles v. Patel, 576 U.S. ____, 135 S. Ct. 2443 (2015)...............................................................20
Clark v. Meehan, 80 A.2d 64 (Pa. 1951)...................................................................................38, 50
Commonwealth ex rel. Armstrong v. Comm’rs of Allegheny, 37 Pa. 277 (1860)................................................................................................38
iii

Commonwealth ex rel. Central Bd. of Education of Pittsburg v. City of Pittsburg, 58 A. 669 (Pa. 1904) (per curiam) ......................................................................42
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)...................................................................................46
Commonwealth v. Gadsden, 832 A.2d 1082 (Pa. Super. 2003) .......................................................................22
Commonwealth v. Grant, 821 A.2d 1246 (Pa. 2003)...................................................................................24
Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002) .........................................................................22
Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009).....................................................................................30
Commonwealth v. Johnson¸ 86 A.3d 182 (Pa. 2014).................................................................................20, 21
Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999).....................................................................................23
Commonwealth v. King, 57 A.3d 607 (Pa. 2012).......................................................................................29
Commonwealth v. McGarrell, 87 A.3d 809 (Pa. 2014).......................................................................................29
Commonwealth v. McGarrell, Nos. 77-79 EM 2011 (Pa. Sept. 28, 2011)..........................................................28
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)...............................................................................18, 44
Connor v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983).....................................................................................35
iv

Dombrowski v. City of Phila., 245 A.2d 238 (Pa. 1968).........................................................................39, 41, 42
Duncan v. State, 774 N.W.2d 89 (Mich. App. 2009), aff’d on other grounds, 780 N.W.2d 843 (Mich.), reconsideration granted, order vacated, 784 N.W.2d 51 (Mich.), rev’d, 784 N.W.2d 51 (Mich.), order vacated on reconsideration, 790 N.W.2d 695 (Mich.), order reinstated, 790 N.W.2d 695 (Mich.), order vacated on reconsideration, 790 N.W.2d 695 (Mich.), reconsideration denied, 791 N.W.2d 713 (Mich. 2010) ...............................26, 37
Evitts v. Lucey, 469 U.S. 387 (1985)......................................................................................15, 22
Flora v. Cnty. of Luzerne, 776 F.3d 169 (3d Cir. 2015) .................................................................................5
Flora v. Luzerne Cnty., 103 A.3d 125 (Pa. Commw. Ct. 2014) ........................................................passim
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) ................................................................33
Gideon v. Wainwright, 372 U.S. 335 (1963).....................................................................................passim
Glossip v. Gross, 576 U.S. ____, 135 S. Ct 2726 (2015)................................................................32
Hague v. CIO, 307 U.S. 496 (1939)............................................................................................33
Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014) ...............................................................................32
Herring v. United States, 555 U.S. 135 (2009)............................................................................................20
Hope v. Pelzer, 536 U.S. 730 (2002)............................................................................................33
v

House v. Balkcom, 725 F.2d 608 (11th Cir. 1984) ............................................................................22
Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010)........................................................................passim
Kistler v. Carbon Cnty., 35 A.2d 733 (Pa. Super. 1944) ...........................................................................42
Lavallee v. Justices in Hampden Superior Court, 812 N.E.2d 895 (Mass. 2004).......................................................................37, 47
Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), dismissed on federal abstention grounds, 976 F.2d 673 (11th Cir. 1992) .....................................................................passim
Meadville Area Sch. Dist. v. Dep’t of Public Instruction, 159 A.2d 482 (Pa. 1960).....................................................................................38
Medico v. Makowski, 793 A.2d 167 (Pa. Commw. Ct. 2002) ...............................................................50
Miranda v. Arizona, 384 U.S. 436 (1966)............................................................................................32
Missouri v. Frye, 556 U.S. ____, 132 S. Ct. 1399 (2012)...............................................................44
Monroe v. Pape, 365 U.S. 167 (1961), overruled on other grounds by Monell v. Dep’t of Social Services, 436 U.S. 658 (1978) .................................................................21
Padilla v. Kentucky, 559 U.S. 356 (2010)............................................................................................22
Platt v. State, 664 N.E.2d 357 (Ind. Ct. App. 1996) .................................................................37
Polk Cnty. v. Dodson, 454 U.S. 312 (1981)............................................................................................50
vi

Poventud v. City of New York, 750 F.3d 121 (2d Cir. 2014) ...............................................................................32
Public Defender, Eleventh Judicial Circuit of Fla. v. State, 115 So.3d 261 (Fla. 2013) ................................................................23, 27, 45, 50
Pyle v. Kansas, 317 U.S. 213 (1942)............................................................................................32
Rompilla v. Beard, 545 U.S. 374 (2003)............................................................................................44
Seeton v. Pa. Game Comm’n, 937 A.2d 1028 (Pa. 2007).............................................................................39, 42
Simmons v. State Pub. Defender, 791 N.W.2d 69 (Iowa 2010) ........................................................................passim
Soffar v. Dretke, 368 F.3d 441 (5th Cir.), amended on reh’g in part, 391 F.3d 703 (5th Cir. 2004) ...................................................................................................................22
State ex rel. Mo. Pub. Defender Comm’n v. Waters, 370 S.W. 3d 592 (Mo. 2012) ........................................................................22, 45
State v. Quitman Cnty, 807 So.2d 401 (Miss. 2001)................................................................................50
Strickland v. Washington, 466 U.S. 668 (1984).....................................................................................passim
United States v. Cronic, 466 U.S. 648 (1984)............................................................................................18
Volunteer Firemen’s Relief Ass’n of City of Reading v. Minehurt, 203 A.2d 476 (Pa. 1964).....................................................................................42
Whren v. United States, 517 U.S. 806 (1996)............................................................................................33
vii

Wilbur v. City of Mount Vernon, No. C11-1100RSL, 2012 WL 600727 (W.D. Wash. Feb. 23, 2012) .................37
Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D. Wash. 2013) .........................................................37
STATUTES 1 Pa. Cons. Stat. § 1903 ...........................................................................................44 1 Pa. Cons. Stat. § 1922 ...........................................................................................46 1 Pa. Cons. Stat. § 1924 ...........................................................................................40 42 Pa. Cons. Stat. § 724 .............................................................................................1 42 Pa. Cons. Stat. § 9543 .........................................................................................24 16 Pa. Stat. §§ 9960.1–9960.13 ...........................................................................2, 39 16 Pa Stat. § 9960.5 .....................................................................................40, 41, 47 16 Pa. Stat. § 9960.6 ................................................................................................39 42 U.S.C. § 1983......................................................................................5, 19, 25, 50 Pa. Const. Art. 9, § 4 ................................................................................................50 OTHER AUTHORITIES 1968 Pa. Legislative Journal—House (November 20, 1968) .................................49 ABA, Ten Principles of a Public Defense Delivery System (Feb. 2002),
available at http://www.americanbar.org/content/dam/aba/administrative/legal_aid_in digent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf. ......45 ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 06-441 (2006) ......44
viii

A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, Report of the Task Force and Advisory Committee on Services to Indigent Criminal Defendants (December 2011), available at http://jsg.legis.state.pa.us/resources/documents/ftp/documents/Indigent% 20Defense.pdf. ....................................................................................................43
Black’s Law Dictionary (5th ed. 1979) ...................................................................44
Pa. S.B. 1769, General Assembly of Pa., 1968 Session, November 7, 1968 (Printer’s No. 2333) ...........................................................................................49
Pa. S.B. 1769, General Assembly of Pa., 1968 Session, as amended on Third Consideration, Nov. 13, 1968 (Printer’s No. 2382)............................................49
Pa. S.B. 1769, General Assembly of Pa., 1968 Session, November 18 & 21, 1968 (House Reprint Nos. 2399 and 2418) .......................................................49
Report of the Interbranch Commission on Juvenile Justice (May 2010), available at http://www.pacourts.us/assets/files/setting-2032/file730.pdf?cb=4beb87.............................................................................................13
Report of Judge Benjamin Lerner, Commonwealth v. McGarrell, No. 77 EM 2011 (Feb. 21, 2012), available at http:// www.atlanticcenter.org/images/LernerReport.pdf. ...........................................29
Thomas G. Saylor, Death-Penalty Stewardship and the Current State of Pennsylvania Capital Jurisprudence, 23 Widener L.J. 1 (2013).........................30
Statement of Interest of the United States, Hurrell-Harring v. New York, No. 8866-07 (N.Y. Sept. 25, 2014), available at http://www.justice.gov/sites/default/files/crt/legacy/2014/09/25/hurrell_s oi_9-25-14.pdf ....................................................................................................31
Stipulation and Order of Settlement, Hurrell-Harring v. State of New York, et al., No. 8866-07 (N.Y. Oct. 21, 2014) ...........................................................31
The Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (2009), available at http://www.constitutionproject.org/wp-content/uploads/2012/10/139.pdf. .......30
ix

STATEMENT OF JURISDICTION The Court has jurisdiction of this appeal pursuant to 42 Pa. Cons. Stat. § 724(a).
ORDER IN QUESTION The October 14, 2014 Order of the Commonwealth Court affirming the Order of the Court of Common Pleas sustaining preliminary objections to Appellants’ Complaint, reported at Flora v. Luzerne Cnty., 103 A.3d 125 (Pa. Commw. Ct. 2014) (attached as App. B) (“And now . . . the order of the Luzerne County Court of Common Pleas, dated October 22, 2013, is hereby affirmed.”). The Commonwealth Court denied Appellants’ Petition for Reargument on December 2, 2014, available at 2014 Pa. Commw. LEXIS 549 (Pa. Commw. Ct. Dec. 2, 2014), and Appellants timely filed this appeal. STATEMENT OF THE SCOPE AND STANDARD OF REVIEW In reviewing a trial court’s grant of preliminary objections, the Court’s standard of review is de novo and its scope of review plenary. Ciamaichelo v. Independence Blue Cross, 909 A.2d 1211, 1216 n.7 (Pa. 2006). The Court must accept as true all well-pleaded, material, and relevant facts alleged in the complaint, and every inference that is fairly deducible from those facts. Id. Preliminary objections may be sustained only when, based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief. Id.
3403349.9.ADMINISTRATION

STATEMENT OF THE QUESTIONS INVOLVED 1. In a matter of first impression, do appellants state a claim for constructive denial of counsel under the Sixth and Fourteenth Amendments to the United States Constitution, and Article 1, Section 9 of the Pennsylvania Constitution, based on chronic and systemic deficiencies in the operation of Luzerne County‘s Office of the Public Defender that deprive them and the class they seek to represent of their right to effective assistance of counsel? 2. Do appellants state a claim of mandamus to compel appellees to provide adequate funding for Luzerne County’s Office of the Public Defender, as required by the Commonwealth’s Public Defender Act, 16 Pa. Stat. §§ 9960.1– 9960.13 (hereinafter the "Public Defender Act")?
STATEMENT OF THE CASE I. Form of Action and Procedural History
This appeal arises from the Commonwealth Court’s affirmance of the Luzerne County Court of Common Pleas’ dismissal of a class action complaint that seeks to remedy violations of indigent defendants’ right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 1, Section 9 of the Pennsylvania Constitution. In the alternative, Appellants seek a writ of mandamus that would compel Luzerne County to meet its statutory obligation under the Public Defender Act “to provide adequate representation” for clients of the County’s Office of the Public Defender (“OPD”).
2

On April 10, 2012, Al Flora, Jr. (“Flora”), the former acting Public Defender of Luzerne County, and three indigent criminal defendants who had been denied representation by Luzerne’s chronically underfunded OPD filed a Class Action Complaint. (R. 7a-11a.) The Complaint alleged deficiencies in the OPD’s funding and operations that prevented the plaintiff class from being represented in a manner consistent with constitutional and ethical obligations. (R. 12a-40a.)
The Appellee-Defendants are Luzerne County (“County”) and its County Manager, Robert C. Lawton (“Lawton”), who is named in his official capacity. (R. 854a at ¶¶ 12-13.) As Chief Executive Officer for the County’s government (Id.), Lawton is responsible for the day-to-day functions of County government, including budgeting matters and allocation of County resources. (Id.)
Flora and the original class plaintiffs filed a motion for a peremptory writ of mandamus and for a preliminary injunction on April 12, 2012, seeking the resources necessary to correct the deficiencies in the OPD. (R. 134a-40a.) The Honorable Joseph Augello held a hearing on the motion on May 10, 2012. (R. 722a.) On May 16, 2012, after the preliminary injunction hearing, but before issuing its ruling, the trial court ordered the parties to engage in mediation. (R. 575a.) The County filed preliminary objections to the original Class Complaint, which were overruled in their entirety on May 24, 2012. (R. 583a-84a.)
3

On June 15, 2012, Judge Augello entered an Order and Opinion granting the
motions for a peremptory writ of mandamus and for a preliminary injunction,
(R. 719a-21a), and ordered the following:
(a) Defendants shall not prevent the public defender from filling vacant positions;
(b) Defendants shall review the operations and staffing of the county public defender’s office and provide a plan to meet the constitutional obligations for indigent representation in accordance with the principles set forth in the foregoing opinion;
(c) Defendants shall submit a report to this court within a reasonable time outlining its plan to meet its constitutional obligations in regard to the operation, staffing and expenses of the office of public defender;
(d) The defendant, county manager, is directed to provide adequate office space in order to permit confidential communications between assistant public defenders and indigent criminal defendants within 30 days of the date of this order; and
(e) The office of public defender is not permitted to refuse representation to qualified indigent criminal defendants.
(R. 719a-20a) (emphasis in original). In addition, Judge Augello ordered the
following with regard to the individual plaintiffs:
(a) defendants shall allocate sufficient funds to allow for the provision of private counsel to represent the named plaintiffs in their ongoing criminal proceedings; or
(b) provide representation to the named plaintiffs in their ongoing criminal proceedings through an augmented office of public defender; or
(c) secure pro bono counsel as available or conflict counsel if current case load assignments permits to represent the named plaintiffs in their ongoing criminal proceedings; and
4

(d) the office of public defender is not permitted to refuse representation to qualified indigent criminal defendants. (R. 721a) (emphasis in original). Mediation failed and the County produced neither the plan nor the report it had been ordered to prepare. Instead, on January 29, 2013, the County petitioned the court for a trial date. (R. 791a-95a.) On March 26, 2013, Judge Augello scheduled trial for June 24, 2013. (R. 807a-09a.) The County’s Board of Commissioners voted to replace Flora as Chief Public Defender in April of 2013.1 On May 1, 2013, the plaintiffs filed a motion for leave to file an Amended Class Action Complaint. (R. 830a-33a.) In the new pleading, among other changes, class plaintiffs were substituted and allegations were changed where necessary to acknowledge developments in the case. (R. 850a-86a). However, the Amended Complaint’s substantive allegations and requested relief remained essentially the same.2 (Compare R. 47a-48a with R. 885a.) After argument, the trial court granted plaintiffs’ motion to file the

1

Flora filed an action in federal district court under the Civil Rights Act, 42 U.S.C. § 1983,

claiming a violation of his right to free speech by this retaliatory dismissal. The case was

dismissed by the district court but the Third Circuit Court of Appeals reversed, finding sufficient

allegations to support the First Amendment claim. The matter was remanded to the district court

where it is currently in litigation. See Flora v. Cnty. of Luzerne, 776 F.3d 169 (3d Cir. 2015).

2

See Flora v. Luzerne Cnty., No. CIV.A. 3:13-1478, 2013 WL 4520854, at *3-4 (M.D.

Pa. Aug. 26, 2013) (removal of appellants’ case from state court was invalid because “the core

claim of the complaint has not changed, that is that underfunding of the OPD is resulting in

violations of indigent individuals’ rights under the United States and Pennsylvania

Constitutions”).

5

Amended Class Action Complaint on May 7, 2013, but without prejudice to the County’s filing preliminary objections. (R. 846a-47a.)
On May 15, 2013, Flora, appellants Kuren, Allabaugh and a third named plaintiff filed the Amended Class Action Complaint. (R. 850a-86a.) Now removed from office, Flora filed in his individual capacity. Appellants Kuren and Allabaugh, along with Charles Hammonds3 and Joshua Lozano, sought to represent the revised class of OPD clients. Each of these plaintiffs had been deemed qualified for OPD representation and each had been assigned an OPD attorney. (R. 853a.) The class alleged that the OPD was unable to fulfill its constitutional role with regard to representing those and other OPD clients in that: (1) OPD was unable to provide representation at most preliminary arraignments and at various critical points of the prosecution, (R. 865a at ¶¶ 48-49; R. 866a at ¶ 53); (2) OPD could not “provide confidential counsel regarding [plaintiffs’] agreement to plead guilty,” (R. 870a at ¶ 64); (3) OPD lawyers were unable to investigate cases or even confer with their clients (R. 864a at ¶ 45); and (4) that OPD attorneys often missed court appointments or showed up unprepared. (R. 867a at ¶ 55.)

3

Charles Hammonds was included in the Original Complaint filed in this matter as an

individual plaintiff. (R. 852a at ¶ 5 n. 1.) The other two plaintiffs named in the Original

Complaint, with their permission, were dismissed. Appellants were unable to confer with

Mr. Hammonds regarding dismissal of his claims despite counsel’s best efforts. (Id.) The

Amended Class Action Complaint proposes a modified plaintiff class and a class definition that

does not necessarily include Mr. Hammonds. (Id.)

6

On May 31, 2013, appellees removed the case to the United States District
Court for the Middle District of Pennsylvania, and moved to dismiss the Amended
Complaint. Flora, 2013 WL 4520854, at *1. On June 12, 2013, plaintiffs moved
to remand, and opposed the motion to dismiss. Id. On August 16, 2013, the
motion to remand was granted, and the matter was returned to the Luzerne County
Court of Common Pleas. Id.
On September 11, 2013, the County filed preliminary objections to the
Amended Complaint and a motion to disqualify plaintiffs’ counsel. On
October 21, 2013, the court denied the County’s motion to disqualify, and on
October 22, 2013, the court sustained certain of the County’s preliminary
objections and dismissed the Amended Class Complaint. (R. 1085a; App. A.)
Appellants filed a notice of appeal on November 20, 2013, and, on December 3,
2013, the County filed a cross-appeal from the order denying disqualification. (R.
1088a-99a.)
The Commonwealth Court affirmed the trial court’s dismissal, holding that:
1) the indigent plaintiffs’ constitutional claims for constructive denial of counsel should be dismissed because the federal and state constitutions do not recognize a pre-conviction right-tocounsel remedy under the circumstances alleged in the Amended Complaint;
2) the indigent plaintiffs lacked standing to pursue their mandamus claim because the claim was barred as a matter of law. The Court also held that Flora’s mandamus claim did not meet the legal standard for a viable mandamus action; and
7

3) Flora was without personal standing to pursue his mandamus claim once he was replaced as Luzerne’s Public Defender and that he did not meet the prerequisites for taxpayer standing. (See App. B.) The Commonwealth Court declined to rule on the County’s crossappeal on the disqualification ruling. Petitioners applied for reargument before the panel or before the Commonwealth Count en banc; that application was denied on December 2, 2014. (See App. C.) Flora and appellants petitioned this Court for allowance of an appeal. The petition was granted with regard to two of the three questions on which appellants sought review.4 II. Statement of Facts A. Parties. This action was commenced by three individual plaintiffs and by Al Flora, Jr. (“Flora”), the former acting Public Defender of Luzerne County. Flora served as the County’s Chief Public Defender from 2010 to 2013. (R. 851a at ¶ 3; 853a at ¶ 7; 856a-57a at ¶ 22.) Flora initiated this litigation while he was still in office as Chief Defender, seeking a writ of mandamus that would have compelled the County to provide the resources OPD needed to provide constitutionally adequate representation to its clients. (R. 862a at ¶ 41.)

4

This Court declined to hear Flora’s appeal on the issue of his standing to continue as a

party to this litigation. (See Order Granting Petition for Allowance of Appeal, Flora v. Luzerne

Cnty., No. 951 MAL 2014 & 952 MAL 2014) (Pa. June 30, 2015)). The Court has also ordered

a change in the caption to reflect this development.

8

At the time the Amended Class Action Complaint was filed, appellants Adam Kuren and Steven Allabaugh were facing criminal charges in Luzerne County and were represented by the OPD. (R. 853a-54a at ¶¶ 8-11.) Appellants brought claims in mandamus and under the Pennsylvania and United States Constitutions for equitable relief: specifically, they sought an “increase [in] . . . OPD’s funding to such a level that will permit the OPD to provide constitutionally adequate representation for them and for all similarly situated individuals.” (R. 852a at ¶ 6.) They sought certification of a class comprised of “all indigent adults in Luzerne County who are or will be represented by the Office of the Public Defender from this point until the Office of the Public Defender has the funding and resources necessary to enable it to meet ethical, legal, and constitutional standards of representation.” (R. 851a-52a at ¶ 4.)
B. The Long-Standing Deficiencies in the Luzerne OPD In his June 15, 2012 Order and Opinion granting Flora’s motion for peremptory mandamus relief, Luzerne County Court of Common Pleas Judge Augello concluded, “[t]o describe the state of affairs in the Office of the Public Defender as approaching crisis stage is not an exaggeration.” (R. 851a at ¶ 2) (quoting R. 738a.) As the Amended Complaint alleges and as the largely uncontested evidence at the preliminary injunction hearing demonstrated, the OPD as currently resourced cannot provide adequate or effective legal representation to
9

its indigent criminal defendants at all critical stages of the legal proceedings against them. (R. 865a-876a at ¶¶ 48-94.)
On average, OPD lawyers handle over 4,000 new criminal cases each year. At least half of these cases are felonies. (R. 868a at ¶ 58; 872a at ¶ 77.) More than 1,000 criminal cases typically carry over from year-to-year. (R. 872a at ¶ 77.) In addition to these criminal prosecutions, OPD lawyers are also required to represent clients in sentencing appeals, mental health cases and appeals, state parole cases and appeals, and county probation/parole revocation proceedings. (R. 872a-73a at ¶¶ 78-82.)
At the hearing on plaintiffs’ motion for preliminary relief before Judge Augello, Norman Lefstein, Dean Emeritus and Professor of Law at Indiana University School of Law and a nationally-recognized expert on indigent defense, testified that as of December 19, 2011, eleven part-time OPD lawyers were handling an average of 73.6 felony cases and 33 misdemeanor cases at one time.5 NT 186-87. (R. 634a-35a.) OPD’s full-time lawyers were handling similar caseloads in December of 2011: 54 felony cases and 43.25 misdemeanor cases on average, for a total of 97.25 simultaneous cases per lawyer. These caseloads for

5

In April 2012, OPD’s adult unit employed 13 part-time attorneys, four full-time

attorneys, three investigators, four secretaries, one receptionist, and one office administrator.

Amended Complaint, at ¶ 38 (R. 861a.) Part-time OPD lawyers were contracted to work 1,000

hours a year. NT 186 (R. 634a.)

10

full-time OPD lawyers did not include 570 state parole and probation active violation cases.
Dean Lefstein testified that the caseloads for these lawyers exceeded acceptable standards for criminal defense attorneys. NT 191 (R. 636a.) As a result of these high caseloads and the lack of necessary administrative support, in Dean Lefstein’s expert opinion, OPD lawyers engaged in “a form of triage representation, where you deal only with the most immediate problem of the day, because that is all you really can do.” NT 196. (R. 637a.) In Dean Lefstein’s view, OPD lawyers burdened with these conditions could not provide representation that met constitutional standards. NT 196-97 (R. 637a.)
The allegations, as supported by the testimony at the preliminary injunction hearing, show that OPD’s overwhelming caseload, combined with the County’s chronic and longstanding failure to provide the office with an adequate level of resources, prevents OPD lawyers handling their cases in a manner that ensures constitutional standards are met. (R. 865a at ¶ 49; 875a at ¶ 90.) This is not because of lack of effort or commitment on the part of these lawyers. (R. 856a-65a at ¶¶ 22-47; 865a-75a at ¶¶ 50-91.)
If this case is allowed to go to trial, the evidence will show that the problems arising from these deficiencies first manifest themselves during the pretrial stage of the OPD’s representations. As the Amended Complaint alleges, OPD lawyers are
11

unable to provide representation or support at most preliminary arraignments, the point at which the right to counsel attaches under the law. (R. 866a at ¶ 53.) The OPD’s heavy caseload combined with other factors regularly leads to scheduling conflicts, causing OPD lawyers to request continuances of critical proceedings, which lead to OPD clients remaining in pre-trial detention for longer periods than should be necessary. (R. 867a at ¶ 54.)
Where OPD lawyers are present for their clients’ pretrial proceedings, they do not have time to prepare properly or to consult with their clients. OPD lawyers typically cannot meet with their clients until shortly before they appear for preliminary hearings. (R. 869a-71a at ¶¶ 61-70.) After the initial proceedings, OPD lawyers are unable to maintain regular communication with their clients, and they do not have the time and resources to develop their cases. (Id.) Moreover, OPD lawyers lack the time and resources necessary for trial preparation and strategy. (R. 869a-72a at ¶¶ 61-74.)
OPD’s deficiencies are compounded by a lack of the tools needed to represent clients effectively. (R. 874a-76a at ¶¶ 85-94.) The OPD does not have the investigators, case managers, and support staff required to conduct adequate pre-trial investigation and discovery. (R. 867a-68a at ¶¶ 56-59.) The Adult Unit of the OPD has no social workers, paralegals, or trial assistants to assist with case preparation. (R. 874a at ¶¶ 85-86.) The OPD has only four secretaries to assist
12

twenty-one OPD lawyers. (Id.) At the time the Amended Complaint was filed, many OPD lawyers did not have their own desks, workspaces, or dedicated phone lines. (R. 874a-75a at ¶ 88.)
C. Flora Attempts to Correct the OPD’s Problems As the Amended Class Complaint alleges, upon his appointment as acting Chief Public Defender in May 2010, Flora attempted to secure the resources his office needed to function through Luzerne County’s normal budgetary processes. (R. 857a at ¶ 23.) Flora’s immediate priority after his appointment was improving juvenile representation in the wake of now well-documented difficulties involving the operations of Luzerne County’s juvenile court system.6 However, Flora continually warned the County that OPD could not handle the increasing number of criminal cases involving indigent adult defendants. (R. 858a-59a at ¶¶ 29-31.) In June 2010, he provided the County with a status report on the OPD’s representation of adults, which outlined the deficiencies hampering the effectiveness of OPD’s Adult Unit. (Id.) His request for additional resources was denied. (Id.) In July 2010, Flora provided the County with a

6

The issues facing the OPD with regard to its representation of juveniles in 2010 were

outlined in the Report of the Interbranch Commission on Juvenile Justice at 33-35, 48-51 (May

2010), available at http://www.pacourts.us/assets/files/setting-2032/file-730.pdf?cb=4beb87.

Commission members heard testimony from Flora’s predecessor, Basil Russin, on how OPD’s

lack of resources and the County’s lack of responsiveness to his requests for additional resources

affected OPD’s ability to represent juveniles. Id. at 48. See also Amended Complaint at ¶ 23

(recounting Russin’s efforts to see more resources for OPD). (R. 857a at ¶ 23.)

13

detailed, short-term plan to correct the OPD’s deficiencies, but this also was rejected. (Id.)
In his 2012 budget proposal, Flora again requested a modest expansion of OPD resources, but was refused. (R. 859a at ¶ 32.) When the 2012 budget was reopened during Luzerne County’s transition to Home Rule, Flora renewed his request for additional funding and was again ignored. (R. 859a-60a at ¶¶ 32-35.) Flora followed these requests with repeated private and public appeals for adequate staff, office space, technology, desks, telephones, and other supplies. (R. 860a-62a at ¶¶ 36-39.) These requests also were denied. (Id.)
In December of 2011, faced with an unmanageable caseload and no sign of additional funding from the County, Flora adopted a policy that restricted the type of clients that the OPD would represent, essentially turning away applicants with lower-level offenses who were not incarcerated. (R. 860a at ¶ 33.) Flora took this step only after exploring other alternatives for reducing the office’s workload to constitutionally acceptable levels. (Id.) With no alternative, on April 10, 2012, Flora and three indigent criminal defendants who were unrepresented due to the policy forced on OPD by the County’s inaction initiated this lawsuit. (R. 850a-51a at ¶ 1; 862a at ¶ 41.)
14

SUMMARY OF THE ARGUMENT The class plaintiffs have properly pleaded claims for constructive denial of counsel and for the denial of effective assistance of counsel, in violation of the United States and Pennsylvania Constitutions. The Sixth Amendment and Article I, Section 9 require that indigent defendants be represented by an attorney “who plays the role necessary to ensure that the trial is fair,” Evitts v. Lucey, 469 U.S. 387, 395 (1985), and who has the ability to confer with and advise the client at every stage of the case. Avery v. State of Alabama, 308 U.S. 444, 446 (1940). The Amended Complaint alleges that Luzerne County’s indigent clients are denied these basic rights by the County’s refusal to provide adequate resources to the Public Defender’s Office, which has resulted in severely excessive caseloads and “triage” representation of OPD clients. As the trial court observed in granting plaintiffs’ claims for preliminary relief, the County Defendants’ funding decisions are “inexorably linked to both the nature and actual representation of indigent criminal defendants” in Luzerne County. (R. 738a). Numerous federal and state courts have ruled that the systemic failure to provide appointed counsel for indigent defendants with the resources necessary to provide competent representation at all stages of the criminal proceeding violates the right to counsel guarantee. In these cases, the courts have properly recognized a right to equitable relief directing the government to properly staff and resource
15

public defender offices or appointed counsel. Importantly, these courts ruled that the post-conviction remedy provided by Strickland v. Washington was not an exclusive remedy; rather, it provided a particular remedy—a new trial—on a showing of ineffective performance and prejudice.
The Commonwealth Court erred in ruling that the Pennsylvania PostConviction Relief Act provides the sole remedy for violating a criminal defendant’s right to counsel and right to effective assistance of counsel. Retrospective post-conviction proceedings provide one type of remedy for Sixth Amendment violations, but that remedy is plainly inadequate to protect against systemic or structural barriers to effective assistance of counsel. The Commonwealth Court’s ruling is inconsistent with the great majority of courts that have provided equitable relief for Sixth Amendment violations and the structure of judicial remedies for violations of constitutional rights, which always provide multiple, complimentary avenues of relief.
In the alternative, the Court should rule that the lower courts erred in refusing to allow the plaintiff class to proceed on its mandamus claim. Under Pennsylvania’s law of mandamus, the courts have the authority to issue a writ that would compel the County to fund its Public Defender’s Office at an “adequate” level—that is, at a level consistent with its constitutional and ethical obligations— as specifically required by the Public Defender Act. The Act directs counties to
16

“provide adequate representation” for persons charged with crimes “who for lack of sufficient funds are unable to obtain counsel.” The Commonwealth Court erred in holding that mandamus was unavailable. First, the County does not have unlimited discretion under the Act to determine the level at which the Public Defender’s office should be funded. Second, there are no legal remedies available to indigent defendants whose rights are adversely affected by the County’s funding decisions. Third, the invocation of mandamus powers does not implicate separation of powers concerns. This is a fully appropriate case in mandamus, as appellants request only an order compelling a county to fund a governmental function delegated to it by the legislature at the level required by the statute.
17

ARGUMENT I. Class Plaintiffs Have Properly Pleaded Claims For A Constructive
Denial of Counsel and for the Denial of Effective Assistance of Counsel Resulting from the Defendants’ Failure to Provide Adequate Resources to the Luzerne County Public Defender Office A. Introduction The Commonwealth Court made a fundamental doctrinal error in ruling that the Pennsylvania Post-Conviction Relief Act (“PCRA”) provides the sole remedy for a violation of a criminal defendant’s right to effective assistance of counsel. These rights were established by Gideon v. Wainwright, 372 U.S. 335 (1963), and Strickland v. Washington, 466 U.S. 668 (1984), and, as with all constitutionally guaranteed rights, the courts have adopted a number of complementary remedial measures to ensure their enforcement and implementation. In Pennsylvania, the right to effective assistance of counsel can be remedied under the PCRA if the defendant can show an absolute denial of counsel, “constructive” denial of counsel, or ineffective counsel. Ineffectiveness in a post-conviction context requires a showing that counsel failed to provide reasonably competent services and resulting prejudice, as defined as a reasonable probability of a different result if counsel had performed in a competent manner. Strickland, 466 U.S. at 686; United States v. Cronic, 466 U.S. 648 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). However, as state and federal courts have repeatedly ruled, retrospective post-conviction proceedings are not the only means of vindicating Sixth
18

Amendment rights. To the contrary, as with all other rights guaranteed by the Bill of Rights and Fourteenth Amendment, there are multiple remedies available under the federal Civil Rights Act, 42 U.S.C. § 1983, including equitable relief designed to operate prospectively to prevent on-going, systemic denial of rights to individuals or a class of persons adversely affected by the policy or practice. Of course, in these cases, as in all matters seeking injunctive relief the plaintiff must show both the denial of a right and the need for an injunction to remedy on-going violations. See, e.g., Allee v. Medrano, 416 U.S. 802 (1974). In this case, as detailed below, the complaint more than adequately alleges all of these elements. The Commonwealth Court’s ruling that no remedy other than post-conviction relief is available is a true outlier, and this Court should reinstate the Complaint and permit plaintiffs the opportunity to prove their case.
B. The Systemic Denial of Basic Guarantees Protected by the Sixth Amendment Caused by Lack of Adequate Resources for a Public Defender Office Provides a Basis for Equitable Remedial Relief
In Strickland v. Washington, the Court addressed two questions: (1) is there a right to effective assistance of counsel under the Sixth Amendment, and (2) if so, what are the standards for evaluating whether the right was violated after a conviction and where the defendant seeks a remedy of a new trial. In this context, the Court, in balancing the interests of the defendant in effective assistance, a defense lawyer’s broad discretion in adopting strategic and tactical measures, and
19

the state’s interest in avoiding a retrial where the incompetent performance did not prejudice the defendant, adopted the now well-established “performance” and “prejudice” standards. Pennsylvania has incorporated these standards in the PCRA and has authorized relief in the form of a new trial where these elements are proven. The post-conviction relief afforded under the Strickland standards is therefore a function of the competing interests that emerge after conviction where the central issue is whether the defendant is entitled to a new trial. As with virtually all rights of a criminal defendant, the violation of the right to effective assistance of counsel will result in a new trial only on a showing of some level of harm, as measured by the harmless error doctrine on appeal and the prejudice standard under the PCRA.
Importantly, the issues of (i) whether a right was violated and (ii) whether such a violation should result in a new trial or other remedy are quite separate. As an example,7 a Fourth Amendment violation may result in: suppression of evidence (though not under all circumstances), compare Commonwealth v. Johnson¸ 86 A.3d 182 (Pa. 2014) (affirming suppression of evidence seized incident to arrest based on expired warrant) and Herring v. United States, 555 U.S. 135 (2009) (recognizing availability of suppression as a remedy in some situations, but not in circumstances of that case); equitable injunctive relief, City of Los Angles v. Patel,

7

See infra at 35-36 for further examples.

20

576 U.S. ____, 135 S. Ct. 2443 (2015) (enjoining enforcement of unconstitutional municipal ordinance requiring hotel owners to produce records regarding their guests); and/or a damages claim. Monroe v. Pape, 365 U.S. 167 (1961) (reversing dismissal of claim for damages for violation of Fourth Amendment rights), overruled on other grounds by Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).8 Thus, even in cases in which suppression is not granted or a new trial is denied on appeal on harmless error grounds, other remedies—including prospective civil remedies—are available.
Similarly, Gideon and Strickland establish a broader scope of rights under the Sixth Amendment than those that can be remedied on a post-conviction petition. A lawyer who fails to properly investigate the case, interview witnesses, file appropriate motions, communicate and consider plea offers, challenge the use of evidence obtained in violation of constitutional guarantees, conduct proper cross-examination of witnesses, and understand all of the legal issues— substantive, procedural and evidentiary—will deprive the client of Sixth Amendment rights, regardless of whether the errors in representation ultimately result in Strickland-type prejudice.

8

In Pennsylvania the exclusionary rule under Article I, Section 8 of the Constitution

provides greater protections for the criminal defendant than the Fourth Amendment. See, e.g.,

Johnson, 86 A.3d at 187-88.

21

Indigent defendants are entitled to be represented by an attorney “who plays the role necessary to ensure that the trial is fair.” Lucey, 469 U.S. at 395. The pretrial phase of a prosecution is “perhaps . . . the most critical stage” of a lawyer’s representation, because “it provides a basis upon which most of the defense case must rest.” House v. Balkcom, 725 F.2d 608, 618 (11th Cir. 1984). See also Soffar v. Dretke, 368 F.3d 441, 473-76 (5th Cir.), amended on reh’g in part, 391 F.3d 703 (5th Cir. 2004) (failure to interview witnesses who would have corroborated defense theory is incompetent performance). The ability of counsel to confer with and advise the client at every stage of the case is an essential component of adequate representation. Avery, 308 U.S. at 446. See also Commonwealth v. Gadsden, 832 A.2d 1082, 1088 (Pa. Super. 2003). Plea negotiations are another “critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).
The failure to perform any of these essential tasks constitutes a violation of the Sixth Amendment, whether or not it affects the outcome of the case. When viewed through the lens of Gideon and Strickland, “the Sixth Amendment right to counsel is broader than the question of whether a court must retrospectively set aside a judgment due to ineffective assistance of counsel.” State ex rel. Mo. Pub.
22

Defender Comm’n v. Waters, 370 S.W. 3d 592, 607 (Mo. 2012). See also Public Defender, Eleventh Judicial Circuit of Fla. v. State, 115 So.3d 261, 276 (Fla. 2013) (“[D]eficiencies that do not meet the ‘ineffectiveness’ standard may nonetheless violate a defendant’s rights under the sixth amendment” (quoting Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988) (“Luckey I”), dismissed on federal abstention grounds, 976 F.2d 673 (11th Cir. 1992)).
The Commonwealth Court improperly conflated the new trial remedy under Strickland v. Washington and the basic Sixth Amendment rights under Gideon and Strickland for an indigent defendant to be competently represented at all stages of the criminal proceeding. The PCRA provides a remedial mechanism for the former, but equitable relief may be essential in cases of systemic or structural violations of the latter. The nature of the PCRA relief provides further reasons for the need for alternative remedies. In Pennsylvania, the post-conviction remedy for ineffectiveness of counsel is even more limited than that authorized by Strickland. Not only must the defendant plead and prove incompetent performance and prejudice, but she must also show that the ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). Further, under the Act, a large number of defendants will have no opportunity to even file for PCRA relief as the Act does not permit relief for a person who has
23

completed her criminal sentence. This Court has ruled that in the absence of
exceptional circumstances, ineffectiveness claims must await the PCRA process
(following a direct appeal), see Commonwealth v. Grant, 821 A.2d 1246 (Pa.
2003), thus foreclosing relief for those who were sentenced to relatively short or
probationary sentences. See 42 Pa. Cons. Stat. § 9543(a).
The Commonwealth Court’s rejection of injunctive relief runs contrary to
the rulings of almost every other court that has considered the issue. As the Court
of Appeals for the Eleventh Circuit explained:
The Sixth Amendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the “ineffectiveness” standard may nonetheless violate a defendant’s rights under the Sixth Amendment. In the post-trial context, such errors may be deemed harmless because they did not affect the outcome of the trial. Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief—whether the defendant is entitled to have his or her conviction overturned—rather than to the question of whether such a right exists and can be protected prospectively.
Luckey I, 860 F.2d at 1017 (allowing claims by a class of all indigent criminal
defendants and all attorneys representing them for constitutionally inadequate
indigent defense).9

9

The Commonwealth Court offered an alternative reason for the dismissal of plaintiffs’

claims: that plaintiffs had failed to set forth a claim for constructive denial of counsel, and could

not amend to do so, because they had not yet been convicted:

The amended complaint does not allege facts to support the inference that the Indigent Clients have or will suffer irreparable
24

The Strickland emphasis on “prejudice” is a function of the relief sought in post-conviction proceedings and is not co-extensive with the Sixth Amendment right to counsel itself. “Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief—whether the defendant is entitled to have his or her conviction overturned.” Luckey I, 860 F.2d at 1017. Plaintiffs have pleaded a claim that they will not be adequately represented as a result of the County’s failure to provide a functioning OPD, and have pleaded that they will be harmed— regardless of the outcome of their cases—because of that failure of representation. While it is true that there is no “prejudice” under Strickland until there is a conviction, there is “harm” under both Gideon and Strickland whenever a criminal defendant faces a critical point in the proceedings without the effective assistance of counsel. And where there is harm, or, as relevant here, threatened harm, to a person’s constitutional rights, there is a remedy under Section 1983.
As the Michigan Court of Appeals ruled, It is entirely logical to generally place the decisive emphasis in a court opinion on the fairness of a trial and the reliability of a verdict when addressing a criminal appeal alleging ineffective assistance because the
harm, but only the fear that they will not be adequately represented. Opinion at 16. As stated in Luckey I and other cases, see infra at 26-31, lack of adequate representation is a violation of the Sixth Amendment, whether or not that failure of representation gives rise to a claim for a new trial under Strickland.
25

appellant is seeking a remedy that vacates the verdict and remands the case for a new trial.
Duncan v. State, 774 N.W.2d 89, 125 (Mich. App. 2009) (emphasis in original),
aff’d on other grounds, 780 N.W.2d 843 (Mich.), reconsideration granted, order
vacated, 784 N.W.2d 51 (Mich.), rev’d, 784 N.W.2d 51 (Mich.), order vacated on
reconsideration, 790 N.W.2d 695 (Mich.), order reinstated, 790 N.W.2d 695
(Mich.), order vacated on reconsideration, 790 N.W.2d 695 (Mich.),
reconsideration denied, 791 N.W.2d 713 (Mich. 2010).10 But “[a]pplying the two-
part test from Strickland . . . as an absolute requirement defies logic, where . . . the
requested remedy in the form of prospective relief seeks to curb and halt
continuing acts of deficient performance,” not to overturn a conviction already
obtained. Id.
The Supreme Court of Florida, reaching the same conclusion, explained:
[T]here are powerful considerations in the postconviction context that warrant the deferential prejudice
standard. . . . These considerations do not apply when
only prospective relief is sought. “Prospective relief is designed to avoid future harm. Therefore, it can protect constitutional rights, even if the violation of these rights would not affect the outcome of a trial.”
10 The complicated history of Duncan resulted in an affirmance of the trial court’s refusal to dismiss the claims of a class of indigent defendants who alleged that three counties’ public defender systems failed to provide constitutionally sufficient representation. The Court explained that “[t]his case is at its earliest stages and, based solely on the plaintiffs’ pleadings in this case, it is premature to make a decision on the substantive issues.” Duncan, 780 N.W.2d at 844. The same holds true here.
26

Public Defender, Eleventh Judicial Circuit of Fla., 115 So.3d at 276 (quoting
Luckey I, 860 F.2d at 1017 (internal citation omitted)).11
The Supreme Court of Iowa echoed these concerns in upholding a contract
attorney’s right to prospective relief from compensation rates so low that they
prevented him from providing meaningful representation. Although “[t]he most
familiar avenue for enforcement of the right to effective assistance of counsel is
through a post-conviction challenge to an underlying conviction . . . [t]here is,
however, a second potential avenue for enforcement of the right to counsel.”
Simmons v. State Pub. Defender, 791 N.W.2d 69, 75-76 (Iowa 2010). This second
avenue, also known as a systemic or a structural challenge, “is based on the notion
11 The Florida Supreme Court mentioned allegations of failure of counsel strikingly similar to those in this case:
Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in “triage” with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients.
Public Defender, Eleventh Judicial Circuit of Fla., 115 So. 3d at 274 (footnote omitted). In a footnote, the court observed that the evidence presented:
was not evidence of isolated incidents, but of systemic inability of the public defender attorneys to perform these functions on a regular basis. The United States Supreme Court once warned that the “denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution . . . .”
Id. at 274 n.8 (quoting Avery, 308 U.S. at 446).
27

that in order to ensure effective assistance of counsel for indigent defendants, the
state has an affirmative obligation to establish a system of indigent defense that is
reasonably likely to provide for zealous advocacy on behalf of the criminal
defendant.” Id. (emphasis added).
We conclude that the Strickland prejudice test does not apply in cases involving systemic or structural challenges to the provision of indigent defense counsel that do not involve efforts to vacate criminal convictions. As pointed out in Luckey, the weighty policy reasons for the high Strickland bar—namely, finality in criminal judgments and the fear of a rash of ineffective-assistance claims—are simply not present here.
Simmons, 791 N.W.2d at 85 (footnote omitted).
The highest court in New York State has also ruled that a court does not
need to wait for the outcome of a prosecution to determine that criminal defendants
who have counsel in name only are harmed:
[T]he absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted. Gideon’s guarantee to the assistance of counsel does not turn upon a defendant’s guilt or innocence, and neither can the availability of a remedy for its denial.
Hurrell-Harring v. State, 930 N.E.2d 217, 227 (N.Y. 2010).
This Court has, likewise, recognized that systemic deficiencies in indigent
defense cannot be relegated to individual post-conviction proceedings. In
Commonwealth v. McGarrell, Nos. 77-79 EM 2011 (Pa. Sept. 28, 2011), this Court
28

granted a pre-trial request for extraordinary jurisdiction on a petition filed on behalf of defendants facing capital charges in Philadelphia who argued that the fee schedule for appointed counsel was so inadequate as to likely lead to ineffective assistance of counsel. The Court ordered an evidentiary hearing on this issue and the trial court made findings that the “existing compensation system unacceptably increases the risk of ineffective assistance of counsel” and was “grossly inadequate.” Report of Judge Benjamin Lerner, McGarrell, No. 77 EM 2011 (Feb. 21, 2012).12 The Court of Common Pleas then raised the allowable fees for appointed capital counsel and on appeal this Court affirmed (with the Justices divided only on the issue of whether the fee increase was sufficient to cure the systemic denial of effective counsel). Commonwealth v. McGarrell, 87 A.3d 809 (Pa. 2014). Justice (now Chief Justice) Saylor dissented, finding that the systemic problems remained and that “Pennsylvania’s capital punishment regime is in disrepair.” Id. at 811 (Saylor, J., dissenting). See also id. at 812 (McCaffrey, J. dissenting) (finding “abundant evidence” of “chronic underfunding”).
In addition, opinions of this Court have noted the systemic failings of indigent defense in Pennsylvania in specific contexts. See, e.g., Commonwealth v. King, 57 A.3d 607, 635-38 (Pa. 2012) (Saylor, J., concurring) (“Of greatest concern, these sorts of exceptionally costly failures, particularly as manifested
12 Available at http:// www.atlanticcenter.org/images/LernerReport.pdf.
29

across the wider body of cases, diminish the State’s credibility in terms of its ability to administer capital punishment and tarnish the justice system, which is an essential component of such administration.”); Commonwealth v. Johnson, 985 A.2d 915, 928 (Pa. 2009) (Saylor, J., concurring). See also Thomas G. Saylor, Death-Penalty Stewardship and the Current State of Pennsylvania Capital Jurisprudence, 23 Widener L.J. 1, 38, 40 (2013) (“Funding of indigent defense services, obviously, is a major source of concern. . . . This kind of decentralized arrangement risks inequalities, in tension with the kind of non-arbitrary treatment the Supreme Court of the United States has been looking for since Furman.”). “As numerous statewide indigent defense studies have shown, when counties primarily fund indigent defense, there are certain to be inequities among the locally funded systems.” See The Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel 54-55 (2009), available at http://www.constitutionproject.org/wp-content/uploads/2012/10/139.pdf.
The United States Department of Justice has joined the courts that have recognized the validity of pre-trial constructive deprivation of counsel claims. In a Statement of Interest filed with the Hurrell-Harring trial court, the Justice Department opined that a court could find a constructive denial of counsel when:
(1) on a systemic basis, counsel for indigent defendants face severe structural limitations, such as a lack of resources, high workloads, and under staffing of public defender offices; and/or
30

(2) indigent defenders are unable or are significantly compromised in their ability to provide the traditional markers of representation for their clients, such as timely and confidential consultation, appropriate investigation, and meaningful adversarial testing of the prosecution’s case.
Statement of Interest of the United States at 7, Hurrell-Harring v. New York, No.
8866-07 (N.Y. Sept. 25, 2014), available at
http://www.justice.gov/sites/default/files/crt/legacy/2014/09/25/hurrell_soi_9-25-
14.pdf (hereinafter “Hurrell-Harring Statement of Interest”) (emphasis in
original).13
C. The Availability of Multiple Remedies for a Constitutional Violation is a Characteristic of Our Constitutional System
As noted above, supra at 20-21, the constitutional guarantees embedded in
the Bill of Rights and the Fourteenth Amendment are enforceable by a
complementary set of remedial mechanisms. Thus, in the Fourth Amendment
context, as noted above, supra, at 20-21, a violation of the Fourth Amendment may
13 Subsequent to the DOJ’s submission, Hurrell-Harring was settled with a Stipulation and Order that provides for: 1) a commitment by the defendants that within 20 months each indigent criminal defendant in the affected counties will be represented by counsel at arraignment; 2) commitments by New York state to the creation of a system that would keep track of caseloads, and to the enactment of appropriate caseload standards; 3) a commitment that any caseload standard adopted as a result of this process would be consistent with the guidelines adopted by the National Advisory Commission on Criminal Justice Standards and Goals; 4) the adoption of plans for hiring additional staff as may be necessary to meet the guidelines; and 5) other measures meant to improve the quality of indigent defense in the affected counties. See Stipulation and Order of Settlement, Hurrell-Harring v. State of New York, et al., No. 8866-07 (N.Y. Oct. 21, 2014).
31

result in the suppression of evidence before trial, or a new trial on appeal if there is no showing of harmless error. Alternatively, a court can order injunctive relief to enjoin a pattern or practice of violations of the Fourth Amendment, or award damages for proven violations, all independent of any criminal prosecutions or considerations of application of the exclusionary rule.
The Fifth Amendment right against self-incrimination, likewise, gives rise to several different avenues of relief. A violation of the right may be remedied by a suppression ruling, e.g., Miranda v. Arizona, 384 U.S. 436 (1966), a claim for damages for false or coerced confessions, see, e.g., Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), or by an injunction prohibiting police from engaging in conduct that will result in the denial of Fifth Amendment rights. See, e.g., California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 2000). As with the Fourth Amendment, the damage and equitable remedies are entirely independent of suppression rights or the issue of ordering a new trial where a coerced or involuntary confession has been used to secure a conviction.
The same is true for the right to be free from the use of fabricated or false evidence. See, e.g., Pyle v. Kansas, 317 U.S. 213 (1942) (due process reversal of conviction for knowing use of false testimony); Halsey, 750 F.3d 273 (damage claim for this violation); the Brady claim for disclosure of exculpatory evidence, Brady v. Maryland, 373 U.S. 83 (1963) (new trial granted on appeal); Poventud v.
32

City of New York, 750 F.3d 121 (2d Cir. 2014) (damages claims for Brady
violation); the right against cruel and unusual punishment, see, e.g., Glossip v.
Gross, 576 U.S. ____, 135 S. Ct 2726 (2015) (addressing issue in injunctive
proceeding as to the constitutionality of lethal injection process); Hope v. Pelzer,
536 U.S. 730 (2002) (damages claim for cruel and unusual prison conditions); and
for claims of racial discrimination in the administration of justice. See Whren v.
United States, 517 U.S. 806 (1996) (racially motivated seizure violates Fourteenth
Amendment, but not the Fourth Amendment); Batson v. Kentucky, 476 U.S. 79
(1986) (reversal of conviction for racially based peremptory jury challenges);
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (injunctive relief for systemic racial bias in policing).14
D. Plaintiffs Have Properly Alleged Both Constructive Denial of Counsel and Denial of Effective Assistance of Counsel Due to Chronic and Systemic Underfunding of the Luzerne County OPD
The systemic barriers to effective assistance of counsel that have been the
basis for court intervention in injunctive proceedings are present in the Luzerne
County Public Defender’s Office. There is evidence of record that the OPD’s
caseloads are “clearly excessive” and that as a result OPD could provide only
14 For liberties not directly associated with the criminal justice system, e.g., First Amendment rights of free speech and association and for the Second Amendment right to bear arms, the same is true. See, e.g., Hague v. CIO, 307 U.S. 496 (1939) (injunctive relief for systemic violations of free speech rights); Amnesty Int’l v. Battle, 559 F.3d 1170 (11th Cir. 2009) (damage claim for First Amendment violation); City of Houston v. Hill, 482 U.S. 451 (1987) (reversing criminal conviction based on overbroad statute).
33

“triage representation” at its current level of funding. (Opinion at 13-14, R. 734a35a.) As set forth in the Statement of the Case, supra at 4-5, 10-11, at the hearing for preliminary relief, the trial court found that the evidence presented by Petitioners showed the seriously adverse impact of lack of resources on defender representation to be “in large measure uncontroverted and uncontradicted.” (Id. at 16, R. 730a-32a.)
The Amended Complaint, which is based in part on that evidence, sets forth numerous routine failures of representation by OPD attorneys, beginning with the complete lack of representation at preliminary arraignments, a literal denial of counsel (see R. 866a at ¶ 53), and continuing through every stage of pretrial representation, trial itself, and plea negotiations:
106. Defendants’ refusal and failure to provide the OPD with the necessary funding and resources prevents OPD lawyers from providing representation at all critical phases of their cases for all adult indigent defendants in Luzerne County. Specifically, attorneys in the office were, and continue to be, frequently:
a. Unable to interview or meet with clients prior to preliminary hearings;
b. Unable to contact their clients between court appearances;
c. Unable to conduct significant, if any, investigation or discovery;
d. Unable to engage in significant, if any, motion practice;
34

e. Unable to gather adequate information to engage in effective plea negotiations;
f. Unable to engage in sufficient trial preparation; and g. Unable to properly litigate appeals because of a lack of
appellate experience. (R. 881a at ¶ 106.)
The Amended Complaint provides extensive detail concerning these failures of representation. (See generally R. 865a-71a). Under these circumstances, “even the best lawyers are unable to engage in many of the basic functions of representation, including conferring with clients in a meaningful way prior to critical stages of their legal proceedings, reviewing client files, conducting discovery, motion practice, and factual investigation, as well as devoting necessary time to prepare for hearings, trials, and appeals.” (R. 864a at ¶ 45) (emphasis added). These allegations and evidentiary proof are precisely of the kind that the Department of Justice has stated will support claims seeking prospective remedies for the constructive denial of counsel and for the denial of effective assistance of counsel. See Hurrell-Harring Statement of Interest at 7.15
In addition, plaintiffs’ allegations are indistinguishable from the claims numerous appellate courts have found to state valid claims for injunctive relief.
15 While we believe that these allegations are sufficient to support the legal claims, to the extent that the Court disagrees, plaintiffs should be given the usual right to amend their pleadings. See Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602 (Pa. 1983) (noting that “the right to amend should be liberally granted”).
35

For instance, in Hurrell-Harring, the court recognized a right to prospective relief where the plaintiffs alleged that their appointed lawyers were uncommunicative, made very little or no efforts on the clients’ behalf subsequent to arraignment, waived important rights without consulting the client, acted as mere conduits for plea offers, and were often unprepared to proceed when they made court appearances. Hurrell-Harring, 930 N.E.2d at 224. The New York Court of Appeals explained that “[a]ctual representation assumes a certain basic representational relationship” and that the allegations by the indigent defendants raised the “distinct possibility that merely nominal attorney-client pairings” were occurring with regularity. Id. In Hurrell-Harring, as here, “the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet because of systemic conditions, not by reason of the personal failings and poor professional decisions of individual attorneys.” Id. at 226 (emphasis added).
The United States District Court for the Western District of Washington allowed claims to proceed on behalf of a class of indigent defendants who alleged:
that Mount Vernon and Burlington have implemented a system of public defense that is inadequately funded, imposes unreasonable caseloads on the individual attorneys, fails to provide representation at critical stages of the prosecution, and is not properly monitored. Plaintiffs also allege that the municipalities have known of the structural deficiencies in their public defense
36

systems for many years and yet continue the system without substantive change.
...
Having realized that they were effectively unrepresented against the prosecuting municipalities, plaintiffs can seek judicial intervention. They do not have to persevere through trial and a potentially disastrous outcome in order to perfect their Sixth Amendment claims.
Wilbur v. City of Mount Vernon (“Wilbur II”), No. C11-1100RSL, 2012 WL
600727, at *1, 3 (W.D. Wash. Feb. 23, 2012) (footnote omitted).16 See also
Luckey I, 860 F.2d at 1018 (although ostensibly represented, plaintiffs’ allegations
that they lacked actual representation at critical points in the criminal process
suffice to state a claim); Duncan, 774 N.W.2d 89; Lavallee v. Justices in Hampden
Superior Court, 812 N.E.2d 895, 904 (Mass. 2004) (allowing indigent defendants
to challenge the constitutionality of the fee rates that discouraged lawyers from
taking their cases).17
16 The Wilbur plaintiffs proved their claims and obtained injunctive relief to improve the representation provided by the public defender. Wilbur v. City of Mount Vernon (“Wilbur III”), 989 F. Supp. 2d 1122, 1134-37 (W.D. Wash. 2013) (entering injunction requiring defendant city to reevaluate its provision of public defense services, and requiring the hiring of a supervisor to oversee and evaluate public defense services). 17 Only one other court has dismissed a challenge to an underfunded public defense system on the ground that Strickland requires a showing of prejudice for any claim regarding the provision of indigent defense, apparently disregarding Strickland’s acknowledgement that denial of counsel claims do not require such a showing. See Platt v. State, 664 N.E.2d 357, 363 (Ind. Ct. App. 1996).
37

This Court should reverse the holdings of the Commonwealth Court and remand the case for the development of the record on plaintiffs’ constitutional claims. II. The Pennsylvania Courts Have Mandamus Authority to Compel the
Provision of Adequate Resources for the Luzerne County Office of Public Defender Independent of providing an equitable remedy for the violation of the Sixth Amendment right to effective assistance of counsel, the courts of this Commonwealth have the authority to issue a writ of mandamus directing Luzerne County to fund its Public Defender Office pursuant to the Public Defender Act at a level that will ensure “adequate” resources for representation of its clients. “Mandamus is a high prerogative and remedial writ, the appropriate functions of which are the enforcement of duties to the public, by officers and others, who either neglect or refuse to perform them.” Commonwealth ex rel. Armstrong v. Comm’rs of Allegheny, 37 Pa. 277, 279 (1860) (emphasis in original); see also Meadville Area Sch. Dist. v. Dep’t of Public Instruction, 159 A.2d 482, 500 (Pa. 1960) (“The law is clear that an action of mandamus will lie to compel public officials to perform their duties in accordance with the law”); Clark v. Meehan, 80 A.2d 64, 66 (Pa. 1951) (“The writ of mandamus lies to compel a public official to perform his duties in accordance with the law”). Luzerne County’s failure to provide OPD with the personnel and resources it needs to defend its clients at a
38

level consistent with Gideon’s guarantees and consistent with the professional ethical responsibilities of criminal defense lawyers is a violation of the Public Defender Act that may be corrected by the grant of appropriate mandamus relief.
Mandamus is available where the moving party has a clear right, the government body has a corresponding duty, and no remedy at law is adequate. See Seeton v. Pa. Game Comm’n, 937 A.2d 1028, 1033 (Pa. 2007); Dombrowski v. City of Phila., 245 A.2d 238, 244, 249 (Pa. 1968). Appellants are entitled as a matter of constitutional and statutory law to adequate criminal defense representation by the Luzerne OPD and mandamus provides a remedial mechanism for the allocation of the funds necessary to ensure that the legal representation provided for indigent defendants by the OPD meets constitutional and ethical standards.
A. Under the Public Defender Act, Luzerne County is Required to Provide Adequate Resources to Ensure that Appellants and Similarly Situated Indigent Defendants are Provided Effective Assistance of Counsel
The County’s duty to provide an adequate defense for each indigent defendant is plain from the language of the Public Defender Act, 16 Pa. Stat. §§ 9960.1-9960.13. Under the Act, every county (except Philadelphia) is required to appoint a Public Defender, who is charged with providing representation to indigent defendants and others under the circumstances designated by the Act’s
39

provisions.18 See 16 Pa. Stat. § 9960.6. The preamble to the Public Defender Act
makes clear that the county has a duty to provide indigent defendants with a
constitutionally “adequate” defense:19
An Act to provide for the office of public defender, authorizing assistants and other personnel and to provide adequate representation for persons who have been charged with an indictable offense or with being a juvenile delinquent who for lack of sufficient funds are unable to obtain legal counsel.
Public Defender Act of Dec. 2, 1968, P.L. 1144, No. 358 (emphasis added).
To ensure that the Public Defender can fulfill this obligation, the Act directs
counties to provide public defenders with sufficient funding for the personnel and
equipment necessary to perform these duties. With regard to the hiring of
personnel, the Act states:
The public defender, with the approval of the appointive body, may provide for as many full or part time assistant public defenders, clerks, investigators, stenographers and other employees as he may deem necessary to enable him to carry on the duties of his office.
16 Pa Stat. § 9960.5(a) (emphasis added). The statute establishes a collaborative
process for approving budgets for the Public Defender’s office and specifically
18 Luzerne County operates under a Home Rule Charter which requires the County to appoint a public defender charged with providing legal representation to clients “as required by applicable law,” which would include the Public Defender Act. See Home Rule Charter, § 6.04. 19 Under rules of statutory construction prescribed by the Pennsylvania Assembly, “The title and preamble of a statute may be considered in the construction thereof.” 1 Pa. Cons. Stat. § 1924.
40

recognizes the Public Defender’s role in determining what level of resources will be necessary to provide effective assistance of counsel. The statutory language evinces the legislature’s unmistakable intent: to provide public defenders with the personnel “necessary to enable [him or her] to carry on the duties of [his or her] office.” Id.
In addition, the Act directs each County’s Board of Commissioners to provide “office space, furniture, equipment and supplies for the use of the public defender suitable for the conduct of the business of that office.” Id. § 9960.9. Again, the statute is explicit: the County must provide the public defender with an office and resources that are “suitable” for the task delegated, i.e., a staff and equipment sufficient to provide indigent defendants with “adequate” representation.
This Court has ordered mandamus relief under statutes or other laws with comparable mandates. In Dombrowski v. City of Philadelphia, a Philadelphia employee sought an order in mandamus compelling the city to appropriate sufficient funds to maintain its retirement system in an “actuarially sound” condition, as required by Philadelphia’s Home Rule Charter. See Dombrowski, 245 A.2d at 240. After a review conducted by a special master, a trial court ordered the city to make the necessary allocations. This Court affirmed, in a ruling
41

that required Philadelphia to allocate a sum totaling $60,000,000 over the course of a two-year period to remedy the discrepancy. Id. at 251.
In Dombrowski, the City Charter provision required Philadelphia’s pension fund for public employees be maintained at a level defined as “actuarially sound.” Id. at 240. In this case, the Public Defender Act requires comparable funding to ensure that public defenders have the personnel and resources necessary to provide clients with an “adequate” defense. As the Pennsylvania courts may require a city to allocate the funding necessary to maintain its retirement accounts in an “actuarially sound” condition, they also have the authority to order a county to allocate enough funding to provide an “adequate” legal defense for indigents accused of crime.
Indeed, the mandamus remedy is necessary precisely in those situations, as here, where a county government has misinterpreted statutory duties. See, e.g., Seeton, 937 A.2d at 1034 (holding mandamus an appropriate remedy to direct a state Commission to comply with its statutory mandate “to the extent it misapprehends it”); Volunteer Firemen’s Relief Ass’n of City of Reading v. Minehurt, 203 A.2d 476, 479-80 (Pa. 1964) (“[M]andamus will lie to compel action by an official where his refusal to act in the requested way stems from his erroneous interpretation of the law”). Moreover, a county’s funding obligation cannot be excused by budgetary limitations. See Commonwealth ex rel. Central
42

Bd. of Education of Pittsburg v. City of Pittsburg, 58 A. 669, 670 (Pa. 1904) (per curiam) (holding that when a public duty is “imposed by statute upon the municipality, mere inconvenience of compliance is not sufficient reason for refusal to enforce obedience by mandamus”); Kistler v. Carbon Cnty., 35 A.2d 733, 734 (Pa. Super. 1944) (“County commissioners, . . . cannot, by adopting a budget, limit or avoid liabilities imposed upon the county by the Constitution or by statutes. The call of the Constitution or of a statute is paramount, and they must respond to it by providing sufficient appropriations”).
This statutory duty is particularly significant in light of the fact that Pennsylvania has made the legislative policy choice to impose funding obligations for the constitutionally required appointment of counsel in criminal cases on the counties. There are policy arguments that favor state funding, see, e.g., A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, Report of the Task Force and Advisory Committee on Services to Indigent Criminal Defendants (December 2011) (recommending the creation of a statewide, independent, non-partisan Office of Indigent Defense, and that funding for indigent defense be provided primarily by the Commonwealth).20 But whatever the merits of this issue, county funding is the current operational standard. Accordingly, the
20 Relevant pages from the Report were attached to the original Class Action Complaint; a full copy is available at http://jsg.legis.state.pa.us/resources/documents/ftp/documents/Indigent%20Defense.pdf.
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statutory commands of the Public Defender Act require “adequate” funding and mandamus should be available to enforce this legislative directive.
B. The Commonwealth Court’s Reasons for Dismissing the Mandamus Claims Are Without Merit
The Commonwealth Court ruled that mandamus did not provide a ground for relief because: 1) a county has full and final discretion with regard to funding the OPD; 2) appellants have other legal remedies; and 3) ordering the relief requested would violate separation of powers principles. None of these reasons withstand scrutiny.
1. The Public Defender Act’s Requirement that an “Adequate” Defense Be Provided For Indigent Defendants Is a Mandatory Duty
Without reasoned analysis, the Commonwealth Court accepted Luzerne County’s argument that “its funding of the Office of Public Defender is inherently discretionary and cannot be compelled by a writ of mandamus.” Flora, 103 A.3d at 138. This was error as the Public Defender Act requires the Public Defender to provide an “adequate” defense to indigent defendants. The plain meaning of the word “adequate” is “sufficient . . . equal to what is required.” Black’s Law Dictionary 36 (5th ed. 1979).21 Under this standard, a court must look to the constitutional and professional ethical standards that have been adopted in
21 Pennsylvania law requires that words and phrases “be construed according to rules of grammar and according to their common and approved usage.” 1 Pa. Cons. Stat. § 1903(a).
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determining the level of representation that provides effective assistance of counsel. See, e.g., Missouri v. Frye, 556 U.S. ____, 132 S. Ct. 1399, 1408-09 (2012); Rompilla v. Beard, 545 U.S. 374, 387 (2003); Strickland, 466 U.S. 668; Pierce, 527 A.2d 973; ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 06-441 (2006); ABA, Ten Principles of a Public Defense Delivery System (Feb. 2002).22 And it cannot be that a county could decide, without any judicial oversight, to severely underfund a defender office to the point, as alleged here, of effectuating a constructive denial of counsel or a system in which clients will be denied effective assistance.
Courts in other jurisdictions have ruled under similar circumstances that “[w]hile criminal defendants are not entitled to perfect counsel, they are entitled to a real, zealous advocate who will fiercely seek to protect their interests within the bounds of the law.” Simmons, 791 N.W. 2d at 75. An indigent defense system that promotes “triage” representation of clients by tolerating excessive lawyer caseloads is inadequate under Gideon. See, e.g., Public Defender, Eleventh Judicial Circuit of Fla., 115 So.3d at 266-67; State ex rel. Mo. Pub. Defender Comm’n, 370 S.W. 3d 592; see also Hurrell-Harring Statement of Interest at 9-14. In short, the Public Defender Act is violated where a public defender system, such

22

Available at

http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinci

plesbooklet.authcheckdam.pdf

45

as that in Luzerne County, operates in a manner that either constructively denies counsel or provides ineffective assistance on a systemic basis.
As interpreted by the Commonwealth Court, the Public Defender Act would give counties unfettered discretion in determining the level of public defender funding, without regard to the obligations imposed by either Gideon or ethical rules, thus effectively immunizing counties that fail to adequately fund indigent defense. In assessing this ruling, and in interpreting the Act, this Court should be guided not only by the plain language of the statute, but also the mandate to construe statutes in a manner that avoids unreasonable interpretations and constitutional infirmities. 23 See 1 Pa. Cons. Stat. § 1922; see also Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007) (noting that the Statutory Construction Act requires courts “to employ the presumption that the General Assembly does not intend to violate the United States or Pennsylvania Constitutions”). The Commonwealth Court erred in its statutory analysis and this Court should reinstate the Amended Complaint to ensure enforcement of the Public Defender Act.
23 It should be noted that the Commonwealth Court’s conclusion on the issue of county discretion differed from that of Judge Augello. In his opinion on plaintiffs’ motion for preliminary relief, Judge Augello properly held that in determining the appropriate level of funding for Public Defenders’ offices under the Act, a county government’s discretion “is circumscribed by the Constitution, applicable legislation, applicable appellate precedent and the Pennsylvania Rules of Professional Conduct.” (R. at 738a, ¶ 15.) Judge Augello based his dismissal of the named plaintiffs’ mandamus claim on what he characterized as appellants’ lack of standing. See Opinion of October 22, 2013, at 13-14 (App. A).
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2. Appellants Have No Adequate Remedy at Law The Commonwealth Court erroneously dismissed the mandamus claim on the additional ground that appellants had access to legal remedies. See Flora, 103 A.3d at 138. As we discussed above (supra, at 23-33) the panel’s conclusion that indigent clients have an alternative remedy through Strickland claims (Flora, 103 A.3d at 138) is mistaken. As numerous courts have held, and as discussed, postconviction claims under Strickland are not an adequate remedy for systemic failures in indigent defense that compromise the rights of numerous clients. See, e.g., Luckey I, 860 F.2d at 1017-18; Hurrell-Harring, 930 N.E.2d at 224, 227; Lavallee, 812 N.E.2d at 905-06; see also Hurrell-Harring Statement of Interest. Further, the Commonwealth Court’s suggestion that an adequate remedy to the County’s refusal to remediate OPD’s systemic deficiencies could be found in the provision of the Public Defender Act that allows public defenders to appoint pro bono counsel to assist them is manifestly without support. While the Act authorizes the use of volunteer lawyers, “[i]n lieu of, or in addition to assistant public defenders,” to assist public defenders’ offices in providing indigent services, 16 Pa. Sat. § 9960.5(b), there is no basis in this record or in the experience of any modern defender office—and the Commonwealth Court fails to provide even a hint of such evidence—to suggest that deployment of “volunteer” lawyers could alleviate systemic under-funding of indigent defense. To the contrary, no system
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of adequate criminal defense can be built on the quicksand of inexperienced and otherwise untrained “volunteers.” See Simmons, 791 N.W. 2d at 86 (soliciting volunteers is no remedy for structural deficiencies in indigent defense). Indeed, use of such untrained and inexperienced “volunteers” would only worsen the problem.
3. Enforcing the Public Defender Act Would Not Violate the Separation of Powers Doctrine
Finally, the Commonwealth Court erred in suggesting that the grant of mandamus relief “may violate the doctrine of separation of powers.” Flora, 103 A.3d at 138-39. To reach this conclusion the Commonwealth Court construed the Public Defender Act as a statute that tied the public defender function to the judiciary. See id. at 138 & n.8. On that theory, the Commonwealth Court ruled that the courts of Pennsylvania could issue a mandamus for funding of a function related to the “administration of justice” only in the most extreme circumstances. See id. at 138-39. But whatever the limits imposed by reason of the separation of powers doctrine where courts seek to order the legislative or executive branches to support judicial functions, that doctrine is inapplicable where, as here, mandamus would simply order a local governmental unit to follow the dictates of a statute where the party seeking enforcement is not engaging in any judicial function. Accordingly, the Commonwealth Court’s reliance on Beckert v. Warren, 439 A.2d 638 (Pa. 1981), is entirely misplaced.
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The legislative history of the Public Defender Act makes clear that the Pennsylvania Assembly rejected a process under which county public defender offices would be considered a part of the judicial branch or as serving a judicial function. The Public Defender Act was introduced in 1968 as Senate Bill No. 1769 with provisions requiring public defenders to be appointed “by the Board of County Commissioners and in Philadelphia by City Council.” Pa. S.B. 1769, General Assembly of Pa., 1968 Session, November 7, 1968 (Printer’s No. 2333). The Senate adopted an amendment that required public defenders to be appointed by the Board of County Commissioners, but “with the approval of the Court or Courts of Common Pleas.” Pa. S.B. 1769, General Assembly of Pa., 1968 Session, as amended on Third Consideration, November 13, 1968 (Printer’s No. 2382).
This amendment was rejected by the House. See Pa. S.B. 1769, General Assembly of Pa, 1968 Session, November 18 & 21, 1968 (House Reprint Nos. 2399 and 2418). Supporters of the House version relied on policy considerations that favored giving county government sole control over the public defender’s appointment. See 1968 Pa. Legislative Journal—House, at 1762 (November 20, 1968). See also id. at 1778-79 (November 21, 1968). The Senate agreed, and it was the House version that was signed into law. Id. at 735-36 (November 22, 1968).
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The General Assembly created the Public Defender’s Office as a “county” office, to be governed independently of the judiciary.24 Thus, an order compelling Luzerne County to fund its Office of the Public Defender at an adequate level would not constitute a judicial order to fund a “judicial” function; rather, it would simply direct the County to perform a duty delegated by the legislature in the manner prescribed by the statute.25 As we have shown, such an order is well within the Court’s authority to grant writs of mandamus as that authority has been defined historically by decisional law. See, e.g., Clark, 80 A.2d at 66 (“The writ of mandamus lies to compel a public official to perform his duties in accordance with the law”).
In these circumstances, applying well-established mandamus principles, appellants’ burden on remand would be to prove that their requests for additional resources for the OPD are “reasonably necessary.” See Medico v. Makowski, 793 A.2d 167, 170-71 (Pa. Commw. Ct. 2002) (citing Jiuliante v. Cnty. of Erie, 657 A.2d 1245, 1250 (Pa. 1995)).
24 This determination is consistent with the provisions of the Pennsylvania Constitution, which expressly includes “public defenders” in its list of county officers.” See Pa. Const. Art. 9, § 4. 25 In a related context, the United States Supreme Court, while recognizing that public defenders are paid by the state, held that these officials are not state actors and do not act under color of state laws for purposes of liability under the Civil Rights Act, 42 U.S.C. § 1983, as they operate as adversaries of the state in the same manner as private lawyers. Polk Cnty. v. Dodson, 454 U.S. 312 (1981).
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In light of these factors, it is not surprising that courts in other jurisdictions have ruled that issues of proper funding of defender offices are justiciable, and that the courts have the authority to address and if necessary order remedies for systemic deficiencies in indigent defense programs. See, e.g., Public Defender, Eleventh Judicial Circuit of Florida, 115 So.3d at 271-74; State v. Quitman Cnty, 807 So.2d 401, 409-10 (Miss. 2001).
Mandamus provides an appropriate and necessary alternative to the Sixth Amendment remedy under the Civil Rights Act.
CONCLUSION Courts have the duty to protect constitutional and statutory rights when the political process has failed to secure and implement these rights, as has been and continues to be the case in Luzerne County. The County’s indigent defendants are constitutionally entitled to a system that provides a lawyer in more than name only. Aside from the obvious public policy reasons, ensuring effective legal representation for indigent defendants is a constitutional and statutory requirement. This Court should reverse and remand this matter to the Court of Common Pleas for discovery and trial on the constitutional and mandamus claims for relief.
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Dated: September 10, 2015

Respectfully submitted,
/s/ David Rudovsky David Rudovsky (Pa. ID 15168) Kairys, Rudovsky, Messing & Feinberg, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400
Mary Catherine Roper (Pa. ID 71107) Molly Tack-Hooper American Civil Liberties Foundation of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 x 116
Witold J. Walczak American Civil Liberties Foundation of Pennsylvania 247 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 681-7864
Kimberly D. Borland (Pa. ID 23673) Borland & Borland, LLP 11th Floor 69 Public Square Wilkes Barre, PA 18701 (570) 822-3311
Vernon L. Francis Michelle Hart Yeary Catherine V. Wigglesworth Dechert LLP Cira Centre, 2929 Arch Street Philadelphia, PA 19104 (215) 994-4000
Counsel for Appellants
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CERTIFICATION OF COMPLIANCE WITH WORD LIMIT Pursuant to Pennsylvania Rule of Appellate Procedure 2135, I hereby certify that the foregoing Brief for Appellants contains 12,333 words as counted by the word-count function of Microsoft Word, exclusive of the Rule 2135(b) supplementary matter (cover, table of contents, table of authorities, this certificate, certificate of service, and exhibits), and complies with the word count limit set forth in Rule 2135(a).
/s/ Catherine V. Wigglesworth Catherine V. Wigglesworth Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 (215) 994-4000 Counsel for Appellants
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APPENDIX A

APPENDIX B

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Al Flora, Jr., and Adam Kuren and :

Steven Allabaugh, on behalf of

:

themselves and all others similarly :

situated,

:

Appellants

:

:

v.

: No. 2072 C.D. 2013

:

Luzerne County of the

:

Commonwealth of Pennsylvania

:

and Robert C. Lawton, County

:

Manager, in his official capacity

:

:

:

Al Flora, Jr., and Adam Kuren

:

and Steven Allabaugh, on behalf

:

of themselves and all others

:

similarly situated

:

:

v.

: No. 2207 C.D. 2013

: Argued: June 16, 2014

Luzerne County of the Commonwealth :

of Pennsylvania and Robert C. Lawton, :

County Manager, in his official

:

capacity,

:

Appellants

:

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY JUDGE LEAVITT

FILED: October 14, 2014

Al Flora, Jr., Adam Kuren, and Steven Allabaugh appeal the order of the Luzerne County Court of Common Pleas (trial court) granting the preliminary objections of Luzerne County and County Manager Robert C. Lawton (collectively County) to their amended complaint. The amended complaint asserts that, due to inadequate funding, the Office of Public Defender of Luzerne County is unable to represent indigent clients adequately, thereby depriving those clients of their right to counsel guaranteed by the Sixth Amendment. The trial court sustained the County’s objections that the plaintiffs lacked standing, for separate reasons, and that the complaint failed to state a cause of action. The trial court overruled the County’s objection that the plaintiffs should have joined the current Chief Public Defender as an indispensable party. The County cross-appeals the trial court’s denial of its motion to disqualify an attorney representing the plaintiffs on the basis of her alleged ethics violations.
Background On April 10, 2012, Al Flora, Jr., in his official capacity as acting Chief Public Defender of Luzerne County, and three indigent criminal defendants filed a class action complaint against the County for depriving the three indigent criminal defendants of their right to counsel under the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. The complaint was amended on May 15, 2013, inter alia, to aver that Flora was suing in his individual capacity because he was no longer employed by the County as Chief Public Defender. It also replaced the original indigent criminal defendant plaintiffs with Joshua Lozano,1 Kuren and Allabaugh (Indigent
1 Joshua Lozano was named in the amended complaint as a potential class representative but he is not a party to this appeal.

Clients) as representatives of a class comprised of “all indigent adults in Luzerne County who are or will be represented by the Office of the Public Defender from this point until the Office of the Public Defender has the funding and resources necessary to enable it to meet ethical, legal, and constitutional standards of representation.” Amended Complaint, ¶4; Reproduced Record at 851a-52a (R.R. __).
The amended complaint asserted that the Office of Public Defender, as currently funded, cannot provide adequate legal representation to indigent criminal defendants. The amended complaint generally alleged that public defenders carry caseloads that exceed the standard recommended by the American Bar Association; lack basic office resources such as individual desks and phone lines; and lack sufficient support staff. More specifically, the amended complaint alleged that public defenders are unable to provide representation at most preliminary arraignments and often must request continuances of critical proceedings, leading to longer incarcerations than might be otherwise necessary. Amended Complaint, ¶¶48-49, 53-54; R.R. 865a-67a. It further alleged that public defenders in Luzerne County are unable to prepare properly for their clients’ defense or to consult with them in confidence. Amended Complaint, ¶¶61-70; R.R. 869-872. The amended complaint requested the following relief:
[a] writ of mandamus and permanent injunction compelling [the County] to provide necessary funding to allow the [Office of Public Defender] to hire additional trial attorneys and support staff as well as upgrade the physical and technological resources such that the [Office of Public Defender] is capable of providing representation to all qualified indigent defendants prosecuted in Luzerne County that satisfies standards set by the U.S. and Pennsylvania Constitutions.
2

Amended Complaint, Prayer for Relief ¶1; R.R. 885a. Notably, the amended complaint alleged that Flora had attempted numerous times to obtain additional resources from the County through the normal budgetary process. Amended Complaint, ¶¶29-37; R.R. 858a-61a. However, his requests were denied. In response, Flora adopted a policy in December 2011 that limited the clients of the Office of Public Defender to those defendants charged with homicide or felony sex offenses or who are facing extradition. Amended Complaint, ¶33; R.R. 860a.
With their complaint, the plaintiffs filed a request for preliminary injunction, and this was granted on June 15, 2012, after a hearing. The trial court ordered the County to provide funding for unfilled vacancies within the Office of Public Defender and to provide office space adequate to allow confidential communication between public defenders and their clients. Additionally, the trial court ordered the County to appoint a lawyer to represent each of the original indigent criminal defendant plaintiffs, who had been deprived counsel under Flora’s December 2011 policy, and ordered Flora to discontinue that policy. Finally, the trial court ordered the parties into mediation, which proved unsuccessful.
On April 17, 2013, the County dismissed Flora and appointed a new Chief Public Defender.2 On May 31, 2013, the County removed the amended complaint to the United States District Court for the Middle District of Pennsylvania, but the case was remanded to the trial court on August 16, 2013.
2 Flora filed an action in federal court alleging retaliation claims under state and federal law and seeking reinstatement as Chief Public Defender. The action was dismissed. Flora is appealing the dismissal of the federal claim and will refile his state law claims in the trial court.
3

On September 11, 2013, the County filed preliminary objections to the amended complaint and a motion to disqualify one of the Indigent Clients’ attorneys, Mary Catherine Roper, Esq. The trial court held a hearing on October 8, 2013, on both issues. Regarding the motion to disqualify, the parties stipulated to several facts, specifically that Roper: (1) met with the Indigent Clients individually in April 2013 knowing that some of them were represented by public defenders in their criminal cases, (2) did not inform the public defenders that she was meeting with their clients and (3) brought retainer or fee agreements to the meetings that were executed afterwards.
On October 21, 2013, the trial court denied the County’s motion to disqualify Roper. On October 22, 2013, the trial court sustained several of the County’s preliminary objections and dismissed the amended complaint. Specifically, the trial court held that both Flora and the Indigent Clients lacked standing and that the amended complaint failed to state a cause of action. The trial court also held that the current Chief Public Defender is not an indispensable party. Flora and the Indigent Clients have appealed the order sustaining the County’s preliminary objections, and the County has cross-appealed the denial of its motion to disqualify Roper.
On appeal,3 Flora and the Indigent Clients raise two issues. First, they contend that the trial court erred in holding that Flora lacked standing in his
3 In reviewing a trial court’s grant of preliminary objections, this Court’s standard of review is de novo and the scope of review is plenary. Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa. 2008). The court must accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts. Id. Preliminary objections should be sustained only when, based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief. Id.
4

individual capacity. Second, they argue that the Indigent Clients have standing to allege a deprivation of their Sixth Amendment right to counsel before a deprivation has actually occurred. On cross-appeal,4 the County argues that Attorney Roper violated several rules of professional conduct and that the trial court erred in refusing to disqualify her.
Flora’s Standing We consider, first, whether Flora has standing to pursue his claim that the Office of Public Defender is inadequately funded. The plaintiffs contend that Flora has standing under the traditional standing test and also as a taxpayer under Application of Biester, 409 A.2d 848 (Pa. 1979). To have standing, a party must establish “that he has a substantial, direct, and immediate interest in the outcome of the litigation.” Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005). An interest is “substantial” if the party’s interest “surpasses the common interest of all citizens in procuring obedience to the law.” Id. A “direct” interest requires a showing of a causal connection between the matter complained of and the party’s interest. Id. Finally, an “immediate” interest requires the causal connection to not be remote or speculative. Id. The key is that the person must be “negatively impacted in some real and direct fashion.” Id. The plaintiffs argue that Flora is “aggrieved” under the traditional standing test because “his right to bring a mandamus suit was deliberately frustrated by a discharge he contends is retaliatory.” Plaintiffs’ Brief at 55. Therefore, they argue that Flora should be permitted to continue as a plaintiff
4 This Court exercises plenary review of a trial court’s disposition of an attorney disqualification motion. Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193, 1201 (Pa. Super. 2003).
5

unless and until the federal court rules on his retaliation claims. They also contend that the trial court erred in relying upon Bradford Timbers v. H. Gordon Roberts, 654 A.2d 625 (Pa. Cmwlth. 1995). Plaintiffs argue that Ambron v. Philadelphia Civil Service Commission, 458 A.2d 1055 (Pa. Cmwlth. 1983), is a more applicable precedent because it dealt with the standing of a plaintiff challenging his removal, as is the case with Flora.
In Bradford Timbers, a district justice petitioned for a writ of mandamus to compel the county to make a clerical appointment to his personal staff. After the district justice filed his petition, our Supreme Court suspended him. This Court held that the district justice lacked standing to proceed with his mandamus action because he no longer had the authority to carry out the act he sought to compel. Bradford Timbers, 654 A.2d at 626. In Ambron, four police detectives challenged their transfer from the district attorney’s office to the Philadelphia police department. After three of the four officers resigned, the complaint was challenged as moot. This Court held that because the plaintiffs were “not incapable of reinstatement,” their claims were not moot. Ambron, 458 A.2d at 1056.
As the trial court noted, Flora was once Chief Public Defender and may succeed in challenging his termination as retaliatory. However, he currently has no right to manage the Office of Public Defender in any way whatsoever. In Bradford Timbers, this Court held that the suspended district justice lacked standing even though his removal was temporary. The case is stronger, here, because Flora’s removal from office is permanent. Ambron is distinguishable because Flora’s potential reinstatement is not an issue in the present litigation. We therefore agree with the trial court’s reliance on Bradford Timbers.
6

We conclude that Flora lacks traditional standing because he is not personally aggrieved by the County’s alleged failure to fund the Office of Public Defender adequately. He is not directly impacted by the County’s actions any more than other individual citizens. As a result, his interest is not substantial, direct, or immediate.
Alternatively, the plaintiffs argue that Flora has taxpayer standing under Biester, which created an exception to the traditional standing requirements. Under this exception, a taxpayer, even one not personally aggrieved, may challenge a governmental action provided he satisfies the following requirements: (1) the governmental action would otherwise go unchallenged, (2) those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action, (3) judicial relief is appropriate, (4) redress through other channels is unavailable, and (5) no other persons are better situated to assert the claim. Consumer Party of Pennsylvania v. Commonwealth, 507 A.2d 323, 329 (Pa. 1986), abrogated on other grounds by Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383 (Pa. 2005). All the conditions must be satisfied for a taxpayer to have standing.
The plaintiffs argue that Flora satisfies the first Biester requirement because the County could dismiss any Chief Public Defender who attempts to address the alleged funding deficiencies to the Office. Second, they argue that the public defenders and their clients will be benefited by the lawsuit, and they are either unable or unlikely to bring litigation due to the County’s past firing of Flora. Third, the plaintiffs contend that judicial relief is particularly appropriate in the present case because it involves constitutional questions. Fourth, they argue that
7

relief through other channels is unavailable because, again, the County can stop the Chief Public Defender from filing a lawsuit by firing him. They also note that Flora spent two years lobbying the County for additional resources before filing the current lawsuit. Finally, the plaintiffs contend that a decision by the Chief Public Defender to bring a lawsuit similar to the present one would be “futile” because the County would fire him to prevent the lawsuit from going forward. In any case, because the current Chief Public Defender has not acted, Flora should be permitted to proceed with this action to fulfill the intent of Biester.
The County responds that Flora lacks standing under Biester because relief is available through other channels. The current Chief Public Defender may bring a claim under the Public Defender Act5 or seek to have attorneys appointed on a case-by-case basis. Individual indigent criminal defendants may obtain relief under the Post Conviction Relief Act6 should they receive ineffective assistance of counsel in their criminal trials.
The trial court did not err in holding that Flora lacks standing under Biester. First, whether the County has provided the Indigent Clients effective assistance of counsel will be addressed in their criminal cases. Likewise, the current Chief Public Defender may challenge the County’s actions. See, e.g., Dauphin County Public Defender’s Office v. Court of Common Pleas of Dauphin County, 849 A.2d 1145, 1148 (Pa. 2004) (holding that public defender has standing to challenge administrative order which affects statutory obligation “to provide legal representation to financially eligible criminal defendants”). Redress is also available through the regular budgetary process. The plaintiffs’ primary argument
5 Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §§9960.1-9960.13. 6 42 Pa. C.S. §§9541–9546.
8

is that the County will dismiss a Chief Public Defender who files a lawsuit, but this is speculation. Notably, if Flora is successful in his retaliation claim against the County and is reinstated, he can then bring a lawsuit in his official capacity.
In sum, we hold that Flora lacks standing in his individual capacity and the trial court properly sustained the County’s preliminary objection on this ground.
Indigent Clients’ Standing/Failure to State a Claim Next, we consider whether the trial court erred in finding that the Indigent Clients lacked standing. They argue that they adequately pled a constructive denial of counsel claim in the amended complaint, which alleges that the County’s public defenders are unable to: interview or meet with clients prior to preliminary hearings; contact clients between court appearances; conduct meaningful investigation or discovery; engage in motion practice; gather the information needed to do effective plea negotiations; engage in sufficient trial preparation; or properly litigate appeals due to lack of experience. Amended Complaint, ¶106, R.R. 881a. Because they have been constructively denied counsel, the Indigent Clients believe they have a substantial, direct, and immediate interest in the resources provided to the Office of Public Defender. They explain that their action does not seek to alter how the Chief Public Defender allocates the resources available to him, but rather to compel the County to provide sufficient resources to satisfy its statutory and constitutional obligations. Additionally, the Indigent Clients contend that the amended complaint raises an actual denial of counsel claim because the Office of Public Defender does not provide representation at preliminary arraignments, the point in the criminal process where the right to counsel attaches.
9

The County counters that none of the Indigent Clients have yet been convicted and, therefore, have not suffered any prejudice. In addition, the County argues that mandamus relief is not available because the Indigent Clients seek to compel the appropriation of additional funds for the Office of Public Defender, which is a discretionary act. Finally, the County contends that the amended complaint’s allegations that its public defenders will not devote sufficient time to their representation do not give rise to a claim for either an actual denial or constructive denial of counsel.
The argument on standing merges with the question of whether the amended complaint states a claim upon which relief can be granted. Accordingly, we decide the two issues together.
Right to Counsel The Sixth Amendment of the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. The United States Supreme Court has held that states must provide indigent criminal defendants with appointed counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to counsel attaches once the criminal defendant is actually charged at a preliminary arraignment. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Therefore, an indigent criminal defendant who does not receive appointed counsel may bring an actual denial of counsel claim. United States v. Cronic, 466 U.S. 648, 659 (1984). Appointed counsel must provide effective representation. If an indigent criminal defendant’s appointed lawyer is ineffective, the defendant is entitled to a new trial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
10

Under Strickland, a defendant must prove that his attorney performed below a standard of objective reasonableness and that counsel’s performance resulted in actual prejudice to the defendant. Id. An ineffective assistance of counsel claim may be brought only after the defendant has been convicted. See id.
In Cronic, 466 U.S. 648, decided the same day as Strickland, the Supreme Court noted that there are some cases where
the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.
Cronic, 466 U.S. at 659-60. In Cronic, the defendant’s retained counsel withdrew weeks before the case went to trial. His newly appointed counsel was a young lawyer with a real estate practice who had 25 days to prepare for the complex fraud case that had taken the government over four years to prepare. Nevertheless, the Supreme Court held that these facts were not sufficient to establish a presumption of prejudice. Instead, the Court cited Powell v. Alabama, 287 U.S. 45 (1932), as an example of where a presumption of prejudice will be shown. In Powell, the defendant’s counsel was from out-of-state and did not know the local rules of court or even the facts of the case. In these circumstances, the Supreme Court held that it can be presumed that the criminal defendant is prejudiced and, effectively, has been denied counsel.
Notably, both Strickland and Cronic were criminal appeals where the defendants were seeking to overturn their convictions; they did not seek prospective relief.
11

Constructive Denial of Counsel The Indigent Clients ask this Court to recognize a new civil remedy to improve funding to a public defender’s office. In Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), the first case to recognize such a remedy, a class of indigent criminal defendants in Georgia sought to require state government to provide the funding for their defense. After the dismissal of the case, the Eleventh Circuit Court of Appeals reversed, reasoning that a criminal defendant’s “lack of counsel” claims might not rise to the level of “ineffective assistance” but the defendants could still suffer harm. Nevertheless, the court held that criminal defendants asserting that they will suffer from a lack of meaningful representation in the future must show a likelihood of substantial and immediate irreparable injury and the inadequacy of a remedy at law to proceed. Luckey was never litigated to completion because it was dismissed on grounds of abstention. Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992). The New York Court of Appeals considered a constructive denial of counsel claim in Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010). There, several indigent criminal defendants brought a civil action asserting that they had been constructively denied their constitutional right to counsel because of the inadequate funding of several county public defender’s offices. In a 4 to 3 decision, the New York Court of Appeals allowed the case to proceed and reversed the lower court’s dismissal. The court reasoned that Strickland’s holding that a defendant must be convicted before he brings an ineffective assistance of counsel claim was premised on the supposition that Gideon was being faithfully applied by the states. The question decided in Strickland was “not [] whether ineffectiveness has assumed systemic dimensions, but rather [] whether the State has met its
12

foundational obligation under Gideon to provide legal representation.” Id. at 222. The New York Court of Appeals noted that the complaint alleged that appointed counsel served in name only because they were chronically unavailable, unresponsive to urgent inquiries, waived important rights without consulting their clients, missed court appearances, and appeared in court unprepared to proceed. Id. These allegations, the New York court held, “raise serious questions as to whether any [attorney-client] relationship may be really said to have existed.” Id. at 224. Thus, the court distinguished Strickland. The New York Court of Appeals allowed the case to proceed, but it has not been litigated to judgment.
Similarly, in Duncan v. Michigan, 774 N.W.2d 89 (Mich. Ct. App. 2009), aff'd on other grounds 780 N.W.2d 843 (Mich. 2010),7 a class of indigent criminal defendants challenged the funding to several county public defender offices as so inadequate as to violate the Sixth Amendment. Specifically, the plaintiffs alleged that the county systems were “wholly lacking” regarding client eligibility standards; attorney hiring, training and retention programs; written performance and workload standards; monitoring and supervision of appointed counsel; conflict of interest guidelines; and independence from the judiciary and prosecutorial offices. Id. at 99. The Michigan Court of Appeals noted that the allegations in the complaint were detailed on specific instances of inadequate
7 The appellate history of Duncan is complex. Initially, the Michigan Supreme Court on April 30, 2010, vacated and remanded in part and affirmed in part the Court of Appeals’ decision. Regarding the constructive denial of counsel issue, the Supreme Court stated that “[t]his case is at its earliest stages and, based solely on the plaintiffs’ pleadings in this case, it is premature to make a decision on the substantive issues.” Duncan, 780 N.W.2d 843, 844 (Mich. 2010). Therefore, the Court held that summary disposition was inappropriate. The Court subsequently granted and vacated several reconsideration orders. Ultimately, the court reinstated its original April 30th order. Duncan, 790 N.W.2d 695 (Mich. 2010) (“[W]e REINSTATE our order in this case dated April 30, 2010, because reconsideration thereof was improperly granted.”).
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representation, limited interaction between the public defenders and their clients and waivers of client rights by counsel.
In a 2 to 1 decision, the Michigan Court of Appeals explained, first, that mandamus was available to compel governmental action because the plaintiffs were not seeking to compel an appropriation but, rather, to compel the state to provide adequate representation. The court acknowledged that funding and legislation “would seemingly appear to be the measures needed to be taken to correct constitutional violations,” but stated that “we are not prepared to rule on the issue whether the trial court has the authority to order appropriations, legislation, or comparable steps.” Id. at 111. The court allowed the case to proceed to allow plaintiffs the opportunity to show the
existence of widespread and systemic instances of actual or constructive denial of counsel and instances of deficient performance by counsel, which instances may have varied and relevant levels of egregiousness, all causally connected to defendants’ conduct.
Id. at 124. The court rejected the argument that post-conviction relief, as set forth in Strickland, provided the exclusive and proper remedy. The case has not been litigated to judgment.
The dissents in Hurrell-Harring and Duncan are also worthy of review. The dissenting judge in Hurrell-Harring reasoned that inadequacies in the public defender system do not constitute a Sixth Amendment claim. The dissent noted that “[c]onstructive denial of counsel is a branch from the Strickland tree, with Cronic applying only when the appointed attorney’s representation is so egregious that it’s as if [the] defendant had no attorney at all.” Hurrell-Harring, 930 N.E.2d at 229 (Pigott, J., dissenting). The dissent concluded that “[p]laintiffs’
14

mere lumping together of 20 generic ineffective assistance of counsel claims into one civil pleading does not ipso facto transform it into one alleging a systemic denial of the right to counsel.” Id. at 230 (Pigott, J., dissenting).
In Duncan, the dissenting judge concluded that the relief sought by the plaintiffs would violate separation of powers because they
sought in their complaint to have the judiciary override the Michigan system of local control and funding of legal services for indigent criminal defendants.
Duncan, 774 N.W.2d at 153-54 (Whitbeck, J., dissenting). Because the plaintiffs had not yet been convicted, they had not suffered prejudice, which is necessary to pursue a Sixth Amendment claim. The plaintiffs’ right to pursue an ineffective assistance of counsel claim post-conviction, under Strickland, provided an adequate remedy. This made mandamus or injunctive relief inappropriate. Finally, the dissent noted that the Sixth Amendment does not guarantee criminal defendants an attorney of a particular level of skill.
In the present case, the trial court explained that Hurrell-Harring was distinguishable because the New York court was “reviewing an alleged outright denial of legal counsel (not effective assistance)” at points in the criminal process where counsel was required. Trial Court op. at 11. By contrast, the amended complaint alleged that some indigent criminal defendants did not have counsel at their preliminary arraignment, which is a point in the criminal process before the right to counsel attaches. This made the claims of the Indigent Clients different from those of the plaintiffs in Hurrell-Harring. Accordingly, the real question raised by the amended complaint was not a denial of counsel but, rather, a denial of effective counsel. The trial court concluded that whether counsel was ineffective can only be determined after the criminal proceedings have ended.
15

We find persuasive and so accept the analyses of the dissenting judges in Hurrell-Harring and Duncan and reject as not persuasive the majority opinions in those cases. We do so for several reasons.
First, there is no precedent from the United States Supreme Court acknowledging that a constructive denial of counsel claim may be brought in a civil case that seeks prospective relief in the form of more funding and resources to an entire office, as opposed to relief to individual indigent criminal defendants. Strickland, Cronic, and Gideon were all cases where the defendants sought a new trial. As explained in the Duncan dissent, the “United States Supreme Court in Gideon and Strickland was concerned with results, not process. It did not presume to tell the states how to ensure that indigent criminal defendants receive effective assistance of counsel.” Duncan, 774 N.W.2d at 153 (Whitbeck, J., dissenting). It is unclear that such a claim will be held cognizable in any state.
Second, even assuming, arguendo, that a Sixth Amendment claim for more funding to the public defender’s office is cognizable, the amended complaint does not satisfy the requisite standard. The amended complaint alleges that attorneys from the Office of Public Defender meet only briefly with indigent clients, rarely contact clients between court appearances, do not conduct significant investigation or discovery, do not engage in sufficient trial preparation, and cannot properly litigate appeals due to lack of experience. Amended Complaint, ¶106, R.R. 881a. These allegations do not create circumstances that are “so likely [to create prejudice] that case-by-case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 692. Notably, constructive denial of counsel was not found in Cronic where the lawyer assigned to the complex white collar criminal case was
16

new to the profession, did real estate law and was appointed 25 days before the trial for which the government had prepared for four years.
The amended complaint does not allege facts to support the inference that the Indigent Clients have or will suffer irreparable harm, but only the fear that they will not be adequately represented. This is speculation, a deficiency in the pleading that cannot be cured by amendment. Kennedy v. Carlson, 544 N.W.2d 1, 6-8 (Minn. 1996) (holding that public defender’s claims were too speculative and hypothetical to pursue a denial of effective assistance of counsel). We agree with the Hurrell-Harring dissent that the “mere lumping together of 20 generic ineffective assistance of counsel claims into one civil pleading does not ipso facto transform it into one alleging a systemic denial of the right to counsel.” HurrellHarring, 930 N.E.2d at 230 (Pigott, J., dissenting).
Third, as noted by the Supreme Court in Strickland, “[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Strickland, 466 U.S. at 693. Indeed, “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.” Id. at 689 (emphasis added). These observations compel our disposition of the instant appeal. Criminal defendants are guaranteed effective assistance of counsel so that they receive a fair trial; they are not guaranteed perfect counsel or a perfect trial. Accordingly, we will not infer a presumption of prejudice in the present case.
17

Should the legal representation assigned to the individual Indigent Clients prove ineffective and cause them prejudice, their recourse is to bring a post-conviction Strickland claim.
Mandamus Mandamus is an extraordinary remedy used to compel the performance of a ministerial act or mandatory duty. Chesapeake Appalachia, LLC v. Golden, 35 A.3d 1277, 1280 n.7 (Pa. 2012). Mandamus requires a showing that: (1) the petitioner has a clear legal right to relief, (2) the official owes the petitioner a duty, and (3) there are no other adequate remedies at law. Wilson v. Pennsylvania Board of Probation & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). The essence of an action in mandamus is that a specific actor has a nondiscretionary duty to perform a particular act. Finn v. Rendell, 990 A.2d 100, 106 (Pa. Cmwlth. 2010). Similarly, because a mandatory injunction compels a defendant to perform an act, rather than to refrain from acting, courts will grant a mandatory injunction only upon a very strong showing that the plaintiff has a clear right to relief. Department of Public Welfare v. Portnoy, 566 A.2d 336 (Pa. Cmwlth. 1989). Here, the amended complaint does not present a clear right to relief. The Indigent Clients have an alternative remedy either through a claim under Strickland or the Post Conviction Relief Act. Similarly, the Chief Public Defender may seek relief under the Public Defender Act, which authorizes him to
arrange for and make use of the services of attorneys at law admitted to practice before the Supreme and Superior Courts of this Commonwealth and the court of common pleas of the county or counties in which they may serve, when such attorneys volunteer to act as assistants, without compensation, to enable him to carry out the duties of his office.
18

16 P.S. §9960.5. The amended complaint seeks the appropriation of additional funding
to the Office of Public Defender to hire additional lawyers and staff. The County counters that its funding of the Office of Public Defender is inherently discretionary and cannot be compelled by a writ of mandamus. We agree with the County.
In addition, the writ of mandamus sought in the amended complaint may violate the doctrine of separation of powers. Our system of government is based on the concept that the legislative, executive and judicial branches of government are independent and co-equal with each other. Commonwealth ex rel. Carroll v. Tate, 274 A.2d 193, 196 (Pa. 1971). Accordingly, no branch of government may exercise the function committed to another branch. Wilson v. Philadelphia School Districts, 195 A. 90, 93 (Pa. 1937). Nevertheless, in rare circumstances one branch of government may prevent another branch from usurping the powers committed to the other branches. Beckert v. Warren, 439 A.2d 638, 642 (Pa. 1981).
The judicial power, for example, is vested exclusively in the courts, and the taxing and spending powers are vested in the legislature. Id. at 642-43. As a “check,” however, the courts may “compel expenditures necessary to prevent the impairment of [the court’s] exercise of the judicial power or of the proper administration of justice.” Id. at 642. Therefore, in limited and exceptional circumstances, the courts may order an appropriation of funds when the legislature’s funding makes it impossible for the judiciary to comply with its statutory and constitutional obligations. Id. at 643. Specifically, our Supreme Court has held that in such a case,
19

[t]here must be a genuine threat to the administration of justice, that is, a nexus between the legislative act and the injury to the judiciary, not merely a theoretical encroachment by the legislature.
Id. Stated otherwise, the lack of an appropriation must, itself, be an
unconstitutional omission. “Absent such circumstances, the courts are not empowered to review discretionary acts of the legislature.” Id.8
The amended complaint did not allege facts to show such an extreme
refusal of the County to appropriate funds. The Indigent Clients’ right to relief is
far from clear. The County has provided indigent criminal defendants with
counsel. Simply stated, the appropriation of additional funds to the Office of
Public Defender is a discretionary act that cannot be compelled by a writ of
mandamus.
Actual Denial of Counsel
We next consider whether the amended complaint has pled an actual
denial of counsel claim. Paragraph 53 of the amended complaint states:
[t]he [Office of Public Defender] is unable to provide representation or support at most preliminary arraignments, which the U.S. Supreme Court recently reaffirmed to be the point at which the right to counsel attaches. See Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008) (“[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings
8 Courts may compel additional funding if the appropriated amount is inadequate to comply with statutory or constitutional obligations. See Kistler v. Carbon County, 35 A.2d 733, 735 (Pa. Super. 1944) (holding that county commissioners cannot “limit or avoid liabilities imposed upon the county by the Constitution or by statutes”). The “administration of justice” must be construed more broadly than involving just the courts. Related entities, such as the Office of Public Defender, also participate in the administration of justice.
20

that trigger attachment of the Sixth Amendment right to counsel.”) The right to counsel under the Pennsylvania Constitution attaches at the same time as the right to counsel provided by the Sixth and Fourteenth Amendments to the U.S. Constitution. Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa. 1999).
Amended Complaint, ¶53; R.R. 866a. The plaintiffs argue that this allegation raises an actual denial of counsel claim.
The United States Supreme Court has established that the right to counsel attaches at the preliminary arraignment, which is the point that the defendant enters the criminal prosecutorial system. Montejo, 556 U.S. at 786. Under Pennsylvania Rule of Criminal Procedure 540, several events occur at a preliminary arraignment. The criminal defendant is presented with a copy of the criminal complaint and, if the defendant was arrested pursuant to a warrant, a copy of the warrant and supporting affidavits. PA. R.CRIM.P. 540(C), (D).9 The defendant is read the complaint and informed of his right to counsel, including the right to have counsel assigned; the right to a preliminary hearing; and the type and conditions of release on bail, if applicable. PA. R.CRIM.P. 540(F). The defendant is not questioned about the charges. Id. Finally, a date for the preliminary hearing is determined, unless the right to the preliminary hearing is waived by a defendant
9 They state: (C) At the preliminary arraignment, a copy of the complaint accepted for filing pursuant to Rule 508 shall be given to the defendant. (D) If the defendant was arrested with a warrant, the issuing authority shall provide the defendant with copies of the warrant and supporting affidavit(s) at the preliminary arraignment, unless the warrant and affidavit(s) are not available at that time, in which event the defendant shall be given copies no later than the first business day after the preliminary arraignment.
PA. R.CRIM.P. 540(C), (D).
21

represented by counsel. PA. R.CRIM.P. 540(G). After the preliminary arraignment, the defendant is given the opportunity to post bail, secure counsel, and notify others of the arrest. PA. R.CRIM.P. 540(H).
The right to counsel attaches at the preliminary arraignment, but the defendant does not have a right to counsel to represent him at the preliminary arraignment. In Rothgery, the case cited in the amended complaint, the United States Supreme Court held that
[o]nce attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings; what makes a stage critical is what shows the need for counsel’s presence. Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.
Rothgery, 554 U.S. at 212 (emphasis added). Justice Alito in a concurring opinion further explained that the Court has “rejected the argument that the Sixth Amendment entitles the criminal defendant to the assistance of appointed counsel at a probable-cause hearing.” Rothgery, 554 U.S. at 216 (Alito, J., concurring). Rather, the Sixth Amendment requires “the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the defendant effective assistance at trial.” Id. at 217 (Alito, J., concurring).
Pennsylvania’s Rules of Criminal Procedure governing the appointment of counsel in criminal cases conform to Rothgery. Rule 122 states that counsel shall be appointed “in all court cases, prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel.” PA. R.CRIM.P. 122(A)(2) (emphasis added). At a preliminary arraignment, the defendant is advised of the charges against him, given a copy of
22

the warrant and bail is set. These events do not require the presence of counsel because no rights are affected and there is no impact on the effectiveness of counsel’s representation at trial. Therefore, there is no right to counsel at the preliminary arraignment.
In short, we conclude that the amended complaint does not state a cause of action for actual denial of counsel. It alleges that public defenders do not represent indigent defendants at every preliminary arraignment. However, it is only thereafter that the indigent criminal defendant has a right to counsel.
Conclusion The amended complaint does not state a cause of action for either constructive or actual denial of counsel, and the trial court correctly sustained the County’s preliminary objections. The funding at any office of public defender presents a series of political and public policy challenges, as do all programs established to serve society’s less fortunate. These questions are better resolved in the political process, which includes the County’s budgetary processes. For these reasons, we affirm the order of the trial court sustaining the County’s preliminary objections and dismissing the amended complaint.10
______________________________ MARY HANNAH LEAVITT, Judge
10 Because we affirm the trial court’s dismissal of the amended complaint, we need not address the question of whether the current Chief Public Defender was an indispensable party or the County’s cross-appeal.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Al Flora, Jr., and Adam Kuren and :

Steven Allabaugh, on behalf of

:

themselves and all others similarly :

situated,

:

Appellants

:

:

v.

: No. 2072 C.D. 2013

:

Luzerne County of the

:

Commonwealth of Pennsylvania

:

and Robert C. Lawton, County

:

Manager, in his official capacity

:

:

:

Al Flora, Jr., and Adam Kuren

:

and Steven Allabaugh, on behalf

:

of themselves and all others

:

similarly situated

:

:

v.

: No. 2207 C.D. 2013

:

Luzerne County of the Commonwealth :

of Pennsylvania and Robert C. Lawton, :

County Manager, in his official

:

capacity,

:

Appellants

:

O R D E R AND NOW, this 14th day of October, 2014, the order of the Luzerne County Court of Common Pleas, dated October 22, 2013, is hereby AFFIRMED.
______________________________ MARY HANNAH LEAVITT, Judge

APPENDIX C

CERTIFICATE OF SERVICE

I hereby certify that I am this day serving two copies of the foregoing Brief

of Appellants upon the persons indicated below by electronic mail and First Class

Mail, which service satisfies the requirements of Pennsylvania Rules of Appellate

Procedure 121 and 2187:

John Dean, Esquire Elliott, Greenleaf & Dean 201 Penn Avenue Suite 202 Scranton, PA 18503

Counsel for Appellees

Dated: September 10, 2015

/s/ Catherine V. Wigglesworth Catherine V. Wigglesworth Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 (215) 994-4000
Counsel for Appellants

3403349.9.ADMINISTRATION

 
 IN THE SUPREME COURT OF PENNSYLVANIA
No. 57 MAP 2015 No. 58 MAP 2015

ADAM KUREN and STEVEN ALLABAUGH, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants v.
LUZERNE COUNTY of the Commonwealth of Pennsylvania and ROBERT C. LAWTON, County Manager, in his official capacity,
Defendants-Appellees

BRIEF OF AMICUS CURIAE AMERICAN BAR ASSOCIATION IN SUPPORT OF APPELLANTS
On Appeal from the October 14, 2014 Order of the Commonwealth Court at Nos. 2072 CD 2013 and 2207 C.D. 2013 (consolidated), Reargument Denied,
December 2, 2014, Affirming the October 22, 2013 Judgment of the Court of Common Pleas of Luzerne County, No. 04517, April Term, 2012

Edward W. Madeira, Jr. (Pa. ID No. 04500) Eli Segal (Pa. ID No. 205845) Pepper Hamilton LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19146 (215) 981-4000

Paulette Brown President, American Bar Association 321 North Clark Street Chicago, IL 60654-7598 (312) 988-5000

Attorneys for Amicus Curiae American Bar Association

TABLE OF CONTENTS I. INTERESTS OF AMICUS CURIAE ................................................................................. 1 II. SUMMARY OF ARGUMENT .......................................................................................... 6 III. ARGUMENT ...................................................................................................................... 6
A. This Court Should Recognize A Cause Of Action For Prospective Relief Where Excessive Workloads And Lack Of Resources Prevent Public Defenders From Providing All Clients With Competent And Diligent Representation......................................................................................................... 6 1. All Criminal Defendants Are Entitled To Competent And Diligent Representation, As Required By The Pennsylvania Rules Of Professional Conduct And Articulated In ABA Professional Standards..................................................................................................... 7 2. Appellants Have Alleged And Presented Evidence That Excessive Workloads And Lack Of Resources Prevent OPD And Its Attorneys From Providing Competent And Diligent Representation To All Clients.............................................................................................. 9 3. Where Excessive Workloads And Lack Of Resources Prevent Public Defenders From Fulfilling Their Fundamental Professional Obligations, Prospective, Systemic Relief Is Necessary. ......................... 12
IV. CONCLUSION................................................................................................................. 14
-i-

TABLE OF AUTHORITIES CASES Avery v. Alabama, 308 U.S. 444 (1940) ..........................................................................................7 Commonwealth v. Breaker, 318 A.2d 354 (Pa. 1974) .....................................................................9 Commonwealth v. Hughes, 865 A.2d 761 (Pa. 2004)......................................................................9 Frye v. Missouri, 132 S.Ct. 1399 (2012) .....................................................................................7, 9 Gideon v. Wainwright, 372 U.S. 335 (1963) .............................................................1, 3, 4, 6, 7, 13 Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010).......................................................7, 11, 13 Morris v. Mathews, 475 U.S. 237 (1986) ......................................................................................13 Padilla v. Kentucky, 559 U.S. 356 (2010) ...................................................................................4, 9 Public Defender v. State, 115 So.3d 261 (Fla. 2013) ......................................................................5 State v. Waters, 370 S.W.3d 592 (Mo. 2012) ........................................................................5, 7, 13 Strickland v. Washington, 466 U.S. 668 (1984) ........................................................................6, 12 United States v. Cronic, 466 U.S. 648 (1984) .................................................................................7 OTHER AUTHORITIES ABA Criminal Justice Standards .........................................................................................3, 7, 8, 9 ABA Defense Function Standards ...............................................................................................8, 9 ABA Eight Guidelines of Public Defense Related to Excessive Workloads (2009) ...4, 5, 9, 11, 12 ABA Model Rules of Prof’l Conduct R. 1.1........................................................................2, 3, 7, 8 ABA Model Rules of Prof’l Conduct R. 1.3............................................................................2, 3, 8 ABA Model Rules of Prof’l Conduct R. 1.16..................................................................................8 ABA Resolution 107 (2005) ..........................................................................................................12 ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 06-441 (2009) ........3, 8, 12 ABA Standing Comm. on Legal Aid & Indigents Defs., Gideon’s Broken Promise:
America’s Continuing Quest for Equal Justice (2004)........................................................4, 11 ABA Ten Principles of a Public Defense Delivery System (2002) ...........................................5, 12
-ii-

Norman Lefstein, Securing Reasonable Caseloads: Ethics and Law in Public Defense (ABA 2011) .............................................................................................................................11
Martin Marcus, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23 Crim. Just. 10 (Winter 2009) .............................................................................3
Pa.R.P.C. 1.1 ..................................................................................................................2, 3, 7, 8, 10 Pa.R.P.C. 1.3 ......................................................................................................................2, 3, 8, 10 Pa.R.P.C. 1.16 ..................................................................................................................................8
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I. INTERESTS OF AMICUS CURIAE The American Bar Association (“ABA”), as amicus curiae, respectfully submits
this brief in support of Appellants and the class they seek to represent with respect to the first
question presented:
In a matter of first impression, do petitioners [i.e., Appellants] state a claim for constructive denial of counsel under the Sixth and Fourteenth Amendments to the United States Constitution, and Article 1, Section 9 of the Pennsylvania Constitution, based on chronic and systemic deficiencies in the operation of Luzerne County’s Office of the Public Defender [“OPD”] that deprive them and the class they seek to represent of their right to effective assistance of counsel? The ABA urges the Court to answer this question in the affirmative. All criminal defendants—
regardless of their means—are entitled to representation at all critical stages of the proceedings
against them that meets the constitutional mandate of Gideon v. Wainwright. But here,
Appellants have asserted that chronic and systemic funding deficiencies, and the resulting
excessive workloads and lack of resources, prevent OPD and its attorneys from providing all
clients with the competent and diligent representation required by the Pennsylvania Rules of
Professional Conduct and articulated in ABA professional standards. In such a situation, a cause
of action for prospective relief based on constructive denial of counsel should be recognized to
ensure that, at all critical stages, indigent criminal defendants receive the actual, non-trivial
representation that Gideon demands.
The ABA is one of the largest voluntary professional membership organizations
and the leading association of legal professionals in the United States. It has more than 400,000
members, who come from all fifty states and other jurisdictions, including over 12,000 attorneys

in the Commonwealth of Pennsylvania.1 Members include attorneys in private law firms,
corporations, nonprofit organizations, federal, state and local governmental agencies, and prosecutorial and public defender offices. They are also judges,2 legislators, law professors, law
students, and non-lawyers in related fields.
Since its founding in 1878, the ABA has taken a special responsibility for
advocating for the ethical and effective representation of all clients. In 1908, the ABA adopted
its first Canons of Professional Ethics, setting out the duties owed by lawyers to their clients.
Continually revised and updated over the years, they are now the ABA Model Rules of Professional Conduct.3 Although the Pennsylvania Rules of Professional Conduct control in the
present case, they were derived from the ABA Model Rules. See Pa.R.P.C., Preamble at ¶ 20.
The Pennsylvania and ABA Model Rules pertinent to the issues before the Court are identical.
See, e.g., Pa.R.P.C. 1.1 & ABA Model Rule 1.1 (“A lawyer shall provide competent
representation to a client[, which] includes the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”); Pa. R.P.C.1.3 & ABA Model Rule 1.3
(“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
1Based on ABA membership records for fiscal year 2015-2016. 2Neither this brief nor the decision to file it should be interpreted to reflect the views of any judicial member of the ABA. No inference should be drawn that any member of the Judicial Division Council participated in the adoption or endorsement of the positions in this brief. This brief was not circulated to any member of the Judicial Division prior to filing. 3Available at http://www.americanbar.org/groups/professional_responsibility/ publications/model_rules_of_professional_conduct.html. Each iteration of the ABA’s professional conduct rules has been adopted as ABA policy. Only resolutions adopted by vote of the ABA’s House of Delegates become ABA policy. Today, the ABA’s House of Delegates is composed of over 560 delegates representing states and territories, local and state bar associations, affiliated organizations, ABA sections and divisions, ABA members and the Attorney General of the United States, among others. See ABA House of Delegates - General Information, http://www.americanbar.org/groups/leadership/delegates.html.
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Neither the Pennsylvania Rules nor the ABA Model Rules provide an exception to Rules 1.1 and
1.3 for public defenders.
Indeed, in 2006, the ABA Standing Committee on Ethics and Professional
Responsibility (“ABA Ethics Committee”) issued Formal Opinion 06-441 (“Ethical Obligations
of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere
With Competent and Diligent Representation”) (attached as Exhibit A), which concluded that ABA Model Rules 1.1 and 1.3 apply equally to public defenders.4 Created in 1913, the ABA
Ethics Committee is charged with publishing formal ethics opinions on lawyer and judicial
conduct, providing informal responses to ethics inquiries, and, upon request, assisting courts in
their development of professional rules and in the interpretation of ethical standards, such as the
ABA Model Rules and the ABA Model Code of Judicial Conduct.
The ABA has also worked to improve the criminal justice system and the
representation of criminal defendants. This includes the development of the ABA Criminal Justice Standards.5 Begun under the aegis of then-ABA President (and later Justice) Lewis
Powell during the year after Gideon v. Wainwright, 372 U.S. 335 (1963), was decided, the
Criminal Justice Standards are based on the consensus views of a broad array of criminal justice
4ABA standing committees are entities charged with investigating and analyzing “continuing or recurring matters related to the purposes or business” of the ABA. ABA Const. Art. 31.3. Further information on the ABA Ethics Committee is available at http://www.americanbar.org/groups/professional_responsibility/committees_commissions/ethics andprofessionalresponsibility.html.
5Available at http://www.americanbar.org/groups/criminal_justice/standards.html. The Criminal Justice Standards, which are also ABA policy, are now published in twenty volumes, based on topical area. They were developed and continue to be refined by task forces made up of prosecutors, defense lawyers, judges, academics, the public and other representatives with criminal justice interests, as well as the diverse membership of the ABA. See Martin Marcus, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23 Crim. Just. 10, 14-15 (Winter 2009).
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professionals, and have been recognized by the United States Supreme Court as “valuable measures of the prevailing professional norms of effective representation.” Padilla v. Kentucky, 559 U.S. 356, 367 (2010).
In addition, the ABA’s Standing Committee on Legal Aid and Indigent Defendants (“SCLAID”), its first standing committee, was created in 1920, and charged with the investigation and analysis of the administration of justice as it affects the poor and the promotion of remedial measures to assist them in realizing and protecting their legal rights.6 In 2004, to commemorate the 40th anniversary of Gideon, SCLAID conducted four public hearings at which 32 experts representing 22 large and small states from all geographic parts of the United States presented testimony on excessive workloads, and produced a report, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice.7 Among the report’s findings was that, when lack of funding for indigent defense led to overwhelming workloads, the result was “routine violations of the Sixth Amendment obligation to provide effective assistance of counsel.” Id. at 38.
Excessive workloads have been such a pressing problem for public defenders that, in 2009, the ABA adopted the ABA Eight Guidelines of Public Defense Related to Excessive Workloads.8 The Eight Guidelines are a “detailed action plan” for public defense programs and
6Further information on SCLAID is available at http://www.americanbar.org/groups/ legal_aid_indigent_defendants.html.
7Available at http://www.americanbar.org/content/dam/aba/administrative/ legal_aid_indigent_defendants/ls_sclaid_def_eight_guidelines_of_public_defense.authcheckdam .pdf
8Available at http://www.americanbar.org/content/dam/aba/administrative/ legal_aid_indigent_defendants/ls_sclaid_def_eight_guidelines_of_public_defense.authcheckdam .pdf.
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their attorneys, “when they are confronted with too many persons to represent and are thus prevented from discharging their responsibilities under professional conduct rules.” Id. at Introduction. The Eight Guidelines recommend various ways for public defenders to attempt to avoid excessive workloads, but recognize that, at times, it may be necessary to turn to the courts to remedy the situation. Id. at Comment to Guideline 5 (“When a Provider cannot reduce excessive lawyer workloads, a motion filed with the court, aimed at stopping case assignments and/or permitting lawyers to withdraw from cases . . . , or conceivably the filing of a separate civil action, will be necessary.”); see also ABA Ten Principles of a Public Defense Delivery System, Principle 5 (2002) (“Defense counsel’s workload is controlled to permit the rendering of quality representation.”).9
Based on these and other results of the ABA’s 100-plus years of research, analysis, and development of professional norms for effective representation of clients, the ABA has participated previously as amicus in other state supreme court cases that have addressed issues resulting from chronic and systemic underfunding of public defender systems. See, e.g., Public Defender v. State, 115 So.3d 261 (Fla. 2013); State v. Waters, 370 S.W.3d 592 (Mo. 2012);.
As in its prior amicus briefs, the ABA assumes here that the public defenders are using public resources efficiently in representing indigent defendants. The ABA respectfully submits, however, that this Court should recognize a cause of action for prospective relief where
9Available at http://www.americanbar.org/content/dam/aba/administrative/ legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf. The Ten Principles were created as a practical guide for governmental officials, policymakers, and other parties who are charged with creating and funding new, or improving existing, public defense delivery systems.
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excessive workloads and lack of resources prevent public defenders from providing all clients with competent and diligent representation.
II. SUMMARY OF ARGUMENT All criminal defendants—regardless of their means—are entitled to legal
representation at all critical stages of the proceedings against them that meets the constitutional mandate of Gideon v. Wainwright. But here, Appellants have presented significant evidence demonstrating that chronic and systemic funding deficiencies, and the resulting excessive workloads and lack of resources, prevent OPD and its attorneys from providing all clients with the competent and diligent representation required by the Pennsylvania Rules of Professional Conduct and articulated in ABA professional standards. A post-conviction Strickland claim, which turns on after-the-fact identification of an error or errors that affected the outcome of an individual defendant’s trial, is not a means to address such chronic and systemic deficiencies. Instead, a cause of action for prospective relief should be recognized to ensure that, at all critical stages, indigent criminal defendants receive the actual, non-trivial representation that Gideon demands.
III. ARGUMENT A. This Court Should Recognize A Cause Of Action For Prospective Relief Where Excessive Workloads And Lack Of Resources Prevent Public Defenders From Providing All Clients With Competent And Diligent Representation. The Commonwealth Court concluded that Appellants had not stated a claim for
constructive denial of counsel, holding that Appellants’ only recourse was to bring postconviction claims under Strickland v. Washington, 466 U.S. 668 (1984), “[s]hould the legal representation assigned to the[m] prove ineffective and cause them prejudice.” Flora v. Luzerne
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County, 103 A.3d 125, 137 (Pa. Commw. Ct. 2014). Yet 52 years of post-Gideon history and precedent show that individual, retrospective ineffective assistance of counsel claims brought after trial cannot address chronic, systemic problems such as those alleged in this case. Therefore, the ABA respectfully submits that this Court should recognize a cause of action where excessive workloads and lack of funding prevent indigent criminal defendants from receiving the actual, non-trivial representation that Gideon demands. See United States v. Cronic, 466 U.S. 648, 654-55 (1984) (“‘The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.’” (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)); Waters, 370 S.W.3d at 597 (“[T]he Sixth Amendment right to counsel is a right to effective and competent counsel, not just a pro forma appointment whereby the defendant has counsel in name only.”); Hurrell-Harring v. State, 930 N.E.2d 217, 224 (N.Y. 2010) (“Actual representation assumes a certain basic representational relationship.”).
1. All Criminal Defendants Are Entitled To Competent And Diligent Representation, As Required By The Pennsylvania Rules Of Professional Conduct And Articulated In ABA Professional Standards.
The Pennsylvania Rules of Professional Conduct, the ABA Model Rules on which they are based, and the ABA’s Criminal Justice Standards establish standards regarding the level representation that all clients should be entitled to expect—and demand. These standards can thus provide useful guides in assessing the adequacy of the representation provided by the state to indigent criminal defendants. See, e.g., Frye v. Missouri, 132 S.Ct. 1399, 1408 (2012) (“Though the standard for counsel’s performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides.”).
First, Pennsylvania Rule 1.1 and the identical ABA Model Rule 1.1 require that all lawyers provide their clients “competent” representation. Each Rule defines “competent”
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representation as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” As Comment 5 to Pennsylvania Rule 1.1 and ABA Model Rule 1.1 emphasizes, an essential element of the competent handling of any matter is “adequate preparation.”
Second, both Pennsylvania Rule 1.3 and ABA Model Rule 1.3 require that all attorneys “act with reasonable diligence and promptness in representing a client.” As Comment 2 to both Rules states, this requires that a lawyer’s “work load . . . be controlled so that each matter can be handled competently.” In fact, a lawyer “shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct.” Pa. R.P.C. 1.16(a); ABA Model Rule 1.16(a).
Neither the Pennsylvania Rules nor the ABA Model Rules provide any exception for public defenders. The ABA Ethics Committee, in Formal Opinion 06-441, specifically considered the ethical obligations of lawyers who represent indigent criminal defendants when excessive caseloads interfere with competent and diligent representation. That opinion states: “All lawyers, including public defenders . . . must provide competent and diligent representation.” Id. at 1 (emphasis added) (attached as Exhibit A).
Third, while the Pennsylvania Rules and the ABA Model Rules provide standards for all lawyers, the ABA’s Defense Function Standards—a subsection of the ABA’s Criminal Justice Standards—do so for criminal defense lawyers in particular. See, e.g., ABA Defense Function Standard 4-1.1(a) (“These Standards are intended to address the performance of criminal defense counsel in all stages of their professional work.”). Under the Defense Function Standards, all criminal defense lawyers, among other things, should investigate the facts
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(Standard 4-4.1), research the law (Standard 4-4.6), communicate with clients (Standards 4-3.1, 4-3.3, 4-3.9, 4-5.1), negotiate with prosecutors (Standards 4-6.1, 4-6.2, 4-6.3), file appropriate motions (Standards 4-5.2, 4-7.11, 4-8.1), and prepare for court (Standard 4-4.6). In addition, under ABA Defense Function Standard 4-1.8(a), criminal defense lawyers “should not carry a workload that, by reason of its excessive size or complexity, interferes with providing quality representation, endangers a client’s interest in independent, thorough, or speedy representation, or has a significant potential to lead to the breach of professional obligations.”
2. Appellants Have Alleged And Presented Evidence That Excessive Workloads And Lack Of Resources Prevent OPD And Its Attorneys From Providing Competent And Diligent Representation To All Clients.
Under the circumstances alleged in this case, the OPD and its public defenders are in an untenable position, as they cannot provide each of their clients the competent and diligent representation that the professional standards discussed above demand. Therefore, using these standards as guides, there are indigent criminal defendants in Luzerne County who are not receiving the level of legal representation to which they are constitutionally entitled. See, e.g., Frye, 132 S. Ct. at 1408 (relying on ABA Standards for Criminal Justice and on several states’ rules of professional conduct in assessing constitutional adequacy of counsel); Padilla, 559 U.S. at 367 (relying on ABA Criminal Justice Standards); Commonwealth v. Hughes, 865 A.2d 761, 814 n.56 (Pa. 2004) (relying on ABA Criminal Justice Standards); Commonwealth v. Breaker, 318 A.2d 354, 357-59 (Pa. 1974) (relying on ABA Criminal Justice Standards and on ABA Code of Professional Responsibility, precursor to ABA Model Rules); see also ABA Eight Guidelines at Comment to Guideline 5 (recognizing “implicit premise that governments, which establish and fund providers of public defense, never intended that the lawyers who furnish the representation
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would be asked to do so if it meant violating their ethical duties pursuant to the professional conduct rules”).
The trial court concluded that “[t]o describe the current state of affairs in the Office of the Public Defender as approaching crisis stage is not an exaggeration.” R. 737a. The court based its conclusion on the testimony of the OPD’s chief public defender and on the expert opinion of Norman Lefstein, Dean Emeritus of Indiana University’s Robert H. McKinney School of Law, regarding the excessive workloads of OPD public defenders. R. 729a-735a. As Dean Lefstein testified, due to their workloads, OPD public defenders are unable to comply with their fundamental duties to their clients. R. 636a-37a. According to Dean Lefstein:
When you have over a hundred clients for whom you are simultaneously responsive, you simply cannot discharge the range of duties that you have to those clients; and what occurs . . . is a form of triage representation, where you deal only with the most immediate problem of the day, because that is really all you can do. You’re going to court hearings. [You’re] shuffling papers and you’re doing the best you can, but you’re not doing what is really necessary. R. 637a. He explained that these extraordinary workloads necessarily prevent indigent criminal defendants in Luzerne County from receiving legal assistance that satisfies the most fundamental professional standards. See R. 636a (“[G]iven the case loads that they have, they must necessarily fail to deliver to many of their clients the kind of competent and diligent representation that is required by Rules 1.1 and 1.3 of the Pennsylvania Rules of Professional Conduct.”); R. 637a (“[T]here are clients who must necessarily, given these case loads, receive representation which is not consistent with the duty to be a reasonably competent lawyer under the 6th Amendment.”). This and other testimony in the record support a conclusion that many indigent defendants receive legal representation that does not comply with Gideon’s mandate of actual,
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non-trivial representation. In fact, they support a conclusion that a professionally acceptable level of representation simply cannot be provided for each defendant at the critical period between arraignment and trial. See Hurrell-Harring, 930 N.E.2d at 224 (“[This period is] when a case must be factually developed and researched, decisions respecting grand jury testimony made, plea negotiations conducted, and pretrial motions filed. Indeed, it is clear that to deprive a person of counsel during the period prior to trial may be more damaging that denial of counsel during trial itself.” (internal quotation marks omitted)).
The ABA has documented similar results of excessive public defender workloads and lack of resources in other jurisdictions, too. See Gideon’s Broken Promise at 38 (documenting instances in which public defenders “are burdened by overwhelming caseloads and essentially coerced into furnishing representation in defense systems that fail to provide the bare necessities for an adequate defense (e.g., sufficient time to prepare, experts, investigators, and other paralegals), resulting in routine violations of the Sixth Amendment obligation to provide effective assistance of counsel”); Norman Lefstein, Securing Reasonable Caseloads: Ethics and Law in Public Defense 12-13, 18 (ABA 2011) (explaining that “[t]here is “abundant evidence that those who furnish public defense services across the country have far too many cases, and this reality impacts the quality of their representation, often severely eroding the Sixth Amendment’s guarantee of the right to counsel,” with workloads sometimes so great that public defenders must forgo any research, investigation, client communication, or motion practice and simply plead clients guilty soon after meeting them).10
10Available at http://www.americanbar.org/content/dam/aba/publications/ books/ls_sclaid_def_securing_reasonable_caseloads.authcheckdam.pdf . The ABA has issued a range of standards to help public defenders avoid situations in which their workloads make it impossible to satisfy Gideon’s mandate in any meaningful fashion. See, e.g., ABA Eight
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3. Where Excessive Workloads And Lack Of Resources Prevent Public Defenders From Fulfilling Their Fundamental Professional Obligations, Prospective, Systemic Relief Is Necessary.
The Commonwealth Court rejected the possibility of a “prospective relief”
constructive denial of counsel claim for “more funding and resources to an entire office, as
opposed to relief to individual indigent criminal defendants.” Flora, 103 A.3d at 136.
According to the Commonwealth Court, “[s]hould the legal representation assigned to the
individual Indigent Clients prove ineffective and cause them prejudice, their recourse is to bring
a post-conviction Strickland claim.” Id. at 137.
But where workloads are excessive and resources are insufficient, a post-
conviction Strickland claim is not a means for ensuring that indigent criminal defendants receive
the representation to which they are constitutionally entitled. A Strickland claim turns on after-
the-fact identification of an error or errors that affected the outcome of an individual defendant’s
________________________
Guidelines at Introduction (providing “detailed action plan” for public defense programs and their attorneys, “when they are confronted with too many persons to represent and are thus prevented from discharging their responsibilities under professional conduct rules”); ABA Formal Op. 06-441 at 1 (“If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients.”); ABA Resolution 107 at ¶ 4 (Aug. 9, 2005) (“Attorneys and defense programs should, consistent with ethical obligations, discontinue indigent defense representation, and/or decline to accept new cases, when, in the exercise of their best professional judgment, workloads are so excessive that representation will interfere with the rendering of quality legal representation or lead to the breach of constitutional or professional obligations.”), available at http://www.americanbar.org/ content/dam/aba/migrated/legalservices/downloads/sclaid/indigentdefense/20110325_aba_res10 7.authcheckdam.pdf; ABA Ten Principles, Principle 5 (“Defense counsel’s workload is controlled to permit the rendering of quality representations.”). These standards recognize, however, that there are times when litigation is necessary to remedy situations in which public defender workloads prevent the fulfillment of professional standards. See ABA Eight Principles, Comment to Guideline 5 (“When a Provider cannot reduce excessive lawyer workloads, a motion filed with the court, aimed at stopping case assignments and/or permitting lawyers to withdraw from cases . . . , or conceivably the filing of a separate civil action, will be necessary.” (emphasis added)).
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trial, for which the remedy is generally a new trial for the defendant in that case. Morris v. Mathews, 475 U.S. 237, 254 (1986). Even if successful, such a claim does not require a public defender’s office or the county responsible for it to do anything differently in the future. It does not compel the office, the county, or the state to make changes—funding, staffing, workload, operations, or otherwise—to remedy systemic Gideon failures. See Waters, 370 S.W.3d at 604 (“A criminal appeal simply does not provide a mechanism for review of the caseload protocol and the issue in any post-conviction proceeding centers on whether the defendant received a fair trial, not on the broader Sixth Amendment right to counsel that is at issue when considering whether counsel was appointed for all critical stages of the proceeding.” (emphasis in Waters)).
In essence, the Commonwealth Court’s ruling leaves indigent criminal defendants with no meaningful way to enforce even the minimum standards for indigent criminal representation that have been developed under Gideon, under other rulings of the United States Supreme Court, the Pennsylvania Supreme Court, and the courts of other States, and through the work of entities such as the ABA. Yet as the Supreme Court of Missouri stated, “[n]o case suggests that a court analyze whether the Sixth Amendment right to counsel has been preserved at all critical stages only by retrospectively determining that the lack of such counsel deprived the defendant of a fair trial.” Waters, 370 S.W.3d at 607. That is because “[t]he constitutional right to effective counsel . . . is a prospective right to have counsel’s advice during [all critical stages of] the proceeding and is not merely a retrospective right to have a verdict or plea set aside if one can prove that the absence of competent counsel affected the proceeding.” Id.; see also Hurrell-Harring, 930 N.E.2d at 226 (“[T]he basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet because of systemic conditions, not by reason of the personal failings and poor professional decisions of
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AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

Formal Opinion 06-441

May 13, 2006

Ethical Obligations of Lawyers Who Represent

Indigent Criminal Defendants When Excessive

Caseloads Interfere With Competent and Diligent Representation

All lawyers, including public defenders and other lawyers who, under court appointment or government contract, represent indigent persons charged with criminal offenses, must provide competent and diligent representation. If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new appointments. Once the lawyer is representing a client, the lawyer must move to withdraw from representation if she cannot provide competent and diligent representation. If the court denies the lawyer’s motion to withdraw, and any available means of appealing such ruling is unsuccessful, the lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to competently and diligently represent the defendant.
Lawyer supervisors, including heads of public defenders’ offices and those within such offices having intermediate managerial responsibilities, must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules of Professional Conduct. To that end, lawyer supervisors must, working closely with the lawyers they supervise, monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the individual lawyers.
In this opinion,1 we consider the ethical responsibilities of lawyers, whether employed in the capacity of public defenders or otherwise, who represent indigent persons charged with criminal offenses, when the lawyers’ workloads prevent them from providing competent and diligent representa-

1. This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2003. The laws, court rules, regulations, rules of professional conduct and opinions promulgated in the individual jurisdictions are controlling.

AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY,
321 N. Clark Street, Chicago, Illinois 60610-4714 Telephone (312)988-5300 CHAIR: William B. Dunn, Detroit, MI J Elizabeth Alston, Mandeville, LA J T. Maxfield Bahner, Chattanooga, TN J Amie L. Clifford, Columbia, SC J Timothy J. Dacey, III, Boston, MA J James A. Kawachika, Honolulu, HI J Steven C. Krane, New York, NY J John P. Ratnaswamy, Chicago, IL J Irma Russell, Memphis, TN J Thomas Spahn, McLean, VA J CENTER FOR PROFESSIONAL RESPONSIBILITY: George A. Kuhlman, Ethics Counsel; Eileen B. Libby, Associate Ethics Counsel
© 2006 by the American Bar Association. All rights reserved.

06-441 Formal Opinion

2

tion to all their clients. Excessive workloads present issues for both those who represent indigent defendants and the lawyers who supervise them.2 Ethical responsibilities of a public defender3 in regard to individual workload
Persons charged with crimes have a constitutional right to the effective assistance of counsel.4 Generally, if a person charged with a crime is unable to afford a lawyer, he is constitutionally entitled to have a lawyer appointed to represent him.5 The states have attempted to satisfy this constitutional mandate through various methods, such as establishment of public defender, court appointment, and contract systems.6 Because these systems have been created to provide representation for a virtually unlimited number of indigent criminal defendants, the lawyers employed to provide representation generally are limited in their ability to control the number of clients they are assigned. Measures have been adopted in some jurisdictions in attempts to control workloads,7 including the establishment of procedures for assigning cases to lawyers outside public defenders’ offices when the cases could not properly be directed to a public defender, either because of a conflict of interest or for other reasons.

2. For additional discussion of the problems presented by excessive caseloads for public defenders, see “Gideon’s Broken Promise: American’s Continuing Quest For Equal Justice,” prepared by the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants 29 (ABA 2004), available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullreport.pdf (last visited June 21, 2006).
3. The term “public defender” as used here means both a lawyer employed in a public defender’s office and any other lawyer who represents, pursuant to court appointment or government contract, indigent persons charged with criminal offenses.
4. U.S. CONST. amends. VI & XIV. 5. The United States Supreme Court has interpreted the Sixth Amendment to require the appointment of counsel in any state and federal criminal prosecution that, regardless of whether for a misdemeanor or felony, leads or may lead to imprisonment for any period of time. See generally, Alabama v. Shelton, 535 U.S. 654, 662 (2002); Strickland v. Washington, 466 U.S. 668, 684-86 (1984); Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Argersinger v. Hamlin, 407 U.S. 25, 30-31 (1972); Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963); Johnson v. Zerbst, 304 U.S. 458. 462-63 (1938). 6. Most states deliver indigent defense services using a public defender’s office (eighteen states) or a combination of public defender, assigned counsel, and contract defender (another twenty-nine states), according to the Spangenberg Group, which developed a report on behalf of the ABA Standing Committee on Legal Aid and Indigent Defendants. See The Spangenberg Group, “Statewide Indigent Defense Systems: 2005,” available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.pdf (last visited June 21, 2006). 7. See generally, National Symposium on Indigent Defense 2000, Redefining Leadership for Equal Justice, A Conference Report (U.S. Dep’t of Justice, Bureau of Justice Assistance, Wash. D.C.) 3 (June 29-30, 2000), available at http://www.ojp.usdoj.gov/indigentdefense/symposium.pdf (last visited June 21, 2006) (common problem in indigent defense delivery systems is that “lawyers often have unmanageable caseloads (700 or more in a year”)).

3 Committee on Ethics and Professional Responsibility

06-441

Model Rules of Professional Conduct 1.1, 1.2(a), 1.3, and 1.4 require lawyers to provide competent representation, abide by certain client decisions, exercise diligence, and communicate with the client concerning the subject of representation.8 These obligations include, but are not limited to, the responsibilities to keep abreast of changes in the law; adequately investigate, analyze, and prepare cases; act promptly on behalf of clients; communicate effectively on behalf of and with clients; control workload so each matter can be handled competently; and, if a lawyer is not experienced with or knowledgeable about a specific area of the law, either associate with counsel who is knowledgeable in the area or educate herself about the area. The Rules provide no exception for lawyers who represent indigent persons charged with crimes.9

8. Rule 1.1(a) provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.2(a) states:
[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. Rule 1.3 states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Rule 1.4(a) and (b) states: (a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 9. See ABA Formal Opinion Op. 347 (Dec. 1, 1981) (Ethical Obligations of Lawyers to Clients of Legal Services Offices When Those Offices Lose Funding), in FORMAL AND INFORMAL ETHICS OPINIONS, FORMAL OPINIONS 316-348, INFORMAL OPINIONS 1285-1495 at 139 (ABA 1985) (duties owed to existing clients include duty of adequate preparation and a duty of competent representation); ABA Informal Op. 1359 (June 4, 1976) (Use of Waiting Lists or Priorities by Legal Service Officer), id. at 237 (same); ABA Informal Op. 1428 (Sept. 12, 1979) (Lawyer-Client Relationship Between the Individual and Legal Services Office: Duty of Office Toward Client When Attorney Representing Him (Her) Leaves the Office and Withdraws from the Case), id. at 326 (all lawyers, including legal services lawyers, are subject to mandatory duties owed by lawyers to existing clients, including duty of adequate preparation

06-441 Formal Opinion

4

Comment 2 to Rule 1.3 states that a lawyer’s workload “must be controlled so that each matter may be handled competently.”10 The Rules do not prescribe a formula to be used in determining whether a particular workload is excessive. National standards as to numerical caseload limits have been cited by the American Bar Association.11 Although such standards may be considered, they are not the sole factor in determining if a workload is excessive. Such a determination depends not only on the number of cases, but also on such factors as case complexity, the availability of support services, the lawyer’s experience and ability, and the lawyer’s nonrepresentational duties.12 If a lawyer believes that her workload is such that she is unable to meet the basic ethical obligations required of her in the representation of a client, she must not continue the representation of that client or, if representation has not yet begun, she must decline the representation.13
A lawyer’s primary ethical duty is owed to existing clients.14 Therefore, a

and competent representation). See also South Carolina Bar Ethics Adv. Op. 04-12 (Nov. 12, 2004) (all lawyers, including public defenders, have ethical obligation not to undertake caseload that leads to violation of professional conduct rules).
The applicability of Rules 1.1, 1.3, and 1.4 to public defenders and/or prosecutors has been recognized by ethics advisory committees in at least one other state. See Va. Legal Eth. Op. 1798 (Aug. 3, 2004) (duties of competence and diligence contained within rules of professional conduct apply equally to all lawyers, including prosecutors).
10. Principle 5 of The Ten Principles of a Public Defense Delivery System specifically addresses the workload of criminal defense lawyers:
Defense counsel’s workload is controlled to permit the rendering of quality representation. Counsel’s workload, including appointed and other work, should never be so large as to interfere with the rendering of quality representation or lead to the breach of ethical obligations, and counsel is obligated to decline appointments above such levels. National caseload standards should in no event be exceeded, but the concept of workload (i.e., caseload adjusted by factors such as case complexity, support services, and an attorney’s nonrepresentational duties) is a more accurate measurement. Report to the ABA House of Delegates No. 107 (adopted Feb. 5, 2002), available at http://www.abanet.org/legalservices/downloads/sclaid/10principles.pdf (last visited June 21, 2006) (emphasis in original). 11. Id. 12. Id. See also Attorney Grievance Comm’n of Maryland v. Ficker, 706 A.2d 1045, 1051-52 (1998) (supervising lawyer violated Rule 5.1 by assigning too many cases to supervised lawyer, assigning cases day before trial, and assigning cases too complex for supervised lawyer’s level of experience and ability). 13. Rule 1.16(a) states that “a lawyer shall not represent a client or, where representation has begun, shall withdraw from the representation of a client if the representation will result in violation of the Model Rules of Professional Conduct or other law.” 14. See ABA Formal Opinion Op. 96-399 (Jan. 18, 1996) (Ethical Obligations of Lawyers Whose Employers Receive Funds from the Legal Services Corporation to their Existing and Future Clients When Such Funding is Reduced and When Remaining Funding is Subject to Restrictive Conditions), in FORMAL AND INFORMAL ETHICS OPINIONS 1983-1998 at 369 (ABA 2000); ABA Formal Opinion Op. 347, supra note 9.

5 Committee on Ethics and Professional Responsibility

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lawyer must decline to accept new cases, rather than withdraw from existing cases, if the acceptance of a new case will result in her workload becoming excessive. When an existing workload does become excessive, the lawyer must reduce it to the extent that what remains to be done can be handled in full compliance with the Rules.
When a lawyer receives appointments directly from the court rather than as a member of a public defender’s office or law firm that receives the appointment, she should take appropriate action if she believes that her workload will become, or already is, excessive. Such action may include the following: • requesting that the court refrain from assigning the lawyer any new cases until
such time as the lawyer’s existing caseload has been reduced to a level that she is able to accept new cases and provide competent legal representation; and • if the excessive workload cannot be resolved simply through the court’s not assigning new cases, the lawyer should file a motion with the trial court requesting permission to withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.15 If the lawyer has sought court permission to withdraw from the representation and that permission has been denied, the lawyer must take all feasible steps to assure that the client receives competent representation. When a lawyer receives appointments as a member of a public defender’s office or law firm, the appropriate action to be taken by the lawyer to reduce an excessive workload might include, with approval of the lawyer’s supervisor: • transferring non-representational responsibilities within the office, including managerial responsibilities, to others; • refusing new cases;16 and • transferring current case(s) to another lawyer whose workload will allow for the transfer of the case(s).17

15. Whenever a lawyer seeks to withdraw from a representation the client should be notified, even if court rules do not require such notification. See Rule 1.4.
16. It should be noted that a public defender’s attempt to avoid appointment or to withdraw from a case must be based on valid legal grounds. Rule 6.2(a) provides, in pertinent part, that “[a] lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as representing the client is likely to result in violation of the Rules of Professional Conduct or other law.” (Emphasis added). Therefore, a public defender should not claim an excessive workload in an attempt to avoid new cases or to withdraw from current cases unless good cause objectively exists.
17. It is important to note that, for purposes of the Model Rules, a public defender’s office, much like a legal services office, is considered to be the equivalent of a law firm. See Rule 1.0(c). Unless a court specifically names an individual lawyer within a public defender’s office to represent an indigent defendant, the public defender’s office should be considered as a firm assigned to represent the client; responsibility for handling the case falls upon the office as a whole. See ABA Informal Op. 1428, supra note 9 (legal services agency should be considered firm retained by client; responsibility for handling caseload of departing legal services lawyer falls upon office as whole rather than upon lawyer who is departing). Therefore, cases may ethically be reassigned within a public defender’s office.

06-441 Formal Opinion

6

If the supervisor fails to provide appropriate assistance or relief, the lawyer should continue to advance up the chain of command within the office until either relief is obtained or the lawyer has reached and requested assistance or relief from the head of the public defender’s office.
In presenting these options, the Committee recognizes that whether a public defender’s workload is excessive often is a difficult judgment requiring evaluation of factors such as the complexity of the lawyer’s cases and other factors.18 When a public defender consults her supervisor and the supervisor makes a conscientious effort to deal with workload issues, the supervisor’s resolution ordinarily will constitute a “reasonable resolution of an arguable question of professional duty” as discussed in Rule 5.2(b).19 In those cases where the supervisor’s resolution is not reasonable, however, the public defender must take further action.20
Such further action might include: • if relief is not obtained from the head of the public defender’s office, appeal-
ing to the governing board, if any, of the public defender’s office;21 and • if the lawyer is still not able to obtain relief, 22 filing a motion with the trial
court requesting permission to withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.23 If the public defender is not allowed to withdraw from representation, she must obey the court’s order while taking all steps reasonably feasible to insure that her client receives competent and diligent representation.24

18. See note 12, supra, and accompanying text. 19. See Comment [2]. 20. See, e.g., Atty. Grievance Comm’n of Maryland v. Kahn, 431 A.2d 1336, 1352 (1981) (“Obviously, the high ethical standards and professional obligations of an attorney may never be breached because an attorney’s employer may direct such a course of action on pain of dismissal. . . .”) 21. See Michigan Bar Committee on Prof. & Jud. Eth. Op. RI-252 (Mar. 1, 1996) (in context of civil legal services agency, if subordinate lawyer receives no relief from excessive workload from lawyer supervisor, she should, under Rule 1.13(b) and (c), take the matter to legal services board for resolution). 22. Rule 5.2 makes clear that subordinate lawyers are not insulated from violating the Rules of Professional Conduct and suffering the consequences merely because they acted in accordance with a supervisory lawyer’s advice or direction unless it was in regard to “an arguable question of professional duty.” 23. A public defender filing a motion to withdraw under these circumstances should provide the court with information necessary to justify the withdrawal, while being mindful of the obligations not to disclose confidential information or information as to strategy or other matters that may prejudice the client. See Rule 1.16 cmt. 3. 24. Notwithstanding the lawyer’s duty in this circumstance to continue in the representation and to make every attempt to render the client competent representation, the lawyer nevertheless may pursue any available means of review of the court’s order. See Iowa Supreme Court Bd. of Prof. Ethics & Conduct v. Hughes, 557 N.W.2d 890, 894

7 Committee on Ethics and Professional Responsibility

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Ethical responsibility of a lawyer who supervises a public defender Rule 5.1 provides that lawyers who have managerial authority, including
those with intermediate managerial responsibilities, over the professional work of a firm or public sector legal agency or department shall make reasonable efforts to ensure that the other lawyers in the agency or department conform to the Rules of Professional Conduct. Rule 5.1 requires that lawyers having direct supervisory authority take reasonable steps to ensure that lawyers in the office they supervise are acting diligently in regard to all legal matters entrusted to them, communicating appropriately with the clients on whose cases they are working, and providing competent representation to their clients. As an essential first step, the supervisor must monitor the workloads of subordinate lawyers to ensure that the workload of each lawyer is appropriate. This involves consideration of the type and complexity of cases being handled by each lawyer; the experience and ability of each lawyer; the resources available to support her, and any non-representational responsibilities assigned to the subordinate lawyers.
If any subordinate lawyer’s workload is found to be excessive, the supervisor should take whatever additional steps are necessary to ensure that the subordinate lawyer is able to meet her ethical obligations in regard to the representation of her clients. These might include the following: • transferring the lawyer’s non-representational responsibilities, including
managerial responsibilities, to others in the office; • transferring case(s) to another lawyer or other lawyers whose workload
will allow them to provide competent representation;25 • if there are no other lawyers within the office who can take over the cases
from which the individual lawyer needs to withdraw, supporting the lawyer’s efforts to withdraw from the representation of the client;26 and finally, • if the court will not allow the lawyer to withdraw from representation, providing the lawyer with whatever additional resources can be made available to assist her in continuing to represent the client(s) in a manner consistent with the Rules of Professional Conduct.

(Iowa 1996) (“ignoring a court order is simply not an appropriate step to test the validity of the order under our Code of Professional Responsibility”); Utah Bar Eth. Adv. Op. 107 (Feb. 15, 1992) (if grounds exist to decline court appointment, lawyer should not disobey order but should seek review by appeal or other available procedure).
25. See note 17, supra. 26. See In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So.2d 1130, 1138-39 (Fla. 1990) (in context of inadequate funding, court stated that if “the backlog of cases in the public defender’s office is so excessive that there is no possible way he can timely handle those cases, it is his responsibility to move the court to withdraw”); see also In re Order on Motions to Withdraw Filed by Tenth Circuit Public Defender, 612 So.2d 597 (Fla. App. 1992) (en banc) (public defender’s office entitled to withdraw due to excessive caseload from representing defendants in one hundred forty-three cases).

06-441 Formal Opinion

8

When a supervised lawyer’s workload is excessive and, notwithstanding any other efforts made by her supervisor to address the problem, it is obviously incumbent upon the supervisor to assign no additional cases to the lawyer, and, if the lawyer’s cases come by assignment from the court, to support the lawyer’s efforts to have no new cases assigned to her by the court until such time as she can adequately fulfill her ethical responsibilities to her existing clients.
In dealing with workload issues, supervisors frequently must balance competing demands for scarce resources. As Comment [2] to Rule 5.2 observes, if the question of whether a lawyer’s workload is too great is “reasonably arguable,” the supervisor of the lawyer has the authority to decide the question. In the final analysis, however, each client is entitled to competent and diligent representation. If a supervisor knows that a subordinate’s workload renders the lawyer unable to provide competent and diligent representation and the supervisor fails to take reasonable remedial action, under Rule 5.1(c),27 the supervisor himself is responsible for the subordinate’s violation of the Rules of Professional Conduct.28

27. Rule 5.1(c) states: (c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
See also Rules 1.16 (a) and 8.4 (a). 28. See, e.g., Attorney Grievance Comm'n of Maryland v. Ficker, 706 A.2d at 1052,
supra note 12); Va. Legal Ethics Op. 1798 supra note 9 (lawyer supervisor who assigns caseload that is so large as to prevent lawyer from ethically representing clients would violate Rule 5.1); American Council of Chief Defenders, Nat’l Legal Aid and Defender Ass’n Eth. Op. 03-01 (April 2003), available at http://www.nlada.org/DMS/Documents/ 1082573112.32/ACCD%20Ethics%20opinion%20on%20Workloads.pdf (last visited June 21, 2006) (“chief executive of an agency providing public defense services is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every case…. When confronted with a prospective overloading of cases or reductions in funding or staffing which will cause the agency’s attorneys to exceed such capacity, the chief executive of a public defense agency is ethically required to refuse appointment to any and all such excess cases.”); Wisconsin State Bar Prof. Ethics Comm. Op. E-91-3 (1991) (assigning caseload that exceeds recognized maximum caseload standards, and that would not allow subordinate public defender to conform to rules of professional conduct, "could result in a violation of disciplinary standards"); Ariz. Op. No. 90-10 (Sept. 17, 1990) (“when a Public Defender has knowledge that subordinate lawyers, because of their caseloads, cannot comply with their duties of diligence and competence, the Public Defender must take action.”); Wisconsin State Bar Prof. Ethics Comm. Op. E-84-11 (1984) (supervisors in public defender’s office may not ethically increase workloads of subordinate lawyers to point where subordinate lawyer cannot, even at personal sacrifice, handle each of her clients’ matters competently and in non-neglectful manner).

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Conclusion The obligations of competence, diligence, and communication under the
Rules apply equally to every lawyer. All lawyers, including public defenders, have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently. If a lawyer’s workload is such that the lawyer is unable to provide competent and diligent representation to existing or potential clients, the lawyer should not accept new clients. If the problem of an excessive workload cannot be resolved through the nonacceptance of new clients or by other available measures, the lawyer should move to withdraw as counsel in existing cases to the extent necessary to bring the workload down to a manageable level, while at all times attempting to limit the prejudice to any client from whose case the lawyer has withdrawn. If permission of a court is required to withdraw from representation and permission is refused, the lawyer’s obligations under the Rules remain: the lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to provide competent and diligent representation to the defendant.
Supervisors, including the head of a public defender’s office and those within such an office having intermediate managerial responsibilities, must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules of Professional Conduct. To that end, supervisors must, working with the lawyers they supervise, monitor the workload of the subordinate lawyers to ensure that the workloads are not allowed to exceed that which may be handled by the individual lawyers. If a supervisor knows that a subordinate’s workload renders the lawyer unable to provide competent and diligent representation and the supervisor fails to take reasonable remedial action, the supervisor is responsible for the subordinate’s violation of the Rules of Professional Conduct.

 
 Nos. 57 MAP 2015, 58 MAP 2015
IN THE SUPREME COURT OF PENNSYLVANIA ___________________________

ADAM KUREN and STEVEN ALLABAUGH, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellants v.

LUZERNE COUNTY of the Commonwealth of Pennsylvania and ROBERT C. LAWTON, County Manager, in his official capacity,

Defendants-Appellees ___________________________

ON APPEAL FROM THE ORDER OF THE COMMONWEALTH COURT AT NO. 2072 CD 2013, DATED OCTOBER 14, 2014, AFFIRMING THE ORDER OF LUZERNE COUNTY COURT OF COMMON PLEAS, CIVIL DIVISION,
AT NO. 04517, DATED OCTOBER 22, 2013 ___________________________

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLANTS ___________________________

LISA FOSTER Director, Office for Access to Justice

VANITA GUPTA Principal Deputy Assistant Attorney General

ANDREW STANNER Senior Counsel Office for Access to Justice Department of Justice 950 Pennsylvania Ave., NW Suite 3340 Washington, DC 20530

TOVAH R. CALDERON NATHANIEL S. POLLOCK Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-0333 Counsel for the United States,
Amicus Curiae

TABLE OF CONTENTS
PAGE
INTRODUCTION .....................................................................................................1
STATEMENT OF THE QUESTION INVOLVED ..................................................2
INTEREST OF THE UNITED STATES ..................................................................2
STATEMENT OF THE CASE..................................................................................5
ARGUMENT
A CIVIL CLAIM FOR CONSTRUCTIVE DENIAL OF COUNSEL UNDER THE SIXTH AMENDMENT IS COGNIZABLE ..............................................................................................10
A. Courts That Have Considered The Issue Have Recognized That A Civil Claim For Constructive Denial Of Counsel Is Cognizable .............................................13
B. Factors Relevant To A Constructive Denial-OfCounsel Claim...........................................................................17
C. Civil Constructive Denial-Of-Counsel Claims Provide An Important Tool For Remedying Serious Violations Of The Constitutional Right To Counsel.......................................................................20
CONCLUSION ........................................................................................................21
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES:

PAGE

Alabama v. Shelton, 535 U.S. 654 (2002) .................................................................1

Avery v. Alabama, 308 U.S. 444 (1940) ............................................................ 12-13

Brown v. Plata, 563 U.S. 493 (2011) ......................................................................17

Commonwealth v. Chmiel, 738 A.2d 406 (Pa. 1999) ..............................................10

Commonwealth v. O’Keefe, 148 A. 73 (Pa. 1929) ..................................................12

Duncan v. State, 774 N.W.2d 89 (Mich. Ct. App. 2009) ........................... 8-9, 15-16

Flora v. Luzerne Cnty., 103 A.3d 125 (Pa. Commw. Ct. 2014), reargument denied (Dec. 2, 2014) .................................................... 8-9, 15-16

Flora v. Luzerne Cnty., No. 951 MAL 2014, 2015 WL 3996993 (Pa. June 30, 2015) ..........................................................................................8

Gideon v. Wainwright, 372 U.S. 335 (1963) ....................................................passim

Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010) ...................................passim

Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988) ..................................................15

Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) .....................................................15

New York Cnty. Lawyers’ Ass’n v. State, 196 Misc. 2d 761 (N.Y. Sup. Ct. 2003).........................................................19

Powell v. Alabama, 287 U.S. 45 (1932) ..................................................................12

Public Defender, Eleventh Jud. Cir. of Fla. v. State, 115 So. 3d 261 (Fla. 2013) ...................................................................... 18-19

State v. Peart, 621 So. 2d 780 (La. 1993) ...............................................................20

- ii -

CASES (continued):

PAGE

State v. Young, 172 P.3d 138 (N.M. 2007)..............................................................20

Strickland v. Washington, 466 U.S. 668 (1984) ....................................................1, 9

United States v. Cronic, 466 U.S. 648 (1984) ................................................... 12-13

Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D. Wash. 2013) .............................................. 18-19

Wilbur v. City of Mount Vernon, No. 2:11-cv-1100, 2012 WL 600727 (W.D. Wash. Feb. 23, 2012) ...................................... 14-15

Younger v. Harris, 401 U.S. 37 (1971) ...................................................................15

STATUTES:

42 U.S.C. 1983...........................................................................................................5

Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14141...............................................................................................3

MISCELLANEOUS:

Government Accountability Office, Indigent Defense: DOJ Could Increase Awareness of Eligible Funding and Better Determine the Extent to Which Funds Help Support this Purpose, 11-14 (May 2012) ......................................................................................................4

Office for Access to Justice, http://www.justice.gov/atj (last visited Sept. 8, 2015) ...............................................................................2

Office for Access to Justice, Accomplishments (July 21, 2015), available at http://www.justice.gov/atj/accomplishments ...............................5

Office for Access to Justice, Fifty Years Later: The Legacy of Gideon v. Wainwright (Oct. 21, 2014), available at http://www.justice.gov/atj/fifty-years-later-legacygideon-v-wainwright........................................................................................ 4

- iii -

MISCELLANEOUS (continued):

PAGE

Office of Public Affairs, Attorney General Holder Announces $6.7 Million to Improve Legal Defense Services for the Poor (Oct. 30, 2013), available at http://www.justice.gov/opa/pr /2013/october/13-ag-1156.html .......................................................................4

Office of Public Affairs, Department of Justice Enters into Agreement to Reform the Juvenile Court of Memphis and Shelby County, Tennessee (Dec. 18, 2012), available at http://www.justice.gov/ opa/pr/department-justice-enters-agreement-reform-juvenile-courtmemphis-and-shelby-county-tennessee ........................................................... 3

- iv -

INTRODUCTION More than fifty years ago, the United States Supreme Court held in Gideon v. Wainwright, 372 U.S. 335 (1963), that the Sixth Amendment guarantees access to counsel in state court for all those charged with a felony.1 This Court will become the second state court of last resort to consider whether indigent defendants who are assigned counsel in name only may vindicate that Sixth Amendment right through a constructive denial-of-counsel claim for prospective injunctive relief, or whether their only remedy is to seek post-conviction relief under Strickland v. Washington, 466 U.S. 668 (1984). The New York Court of Appeals was the first state court of last resort to consider this question, and in Hurrell-Harring v. State, 930 N.E.2d 217 (N.Y. 2010), it upheld the right of indigent defendants to seek relief in a civil action asserting a constructive denial of the right to counsel, as guaranteed by Gideon. That ruling was correct. The availability of civil actions for constructive denial of counsel is critical to protecting the constitutional right to counsel that Gideon recognized.
1 The Court later made clear that the guarantee of access to counsel extends to all criminal defendants faced with incarceration, including those charged with misdemeanors. See Alabama v. Shelton, 535 U.S. 654, 661-662 (2002). For simplicity’s sake, this brief sometimes uses “Gideon” as shorthand for the Court’s recognition of the right to counsel in both felony and misdemeanor contexts.

- 2 The Commonwealth Court has deprived indigent defendants in Pennsylvania of this essential tool, well grounded in the law, for enforcing their constitutional right to counsel. This Court should correct that error.
STATEMENT OF THE QUESTION INVOLVED The United States will address: Whether a civil claim for prospective, injunctive relief based on constructive denial of counsel under the Sixth Amendment to the United States Constitution is cognizable.2
INTEREST OF THE UNITED STATES The United States has a strong interest in ensuring that all jurisdictions – federal, state, and local – are fulfilling their constitutional obligation to provide counsel to criminal defendants facing incarceration who cannot afford an attorney, as required by Gideon v. Wainwright, 372 U.S. 335 (1963). In March 2010, the Attorney General launched the Office for Access to Justice to address the crisis in indigent defense services. The Office coordinates the Department of Justice’s commitment to improving indigent defense. See Office for Access to Justice, http://www.justice.gov/atj (last visited Sept. 8, 2015).
2 The United States takes no position on the merits of this particular case. The United States also takes no position on the state-law mandamus issue or on any issue particular to the claim based on the Pennsylvania Constitution.

- 3 -
The Department of Justice enforces the right to counsel in juvenile
delinquency proceedings under the Violent Crime Control and Law Enforcement
Act of 1994, 42 U.S.C. 14141. For example, the Department entered into a
comprehensive memorandum of agreement with Shelby County, Tennessee, that
requires the County, among other things, to appoint counsel before children appear
before a magistrate judge, and to establish a juvenile defender unit within the public defender’s office.3
The Department of Justice has filed statements of interest (SOIs) in cases
involving constructive denial-of-counsel claims under the Sixth and Fourteenth
Amendments. See U.S. SOI, Hurrell-Harring v. State, No. 8866-07 (N.Y. Sup. Ct. Sept. 25, 2014)4; U.S. SOI, Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D. Wash. 2013) (No. 2:11-cv-1100)5; see also U.S. SOI, N.P. v. Georgia, No.
2014-cv-241025 (Fulton Cnty. Ga. Super. Ct.) (addressing juveniles’ right to
3 Office of Public Affairs, Department of Justice Enters into Agreement to Reform the Juvenile Court of Memphis and Shelby County, Tennessee (Dec. 18, 2012), available at http://www.justice.gov/opa/pr/department-justice-entersagreement-reform-juvenile-court-memphis-and-shelby-county-tennessee.
4 available at http://www.justice.gov/sites/default/files/crt/legacy/2014/09/25/hurrell_soi_9-2514.pdf.
5 available at http://www.justice.gov/sites/default/files/crt/legacy/2013/08/15/wilbursoi8-1413.pdf.

- 4 -
counsel).6 These SOIs have addressed the scope of the right to counsel, the
appropriate remedy for systemic deprivations of that right, or both.
The Department of Justice also has sought to address the crisis in indigent
defense services through a number of grant programs, as well as through support
for state policy reform. The Department, for example, has identified indigent
defense as a priority area for Byrne-JAG funds, the leading source of federal
justice funding to state and local jurisdictions.7 In 2013, at a government-wide
event hosted by the Department, the Department’s Office of Justice Programs
announced a collection of grants totaling $6.7 million to improve legal defense
services for the poor.8 These grants were preceded in 2012 by a $1.2 million grant
program, Answering Gideon’s Call: Strengthening Indigent Defense Through
Implementing the ABA Ten Principles of a Public Defense Delivery System,
6 available at http://www.justice.gov/sites/default/files/crt/legacy/2015/03/13/np_soi_3-1315.pdf.
7 See Government Accountability Office, Indigent Defense: DOJ Could Increase Awareness of Eligible Funding and Better Determine the Extent to Which Funds Help Support this Purpose, 11-14 (May 2012), http://www.gao.gov/assets/600/590736.pdf.
8 Office of Public Affairs, Attorney General Holder Announces $6.7 Million to Improve Legal Defense Services for the Poor (Oct. 30, 2013), available at http://www.justice.gov/opa/pr/2013/october/13-ag-1156.html. See also Office for Access to Justice, Fifty Years Later: The Legacy of Gideon v. Wainwright (Oct. 21, 2014), available at http://www.justice.gov/atj/fifty-years-later-legacy-gideon-vwainwright.

- 5 administered by the Bureau of Justice Assistance. The Department of Justice’s efforts to address the crisis in indigent defense with grants and other initiatives remain ongoing.9
STATEMENT OF THE CASE Plaintiffs Adam Kuren and Steven Allabaugh are individuals facing criminal charges in Luzerne County who are represented by the Luzerne County Office of the Public Defender (OPD). They seek certification of a class comprised of “all indigent adults in Luzerne County who are or will be represented by the Office of the Public Defender from this point until the Office of the Public Defender has the funding and resources necessary to enable it to meet ethical, legal, and constitutional standards of representation.” (R. 852a). 1. Plaintiffs’ claim under 42 U.S.C. 1983 asserts a violation of their Sixth Amendment right to counsel, as articulated in Gideon v. Wainwright, 372 U.S. 335 (1963). (R. 882a-883a). Plaintiffs ask the court to compel the County to provide the necessary funding to allow OPD to provide constitutional representation to
9 See Office for Access to Justice, Accomplishments (July 21, 2015), available at http://www.justice.gov/atj/accomplishments.

- 6 -
indigent defendants. (R. 861a). Among other allegations,10 the complaint sets out
the following:
• “Without significantly more lawyers and support staff, [OPD attorneys] will continue to endure overwhelming caseloads that effectively preclude constitutionally adequate representation.” (R. 864a).
• “[G]iven the OPD’s current volume of work, [OPD] * * * lawyers are unable to engage in many of the basic functions of representation, including conferring with clients in a meaningful way prior to critical stages of their legal proceedings, reviewing client files, conducting discovery, motion practice, and factual investigation, as well as devoting necessary time to prepare for hearings, trials, and appeals.” (R. 864a).
• OPD attorneys “simply do not have the time and resources to provide constitutionally adequate and professionally required representation for the majority of Public Defender clients.” (R. 864a).
• “[H]eavy caseloads regularly lead to scheduling conflicts, causing OPD attorneys to request continuances of critical proceedings. These continuances can lead to clients remaining in pre-trial detention for longer periods than necessary.” (R. 867a).
• “The heavy caseloads also frequently result in the OPD attorneys’ inability to consult with their clients prior to each stage of their case. Consequently, OPD attorneys participate in many stages of their clients’ criminal proceedings without a full understanding of the facts and potential strategies for the case.” (R. 867a).
• “[B]ecause of scheduling conflicts, OPD lawyers must frequently substitute for one another and thus attend proceedings for cases of which they have no prior knowledge.” (R. 867a).
• “OPD attorneys are often unable to conduct reasonable factual investigation prior to the pre-trial hearing or even prior to negotiating a plea agreement.” (R. 867a).
10 The United States takes no position on whether plaintiffs’ allegations are true or will be proved.

- 7 -
• “When discovery is obtained, the attorneys are frequently unable to review the information. If discovery responses are inadequate or incomplete, attorneys rarely have time to follow up to obtain complete information.” (R. 867a).
• “OPD attorneys also rarely have time to conduct the necessary fact inquiry and investigation prior to preliminary hearings.” (R. 867a).
• “Generally, OPD attorneys are limited to a few minutes’ introduction immediately prior to the hearings in a non-secure area of a district magistrate’s office, or a similarly brief meeting at the County prison. These brief meetings are not sufficient to gather information about a case to provide constitutionally adequate representation.” (R. 869a).
• OPD attorneys are often unable to contact their clients at any point during the three-month period between the preliminary hearing and the status conference, or in the one-month period between the status conference and the pre-trial hearing. (R. 870a).
• “OPD attorneys are often unable to conduct meaningful and comprehensive interviews with clients until the eve of trial, if the case proceeds that far.” (R. 870a).
• “Overall, OPD attorneys are unable to maintain regular contact with their clients and to follow up on client attempts to communicate with them.” (R. 871a).
• OPD attorneys handle massive caseloads that far exceed the maximum caseloads recommended by the American Bar Association and must fulfill other time-consuming responsibilities as well. (R. 872a-874a).
• OPD attorneys are often scheduled to appear in two different courtrooms at the same time. (R. 874a).
• “[M]any [OPD] attorneys still do not have their own desks, workspaces, or dedicated phone lines, which makes it difficult, if not impossible, to receive and return calls from clients.” (R. 874a-875a).

- 8 -
2. The trial court granted the County’s motion to dismiss, concluding that plaintiffs lacked standing11 and did not state a valid claim. Flora v. Luzerne Cnty.,
103 A.3d 125, 130 (Pa. Commw. Ct. 2014), reargument denied (Dec. 2, 2014).
Plaintiffs appealed, and the Pennsylvania Commonwealth Court affirmed. Id. at
140.
The Commonwealth Court held that a civil claim for constructive denial of
counsel is not a cognizable claim. Flora, 103 A.3d at 136. The court explained its
holding by stating (1) that it “accept[ed] the analyses of the dissenting judges in
Hurrell–Harring and Duncan [v. State, 774 N.W.2d 89 (Mich. Ct. App. 2009)] and
reject[ed] as not persuasive the majority opinions in those cases,” and (2) that
“there is no precedent from the United States Supreme Court acknowledging that a
constructive denial-of-counsel claim may be brought in a civil case that seeks
prospective relief in the form of more funding and resources to an entire office, as
11 There were two separate standing issues in this case. The first was whether one of the original plaintiffs, former Chief Public Defender Al Flora, continued to have a cognizable injury after he stopped working at OPD. The trial court concluded that he did not, and the Commonwealth Court agreed. Flora v. Luzerne Cnty., 103 A.3d 125, 130 (Pa. Commw. Ct. 2014), reargument denied (Dec. 2, 2014). The plaintiffs petitioned this Court on that standing issue, but this Court declined to review it. Flora v. Luzerne Cnty., No. 951 MAL 2014, 2015 WL 3996993 (Pa. June 30, 2015) (granting the petition in part). Thus, the Commonwealth Court’s ruling that Flora lacks standing is final. The second standing issue, whether the indigent clients of OPD have standing, “merges with the question of whether the amended complaint states a claim upon which relief can be granted.” Flora, 103 A.3d at 133.

- 9 opposed to relief to individual indigent criminal defendants.” Ibid. The court also indicated agreement with the Duncan dissent’s conclusion that recognition of such a cause of action would violate separation-of-powers principles. Ibid.
The court then ruled that, even if a civil constructive denial-of-counsel claim exists, it was not adequately pleaded here. Flora, 103 A.3d at 136-137. The court characterized the complaint as alleging that Luzerne County OPD attorneys “meet only briefly with indigent clients, rarely contact clients between court appearances, do not conduct significant investigation or discovery, do not engage in sufficient trial preparation, and cannot properly litigate appeals due to lack of experience.” Id. at 137. It concluded that “[t]hese allegations do not create circumstances that are ‘so likely [to create prejudice] that case-by-case inquiry into prejudice is not worth the cost.’” Ibid. (alteration in original) (quoting Strickland v. Washington, 466 U.S. 668 (1984)). The court concluded that, because prejudice could not properly be inferred under the circumstances alleged in the complaint, plaintiffs’ only recourse is to bring a post-conviction Strickland claim.
Finally, the court concluded that plaintiffs did not state a claim for actual denial of counsel. Flora, 103 A.3d at 139-140. The court recognized that plaintiffs’ complaint alleges nonrepresentation at preliminary arraignments. Id. at 139. But the court concluded that, though the right to counsel attaches at the

- 10 preliminary arraignment, “the defendant does not have a right to counsel to represent him at the preliminary arraignment.” Ibid.
Plaintiffs filed a petition for allowance to appeal with this Court, which this Court granted in part.
ARGUMENT A CIVIL CLAIM FOR CONSTRUCTIVE DENIAL OF COUNSEL UNDER
THE SIXTH AMENDMENT IS COGNIZABLE The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. In Gideon v. Wainwright, the U.S. Supreme Court held that the Sixth Amendment right to counsel requires state courts to appoint attorneys for defendants who are charged with felonies and cannot afford to retain counsel, because “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” 372 U.S. 335, 344 (1963). The Court explained that “lawyers in criminal courts are necessities, not luxuries.” Ibid. This Court also has explained that “the right to counsel has been recognized as a fundamental right, one that is essential to the goal of ensuring that every criminal defendant receives a fair trial before an impartial tribunal.” Commonwealth v. Chmiel, 738 A.2d 406, 422 (Pa. 1999) (citing Gideon, 372 U.S. at 344-345).

- 11 -
The Sixth Amendment right to counsel requires more than the mere
appointment of a member of the bar. The right of indigent criminal defendants to
be provided an attorney may be violated by the government’s actual denial of counsel, or by a constructive denial of counsel.12 A civil claim for systemic
prospective relief based on constructive denial of counsel is viable: (1) when, on a
system-wide basis, the traditional markers of representation – such as timely and
confidential consultation with clients, appropriate investigation, and meaningful
adversarial testing of the prosecution’s case – are absent or significantly
compromised; and (2) when substantial structural limitations – such as a severe
lack of resources, unreasonably high workloads, or critical understaffing of public
defender offices – cause that absence or limitation on representation. In these
circumstances, the appointment of counsel is merely cosmetic, effectively resulting
in a lawyer in name only. And when that is the case – that is, when the totality of
the circumstances indicate that structural limitations are causing such a system-
wide problem of nonrepresentation – indigent criminal defendants may seek
12 Strickland claims and Gideon claims are doctrinally distinct. An ineffective assistance-of-counsel claim under Strickland contends that counsel (whether appointed or selected and paid for by the defendant) failed to represent his or her client effectively, and that that failure prejudiced the client. A constructive denial-of-counsel claim under Gideon asserts a form of nonrepresentation – that appointed counsel is counsel in name only – and seeks prospective relief. In a constructive denial-of-counsel claim no individualized showing of prejudice is required.

- 12 prospective, systemic relief in a civil suit to protect the full Sixth Amendment rights of the class that they represent.
The concept of a constructive denial-of-counsel claim is both legitimate and rooted in U.S. Supreme Court case law. In United States v. Cronic, 466 U.S. 648 (1984), the U.S. Supreme Court recognized that some infringements of the right to counsel are so significant that no showing of prejudice is necessary. No showing of prejudice is required where there is a complete denial of counsel at a critical stage; where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing”; or where “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-660. In Powell v. Alabama, 287 U.S. 45 (1932), for example, the Court ruled that it would be “vain” to give the defendant a lawyer “without giving the latter any opportunity to acquaint himself with the facts or law of the case.” Id. at 59 (quoting Commonwealth v. O’Keefe, 148 A. 73, 74 (Pa. 1929)). Similarly, in Avery v. Alabama, 308 U.S. 444, 446 (1940), the Court explained that “mere formal appointment” of counsel does not satisfy the right to counsel. Specifically, the Court ruled that “the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment

- 13 -
of counsel into a sham.” Ibid. Thus, the Court has repeatedly indicated that the
absence of traditional markers of representation can result in a constructive denial
of counsel.13
A. Courts That Have Considered The Issue Have Recognized That A Civil Claim For Constructive Denial Of Counsel Is Cognizable
Hurrell-Harring is the leading case recognizing a civil constructive denial-
of-counsel claim and, in the United States’ view, is correctly reasoned. The court
in that case recognized a constructive denial-of-counsel claim under Gideon that is
distinct from an ineffective-assistance claim under Strickland. The court
determined that, “[g]iven the simplicity and autonomy of a claim for
nonrepresentation, as opposed to one truly involving the adequacy of an attorney’s
performance, there is no reason * * * why such a claim cannot or should not be
brought without the context of a completed prosecution.” Hurrell-Harring v.
13 To be sure, the Supreme Court did not ultimately conclude that the right to counsel was violated in Cronic or Avery. In both cases, the Court concluded that, in the particular circumstances presented, late appointment of counsel did not justify a presumption of ineffectiveness. See Cronic, 466 U.S. at 665; Avery, 308 U.S. at 450-453. The appointed counsel in those cases, the Court determined, were not merely formal appointments who were unable to subject the government’s theory to adversarial testing. But in a systemic constructive denial-of-counsel claim, plaintiffs allege that the counsel assigned to indigent defendants are counsel in name only and thus are not subjecting the government’s theory to meaningful adversarial testing, or providing other traditional markers of representation because of severe structural limitations that make these failures of representation inevitable. That situation is different from the facts underlying the individual claims at issue in Cronic and Avery.

- 14 State, 930 N.E.2d 217, 225-226 (N.Y. 2010). The court recognized that to conclude that this type of claim is only cognizable in an action for post-conviction relief would be to prevent courts from effectively remedying systemic violations of Gideon. The court concluded that “the fairly minimal risks involved in sustaining the closely defined claim of nonrepresentation we have recognized must be weighed against the very serious dangers that the alleged denial of counsel entails.” Id. at 226. The court also determined that “enforcement of a clear constitutional or statutory mandate is the proper work of the courts,” and the mere fact “that a remedy in this action would necessitate the appropriation of funds and perhaps, particularly in a time of scarcity, some reordering of legislative priorities” was not reason enough to shrink from that obligation. Id. at 227.
The court in Wilbur v. City of Mount Vernon followed a similar analysis. Like Hurrell-Harring, it recognized that plaintiffs’ suit was not alleging ineffective assistance of counsel under Strickland, but rather was asserting a systemic deprivation of the right to counsel promised in Gideon. No. 2:11-cv-1100, 2012 WL 600727, at *2 (W.D. Wash. Feb. 23, 2012). The Wilbur court concluded that plaintiffs had asserted facts that could support a finding “that the assignment of public defenders is little more than a sham,” and that a civil action seeking a systemic remedy was appropriate: “Where official government policies trample rights guaranteed by the Constitution, the courts have not hesitated to use their

- 15 -
equitable powers to correct the underlying policies or systems.” Id. at *2-3. See also Duncan v. State, 774 N.W.2d 89, 127 (Mich. Ct. App. 2009) (concluding that plaintiffs state a valid civil claim where they allege an actual denial of counsel, a constructive denial of counsel, or conflicted counsel)14; Luckey v. Harris, 860 F.2d 1012, 1018 (11th Cir. 1988) (concluding that a civil Sixth Amendment claim was cognizable where plaintiffs asserted, among other things, “systemic delays in the appointment of counsel,” that their attorneys are denied the resources necessary to investigate their cases, and that attorneys are pressured to hurry cases to trial and to enter guilty pleas).15
The Commonwealth Court is the first court we are aware of to have ruled that a claim for constructive denial of counsel is not cognizable at all. The court’s primary justification for that ruling was that “there is no precedent from the United States Supreme Court acknowledging that a constructive denial-of-counsel claim may be brought in a civil case that seeks prospective relief.” Flora v. Luzerne Cnty., 103 A.3d 125, 136 (Pa Commw. Ct. 2014), reargument denied (Dec. 2,
14 As the Commonwealth Court in this case explained, the procedural history of Duncan is complex, but ultimately the Court of Appeals affirmed that plaintiffs had stated a claim in that case. See Flora v. Luzerne Cnty., 103 A.3d 125, 135 n.7 (Pa Commw. Ct. 2014), reargument denied (Dec. 2, 2014).
15 This case was dismissed on remand based on abstention grounds under Younger v. Harris, 401 U.S. 37 (1971). See Luckey v. Miller, 976 F.2d 673, 675 (11th Cir. 1992). But the Eleventh Circuit’s initial opinion remains good law.

- 16 2014). Specifically, the court noted that Strickland, Cronic, and Gideon were cases in which a defendant sought post-conviction relief, not civil actions. But none of those cases suggest, let alone hold, that the Sixth Amendment right to counsel cannot be vindicated through a civil action. The Commonwealth Court failed to articulate any affirmative reason for its conclusion that a civil constructive denial-of-counsel claim is not cognizable.
Rather, the court simply stated that it accepted the analyses of the dissenting judges in Hurrell-Harring and Duncan. Flora, 103 A.3d at 136. But the dissent in Hurrell-Harring expressly avoided espousing an absolute rule that a civil claim for constructive denial of counsel is never cognizable. It concluded instead that “the various claims asserted by plaintiffs [in that case] do not rise to that level.” Hurrell-Harring, 930 N.E.2d at 230 (Pigott, J., dissenting). The dissent in Duncan, meanwhile, lends no relevant authority here as both the majority and dissent in that case viewed the claim through a Strickland lens alone. Thus, the Duncan dissent should be interpreted as concluding (correctly) that a Strickland ineffectiveness-of-counsel claim cannot be brought in a civil action. See Duncan, 774 N.W.2d at 158-166 (Whitbeck, J., dissenting).
And though the Duncan dissent also found that the systemic relief the plaintiffs sought in that case would violate separation-of-powers principles, courts are not powerless to compel action by other branches of government in order to

- 17 remedy a constitutional violation. To the contrary, courts have long recognized the necessity of systemic equitable relief to correct unconstitutional conduct. See, e.g., Brown v. Plata, 563 U.S. 493 (2011); see also Hurrell-Harring, 930 N.E. 2d at 227 (“It is, of course, possible that a remedy in this action would necessitate the appropriation of funds and perhaps, particularly in a time of scarcity, some reordering of legislative priorities. But this does not amount to an argument upon which a court might be relieved of its essential obligation to provide a remedy for violation of a fundamental constitutional right.”).
This Court should reach the same conclusion that the courts in HurrellHarring and Wilbur reached. It should rule that a constructive denial-of-counsel claim based on Gideon is cognizable, and that such a claim is pled adequately where the allegations, if true, support a conclusion that assigned attorneys are attorneys in name only. B. Factors Relevant To A Constructive Denial-Of-Counsel Claim
Courts should consider two related questions in assessing a claim for systemic constructive denial of counsel: (1) whether traditional markers of representation are frequently absent or significantly compromised in plaintiffs’ relationships with their assigned counsel; and (2) whether the absence of traditional markers of representation is caused by assigned attorneys operating under systemic

- 18 structural limitations that prevent the attorneys from offering bona fide assistance of counsel.
Courts assessing a constructive denial-of-counsel claim should consider whether traditional markers of representation are present for clients of the public defender’s office. These include the attorney’s availability to engage in meaningful attorney-client contact to learn from and advise the client, the attorney’s ability to investigate the allegations and the client’s circumstances that may inform strategy, and the attorney’s ability to advocate for the client either through plea negotiation, trial, or post-trial. When these markers of representation are absent, there is a serious question whether the assigned counsel is merely a lawyer in name only. Indeed, “[a]ctual representation assumes a certain basic representational relationship.” Hurrell-Harring, 930 N.E.2d at 224 (emphasis added); see also Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1124 (W.D. Wash. 2013) (finding that, where clients met their attorneys for the first time in court and immediately accepted a plea bargain, without discussing their cases in a confidential setting, the system “amounted to little more than a ‘meet and plead’ system,” and that the resulting lack of representational relationship violated the Sixth Amendment); Public Defender, Eleventh Jud. Cir. of Fla. v. State, 115 So. 3d 261, 278 (Fla. 2013) (finding denial of counsel where attorneys were “mere

- 19 conduits for plea offers,” did not communicate with clients, were unable to investigate the allegations, and were unprepared for trial).
Concerning systemic structural limitations, courts should consider factors such as insufficient funding, insufficient staffing, excessive workloads, lack of training and supervision, and lack of resources. In Wilbur, for example, the court noted the structural limitations – insufficient staffing, excessive caseloads, and almost nonexistent supervision – that resulted in a system “broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.” Wilbur, 989 F. Supp. 2d at 1127. Similarly, the court in Public Defender, 115 So. 3d at 279, held that the public defender’s office could withdraw from representation of indigent defendants because of structural limitations. Insufficient funds and the resultant understaffing and excessive caseloads created a situation where indigent defendants did not receive assistance of counsel as required by the Sixth Amendment. Ibid. Other courts have also concluded that severe structural limitations result in a denial of Sixth Amendment rights. See, e.g., New York Cnty. Lawyers’ Ass’n v. State, 196 Misc. 2d 761, 790 (N.Y. Sup. Ct. 2003) (holding statutory rates for assigned counsel unconstitutional as they resulted in denial of counsel and excessive caseloads, among other issues);

- 20 State v. Young, 172 P.3d 138, 144 (N.M. 2007) (holding that inadequate compensation of defense attorneys deprived capital defendants of their Sixth Amendment right to counsel).
Structural limitations can lead to a situation where even a well-intentioned and competent lawyer is a merely nominal counsel because the lawyer is unable to fulfill the basic obligation of preparing a defense, including conferring with the defendant, investigating the facts of the case, interviewing witnesses, securing discovery, engaging in motions practice, identifying experts when necessary, and subjecting the evidence to adversarial testing. As the Supreme Court of Louisiana stated, “[w]e know from experience that no attorney can prepare for one felony trial per day, especially if he has little or no investigative, paralegal, or clerical assistance.” State v. Peart, 621 So. 2d 780, 789 (La. 1993). C. Civil Constructive Denial-Of-Counsel Claims Provide An Important Tool
For Remedying Serious Violations Of The Constitutional Right To Counsel A civil constructive denial-of-counsel claim is an effective way for litigants to seek to effectuate the promise of Gideon. Post-conviction claims cannot provide systemic structural relief that will help fix the problem of under-funded and underresourced public defenders. The constructive denial-of-counsel claim recognized in Hurrell-Harring and Wilbur provides indigent defendants deprived of their constitutional right to counsel with a meaningful tool for pursuing systemic relief. The Commonwealth Court’s opinion in this case is the only decision the United

- 21 -

States is aware of that concludes that a Gideon-based civil action for constructive

denial of counsel is not viable at all. It erects a roadblock that will impede indigent

defendants’ ability to vindicate their Sixth Amendment right to counsel. This

Court should remove that roadblock and rule that constructive denial-of-counsel

claims are actionable.

CONCLUSION

The judgment of the Commonwealth Court should be reversed.

Respectfully submitted,

LISA FOSTER Director, Office for Access to Justice

VANITA GUPTA Principal Deputy Assistant Attorney General

ANDREW STANNER Senior Counsel Office for Access to Justice Department of Justice 950 Pennsylvania Ave., NW Suite 3340 Washington, DC 20530

s/ Nathaniel S. Pollock TOVAH R. CALDERON NATHANIEL S. POLLOCK Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 514-0333 Counsel for the United States,
Amicus Curiae

CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLANTS complies with Pennsylvania Rule of Appellant Procedure 2135 because it contains 4805 words, excluding the parts of the brief exempted.

Dated: September 10, 2015

s/ Nathaniel S. Pollock NATHANIEL S. POLLOCK Attorney

CERTIFICATE OF SERVICE
I hereby certify that on September 10, 2015, I electronically filed the
foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN
SUPPORT OF APPELLANTS with the Deputy Prothonotary for the Pennsylvania
Supreme Court using the PACFile system.
I further certify that I served two copies of the foregoing BRIEF FOR THE
UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLANTS on
the following counsel by first class mail, which service satisfies the requirements
of Pennsylvania Rule of Appellant Procedure 121.
Kimberly D. Borland Borland & Borland, LLP 69 Public Square, 11th Floor Wilkes Barre, PA 18701 Telephone: (570) 822-3311 Counsel for Appellants
David Rudovsky Kairys, Rudovsky, Messing & Feinberg 718 Arch Street, Suite 501 S Philadelphia, PA 19106 Telephone: (215) 925-4400 Counsel for Appellants
Witold J. Walczak American Civil Liberties Union of Pennsylvania 247 Fort Pitt Blvd., 2nd Floor Pittsburgh, PA 15222 Telephone: (412) 681-7864 Counsel for Appellants

Vernon L. Francis Telephone: (215) 994-2577 Sean Patrick McConnell Telephone: (215) 994-2418 Dechert, LLP 2929 Arch Street Philadelphia, PA 19104 Counsel for Appellants
Mary Catherine Roper Telephone: (215) 592-1513 Martha Meredith Tack-Hooper Telephone: (215) 592-1513 American Civil Liberties Union of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 Counsel for Appelants
I also certify that all counsel of record are registered PACFile users and will
be served by the PACFile system.
s/ Nathaniel S. Pollock NATHANIEL S. POLLOCK Attorney (D.C. Bar No. 1013075) Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 202-514-0333 Counsel for the United States,
Amicus Curiae

 
 IN THE SUPREME COURT OF PENNSYLVANIA

NO. 57 MAP 2015 NO. 58 MAP 2015

ADAM KUREN and STEVEN ALLABAUGH, On behalf of themselves and all others similarly situated,
Appellants,
v.
LUZERNE COUNTY of the Commonwealth of Pennsylvania and ROBERT C. LAWTON, County Manager, in his official capacity,
Appellees.

BRIEF FOR AMICI CURIAE THE INNOCENCE NETWORK AND THEPENNSYLVANIAINNOCENCEPROJECT
IN SUPPORT OF APPELLANTS

On Appeal from the October 14, 2014 Order of the Commonwealth Court at Nos. 2072 C.D. 2013 and 2207 C.D. 2013 (consolidated), Reargument Denied,
December 2, 2014, Mfirming the October 22, 2013 Judgment of the Court of Common Pleas of Luzerne County, No. 04517, April Term, 2012

Marissa Bluestine, Esq. (Pa. Bar. No. 75973) The Innocence Network The Pennsylvania Innocence Project 1515 Market Street, Suite 300 Philadelphia, PA 19102

Terence M. Grogan, Esq. (Pa. Bar No. 307211) Ballard Spahr LLP 1735 Market Street Philadelphia, PA 19103

Attorneys for Amici Curiae

TABLE OF CONTENTS INTEREST OF AMICI CURIAE ............................................................................. 1 STATEMENT OF THE CASE ................................................................................. 3 STATEMENT OF QUESTIONS PRESENTED ...................................................... 3 SUMMARY OF ARGUMENT ................................................................................ 3 ARGUMENT ............................................................................................................ 5
A. Failure To Adequately Fund Indigent Defense Counsel Deprives Defendants Of Constitutionally Effective Representation ...................................................................................... 5
B. Strickland Is Neither Intended Nor Able To Address Claims Of Systemic Ineffective Assistance Of Counsel.. .................................... 12
C. The Pennsylvania PCRA Imposes Additional Hurdles To Review Of Ineffectiveness Claims ..................................................... 15
CONCLUSION ....................................................................................................... 19
1

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Coleman v. Alabama,
399 u.s. 1 (1970) ............................................................................................... 14

Gideon v. Wainwright,
372 u.s. 335 (1963) ····························································································· 3
Hamilton v. Alabama, 368 U.S. 52 (1961) ............................................................................................. 14

Herring v. New York,
422 u.s. 853 (1975) ............................................................................................. 5

Luckey, III v. Harris, 860 F.2d 1012 (7th Cir. 1988)............................................................................ 13

Marshall v. Rodgers, 133 S.Ct. 1446 (2013) ........................................................................................ 11

McMann v. Richardson,
397 u.s. 759 (1970) ........................................................................................... 14

Padilla v. Kentucky,
559 u.s. 356 (2010) ........................................................................................... 14

Strickland v. Washington,
466 u.s. 668 (1984) ..................................................................... 4, 11, 12, 13, 14

OTHER CASES

Commonwealth v. Turner, 80 A. 3d 754, 761 (Pa. 2013) .................................................................. 16, 17, 18

OTHER STATUTES

42 Pa. Cons. Stat. § 9543 ........................................................................................ 16

11

OTHER AUTHORITIES
Liebman, J.S., Fagan, J., West, V., & Lloyd, J. (2000), Capital Attrition: Error Rates In Capital Cases, 1973-1995, 78 Tex. L. Rev. 1839 ....................... 7
Blume, John H. & Helm, Rebecca, K, The Unexonerated: Factually Innocent Defendants Who Plead Guilty, Cornell Faculty Working Papers (2014) ................................................................................................................. 11
Cases, Innocence Project - Eddie Joe Lloyd, available at http://www .innocenceproject.org/cases-false- imprisonment/eddie-joelloyd.................................................................................................................. 8, 9
Farole, Jr., Donald J., and Langton, Lynn, County-Based and Local Public Defender Offices................................................................................................... 9
Gershowitz, Adam, Raise the Proof' A Default Rule for Indigent Defense, 40 Conn. L. Rev. 85, 98 (2007) ................................................................................ 7
Gideon's Broken Promise: America's Continuing Quest for Equal Justice, American Bar Association (2004)........................................................................ 7
Innocence Project, Making Up for Lost time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation ............................ 14, 16, 17, 18
Lefstein, Norman, In Search of Gideon's Promise: Lessons From England and the Need for Federal Help, 55 Hastings L.J. 835, 860 (2004) ..................... 7
State Government Indigent Defense Expenditures, FY 2008-2012, available at http://www.bjs.gov/content/pub/pdf/sgide0812.pdf........................................ 9
Taylor, Kate, System Overload: The Costs of Under-Resourcing Public Defense (2011) ................................................................................................... 10
iii

INTEREST OF AMICI CURIAE The Innocence Network (the "Network") is an association of organizations dedicated to providing pro bono legal and/or investigative services to prisoners for whom evidence discovered post-conviction can provide conclusive proof of innocence. The 70 current members of the Network represent hundreds of prisoners with innocence claims in all 50 states and the District of Columbia, as well as Australia, Canada, France, Ireland, Italy, the Netherlands, New Zealand and Taiwan. The Network and its members are dedicated to improving the accuracy and reliability of the criminal justice system in future cases. Drawing on lessons learned from cases in which the system convicted innocent persons, the Network advocates reforms designed to enhance the truth-seeking functions of the criminal justice system and thereby prevent wrongful convictions. The underfunding of indigent defense precludes indigent defendants from receiving adequate representation throughout criminal proceedings, undermining the adversarial system and, ultimately, preventing indigent criminal defendants from receiving the effective assistance of counsel guaranteed by the United States and Pennsylvania Constitutions. In this case, the Network seeks to present a broad legal and factual perspective on how post-conviction proceedings, which rely on after-the-fact adjudication of individual defendants' claims of ineffective assistance of counsel, fail to properly address the issue of systemic

ineffectiveness of counsel caused by inadequate defense funding. Only by evaluating systemic ineffectiveness claims prospectively may the Court ensure that indigent defendants receive constitutionally adequate representation.
The Pennsylvania Innocence Project is a nonprofit legal clinic and resource center founded in 2008, housed at Temple University's Beasley School of Law, and a member of the Network. Its board of directors and advisory committee include practicing lawyers, law professors, former United States Attorneys, former state court prosecutors, and the deans of the law schools of Temple University, Drexel University, the University of Pennsylvania, and Rutgers-Camden. The Project provides pro bono investigative and legal services to indigent prisoners throughout the Commonwealth of Pennsylvania whose claims of actual innocence are supported by the results of DNA testing or other, powerfully exculpatory evidence or whose claims, after a preliminary investigation, evince a substantial potential for the discovery of such evidence. In addition, the Project works to remedy the underlying causes of wrongful convictions to ensure that no one will be convicted and imprisoned for a crime they did not commit and to lessen the risk that a wrongdoer will escape justice because an innocent person was convicted in their stead. Adequate representation is the most basic necessity for ensuring the innocent are not convicted in error.
2

STATEMENT OF THE CASE Amici curiae adopt and incorporate the Statement of the Cases as presented by Appellants in their Brief to this Court.
STATEMENT OF QUESTIONS PRESENTED Amici curiae adopt and incorporate the Statement of Question Presented as presented by Appellants in their Brief to this Court.
SUMMARY OF ARGUMENT It is, according to the United States Supreme Court, an "obvious truth" that lawyers are "necessities, not luxuries" in our adversarial system of justice. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Yet, throughout the United States, including, according to the Amended Complaint, in Luzerne County, Pennsylvania, the fair and just functioning of our criminal defense system is undermined by the failure of local, county, and state governments to provide indigent defense funding sufficient for defense lawyers to meet even the most basic standards of effective defense counsel. That is, the indigent defense system is so poorly resourced that public defenders who rely on local, county, or state funding are unable to provide Constitutionally effective representation to indigent criminal defendants because of the lack of that funding. Thus, indigent criminal defendants proceed through the criminal process - and face each consequent harm, including excessive bail, unnecessary pre-trial incarceration, and erroneous convictions-
3

without the aid of the counsel promised by the United States and Pennsylvania Constitutions.
However, post-conviction proceedings are incapable of remedying the systemic deprivations of counsel occurring because of chronic inadequate funding for indigent defense. First, post-conviction review pursuant to Strickland v. Washington, 466 U.S. 668 (1984) is neither intended nor able to provide a remedy for harms suffered from inadequate representation during pre-trial and preconviction proceedings, such as wrongful denial of bail or unnecessary pre-trial incarceration, as Strickland focuses solely on whether ineffective assistance of counsel resulted in an unreliable conviction or erroneous sentence. Moreover, under the Pennsylvania Post Conviction Relief Act, a defendant loses the right to raise an ineffective assistance claim once released from custody, thus, wrongfully convicted defendants facing shorter sentences have no recourse whatsoever to vindicate their Constitutional right to counsel.
Second, and more fundamentally, review under Strickland is entirely retrospective and narrowly circumscribed, with the sole question before a reviewing court whether a specific defendant was wrongfully convicted due to the ineffectiveness of his attorney and the sole remedy available being a new trial for that defendant. Such review does not reach the systemic failure to provide indigent defendants as a class with effective counsel and does nothing whatsoever to ensure
4

indigent defendants receive adequate representation from the outset of a criminal prosecution. The prospective relief sought in the Amended Complaint is the only way to address the continued and system-wide Constitutional injuries sustained by indigent criminal defendants.
ARGUMENT A. Failure To Adequately Fund Indigent Defense Counsel Deprives
Defendants Of Constitutionally Effective Representation The most fundamental principle of the American criminal justice system is that truth is best achieved (and innocents thereby protected) through an adversarial process - partisan advocates exploring and testing facts and evidence before a neutral arbiter - and the concomitant right to counsel is enshrined in the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. Indeed, the United States Supreme Court has explained that "[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." Herring v. New York, 422 U.S. 853, 862 (1975). However, the goal of truth in our adversarial system is thwarted by the simple fact that adequate legal representation cannot be rendered unless indigent defense systems are adequately funded. For instance, the ABA has also set forth its Ten Principles of a Public Defense Delivery System, which include: (1)
5

independence of the defense function; (2) a caseload management system; (3)
prompt screening for and assignment to indigent defense counsel; (4) adequate
time and space for counsel to meet with defendants; (5) workload controls to
ensure adequate representation; (6) training and experience requirements for
attorneys; (7) continuous representation throughout a defendant's case; (8)
resource parity between the defense and prosecution functions; (9) continuing legal
education for defense counsel; and (10) supervision and review of defense
counsel's performance. (See Standing Comm. on Legal Aid & Indigent
Defendants, ABA, The Ten Principles of a Public Defense Delivery System.)1 But,
the ability of indigent defense systems to meet these standards is dependent on
state, county, and local governments providing indigent defenders proper
resources. Without adequate funding, the indigent defense system is left unable to
meet any of the standards set forth for adequate public defense, and is instead
marked by severely excessive caseloads; inexperienced lawyers; lack of attorney
Appellants allege conditions at the Luzerne County Office of the Public Defender ("OPD") that would fail to meet each of these standards. According to the Amended Complaint, "[t]he OPD has an insufficient amount of clerical staff," (Am. Compl. <][ 96), "[t]he OPD lacks appropriate scheduling software to keep track of important case deadlines and provide reminders," (Am. Compl. <][ 97); "[t]he OPD lacks an appropriate computerized data or case management system to track cases and provide meaningful breakdowns of attorney caseloads," (Am. Compl. <][ 98); "[m]any attorneys do not have their own desks or workspaces," (Am. Compl. § 99); the OPD is "unable to provide consistent, ongoing supervision of the attorneys," (Am. Compl. <][ 101); "[t]he Adult Unit does not have any performance standards or guidelines for its attorneys," (Am. Compl. <][ 102). If true, these allegations would establish that the OPD is incapable to providing representation that meets applicable professional standards.
6

contact with defendants; lack of investigation; and lack of zealous advocacy. See generally Gideon's Broken Promise: America's Continuing Quest for Equal Justice, American Bar Association (2004).
Predictably, the failure to receive adequate representation is the biggest contributing factor to erroneous convictions. See, e.g., Liebman, J.S., Fagan, J., West, V., & Lloyd, J. (2000), Capital Attrition: Error Rates In Capital Cases, 1973-1995, 78 Tex. L. Rev. 1839. Amicus Innocence Network members have collectively represented hundreds of innocent clients convicted of crimes they did not commit where inadequate trial counsel was a contributing factor to the wrongful conviction. For example, in 2007, DNA evidence exonerated Jimmy Rae Bromgard who, by that point, had served over fifteen years in prison for child rape. See Gershowitz, Adam, Raise the Proof" A Default Rule for Indigent Defense, 40 Conn. L. Rev. 85, 98 (2007). At trial, his appointed counsel had performed no investigation, made no pre-trial motions, gave no opening statement, made no attempt to exclude an equivocal eyewitness identification, presented no expert testimony, gave no closing statement and filed no appeal. ld. Bromgard's attorney failed to provide any defense whatsoever because he was performing under a flatfee contract with the state that paid him the same amount regardless of the number of hours he worked on the case. See Lefstein, Norman, In Search of Gideon's
7

Promise: Lessons From England and the Need for Federal Help, 55 Hastings L.J. 835, 860 (2004).
Similarly, Eddie Joe Lloyd served 17 years in Michigan prison for murder and rape before being exonerated of both crimes through DNA evidence in 2002. Lloyd was initially charged with the offenses when, while hospitalized for his mental illness, he had written to police with "tips" for solving various outstanding murders. (See Cases, Innocence Project- Eddie Joe Lloyd, available at http://www.innocenceproject.org/cases-false-imprisonment/eddie-joe-lloyd.) Police interrogated Lloyd in the hospital, leading him to believe that if he confessed and allowed himself to be arrested, he would help police "smoke out" the real perpetrator. Id. Lloyd was originally represented by a court appointed attorney who received $150.00 for pre-trial preparation and investigation and who, in tum, gave $50 dollars to a convicted felon who conducted no investigation into Lloyd's mental illness or coerced confession. ld. Lloyd's counsel withdrew eight days prior to trial and replaced with a second court appointed lawyer who did not meet with prior counsel, did not question the details of the investigation, did not cross-examine the involved police officers, called no defense witnesses and gave a five minute closing statement. Id. A separate attorney appointed to file Lloyd's direct appeal did not visit Lloyd in prison at all or raise an ineffective assistance of counsel claim. ld. Instead, after Lloyd wrote to the court saying his appellate
8

assistance was lacking, his appointed counsel responded that Lloyd "was guilty and should die." Id.
Critically, though, erroneous convictions are not the lone consequence facing an inadequately represented criminal defendant. Lack of adequate funding for indigent defense programs precludes those programs from hiring a sufficient number of attorneys to meet the demand on them. Consequently, each public defender bears excessively high caseloads. While national standards recommend that public defenders handle no more than 150 felony, 400 misdemeanor, 200 juvenile, 200 mental health, or 25 appeals per year, a recent census of public defense offices conducted by the Department of Justice found that 73 percent of county-based public defenders lacked enough attorneys to meet these caseload standards, and 23 percent of responding offices had less than half of the necessary attorneys to meet caseload standards.2 Parole, Jr., Donald J., and Langton, Lynn, County-Based and Local Public Defender Offices, 2007? This excessive caseload has severe pretrial consequences for indigent defendants. Public defenders lack the

2

The Amended Complaint contains allegations that, if proven true, would grossly exceed

nationwide standards. According to the Amended Complaint, an attorney with the OPD

receives 331 new cases each year. (Am. Compl. Cj[ 89.) In addition to cases carrying over

from a prior year, each attorney handles, on average, 436 cases per year. (Id.)

3

It's important to note that this survey was conducted prior to the recession, which began

in 2008. More recent analysis by the Department of Justice has shown that state funding

for indigent defense programs has decreased since 2008. See State Government Indigent

Defense Expenditures, FY 2008-2012, available at

http://www .bjs.gov/content/pub/pdf/sgide0812.pdf.

9

time to meet with their clients or conduct timely bail hearings. See Taylor, Kate, System Overload: The Costs of Under-Resourcing Public Defense (2011). For example, a study conducted in Louisiana found that public defenders who represented 85 percent of the inmates in a particular parish made 31 pretrial jailhouse visits, while private attorneys who represented 15 percent of the inmates made 236 pretrial jailhouse visits during the same period. See Gershowitz, supra, at 94. Accordingly, indigent defendants can be subject to excessive pretrial incarceration - and the attendant social consequences, including job loss, loss of residence, and family and community destabilization - for the simple reason that their appointed attorney does not have the time to see to their release. See Parole, et al., supra.
Moreover, over-burdened defense attorneys are heavily incentivized to negotiate guilty pleas quickly, and without the benefit of having conducted any investigation into their clients' innocence, in order to reduce their caseloads. At the same time, indigent defendants who are receiving little to no pretrial representation are themselves motivated to plead guilty to crimes they did not commit fearing that refusing to do so could result in greater delays in reaching trial - and therefore lengthier pretrial incarceration - and harsher sentences upon conviction, which, as noted, is substantially more probable notwithstanding a defendant's innocence because of the ineffectiveness of their appointed defense
10

attorney during the pretrial investigatory phase and at trial. See Taylor, supra, at 20. Indeed, as a practical matter, plea bargaining is little more than a cost-benefit analysis for an innocent defendant - plead guilty to a lesser charge that may lead to release from prison or seek trial to prove their innocence at risk of facing maximum sentencing for a crime they did not commit. And, this practical reality is easily leveraged by prosecutors who will offer the greater incentives to plead guilty where the evidence of the defendant's guilt -presumably lacking in the case of an innocent defendant- is weakest. See Blume, John H. & Helm, Rebecca, K, The Unexonerated: Factually Innocent Defendants Who Plead Guilty, Cornell Faculty Working Papers, 17 (2014).
The Supreme Court has stated that "[i]t is beyond dispute that '"[t]he Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process,'" Marshall v. Rodgers, 133 S.Ct. 1446, 1449 (2013) (quoting Iowa v. Tovar, 541 U.S. 77, 80-81 (2004)), and that the counsel to which all criminal defendants are entitled must be effective to be Constitutionally adequate, Strickland v. Washington, 466 U.S. 668, 687-88 (1984). However, it is equally beyond dispute that the indigent defense system, without additional funding, cannot meet these standards. Thus, system-wide, indigent criminal defendants are deprived of their Constitutional right to effective counsel.
11

B. Strickland Is Neither Intended Nor Able To Address Claims Of Systemic Ineffective Assistance Of Counsel The Court in Strickland explicitly declined to set forth or endorse
minimum standards for representation adequate to satisfy the Sixth Amendment. Instead, the sole question Strickland decided was considering - "the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel." 466 U.S. at 684. The Court thus held that, in order to overturn a conviction based on the ineffective assistance of counsel, a prisoner must show (1) that the performance of his counsel was deficient, i.e., that he "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) that the deficient performance by his counsel prejudiced his defense, i.e., "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
The Strickland test is necessarily retrospective - evaluating a claim only after a conviction (one, but far from the only, possible consequence of ineffective assistance of counsel) has occurred- and narrowly focused on a single prisoner and his claim. Indeed, the only relief granted in a successful ineffectiveness claim under Strickland is a new trial or new sentencing for the effected prisoner. However, relegating all forms of claims of ineffectiveness to the post-conviction context ignores the myriad ways a defendant's Sixth Amendment
12

rights are violated throughout a criminal prosecution. For this reason, Courts have
held that Strickland is simply not an appropriate test for evaluating systemic
ineffectiveness claims and for achieving prospective relief, i.e., the provision of
Constitutionally adequate counsel for indigent defendants. As the Seventh Circuit
has stated:
This standard is inappropriate for a civil suit seeking prospective relief. The sixth amendment protects rights that do not affect the outcome of trial. Thus, deficiencies that do not meet the "ineffectiveness" standard may nonetheless violate a defendant's rights under the sixth amendment. In the post-trial context, such errors may be deemed harmless because they did not affect the outcome of trial. Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief- whether the defendant is entitled to have his or her conviction overturned - rather than to the question of whether such a right exists and can be protected prospectively. Luckey, III v. Harris, 860 F.2d 1012, 1017 (7th Cir. 1988).
As noted, indigent defendants suffer severe harm from the outset of a
criminal prosecution due to their lack of adequate representation that review
pursuant to Strickland cannot reach. For instance, post-conviction review provides
no remedy for defendants who experienced prolonged pretrial detention due to
defense counsel's excessive caseload. These defendants are deprived a remedy for
a Constitutional violation that results in severe and long-lasting personal and
societal injuries, notwithstanding the Supreme Court's acknowledgement of the
right to effective assistance of counsel during preliminary hearings, arraignments,
13

and during plea negotiations. See Hamilton v. Alabama, 368 U.S. 52, 54 (1961); Coleman v. Alabama, 399 U.S. 1, 7 (1970); McMann v. Richardson, 397 U.S. 759, 774 (1970); Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010).
More fundamentally, Strickland does nothing whatsoever to ensure indigent defendants receive the benefit of their Sixth Amendment right to effective counsel. For instance, a successful individual defendant raising a post-conviction ineffectiveness claim nevertheless must experience lengthy incarceration through years of court proceedings and the resulting personal damage, including, but not limited to, loss of family, residence, and employment, just to reach a point where a Court will order the appointment of competent counsel for a new trial. See, e.g., The Innocence Project, Making Up for Lost time: What the Wrongfully Convicted Endure and How to Provide Fair Compensation, 7-11 (discussing the psychological, physical, and financial obstacles that exonerated defendants face). Finally, even if an individual defendant may ultimately overcome the injustices born from inadequate representation, the deficient indigent defense system that led to those injustices is left untouched, exposing all other indigent defendants to the same dire consequences of being denied the right to effective counsel in their criminal proceedings.
14

Only the prospective relief sought in the Amended Complaint can remedy the many Constitutional violations borne by indigent criminal defendants due to the inadequate funding of the indigent defense system.
C. The Pennsylvania PCRA Imposes Additional Hurdles To Review Of Ineffectiveness Claims It is a fact of the criminal justice system that individuals may be held
accountable for crimes they did not commit. See, e.g., the National Registry of Exoneration, Exonerations in 2014 (Jan. 27, 2015) (noting that the National Registry of Exonerations has recorded 125 exonerations in 2014). Whether an innocent person pleads guilty to a lesser offense carrying a lesser sentence to avoid the risk of conviction on greater charges or an individual is erroneously convicted of an offense carrying a shorter sentence, where those results are caused by ineffective representation, a Sixth Amendment violation has occurred. However, notwithstanding clear constitutional violations, in Pennsylvania if an erroneously convicted individual is no longer in custody by the time a post-conviction proceeding has been adjudicated, that person is barred from vindicating their rights under the Pennsylvania Post-Conviction Relief Act ("PCRA").
To be eligible for relief under the PCRA, a defendant: Must plead and prove by a preponderance of the evidence all of the following:
15

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted: (i) currently serving a sentence of imprisonment, probation or parole for the crime ... (2) That the conviction or sentence resulted from one or more of the following:
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa. Cons. Stat. § 9543. In Commonwealth v. Turner, the defendant filed a PCRA petition seeking to overturn her conviction for conspiracy to deliver a controlled substance on the grounds that her trial counsel was ineffective for failing to investigate exculpatory evidence and call character witnesses. 19 Pa. D. & C. 5th 129, 130 (Phila. Ct. Comm. Pl. 2010). During the pendency of her petition, the defendant completed her probation sentence. Id. at 131. Nevertheless, arguing that her Constitutional right to counsel had been denied her, defendant sought an evidentiary hearing to determine whether her counsel was Constitutionally ineffective. Id. at 135. Arguing that defendant's PCRA petition was mooted upon defendant's completion of her probation sentence, the Commonwealth argued for dismissal of the petition. Noting that defendant "has a strong interest in
16

overturning her felony conviction so that she can cure her civil disabilities, clear her reputation, and restore her ability to work at jobs from which she would be disqualified by a felony conviction" the court held that strictly following the terms of the PCRA would "not comport with fundamental fairness," noting that "[i]t is illogical to bar defendants serving short sentences from obtaining relief and confer unequal and, ironically, more substantive procedural protection to convicted defendants serving longer sentences." ld. at 140. Accordingly, the court held that defendant was "entitled to relief because she has a Sixth Amendment right to effective assistance of counsel and Pennsylvania is not giving her an opportunity to be heard." ld.
On the Commonwealth's appeal, this Court reversed the PCRA court's decision. Though noting that "[t]he Sixth and Fourteenth Amendments to the United States Constitution entitle a defendant to the effective assistance of counsel," Commonwealth v. Turner, 80 A.3d 754, 761 (Pa. 2013), the Court held that "[because] individuals who are not serving a state sentence have no liberty interest in and therefore no due process right to collateral review of that sentence, the statutory limitation of collateral review to individuals serving a sentence of imprisonment, probation, or parole is consistent with the due process prerequisite of a protected liberty interest." Id. at 766. The Court went on, "[o]f course, the legislature was free to extend a statutory right of collateral review to individuals
17

like Petitioner who had completed their sentence and, had they done so, they would be constitutionally obligated to ensure that those rights were impacted only in accord with due process.... However, the legislature did not do so." Id.
Under Turner, inadequately represented innocents who, through plea or trial, are convicted of a crime they did not commit, but who have served their sentences, are procedurally precluded from vindicating their Constitutional rights. However, by asserting an absolute bar to post-conviction relief for such defendants, the Turner decision highlights the fundamental need for allowing prospective claims of systemic ineffective assistance of counsel to go forward. As the Turner case demonstrates, inadequately represented criminal defendants face dire consequences, even if those consequences do not include lengthy terms of incarceration or probation. But, regardless of the length of a defendants' sentence, in a case involving ineffective assistance of counsel, it is still the product of a Constitutional violation. Only by permitting appellants' claim for prospective relief to go forward can this Court ensure that indigent defendants receive constitutionally adequate representation and that no Sixth Amendment violations may evade review.
18

CONCLUSION Accordingly, for the reasons set forth above, Amici request that this Court permit Appellants' cause of action to proceed.
Respectfully Submitted,
Teren e M. Grugan, Esq. BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 (215) 864-8320 Marissa B. Bluestine, Esq. The Innocence Network The Pennsylvania Innocence Project 1515 Market Street, Suite 300 Philadelphia, PA 19102 (215) 204-3818 Counsel for Amici the Innocence Network and Pennsylvania Innocence Project
19

 
 In the Supreme Court of Pennsylvania
MIDDLE DISTRICT ____________________________
No. 57 MAP 2015 and No. 58 MAP 2015 (consolidated)
____________________________
ADAM KUREN AND STEVEN ALLABAUGH,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
Plaintiffs-Appellants,
v.
LUZERNE COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA AND ROBERT C. LAWTON, COUNTY MANAGER, IN HIS OFFICIAL CAPACITY,
Defendants-Appellees. ________________________________________
Request for Review of October 14, 2014 Order of the Commonwealth Court at Nos. 2072 C.D. 2013 and 2207 C.D. 2013 (consolidated), Reargument Denied, December 2, 2014, Affirming the October, 22, 2013 Judgment of the Court of
Common Pleas of Luzerne County, No. 04517, April Term, 2012 _________________________________________
BRIEF AMICUS CURIAE OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AND THE
PENNSYLVANIA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF APPELLANTS
_________________________________________

Philip Gelso (I.D. No. 81934) LAW OFFICES OF PHILIP GELSO 63 Pierce Street Kingston, PA 18704 (570) 763-0006
President, PACDL Of Counsel
Peter Goldberger (I.D. No. 22364) 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200
Amicus Committee, NACDL Of Counsel

Paul H. Titus (I.D. No. 1399) Arleigh P. Helfer III (I.D. No. 84427) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000
Attorneys for Amici Curiae

TABLE OF CONTENTS Page
INTERESTS OF AMICI CURIAE .......................................................................................1 INCORPORATION OF OPENING SECTIONS OF BRIEF ......................................................7 SUMMARY OF ARGUMENT...........................................................................................7 ARGUMENT .................................................................................................................8 I. APPELLANTS HAVE STATED A CLAIM FOR CONSTRUCTIVE DENIAL OF
COUNSEL BECAUSE THE ALLEGATIONS OF THE AMENDED COMPLAINT DEMONSTRATE THAT THERE ARE SYSTEMIC DEFICIENCIES IN THE LUZERNE COUNTY OFFICE OF THE PUBLIC DEFENDER THAT CREATE AN IMMINENT AND UNACCEPTABLE RISK THAT APPELLANTS’ RIGHT TO COUNSEL WILL BE VIOLATED IN WAYS THAT CANNOT BE CURED BY POST-CONVICTION REVIEW ..............................................................................9 A. The Amended Complaint Describes Systemic Violations of Kuran’s
and Allabaugh’s Right to Counsel Under the United States and Pennsylvania Constitutions ........................................................................9 B. Violations of the Right to Effective Assistance of Counsel at Critical Stages of the Adversarial Process Prior to Trial Cannot Be Remedied by Post-Conviction Review, Making Prospective Injunctive Relief Appropriate ...............................................................................................16 II. THE PROBLEMS CONFRONTING INDIGENT DEFENSE SERVICES ARE SYSTEMIC AND EXTEND THROUGHOUT THE COMMONWEALTH AND THE NATION ........................................................................................................... 23 CONCLUSION .............................................................................................................30 CERTIFICATIONS
i

TABLE OF AUTHORITIES Cases

Page

Blakely v. Washington, 542 U.S. 296 (2004).............................................................3

Coleman v. Alabama, 399 U.S. 1 (1970) .................................................................15

DeWolfe v. Richmond, 76 A.3d 962 (Md. 2012) .......................................................3

Duncan v. Michigan, 774 N.W.2d 89 (Mich. Ct. App. 2009), aff’d on other grounds, 780 N.W.2d 843 (Mich. 2010) ............................................................20

Estelle v. Smith, 451 U.S. 454 (1981)......................................................................15

Gideon v. Wainwright, 372 U.S. 335 (1963) ...........................................................29

Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010)...............................3, 20

Kennedy v. Louisiana, 554 U.S. 407 (2008)..............................................................3

Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988)...................................................20

Rothgery v. Gillespie Cnty., 554 U.S. 191 (2008) ...............................................3, 14

United States v. Cronic, 466 U.S. 648 (1984) ...................................................21, 23

United States v. Wade, 388 U.S. 218 (1967) ...........................................................15

Strickland v. Washington, 466 U.S. 668 (1984) ..................................7, 8, 19, 21, 22

White v. Maryland, 373 U.S. 59 (1963)...................................................................15

Constitutional Provisions and Statutes
UNITED STATES CONSTITUTION Sixth Amendment .................................................................................................8

ii

CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA Article I, Section 9 ................................................................................................8
Other Authorities Commonwealth of Pa. Joint State Gov’t Comm’n Task Force and Advisory
Comm. on Servs. to Indigent Criminal Defendants, A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania (December 2011) ............................................................................... 12-13, 24-26 Douglas L. Colbert, et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 CARDOZO L. REV. 1719 (May 2002)..........................................................................................................17 National Association of Criminal Defense Lawyers, Gideon at 50 Part I – Rationing Justice: The Underfunding of Assigned Counsel Systems (March 2013) ................................................................................................ 16-17 National Right to Counsel Comm., The Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (April 2009) .................................................................................................. 27-29 The Spangenberg Group, A Review of the Allegheny County (Pennsylvania) Public Defender Office (November 1995).................................................... 26-27
iii

INTERESTS OF AMICI CURIAE
Amici share a heritage of advancing their missions to ensure the fair
administration of justice and to advocate for the constitutionally guaranteed right to
counsel for indigent persons charged with crimes. These missions recognize that the
right to counsel at each critical stage of the adversary process, not just at trial, is
fundamental to the administration of justice and fairness in the Commonwealth. For
these reasons, and to secure the integrity of the criminal justice system, amici urge this
Court to reverse the Commonwealth Court’s ruling barring Appellants Kuren’s and
Allabaugh’s claims for prospective relief.
Indeed, it is the fundamental professional duty of all attorneys to ensure that the
right to counsel is fully protected:
A lawyer is . . . an officer of the legal system and a public citizen having special responsibility for the quality of justice . . . . A lawyer should be mindful of the deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives . . . .

Model Rules of Professional Conduct Preamble: A Lawyer’s Responsibilities (emphasis added).1 Amici provide further information about each of their organizations’ missions below.
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS The National Association of Criminal Defense Lawyers (“NACDL”) is a notfor-profit professional organization that represents the nation’s criminal defense attorneys. NACDL is the preeminent organization advancing the institutional mission of the nation’s criminal defense bar to ensure to proper and fair administration of justice, and justice and due process for all persons accused of crime. Founded in 1958, NACDL has a membership of thousands of direct members (including nearly 350 in Pennsylvania) and an additional 40,000 affiliate members in all fifty states and twenty-eight nations. Its members include private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges committed to preserving fairness and promoting a rational and humane criminal justice system. The American Bar Association recognizes NACDL as an affiliate organization and accords it representation in the House of Delegates.
1 See also ABA Criminal Justice Section Standards: Defense Section, Standard 4-12(d) (“Defense counsel should seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to defense counsel’s attention, he or she should stimulate efforts for remedial action.”).
2

In furtherance of its mission to safeguard the rights of the accused and to champion fundamental constitutional rights, NACDL frequently appears as amicus curiae before the United States Supreme Court, the federal courts of appeal, and the highest courts of numerous states. In recent years, NACDL’s briefs have been cited on numerous occasions by the Supreme Court in some of its most important criminal law decisions. See, e.g., Kennedy v. Louisiana, 554 U.S. 407 (2008); Rothgery v. Gillespie Cnty., 554 U.S. 191 (2008); Blakely v. Washington, 542 U.S. 296 (2004). NACDL also filed amicus briefs in landmark state cases involving indigent defense issues, including in New York in Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010), and in Maryland in DeWolfe v. Richmond, 76 A.3d 962 (Md. 2012). NACDL has a specific and demonstrated interest in ensuring that accused persons have access to qualified counsel at every stage of a criminal proceeding. NACDL recently supported this principle in Rothgery v. Gillespie County, where NACDL successfully urged the Supreme Court to find that the right to counsel unequivocally attaches at arraignment, the first formal proceeding at which an individual is accused.
NACDL, informed by the experience of its membership, is uniquely well positioned to inform this Court of the consequences that are visited upon criminal defendants when they are subjected to representation by overburdened and underresourced counsel, and to explain why post-conviction remedies are inadequate to redress this deficiency.
3

Furthermore, NACDL commits significant resources to ensuring that indigent accused persons have access to meaningful and effective representation. NACDL maintains a full-time Indigent Defense Counsel whose sole responsibility is to support indigent defense reform efforts throughout the country. Pursuant to a grant from the Justice Department’s Bureau of Justice Assistance (“BJA”), NACDL along with the American Bar Association Standing Committee on Legal Aid and Indigent Defendants (“SCLAID”), serving as a consultant, is currently involved in two workload studies with the goal of improving excessive workloads through the use of evidence-based data to make public defender organizations more efficient, reliable, and most importantly, capable of providing effective assistance of counsel.
The Association is currently pursuing training and reform initiatives in at least half a dozen states. In addition, NACDL devotes considerable resources to providing back-up support to both public defenders and private counsel who handle assigned cases, and funds a full time Resource Counsel to perform that function. NACDL also sponsors scholarships to provide access to training programs for those engaged in public defense. The Association recognizes that a system of criminal justice that provides inferior justice to those whose poverty prevents them from hiring private counsel is inconsistent with fundamental American values, including, most significantly, the right to counsel as guaranteed by the Sixth and Fourteenth Amendments and the constitutions of the states.
4

NACDL has long conducted and sponsored pioneering investigations, research, and reporting on indigent defense issues. In recent years, NACDL has published groundbreaking reports chronicling the deficiencies in indigent defense, including: Three Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts; Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts; Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System; National Indigent Defense Reform: The Solution Is Multifaceted; Gideon at 50 Part I – Rationing Justice: The Underfunding of Assigned Counsel Systems; and Gideon at 50 Part II – Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel.2
Accordingly, NACDL brings a perspective that can inform the Court’s consideration of the issues in this case and has a direct interest in seeing that the indigent accused have a vehicle to redress systemically deficient representation.
PENNSYLVANIA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
The Pennsylvania Association of Criminal Defense Lawyers (“PACDL”) is a professional association of attorneys admitted to practice before the Supreme Court of Pennsylvania and who are actively engaged in providing criminal defense representation. Founded in 1988, PACDL is the recognized affiliate of NACDL in
2 For copies of these and other NACDL reports, visit www.nacdl.org/reports. 5

Pennsylvania. As amicus curiae, PACDL presents the perspective of experienced criminal defense attorneys who aim to protect and ensure by rule of law those individual rights guaranteed by the Pennsylvania and United States Constitutions, and who work to achieve justice and dignity for defendants. PACDL’s membership includes more than 850 private criminal defense practitioners and public defenders throughout the Commonwealth.
PACDL members have a direct interest in the outcome of this appeal because of their concerns for ensuring that criminal defendants’ constitutional rights are not abridged and that established precedent protecting those rights is given all due consideration. PACDL cooperates closely with the Pennsylvania Public Defender Association, including coordination of the two associations’ annual meetings and educational programs. Like the members of NACDL, the members of PACDL have significant experience representing those accused of serious crimes and are aware of the consequences to criminal defendants who are represented by overburdened and under-resourced counsel. Accordingly, PACDL is in a position to inform the Court’s consideration of the issues in this case, including why post-conviction remedies and case-by-case adjudication are inadequate to redress the systemic problems affecting those accused of serious crimes in Luzerne County.
6

INCORPORATION OF OPENING SECTIONS OF BRIEF The NACDL and PACDL (collectively, the “amici”) incorporate Appellants Kuren’s and Allabaugh’s Statement of Jurisdiction, Order in Question, Statement of Scope and Standard of Review, Statement of Questions Involved, and Statement of the Case.
SUMMARY OF ARGUMENT The Commonwealth Court’s decision should be reversed. The decision incorrectly holds—against the weight of developing authority—that only postconviction remedies are available to address the systematic denial of fundamental constitutional rights to those accused of serious crimes. This Court should reverse the Commonwealth’s Court’s erroneous ruling because the post-conviction legal remedy available to enforce Strickland v. Washington, 466 U.S. 668 (1984), is wholly inadequate to redress harms suffered by those accused of crimes—both serious and less so—who cannot obtain effective assistance of counsel prior to conviction, let alone prior to trial. The occasional failings of particular lawyers in particular cases do not define the crisis in indigent defense more than fifty years after Gideon. The problems are systemic and demand systemic solutions. Where a public defender’s office cannot provide even minimally effective representation in most of its cases because of onerously excessive caseloads and a crippling lack of resources—the precise situation in Luzerne County alleged in the Amended Complaint—prospective
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relief is the only way to prevent the accused, as a class and not merely as individuals, from suffering irremediable harm at critical stages of the adversary criminal justice process prior to trial.
ARGUMENT In affirming the trial court’s dismissal of the Amended Complaint, the Commonwealth Court refused to recognize a constructive denial of counsel claim, ruling that the only remedy available to those who receive deficient representation is a post-conviction claim under Strickland v. Washington, 466 U.S. 668 (1984). (See Oct. 14, 2014 Opinion (“Op.”) at 18.) In doing so, the Commonwealth Court went against the weight of developing authority on a matter of first impression implicating substantial public interests in the fair administration of justice. Worse, the effect of the Commonwealth Court’s ruling denies any avenue of prospective relief to those whose constitutional right to counsel—guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Constitution of the Commonwealth of Pennsylvania—is directly threatened as a consequence of the government’s systemic shortcomings in funding and staffing a public defender’s office. Because case-by-case post-conviction relief is wholly inadequate to redress the various injuries that an accused may suffer from the systematic denial of adequate indigent defense services throughout our Commonwealth (and, indeed, our nation), the Court should recognize the necessity of permitting litigants to invoke the courts’
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equitable powers to issue prospective relief where nearly all of the poor who are
accused of crimes have access to legal assistance only through a system that is
structurally incapable of ensuring their constitutional rights.
I. APPELLANTS HAVE STATED A CLAIM FOR CONSTRUCTIVE DENIAL OF COUNSEL BECAUSE THE ALLEGATIONS OF THE AMENDED COMPLAINT DEMONSTRATE THAT THERE ARE SYSTEMIC DEFICIENCIES IN THE LUZERNE COUNTY OFFICE OF THE PUBLIC DEFENDER THAT CREATE AN IMMINENT AND UNACCEPTABLE RISK THAT APPELLANTS’ RIGHT TO COUNSEL WILL BE VIOLATED IN WAYS THAT CANNOT BE CURED BY POST-CONVICTION REVIEW The deficiencies in the Luzerne County Office of the Public Defender (“OPD”)
described in the Amended Complaint constitute violations of Appellants Kuran’s and
Allabaugh’s right to counsel under the United States and Pennsylvania constitutions.
The injuries with which they are imminently threatened cannot be remedied by post-
conviction review pursuant to Strickland. In light of the imminent threat and the
irreparable nature of the constitutional injuries they and others may suffer as a
consequence of the systemic problems at the OPD, Kuran and Allabaugh should be
permitted to proceed with a claim for prospective relief to protect their right to
counsel.
A. The Amended Complaint Describes Systemic Violations of Kuran’s and Allabaugh’s Right to Counsel Under the United States and Pennsylvania Constitutions
The Amended Complaint alleges that the OPD is subject to routine
underfunding from Luzerne County that prevents it from fulfilling the government’s
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obligation to provide constitutionally adequate representation to all of its clients. (Am. Compl. ¶¶ 23, 28.) Among other things, the lack of funding causes the OPD to suffer from caseloads for its attorneys that far exceed national maximum caseload standards, a lack of adequate clerical staff, a lack of adequate computers and information technology, and inadequate physical facilities that are overcrowded and not suitable for client conferences or maintaining client confidentiality. (See id. ¶ 29.)
These deficiencies have significant deleterious effects on the OPD, which is unable to engage in many of the most basic functions of representation in any meaningful way. (Am. Compl. ¶ 45.) For example, the seriously overburdened attorneys in the OPD are prevented from meeting and conferring with clients in any meaningful way prior to critical stages in their legal proceedings, prevented from conducting reviews of client files, prevented from conducting discovery or engaging in motion practice, prevented from conducting factual investigations, and prevented from conducting necessary preparation for hearings, trials, and appeals. (See id.) Thus, because of the systemic deficiencies affecting it, the OPD is incapable of providing even minimally adequate representation to the majority of its indigent defendant clients.
This inability on the part of the OPD to meet the state’s obligations to provide effective assistance of counsel is not merely speculative. The OPD is incapable of meeting the fundamental requirements of adequate legal representation as defined by
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national standards, the Rules of Professional Responsibility, and as required by the Sixth Amendment and Article I, Section 9 of the Pennsylvania Constitution. The systemic problems affecting the OPD prevent its attorneys from satisfying basic standards such as having knowledge of the relevant areas of the law, being present at every critical stage of their clients’ proceedings, conducting reasonable factual and legal investigations into the charges against their clients, and consulting with their clients to discover relevant information about the case to permit them to inform clients of their rights and enable their clients to make informed decisions about their defense. (Am. Compl. ¶¶ 48-70.)
The Amended Complaint further establishes that OPD attorneys are tasked with workloads that far exceed the maximum caseload standards established by the American Bar Association. (Am. Compl. ¶¶ 75-84.) And beyond that, the OPD lacks support staff, having no social workers, paralegals, or trial assistants to help attorneys prepare cases or manage workload. (See id. ¶ 85.) These crippling effects of these institutional deficiencies and excessive caseloads are clear and prevent OPD from meeting recognized standards for adequate representation, such as those set forth in the National Legal Aid & Defender Association Performance Guidelines. (See id. ¶¶ 92, 93.)
The problems facing the OPD fall within a larger pattern of problems facing representation of indigent defendants in this Commonwealth and throughout our
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nation. Numerous studies have shown that overworked and under-resourced public defenders are powerless to overcome the structural problems that impair defense attorneys’ ability to render effective assistance to their indigent clients. By way of example, the Pennsylvania Task Force and Advisory Committee on Services to Indigent Criminal Defendants3 issued a report in 2011 that noted that many public defender offices “across Pennsylvania have caseloads high enough that even experienced defense lawyers would have difficulty in providing an adequate and ethically compliant defense for all clients. . . . These staggering caseloads create numerous difficulties for counsel, which can lead to inadequate representation of some clients.” A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania (December 2011) (the “Task Force Report”)4 at 74. Among the problems that excessive caseloads cause, the report identified poor attorney-client contact, with attorneys unable “to meet personally with their clients to receive and communicate vital information.” Id. In addition, the report observed that excessive caseloads lead to “[i]nadequate preparation, as attorneys . . . fail to conduct interviews or investigations, file no motions or file the same boilerplate motions in every case, fail to act in a timely manner on important information, fail to pursue issues, or ‘cut
3 The Task Force operated under the Pennsylvania General Assembly’s Joint State Government Commission. 4 A copy of the Task Force Report is available on the Internet at http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2011-265Indigent%20Defense.pdf (last visited September 8, 2015).
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corners’ in their work.” Id. The report identified Luzerne County as one in which the
number of public defense attorneys was insufficient to provide adequate
representation. See id. at 75-76.
The Task Force’s observations are not a statement about the quality of the
lawyers providing services to indigent defendants:
The problem is not the public defenders (PDs) themselves, but the system in which they work. Most PDs are hardworking, committed, and competent professionals. The problem is that they must work against daunting obstacles: inadequate training and oversight, severely limited resources, and unmanageable caseloads. In many of Pennsylvania’s counties, the most brilliant and accomplished lawyer could not provide adequate representation because he or she simply would not have the time and resources needed to mount a constitutionally adequate defense. Id. at 3 (emphasis added).
Because their assigned counsel labor under these untenable conditions,
Appellants Kuren and Allabaugh have stated a claim that they (like thousands of
others in similar circumstances) have suffered—and that they are at imminent risk of
continuing to suffer—a violation of their right to counsel under the United States and
Pennsylvania constitutions. Indeed, as Appellants Kuren and Allabaugh detail in their
merits brief, the right to counsel under the United States and Pennsylvania
constitutions promises meaningful and effective assistance of counsel at all critical
stages of a criminal prosecution. This right secures the accused not only against
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wrongful convictions resulting from ineffective assistance of counsel at trial but also against other injuries they may suffer whether or not ultimately convicted or even tried, such as by the wrongful denial of bail, excessive sentencing, or the failure to negotiate a proper and favorable plea agreement.
The Commonwealth Court ignored the fact that serious constitutional injuries can and do occur prior to trial as a consequence of the government’s failure to meet its obligation to provide indigent defendants with adequate assistance of legal counsel at all critical stages of a criminal prosecution. Instead, the Commonwealth Court focused solely on one purpose of the Sixth Amendment: the purpose to “ensure that criminal defendants receive a fair trial.” (Op. at 17 (citing Strickland, 466 U.S. at 689)). In focusing on this pronouncement in Strickland, the Commonwealth Court ignored significant developments in Sixth Amendment jurisprudence, including the Supreme Court’s affirmation that the Sixth Amendment’s requirement of counsel applies not only at trial but at all critical stages of the adversarial process. See Rothgery v. Gillespie Cnty., 554 U.S. 191, 208-09 (2008) (rejecting government’s argument that “prejudice to a defendant’s pretrial liberty” is not a cognizable harm under the Sixth Amendment).
Contrary to the Commonwealth Court’s conclusion that any prejudice must be established via a post-conviction Strickland claim, the Supreme Court has recognized ineffective assistance claims where there never was a trial. In Rothgery, for example,
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the Court considered a claim brought based on a defendant’s pre-trial incarceration in a matter in which the charges were eventually dismissed. 554 U.S. at 196-97. There is abundant Supreme Court authority holding that the right to effective assistance of counsel is critical well before trial. See Coleman v. Alabama, 399 U.S. 1, 9 (1970) (plurality); see also, e.g., Estelle v. Smith, 451 U.S. 454, 470-71 (1981); United States v. Wade, 388 U.S. 218, 236-37 (1967); White v. Maryland, 373 U.S. 59, 60 (1963).
To suggest that the Sixth Amendment cannot be enforced except where deficient representation led to a wrongful conviction both contravenes this established body of precedent and demonstrates a misconception of the role of defense counsel in the adversarial criminal justice system. It also underestimates the power of the courts to ensure that rights are not systematically violated in addition to their important role in affording individualized remedies after a violation has occurred. Those charged with serious crimes rely on the effective assistance of counsel to protect their rights and interest in various ways at every stage of criminal proceedings and to permit them to make informed decisions about their defense. While the constitutional guarantees of assistance of counsel do not guarantee the services of the very best counsel or perfect outcomes in every case, there is an indisputable requirement that appointed counsel have the ability, at the very minimum, to be effective and available to defendants at every critical stage of the process.
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Concluding that criminal defendants’ rights are violated only if ineffective counsel ultimately contributes to a wrongful conviction misses the point of assistance of counsel at every critical stage of the adversary criminal process. An approach such as that countenanced by the Commonwealth Court eliminates judicial review of a great deal of the critical role that lawyers play in ensuring that defendants are fairly treated in criminal proceedings and leaves no avenue for indigent defendants to protect their rights prior to conviction.
B. Violations of the Right to Effective Assistance of Counsel at Critical Stages of the Adversarial Process Prior to Trial Cannot Be Remedied by Post-Conviction Review, Making Prospective Injunctive Relief Appropriate
The Commonwealth Court has incorrectly concluded that that the massive institutional workload and resources crisis at the OPD, which prevents OPD staff from rendering services that meet even the minimal requirements of effective assistance to the majority of OPD clients, does not impair staff to the extent that all of its clients are in imminent jeopardy of having their rights irremediably violated.
The post-conviction review contemplated by the Commonwealth Court as the sole avenue of addressing ineffective assistance of counsel claims cannot remedy the injuries that Appellants Kuren and Allabaugh contend they have suffered and will continue to suffer based on Luzerne County’s inadequate funding of OPD and the resulting caseload and resources crisis at OPD, and which innumerable others in similar circumstances have suffered and will continue to suffer throughout this
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Commonwealth and in much of our nation. See NACDL, Gideon at 50 Part I – Rationing Justice: The Underfunding of Assigned Counsel Systems (2013).5 Among those harms are that the OPD is unable to provide adequate assistance of counsel, including inability of counsel to confer with clients in any adequate or meaningful way prior to hearings, or for counsel to gather information, conduct investigation, or pursue discovery necessary to prepare for or to have adequate plea negotiations. (Am. Compl. ¶¶ 96, 106.)
Among the potential harms post-conviction review cannot remedy are prolonged pre-trial delay or pre-trial detention, the denial of bail or bail review, and the conduct of ineffective plea negotiations by counsel not aware of the details of the case. Indeed, it has been observed that a lawyer’s effective advocacy is a critical factor in determining whether arrestees are released shortly after their arrest or whether they spend substantial amounts of time in pretrial incarceration. See Douglas L. Colbert, et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 CARDOZO L. REV. 1719, 1763 (2002). In fact, researchers studying Baltimore’s criminal justice system found that indigent arrestees represented by counsel were more than two-and-a-half times as likely to be released on their own recognizance, spending less time in jail. See id. at 1755. Such injuries are especially
5 A copy of the report is available on the Internet at https://www.nacdl.org/reports/gideonat50/rationingjustice/ (last visited September 8, 2015).
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pronounced for defendants who ultimately are acquitted or whose cases are dismissed but who nevertheless lose licenses, jobs, homes, education, freedom, time, opportunity, or income as a result of the lack of prompt, effective assistance of counsel. These injuries are not side effects of every criminal prosecution; rather, they stem directly from the kinds of deficient representation alleged in the complaint: counsel who are incapable of conducting adequate legal and factual investigation into their clients’ cases, unable to communicate promptly with their clients or to meet with them prior to critical events in the process, and otherwise frustrated by crushing caseloads and inadequate support resources in their attempt to render effective representation.
Likewise, an indigent accused may suffer harm if an unprepared and overworked attorney fails to negotiate a plea agreement and the accused is subsequently convicted and sentenced more harshly than he or she would have been under a negotiated plea.
Other potential harms include the potential loss of witnesses or evidence that are not identified and secured through prompt and comprehensive discussions with accused indigent clients. The loss of such potentially exculpatory evidence cannot be remedied in post-conviction proceedings: it is impossible to establish that the outcome of the proceeding would have been different where the evidence necessary to demonstrate prejudice has permanently vanished, as it is likely to do in many
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transient, indigent communities. For these reasons, the ABA has recognized that one of counsel’s most important duties is to establish early and regular contact with a criminally accused client so that vital evidence is not lost. See ABA Defense Attorneys Function Standard 4-3.2: Interviewing the Client (“As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused.”).
Post-conviction claims pursuant to Strickland are simply not designed to correct all of the deprivations of rights that defendants suffer when they are denied effective assistance of counsel at all critical stages of criminal proceedings. To be sure, Strickland announced a non-exclusive post-conviction process to ensure “confidence in the outcome” of criminal proceedings. 466 U.S. at 694. Strickland did not create a remedy for the numerous injuries and prejudices, and especially pre-trial injuries, that indigent defendants suffer as a result of the denial of effective counsel. Even more important, nothing in Strickland bars courts from addressing systemic problems in the context of civil litigation concerning the routine denial of constitutional rights that ineluctably results from the inadequacy of a government’s overall manner of fulfilling one of its many social responsibilities.
A case-by-case analysis, as is required by post-conviction review, is an inappropriate standard to apply to a class claim implicating a wholesale failure of government to provide effective assistance of counsel to indigent defendants. This standard simply cannot apply to a case seeking prospective relief to cease and prevent
19

widespread, imminent future harm caused by denial of effective counsel at every critical stage of adversary criminal proceedings. Pre-trial and pre-conviction systemic deficiencies such as those alleged in the Amended Complaint cannot be redressed through a “wait and see” but-for analysis that hinges on whether a conviction results from prejudice in an individual case. As one court has explained, “[w]idespread and systemic instances of deficient performance caused by a poorly equipped appointedcounsel system will not cease and be cured with a case-by-case examination of individual criminal appeals, given that prejudice is generally required and often not established.” Duncan v. Michigan, 774 N.W.2d 89, 126 (Mich. Ct. App. 2009), aff’d on other grounds, 780 N.W.2d 843 (Mich. 2010).
Instead, the question in this matter of first impression before this Court is whether the right to counsel can be protected prospectively. Numerous courts throughout the United States have already held that it can and should be. See Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988); Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010) (allowing claim for constructive denial of effective assistance of counsel and noting that systemic deficiencies among public defender offices due to inadequate funding created a situation that could not be remedied by Strickland review); Duncan, 774 N.W.2d at 124-32 (rejecting argument that post-conviction relief contemplated by Strickland provided the sole and proper remedy for ineffective assistance of counsel).
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Strickland review addresses post-conviction harm in individual cases where counsels’ failures are so extreme that the appropriate remedy is reversal of a conviction. But that does not mean that in cases in which the lack of effective assistance of counsel falls short of the demanding Strickland standard that the right to effective assistance of counsel is not being violated systematically. And it certainly does not mean that the right cannot be prospectively safeguarded. The Strickland standard is properly limited to a narrow subset of cases in which ineffective assistance demonstrably resulted in a conviction and is based on considerations of finality of judgments, preservation of judicial resources, and reluctance to second-guess strategic decisions of counsel that are not at issue in pretrial proceedings and not a bar to address ongoing system-wide harm.
Moreover, the Supreme Court explained in a decision announced the same day as Strickland that there may be circumstances “present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” United States v. Cronic, 466 U.S. 648, 659-60 (1984) (emphasis added). Although also a post-conviction case, Cronic acknowledged that there are times when the Strickland standard and its assessment of claimed ineffectiveness on the ultimate outcome of a case is unjustified to address the violation of the right to effective
21

assistance of counsel. Indeed, Strickland itself recognized that there are some circumstances in which prejudice will be presumed, such as where the defendant is constructively denied effective assistance of counsel. Strickland, 466 U.S. at 696. In such cases, the Court explained that prejudice is “so likely that case-by-case inquiry into prejudice is not worth the cost.” Id. at 696. In those situations, the deprivations of the right to counsel are “easy to identify and . . . easy for the government to prevent.” Id.
As described above, the Amended Complaint demonstrates the existence of a crisis affecting OPD’s workload and resources that results in a number of specific and material deficiencies in the indigent defense system in Luzerne County. These deficiencies are so glaring and pervasive that case-by-case inquiry into possible prejudice is not worth the cost. The ways in which the OPD is impaired in its ability to meet the minimum requirements of effective representation occur on such a scale that the Amended Complaint states a colorable claim for the constructive denial of counsel that should be permitted to proceed. Moreover, the Amended Complaint reflects an ongoing deficiency in how the Commonwealth attempts to satisfy its obligation to provide effective assistance of counsel to indigent defendants through local county governments that, in the case of Luzerne County, fail to meet the government’s constitutional obligations to its citizens. Not only do these deficiencies affect the determination of guilt or innocence for the accused, but they also cause
22

severe and irremediable collateral harms, such as incarceration, loss of employment, and loss of homes among others.
The fundamental and pervasive deficiencies in the OPD alleged by Appellants Kuren and Allabaugh describe a situation in which it is unlikely that “any lawyer, even a fully competent one,” would be able to “provide effective assistance.” Cronic, 466 U.S. at 659-60. The deficiencies are so manifest that the injuries they cause— including injuries that occur prior to trial and conviction—can be seen even “without inquiry into the actual conduct of the trial.” Id.
Because the post-trial review contemplated by Strickland cannot conceivably remedy the numerous deprivations of the right to counsel that Appellants Kuren and Allabaugh and others similarly situated have suffered and are in imminent danger of continuing to suffer, not only in Luzerne County but also throughout Pennsylvania and in much of the rest of the country, the Commonwealth Court’s ruling should be reversed. Appellants’ constructive denial of counsel claim should be permitted to proceed.
II. THE PROBLEMS CONFRONTING INDIGENT DEFENSE SERVICES ARE SYSTEMIC AND EXTEND THROUGHOUT THE COMMONWEALTH AND THE NATION As noted above, the problems facing the OPD fall within a larger pattern of
deep-rooted problems that result from local governments underfunding public defenders throughout Pennsylvania and that routinely cause violations of indigent
23

defendants’ right to effective assistance of counsel. These problems are numerous and pervasive, ranging from excessive caseloads, lack of support staff, and lack of resources to lack of training, inability to implement standards for representation, and inability to supervise staff to ensure quality of representation. Without the ability to pursue prospective relief to avert these problems, innumerable indigent defendants will continue to see their constitutional rights to counsel violated in ways that seriously harm them.
Recent studies have shown that overworked and under-resourced public defender offices create systemic problems that prevent defense attorneys from rendering effective assistance to their indigent clients. The problems facing the public defenders in Pennsylvania go back decades.
In 2011, the Pennsylvania’s General Assembly’s Joint State Government Commission’s Task Force and Advisory Committee on Services to Indigent Criminal Defendants issued a report that highlighted the areas in which indigent defense in Pennsylvania was falling short of the constitutional mandate. The Task Force measured Pennsylvania’s indigent defense system against the American Bar Association’s “Ten Principles of a Public Defense Delivery System,” a set of nationally accepted criteria for indigent defense system reform. With regard to each of the ten principles, Pennsylvania’s indigent defense system exhibited serious deficiencies.
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For example, the Pennsylvania system requires local county governments to fund indigent defense efforts.6 This creates a system in which the indigent defense system in many counties is not independent but “subject to interference from the judiciary, the county commissioners, or both.” Task Force Report at 6.
Furthermore, although proper, effective representation requires that a defense attorney be appointed as soon as possible following a defendant’s arrest and meet with the accused prior to a preliminary hearing, there are counties in Pennsylvania where the attorney is not appointed and does not even meet the client until the preliminary hearing. Id.
Most significantly, underfunding leads to a shortage of staff, which in turn leads to excessive case workloads for staff attorneys. Consequently, the Task Force Report notes that the majority of counties in Pennsylvania have public defender offices in which “attorney workloads substantially exceed recommended limits.” Id. at 7. This is one of the most insidious problems facing the indigent defense system in Pennsylvania because overworked attorneys, no matter how talented, are not capable of rendering the basic minimum services required to provide effective assistance at all
6 Pennsylvania is one of two remaining states in the country that does not fund its indigent defense system at the state level to meet its constitutional obligation to provide effective assistance of counsel to indigent defendants. The only other state in this category is Utah.
25

critical stages of a defendant’s journey through the adversary criminal process. Id. at 73-78.
These systemic problems are not going away. To the contrary, they are endemic. They do not manifest themselves only in the occasional individual case. Accordingly, they require an institutional solution, not an individualistic one. Many of the deficiencies identified in the findings of the Task Force are nearly identical to those identified almost a decade earlier in the Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Judicial System issued in 2003. See Task Force Report at 5.
Indeed, many of the problems identified in the Task Force Report were identified decades earlier. In 1995, the Spangenberg Group, on behalf of the ABA Bar Information Program, conducted a study of the Allegheny County Public Defender’s Office. See A Review of the Allegheny County (Pennsylvania) Public Defender Office (November 1995) (the “Spangenberg Report”).7 After site visits and analysis of budgetary and caseload data, the Spangenberg Group concluded that the caseload was “overwhelming” for the office. Spangenberg Report at 6. The office failed to meet the majority of the ABA standards applicable to proper representation of criminal defendants. See id. at 8. Problems identified in the Spangenberg Report 7 A copy of the Spangenberg Report is available on the Internet at http://www.nlada.net/sites/default/files/pa_alleghenycounty_tsgreport_111995.pdf (last visited September 8, 2015).
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included salaries for staff attorneys that were far too low, inadequate office space and resources, conflicts of interest arising because the county commissioners had the power to hire and fire the public defender at will, a lack of staff resources to conduct factual investigations of the clients’ cases (as opposed to mere interviews), a lack of written standards, and a great disparity between the support the district attorney’s office received from local government and the much lower amount of support the public defender’s office received. In short, the Spangenberg Report demonstrates that many of the problems identified in the Task Force Report are systemic problems that have existed for decades.
Although Pennsylvania’s method of using local government to fund and provide indigent defense services contributes to these systemic problems, the need for reform extends beyond Pennsylvania. In April 2009, the National Right to Counsel Committee of The Constitution Project issued a report finding that the American justice system as a whole was failing to provide adequate counsel to indigent defendants in criminal and juvenile delinquency cases. See Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (April 2009) (the “Right to Counsel Report”).8 The Right to Counsel Committee undertook to examine whether indigent defendants received “adequate legal representation, consistent with decisions
8 A copy of the Right to Counsel Report is available on the Internet at http://www.constitutionproject.org/wp-content/uploads/2012/10/139.pdf (last visited on September 8, 2015).
27

of the Supreme Court and rules of the legal profession.” Right to Counsel Report at 3. The report noted that, although there were a few exceptions, “[i]n most of the country, notwithstanding the dedication of lawyers and other committed staff, quality defense work is simply impossible because of inadequate funding, excessive caseloads, a lack of genuine independence, and insufficient availability of other essential resources.” Id. at 4.
The Right to Counsel Committee identified inadequate funding as the root cause of many of the systemic problems for indigent defense in the country. Right to Counsel Report at 6-7. The most direct consequence of inadequate funding “is attorneys attempting to provide defense services while carrying astonishingly large caseloads.” Id. at 7. The consequences of inadequate funding and overwhelming caseloads the Right to Counsel Report identifies are identical to those identified in the Task Force Report and include the inability to interview clients properly, the inability to comply with professional and ethical standards, the inability to prepare adequately for hearings, the inability to be effective in seeking pretrial release, the inability to engage in proper motion practice or to conduct factual investigations, and the inability to negotiate in any meaningful way with the prosecutor on behalf of the clients. Id.
The threat that these systemic problems pose to the rights of the indigent accused are substantial and long-standing. As explained by the Right to Counsel Report, public defenders’ offices have been chronically underfunded. Right to
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Counsel Report at 50-52. This underfunding results in staggering caseloads for indigent defense attorneys throughout the country and impairs their ability to deliver effective assistance. See id. at 65. At the same time, the problems inadequate representation pose to indigent defendants have become more complex and include more numerous collateral consequences. See id. at 72. NACDL issued several carefully-researched reports on the occasion of the 50th Anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963), reaching the same conclusions. See www.nacdl.org/reports.
Significantly to this case, the Right to Counsel Report identified litigation efforts, including cases similar to this case, as one of the principal avenues to reform this badly broken indigent defense system. See Right to Counsel Report at 9, 103-28. Such litigation efforts invoke the courts’ “inherent authority to protect the core functions of the judiciary, their equity jurisdiction, and their powers of general superintendence.” Id. at 130.
In the face of these systemic problems, this Court should permit Appellants Kuren and Allabaugh to proceed with their case for prospective relief to protect their constitutional right to effective assistance of counsel at all critical stages of their involvement in the adversary criminal process.
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CONCLUSION For all the foregoing reasons and those stated in the brief of Appellants Kuren and Allabaugh, the National Association of Criminal Defense Lawyers and Pennsylvania Association of Criminal Defense Lawyers urge that the decision of the Commonwealth Court be reversed.

Respectfully submitted,

Philip Gelso (I.D. No. 81934) LAW OFFICES OF PHILIP GELSO 63 Pierce Street Kingston, PA 18704 (570) 763-0006
President, PACDL Of Counsel
Peter Goldberger (I.D. No. 22364) 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200

/s/ Arleigh P. Helfer III
Paul H. Titus (I.D. No. 1399) Arleigh P. Helfer III (I.D. No. 84427) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000
Attorneys for Amici Curiae The National Association of Criminal Defense Attorneys and The Pennsylvania Association of Criminal Defense Attorneys

Amicus Committee, NACDL Of Counsel

Dated: September 10, 2015.

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CERTIFICATIONS This 10th day of September, 2015, I certify that: Electronic filing. The electronic version of this brief that is filed through the Court’s PACFILE web portal is an accurate and complete representation of the paper version of this document that is being filed by amici. Word count. This brief contains 6,640 words, as counted by the undersigned’s Microsoft Word word processing software. Service. I served true and correct copies of this brief via the Court’s PACFile system, which services satisfies Rule 121 of the Pennsylvania Rules of Appellate Procedure. The method of service is reflected on the Certificate of Service generated by the PACFile system.
/s/ Arleigh P. Helfer III
Arleigh P. Helfer III

 
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D Asbestos
N D Tobacco
D Toxic Tort - DES D Toxic Tort- Implant
D Toxic Waste
D Other:
B

PROFESSIONAL LIABLITY D Dental D Legal D Medical D Other Professional:

CONTRACT (do not include Judgments) D Buyer Plaintiff D Debt Collection: Credit Card D Debt Collection: Other
0 Employment Dispute: Discrimination
D Employment Dispute: Other
D Other:
REAL P ROPERTY D Ejectment D Eminent Domain/Condemnation D Ground Rent D Landlordri'enant Dispute D Mortgage Foreclosure 0 Partition D Quiet Title
D Other:

CIVIL APPEALS Administrative Agencies D Board of Assessment D Board ofEiections D Dept. of Transportation D Zoning Board D Statutory Appeal: Other
Judicial Appeals D MDJ - Landlord/Tenant D MDJ- Money Judgment D Other:
MISCELLANEOUS D Common Law/Statutory Arbitration D Declarat01y Judgment 211 Mandamus D Non-Domestic Relations Restraining Order D Quo Warranto D Replevin
D Other:

Pa.R.C.P. 205.5

212010

Stephen J. McConnell Id. No. 80583 DECHERTLLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 Tel: (215) 944-4000 stephen.mcconnell@dechert.com

Witold J. Walczak Id. No. 62976 AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel: 412-681-7864 vwalczak@aclupa.org

Attorneys for Plaintiffs Additional Counsel Appear on Signature Page
IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, PENNSYLVANIA

AL FLORA, JR., in his capacity as Chief Public Defender of Luzerne County,

and
SAMANTHA VOLCIAK, YOLANDA HOLMAN, and CHARLES HAMMOND, on behalf of themselves and all others similarly situated,
Plaintiffs,

APRIL TERM, 2012 No. CLASS ACTION

V.

LUZERNE COUNTYofthe COMMON WEALTH OF PENNSYLVANIA and ROBERT C. LAWTON, COUNTY MANAGER, in his official capacity,

Defendants.

NOTICE TO DEFEND

To Defendants Luzerne County and Robert C. Lawton, County Manager,

·!

YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE

ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR

JUDGMENT MAY BE ENTERED AGAINST YOU.

1

{{~f[#;i;Et/;::/;;.JI!(r
Stephen J. McConnell, Esq. Attorney I.D. No. 80583 DECHERTLLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 215-994-2446 215-655-2446 (fax)
I
2

Stephen J. McConnell Id. No. 80583

Witold J. Walczak Id. No. 62976

I

DECHERTLLP

AMERICAN CIVIL LIBE RTIES FOUNDATION

Cira Centre

OF PENNSYLVANIA

2929 Arch Street

313 Atwood Street

Philadelphia, PA 19104

Pittsburgh, PA 15213

Tel: (215) 944-4000

Tel: 412-681-7864

stephen.mcconnell@dechert.com

vwalczak@aclupa.org

Attorneys for Plaintiffs Additional Counsel Appear on Signature Page
IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, PENNSYLVANIA

AL FLORA, JR., in his capacity as Chief Public Defender of Luzerne County,

and
SAMANTHA VOLCIAK, YOLANDA HOLMAN, and CHARLES HAMMOND, on behalf of themselves and all others similarly situated,

APRIL TERM, 2012 No.

Plaintiffs,

CLASS ACTION

V.

LUZERNE COUNTY ofthe COMMONWEALTH OF PENNSYLVANIA and ROBERT C. LAWTON, COUNTY MANAGER, in his official capacity,

Defendants.

CLASS ACTION COMPLAINT

Introduction

1. Plaintiffs file this action against Luzerne County ("the County") and its County

~

i

Manager (collectively "Defendants") because Defendants have failed to allocate sufficient

!\

resources to provide constitutionally adequate representation for indigent adult criminal
I
I

defendants in the County. As detailed in this Complaint, this failure has led to a grossly

underfunded and thus overwhelmed Office ofthe Public Defender ("the OPD"), resulting in the

provision of sub-constitutional representation to many indigent criminal defendants and the

complete deprivation of representation to many others.

2. Defendants' deliberate indifference to the funding needs of the OPD has led to a

variety of systemic problems, including severe understaffing, that has resulted in lawyers having

overwhelming workloads and thus being unable to provide the basic elements of constitutionally

adequate representation.

3. The Chief Public Defender and the lawyers in the OPD are dedicated and

committed professionals whose inability to provide constitutionally adequate representation

stems from the Defendants' failure to provide adequate funding and resources. Given the

volume of work, even the best lawyers would be unable to engage in the basic functions of

representation, including conferring with clients in a meaningful way prior to critical stages of

their legal proceedings, reviewing client files, conducting discovery, motion practice, and factual

investigation, as well as devoting necessary time to prepare for hearings, trials, and appeals.

4. Because of the above deficiencies, on December 19, 2011, the OPD instituted a

policy ofdeclining all applications for representation except in cases of homicide, felony sex

offenses, extraditions, mental health, state parole, county probation/parole revocation, juvenile,

and incarcerated adult defendants. As detailed in this Complaint, the OPD was forced to institute

.

this policy because of the Defendants' failure to fund the office adequately, which in turn has led

I

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I

to such high workloads that the OPD lawyers are unable to fulfill their professional, statutory,

I

and constitutional obligations as defense counsel. Defendants' failure to provide adequate

I

resources for the defense of indigent adult criminal defendants has deprived numerous such

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2

defendants, including Plaintiffs Sat)lantha Volciak, Yolanda Holman, and Charles Hammonds, of representation, thereby violating their right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution as well as their right to counsel under the Pennsylvania Constitution.
5. All Plaintiffs seek a Writ of Mandamus ordering the County, as a first step, to lift a hiring freeze that currently prevents Plaintiff Flora from filling even budgeted attorney positions in the OPD and, subsequently, to increase the OPD's funding to such a level that will permit the OPD to provide constitutionally adequate representation to all those entitled to counsel under the U.S. and Pennsylvania Constitutions.
6. Plaintiffs Volciak, Holman and Hammonds also bring this Complaint under the Civil Rights Act, 42 U.S.C. §1983 and Article I,§ 9 ofthe Pennsylvania Constitution, on behalf of themselves and a class of persons who are similarly situated, namely, indigent adults in Luzerne County, who have been charged with crimes and are entitled to appointment of counsel, but who have been or will be declined by the OPD because of Defendants' refusal to provide sufficient resources to the OPD. Plaintiffs claim that the County's failure to provide them with any representation violates the U.S. and Pennsylvania Constitutions. Plaintiffs seek mandamus and injunctive relief ordering Defendants to allocate funds to allow for the appointment (and payment) of private counsel to provide immediate relief, namely, the appointment of competent counsel to represent them in their ongoing criminal proceedings, and, subsequently, to increase the OPD's funding to such a level that will permit the OPD to provide constitutionally adequate representation to all those entitled to counsel under the U.S. and Pennsylvania Constitutions.
3

Parties 7. Plaintiff AI Flora, Jr. has been the Chief Public Defender in the OPD of Luzerne
County, Pennsylvania since May 2010. As Chief Public Defender, PlaintiffFlora is responsible for managing the OPD, which includes overseeing its lawyers and employees, establishing its po.licies, managing its budget, and ensuring its compliance with constitutional, statutory, and professional/ethical guidelines.
8. Plaintiff Samantha Volciak lives in Hazleton, Pennsylvania. At all times material hereto, PlaintiffVolciak was and is a resident ofLuzerne County, Pennsylvania. Plaintiff Volciak is qualified for public representation. Unfortunately, because Defendants have failed to provide sufficient resources, including lawyers, staff, and investigators, the OPD is unable to provide Plaintiff Volciak with counsel, in violation of her constitutional rights. As a result, Ms. Volciak is utterly without counsel, despite being eligible for public representation.
9. Plaintiff Yolanda Holman lives in Hanover Township, Pennsylvania. At all times material hereto, Plaintiff Holman was and is a resident of Luzerne County, Pennsylvania. Ms. Holman is qualified for public representation. Unfortunately, because Defendants have failed to provide sufficient resources, including lawyers, staff, and investigators, the OPD is unable to provide Plaintiff Holman with counsel, in violation of her constitutional rights. As a result, Ms. Holman is utterly without counsel, despite being eligible for public representation.
10. Plaintiff Charles Hammonds lives in Clairton, Pennsylvania. At all times material hereto, Plaintiff Hammonds was and is a resident of Westmoreland County, Pennsylvania. Mr. Hammonds is qualified for public representation. Unfortunately, because Defendants have failed to provide sufficient resources, including lawyers, staff, and investigators, the OPD is unable to
4

provide Plaintiff Hammonds with counsel, in violation of his constitutional rights. As a result, Mr. Hammonds is utterly without counsel, despite being eligible for public representation.
11. Plaintiffs Samantha Volciak, Yolanda Holman, and Charles Hammonds are all indigent persons who have been charged with crimes by the Luzerne County District Attorney, but who have been declined representation by the OPD because Defendants have not provided sufficient resources to that office. As a result, they are currently without counsel, despite being eligible for public representation.
12. Defendant Luzerne County is a county of the Third Class located in northeastern Pennsylvania. Effective January 2, 2012, the County transitioned to Home Rule under the governance of the present Council. Prior to January 2012, the County had an elected Board of County Commissioners ("the Commissioners").
13. Defendant Robert C. Lawton is the County Manager of Luzerne County, Pennsylvania. The County Manager maintains an office at 200 North River Street, WilkesBarre, PA 18711. Defendant Lawton assumed this position on February 29, 2012. He is sued in his official capacity. At all times hereinafter mentioned, these defendants were acting within the scope of their official duties and under color of state law. Facts of the Case
14. The Public Defender Act ("the Act") requires that every county in Pennsylvania (except Philadelphia) appoint a public defender to provide representation for indigent criminal defendants prosecuted in its county. 16 P.S. § 9960.3.
15. The Act specifically mandates, (a) The public defender shall be responsible for furnishing legal counsel, in the following types of cases, to any person who, for lack of sufficient funds, is unable to obtain legal counsel:
5

(1) Where a person is charged with juvenile delinquency; (2) Critical pretrial identification procedures; (3) Preliminary hearings; (4) State habeas corpus proceedings; (5) State trials, including pretrial and posttrial motions; (6) Superior Court appeals; (7) Pennsylvania Supreme Court appeals; (8) Postconviction hearings, including proceedings at the trial and appellate levels; (9) Criminal extradition proceedings; (1 0) Probation and parole proceedings and revocation thereof;
(11) In any other situations where [sic] representation is constitutionally
required. . ..
(c) The public defender, when appointed by the court, shall furnish legal counsel to persons who are or may be subject to commitment in a proceeding under the act ofOctober 20, 1966 (3rd Sp. Sess., P.L. 96, No.6), known as the "Mental Health and Mental Retardation Act of 1966."
!d. at§ 9960.6(a), (c).
16. The Act presumptively requires that the representation satisfy the constitutional
standards set forth in the Sixth and Fourteenth Amendments to the U.S. Constitution, as well
as analogous provisions in the Pennsylvania Constitution. See e.g., Gideon v. Wainwright,
372 U.S. 335, 339 (1963); Pa. Const. art. I,§ 9.
17. The United States Supreme Court has long recognized that,
when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairne~s, derives from the beliefthatjustice cannot be equal where, simply as a result ofhis poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
Ake v. Oklahoma, 470 U.S. 68, 76 (1985).
18. The right to counsel anchors our criminal justice system: "Without counsel, the
right to a trial itself would be 'of little avail' .... 'Of all the rights that an accused person
has, the right to be represented by counsel is by far the most pervasive for it affects his ability
6

to assert any other rights he may have.'" United States v. Cronic, 466 U.S. 648, 653-54 (1984) (citing Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
19. Other courts considering similar litigation have found that violations of the constitutional right to counsel cause harms beyond just unreliable convictions: "Wrongful convictions, however, are not the only injustices that command our present concern. As plaintiffs rightly point out, the absence of representation at critical stages is capable of causing grave and irreparable injury to persons who will not be convicted. Gideon's guarantee to the assistance of counsel does not tum upon a defendant's guilt or innocence, and neither can the availability of a remedy for its denial." Hurrell-Harring v. New York, 930 N.E.2d 217, 228 (N.Y. 2010) (allowing class action to proceed on allegation that lack of funding resulted in failure to provide legal representation to indigent criminal defendants at all critical stages of the proceedings against them).
20. Plaintiff Flora is the Chief Public Defender in Luzerne County, Pennsylvania. He has been with the OPD as an attorney since 1980. He became the First Assistant Public Defender in 1990 and the acting Chief Public Defender in March 2010. In May 2010, he was appointed the Chief Public Defender by the Luzerne County Board of Commissioners.
21. The OPD is divided into two units, the Adult Unit and the Juvenile Unit. Plaintiff Flora oversees both units. The First Assistant aids Plaintiff Flora in supervising the Adult Unit (both Plaintiff Flora and the First Assistant are part-time employees). The Adult Unit currently employs thirteen part-time attorneys, four full-time attorneys, three investigators, four secretaries, one receptionist, and one office administrator. 1 One of the part-time attorneys handles state parole cases, and another part-time attorney is only assigned capital
1 The office administrator provides assistance to both the Adult and Juvenile Units. 7

and homicide cases. The Adult Unit presently has five vacant attorney positions, three fulltime and two part-time. These vacancies are the result of three resignations in 2012 (two full-time, one part-time), the 2010 transfer of a full-time attorney from the Adult Unit to the Juvenile Unit, and the 2009 resignation of a part-time attorney. Four of these vacancies (three full-time, one part-time) are funded in the 2012 amended Luzerne County budget.
22. The Juvenile Unit is fully staffed at present with three full-time attorneys, two social workers, one investigator, and one secretary.
23 . The OPD is charged with providing representation to indigent criminal defendants in seventeen magisterial districts, the Luzerne County Court of Common Pleas, and the state appellate courts (as needed). The OPD is also responsible for providing representation in state parole, county probation/parole revocation, and mental health civil commitment proceedings.
24. In addition to the OPD, some indigent criminal defendants in Luzerne County are represented by conflict counsel. The Luzerne County court system employs eleven part-time salaried attorneys to represent indigent defendants when a conflict of interest prevents the OPD from providing representation. In 2011, the eleven part-time conflict counsel collectively handled 278 cases.
Plaintiff Flora's Efforts to Improve the OPD 25. When PlaintiffFlora became ChiefPublic Defender in May 2010, the OPD was already plagued with problems due to years of insufficient funding. Plaintiff Flora's predecessor Basil Russin had tried in vain since 2007 to secure additional funding for the OPD from the County. From 2007 to 2010, Mr. Russin submitted weekly reports to the Luzerne County Board of Commissioners detailing the excessive OPD caseloads and staffing
8

deficiencies, which stemmed from insufficient funding. The reports also discussed the County's failure to fill vacancies in a timely fashion.
26. Plaintiff Flora's highest priority when he became Chief Public Defender was improving juvenile representation in the wake of the "kids for cash" scandal, in which two judges of the Luzerne County Court of Common Pleas were convicted or pled guilty to charges that they improperly accepted money from two private, for-profit juvenile detention facilities.
27. State records reveal that between 2003 and 2008, the time period during which the "kids for cash" scandal occurred, approximately 50 percent ofjuveniles appeared in Luzerne County Juvenile Court without the benefit of counsel-nearly ten times the state average. Virtually all of the unrepresented juveniles were adjudicated delinquent. According to the December 2011 report by Joint State Government Commission's Task Force and Advisory Committee on Services to Indigent Criminal Defendants, the OPD was unable to provide effective representation to juveniles during this time because of inadequate resources. Excerpts from the December 2011 report are attached to this Complaint as Exhibit
A.
28. In 2009, the Pennsylvania General Assembly created the Interbranch Commission on Juvenile Justice to investigate the circumstances that led to the "kids for cash" scandal, restore public confidence in the administration ofjustice, and prevent similar events from occurring in Luzerne County or elsewhere in the Commonwealth.
29. In May 2010, the Interbranch Commission released its full report and recommendations. Its recommendations included the restoration offunding for the Victims of Juvenile Offenders program to 2005 levels; the creation of a Luzerne County Victims of
9

Juvenile Crime Restitution Fund; the creation of a state-based funding stream for indigent

juvenile defense; and guaranteed access to defense counsel by deeming all juveniles indigent

for purposes of appointing counsel, restricting the right of a juvenile to waive counsel, and

requiring stand-by counsel if the juvenile waives counsel.

30. As part ofhis efforts to improve the quality ofjuvenile representation, Plaintiff

Flora was able to obtain grant funding from the Pennsylvania Commission on Crime and

Delinquency and the Luzerne-Wyoming Counties Mental Health/Mental Retardation

Program. These grants allowed Plaintiff Flora to create a separate Juvenile Unit by hiring

one attorney, two social workers, one secretary, and one investigator to exclusively handle

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juvenile cases.

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31. Even with this grant funding, Plaintiff Flora was also forced to transfer a senior

attorney from the Adult Unit to meet the staffing needs in the Juvenile Unit. Defendants

have refused to authorize Plaintiff Flora to replace this attorney in the Adult Unit, despite the

fact that funding for the position exists in the current budget.

32. With a full complement of staff in the Juvenile Unit, Plaintiff Flora has been able

to implement a comprehensive process for handling juvenile cases and determining juvenile

eligibility for OPD representation. The Juvenile Unit is now a model unit that has earned

accolades from across the state and has been recognized by the Pennsylvania Commission on

Crime and Delinquency as a "Model" Juvenile Defender Unit for the state. The senior

attorney in the Juvenile Unit is a member of the Board of Directors of the Juvenile Defenders

Association ofPennsylvania ("JDAP"). The Juvenile Unit adheres to JDAP's Performance

Guidelines for Quality and Effective Juvenile Delinquency Representation. With the

resources provided by outside grant funding and the County, the OPD has been able to

10

intervene in juvenile cases at an early stage, thereby diverting these cases from court and preserving the resources of the Juvenile Unit, the County, and the judiciary. 2
33. Despite the success of the Juvenile Unit, the County has refused to provide Plaintiff Flora with the necessary resources to make similar and badly needed improvements to the Adult Unit.
34. In June 2010, Plaintiff Flora provided Defendant County and its Commissioners with a report relating the significant resource shortfall at the OPD and its consequent inability to provide the representation required by the Public Defender Act and the U.S. and Pennsylvania Constitutions. The OPD's listed deficiencies included:
1. Caseloads for OPD attorneys that far exceed national maximum caseload standards;
n. An insufficient number of clerical staff; m. The County's failure to fill staff vacancies; iv. The lack of any appellate counsel, resulting in staff lawyers, many ofwhom are
not versed or trained in appellate practice, doing their own appeals; v. Physical facilities that are undersized, overcrowded, poorly maintained and not
suitable for client conferences or maintaining client confidentiality; and v1. Severely inadequate information technology. 35. At the conclusion of his report, Plaintiff Flora stated, "[a]bsent appropriate staff increases, the Office will begin declining applications for representation within 60 days." Plaintiff Flora's June 2010 report is attached to this Complaint as Exhibit B. 36. In July 2010, Plaintiff Flora provided Defendant County and its Commissioners with a short-term plan to correct the OPD's staffing deficiencies and the resulting problems.
2 Plaintiffs do not challenge the constitutional adequacy of the representation provided by the OPD's Juvenile Unit at this time.
11

Recommendations included the creation of a Juvenile Unit, hiring appellate and additional trial attorneys, and active caseload monitoring. Plaintiff Flora's July 2010 plan is attached to this Complaint as Exhibit C.
37. In his 2011 budget proposal, Plaintiff Flora recommended hiring two attorneys to handle appeals because the trial attorneys, who had (and still have) little to no appellate experience, were responsible for their own appeals. He noted in his request that hiring two full-time appellate attorneys would "alleviate [sic] serious deficiencies in appellate practice in office and minimize county exposure to ineffective counsel claims ...." He also stated the need for an additional investigator and a secretary "to help alleviate staffing/caseload problems and provide better ratio of lawyers to support staff to insure effective assistance of counsel." The Commissioners denied his requests.
38. Plaintiff Flora's 2012 budget again requested two appellate lawyers, along with two secretaries, to start rectifying the severe staffing shortage in the Office.
Currently office has no appellate lawyers creating significant ethical issues for supervisory counsel. Two appellate lawyers would bring office into compliance with ABA standards on Public Defense Delivery Systems as relating to appeals. Office still understaffed on adult side re: trial lawyers and does not meet ABA standards. Two additional secretaries seriously needed on adult side given large volume of cases. Currently, office has 4 clerk steno's on adult side with each steno handling over 1,000 cases per year. Adequate support staffessential to allow counsel to [sic] perform duties effectively. Plaintiff Flora's requests were once more denied. 39. Because of Defendants' refusal to provide minimum funding and resources to the OPD, Plaintiff Flora was forced to take action in order to provide constitutionally adequate criminal defense to at least some indigent defendants in Luzerne County.
12

The Public Defender's Office Has Been Forced To Decline Cases In Order To Comply With Ethical Rules And Professional Standards

40. On December 12, 2011, Plaintiff Flora sent a letter to the President Judge of the

Luzerne County Court of Common Pleas stating that he would begin declining certain cases

on December 19, 2011, because of a lack of OPD resources.

41. Beginning on December 19th, the OPD started declining cases, advising

defendants in writing that although they were eligible for counsel, the OPD could not

accommodate their request due to a lack of resources. The OPD currently approves new

applications for representation only from indigent adult defendants with homicide or felony

sex offense charges, or individuals who are incarcerated or subject to extradition. The OPD

also continues to provide representation to individuals in mental health, state parole, county

probation/parole revocation, and juvenile cases. The OPD has continued representation in all

cases that the OPD was handling before December 19,2011.

42. To date, the Office has declined representation to over three hundred (300)

eligible criminal defendants.

43. To date, conflict counsel have not been appointed to represent defendants whom

the OPD has declined to represent as a result of the December 19, 2011 policy. Upon

information and belief, the Court does not have sufficient resources to provide conflict

counsel for so many defendants.

44. Plaintiff Flora's policy to limit new cases to address excessive workloads is

I_

necessary in light of the ethical and constitutional rules under which Plaintiff Flora and the

OPD operate. His policy is required by the Pennsylvania Rules of Professional Conduct and

is in full compliance with the ethical guidance provided by the American Bar Association.

13

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45. Pennsylvania Rule of Professional Conduct 1.1 states that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Plaintiff Flora' s policy is necessary to ensure that attorneys provide clients with representation involving sufficient preparation and thoroughness to satisfy the requirements ofRule 1.1.
46. Pennsylvania Rule of Professional Conduct 5.1 states that "[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct." Plaintiff Flora's policy is necessary to ensure that the attorneys over whom Plaintiff Flora has supervisory authority comply with Rule 1.1.
47. American Bar Association Ethics Opinion 06-441 states that the Rules of Professional Conduct relating to competency "provide no exception for lawyers who represent indigent persons charged with crimes."
48. American Bar Association Ethics Opinion 06-441 also provides that "[a] lawyer>s primary ethical duty is owed to existing clients. Therefore, a lawyer must decline to accept new cases, rather than withdraw from existing cases, if the acceptance of a new case will result in her workload becoming excessive."
49. American Bar Association Ethics Opinion 06-441 further states that "[i]fany subordinate lawyer's workload is found to be excessive, the supervisor should take whatever additional steps are necessary to ensure that the subordinate lawyer is able to meet her ethical obligations in regard to the representation of her clients."
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50. In January 2012, Luzerne County reopened its budget pursuant to its transition to
Home Rule. The Interim County Manager gave all county offices a bottom-line figure within
which to allocate their funding. The OPD was given $2.36 million, a nearly twelve percent
(12%) decrease from its $2.68 million 2011 budget. The loss in funds would have required
the OPD to cut four positions, jeopardizing the adequate staffmg in the Juvenile Unit as some
of its employees would have had to be shifted to the Adult Unit.
51. After the Council approved a two-percent tax increase, Plaintiff Flora was able
rearrange his new allotment of$2.5 million (a 6.7% decrease from 2011) to maintain current
staffing levels. Preserving existing positions in the OPD required Plaintiff Flora to reduce
his expert witness budget from $100,000 to $72,000. (The OPD spent approximately
$170,000 on expert witnesses in 2011.) This budget reduction will have a substantial impact
on the OPD's ability to retain experts in capital and juvenile cases, both ofwhich frequently
require expert testimony. The OPD will likely have to petition the Court to direct the County
to pay expert fees once the OPD has exceeded its budget for this expense.
52. Plaintiff Flora submitted his new budget under protest, declaring
Current staffing levels and existing caseloads, prevent this office from providing level of representation required by ethical standards and by Federal and State Constitutions. As such, office is ethically required to withdraw from existing cases or refuse new cases. Letter ofJanuary 3, 2012 from American Council of Chief Defenders to County Council supports position. Budget submitted in protest for reasons as already stated in previous memos and reports to County and Court. Cannot reduce staffing any further.
53. In February 2012, the Interim Manager permitted Plaintiff Flora to advertise the three funded attorney vacancies in the Adult Unit.3 As the County had instituted a hiring
3 There are currently four funded vacancies due to the March 27, 2012 resignation of a full-time attorney in the Adult Unit.
15

freeze in February 2012, the Interim Manager did not allow Plaintiff Flora to fill these vacancies. Defendant Lawton, the new County Manager, has also not permitted Plaintiff Flora to fill these vacancies.
54. On February 28, 2012, Plaintiff Flora sent a letter to the President Judge ofthe Luzerne County Court of Common Pleas requesting "the court's immediate assistance . . . to assign outside or conflict counsel to provide representation in [mental health] cases." The part-time attorney who handled mental health cases resigned on February 20, 2012, and another attorney, largely untrained in mental health law, has been temporarily assigned to these cases. This is one of the four funded vacancies that Plaintiff Flora is seeking to fill.
55. On March 16, 2012, one ofthe OPD's part-time attorneys advised Plaintiff Flora that he would no longer accept cases that had been reassigned due to current or upcoming vacancies. The attorney stated that he could not provide ethical representation to indigent defendants if he added more cases to his already heavy workload. Even with the December 19,2011 policy in effect for three months, this part-time attorney had approximately 115 open cases as ofMarch 16, 2012.
Current State of the Luzerne County Public Defender's Office 56. National standards and Rules of Professional Responsibility define proper legal representation to indigent criminal defendants at all critical stages of the proceedings against them as requiring, among other things, that defense counsel: (a) have adequate knowledge of the relevant areas of the law; (b) be assigned to their clients as early in the criminal, delinquency, or mental health proceeding as possible; (c) be present at every critical stage of their clients' proceedings; (d) conduct reasonable factual and legal pre-trial investigations into the charges against their clients, pursue available formal and informal discovery
16

procedures, and use appropriate and necessary experts; (e) consult with their clients to elicit

relevant information about the case, to inform clients of their rights, and to enable clients to

make informed decisions about the direction of their cases; and (f) perform their work with

reasonable diligence and promptness.

57. Because Defendants have refused to provide the necessary funding and resources,

the OPD cannot provide representation that satisfies the above standards and therefore cannot

provide legal representation to indigent criminal defendants at all critical stages of the

proceedings against them in accordance with its constitutional, statutory, and professional

obligations.

(a) Adequate Knowledge ofthe Relevant Law

58. The OPD does not have the resources to provide adequate training to its Adult

Unit attorneys. No formal introductory or basic training is provided to new attorneys at the

outset of their work at the OPD. The only form of in-service training for junior-level

attorneys is a mentoring program where senior attorneys provide guidance on cases. New

lawyers also handle a lighter caseload for their first six months to a year. Plaintiff Flora has

been able to secure some advanced training for Juvenile Unit attorneys by applying for

scholarships and free training from organizations that focus on juvenile defense.

59. Pursuant to Pennsylvania Rule of Criminal Procedure 801, an attorney who

wishes to be qualified to try capital cases must take a minimum of 18 credits of advanced

training within a three-year period. Currently, attorneys in the OPD pay for this specialized

training out of their own pockets. 60. The OPD does not have any designated attorneys to handle appeals.

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Consequently, trial attorneys with little or no appellate experience are responsible for any

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appeals that arise out of their caseloads. Because of the complexity and time investment inherent in properly handling appeals, attorneys sometimes miss deadlines. When a deadline is missed, the attorney must seek leave from the local court to file nunc pro tunc. Fortunately, this leave has often been granted. In other instances, appeals have been dismissed for failure to file docketing statements, 1925(b) statements, or for failure to file briefs. Most OPD attorneys are unfamiliar with the Pennsylvania Rules of Appellate Procedure and are otherwise unable to comply with appellate requirements. Moreover, since appeals are exceedingly time-consuming, these cases detract from the attorneys' efforts on behalf of other clients whom they represent.
61 . The OPD currently does not have a lawyer trained to handle mental health cases, for which the OPD must provide representation pursuant to the Public Defender Act. 16 P.S. § 9960.6(c). The attorney who was trained to handle these cases resigned in February 2012. The attorney currently handling these cases shadowed the former attorney for a few weeks before he left the OPD, but does not have any other training in mental health law and consequently cannot provide adequate representation for the clients in these cases.
(b) Early Assignment to Clients 62. The OPD is unable to provide representation or support at preliminary arraignments, which the U.S. Supreme Court recently reaffirmed to be the point at which the right to counsel attaches. See Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008) ("[A] criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start ofadversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.") The right to counsel under the Pennsylvania Constitution attaches at the same time as the right to counsel
18

provided by the Sixth and Fourteenth Amendments to the U.S. Constitution. Commonwealth

v. Arroyo, 723 A.2d 162, 170 (Pa. 1999).

(c) Present at all Critical Stages ofClients' Proceedings

63. The heavy caseloads regularly lead to scheduling conflicts, causing attorneys to

request continuances of critical proceedings. These continuances can lead to clients

remaining in pre-trial detention for longer periods than necessary.

64. The heavy caseloads also frequently result in the OPD attorneys' inability to

consult with their clients prior to each stage of their case. Consequently, OPD attorneys

participate in many stages of their clients' criminal proceedings without a full understanding

of the facts and potential strategies for the case.

(d) Conducting Reasonable Factual Investigations and Discovery

65. OPD attorneys are often unable to conduct any discovery prior to the pre-trial

hearing. When discovery is obtained, the attorneys are frequently unable to review the

information. If discovery responses are inadequate or incomplete, attorneys rarely have time

to follow up to obtain complete information. The performance guidelines promulgated by

the National Legal Aid & Defender Association ("NLADA Guidelines") state that attorneys

in criminal cases have a duty to pursue discovery as soon as practicable. Such discovery is

necessary because it can provide exculpatory information, help develop defenses to criminal

charges, and assist the attorney in developing a theory of the case. The absence of pre-trial

investigation is the equivalent of the denial of counsel at a critical juncture in these

defendants' proceedings.

i

66. OPD attorneys also rarely have time to conduct the necessary fact inquiry and

I

investigation prior to preliminary hearings. Depending on the case, public defenders should

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I

19

interview witnesses or otherwise gather additional facts prior to the preliminary hearing to

obtain basic information about the case. They should furthermore arrange for the creation of

the preliminary hearing transcript. Obtaining transcripts of preliminary hearings is necessary

to ensure that a defendant can utilize any helpful statements or admissions made during the

hearing in later stages of the defendant's criminal case.

67. The Adult Unit of the OPD has an insufficient number of investigators given the

amount of cases it handles and the number of staff attorneys it employs. Investigators play a

vital role in providing constitutionally adequate representation to indigent defendants because

public defenders generally do not have time to conduct case investigations. The OPD

currently employs three investigators to assist twenty-one attorneys (including the four

funded vacancies) in the Adult Unit with over 4,000 new cases per year, plus cases carried

over from the previous year. By contrast, the Luzerne County District Attorney's Office in

2010 had ten detectives assisting twenty-six attorneys. Thus, each investigator in the OPD

must assist more than twice as many attorneys as a detective in the District Attorney's Office.

68. Moreover, because the OPD does not have a case manager or adequate support

staff, the investigators must assume many responsibilities that detract from the amount of

time they can commit to investigations. All of the investigators assist with inputting

information into the case management system, updating files prior to preliminary hearings

(including obtaining copies ofcriminal complaints and probable cause affidavits from

magistrates), picking up discovery from the District Attorney's office, and conducting a daily

I

I

mail run to the courthouse. They also cover the front desk when the receptionist or other

secretaries are unavailable, assist with filing, contact magistrates' offices for new preliminary

20

hearing dates, and input full-time attorney assignments into Microsoft Outlook. In fact, one of the investigators spends the majority of her time on administrative tasks.
69. The OPD's expert budget is severely underfunded. The OPD exceeded its $100,000 expert budget in 2011 by approximately $70,000, but was forced to cut this line item to $72,000 in 2012 to prevent layoffs. It is unlikely that the OPD will be able to provide adequate counsel in all its cases while adhering to this expert budget given the increasing role of forensics, particularly DNA testing, in criminal cases. Expert expenses are likely to be particularly high in capital cases, where mitigation and mental health experts are necessary in virtually every case. Mental health experts are typically required in juvenile cases as well.
(e) Consulting with Clients 70. The OPD's office lacks sufficient space to conduct intake interviews in private areas. Client interviews therefore frequently take place in public spaces where they can be overheard by staff in the office as well as any visitors in the reception area, thereby compromising client confidentiality. 71. The OPD's office also lacks the resources to conduct in-person intake interviews at prison facilities. Instead, investigators interview incarcerated clients via video. These interviews are conducted while prison staff and other inmates are in the room with the client. This lack of confidentiality affects the questions that can be asked and the value of the interview. 72. Furthermore, OPD attorneys do not have time to meet with clients before preliminary hearings, except in certain instances for a few minutes immediately prior to the hearings in a non-secure area of a district magistrate's office. These brief meetings are not sufficient to gather information about a case to provide constitutionally adequate
21

representation. Pre-hearing interviews are supposed to allow attorneys to develop at least a cursory understanding of the facts of the case and any available defenses. The attorney should also use this first meeting to fulfill his or her obligation to advise the client about the criminal justice process and to caution the client about not inadvertently waiving rights, such as by making non-privileged communications to non-attorneys.
73. In Luzerne County, incarcerated indigent criminal defendants often participate in their preliminary hearings via video from prison, instead of being transported to the magistrate's office for in-person participation. When this occurs, any consultation between the OPD attorney and the client must take place via video, in open court, with no opportunity for confidential discussion. In some cases, OPD attorneys negotiate plea deals at the preliminary hearing. When this occurs, the attorneys do not have any opportunity to consult confidentially with their clients regarding the plea agreement, its terms, or expected consequences, as the communications between client and counsel can be heard by the court and the prosecutor. Any questions the client has must be asked publicly. These incarcerated defendants are therefore deprived of any opportunity to obtain confidential counsel regarding their agreement to plead guilty to criminal charges.
74. The attorneys are often unable, due to their overwhelming workloads, to contact their clients at any point between the preliminary hearing and the status conference, which is generally scheduled at least three months after the preliminary hearing.
75. In addition, the attorneys are often unable, again because of overwhelming workloads, to contact their clients at any point between the status conference and the pre-trial hearing, which is generally held approximately one month after the status conference.
22

76. In fact, the attorneys are often unable to conduct meaningful and comprehensive interviews with clients until the eve of trial, if the case proceeds that far.
77. OPD attorneys are often unable to meet with clients prior to sentencing hearings. They frequently lack adequate time to engage in advance preparation for sentencing, which involves obtaining letters ofsupport or other mitigation materials and submitting written statements in cases presenting serious legal or factual issues regarding sentencing. OPD attorneys typically review the pre-sentencing report at or shortly before the actual hearing. As a result, the ability to effectively advocate at sentencing is seriously compromised.
78. In addition, OPD attorneys are unable to file notes of all meetings and log all telephone conversations with clients and witnesses.
79. Overall, OPD attorneys are unable to maintain regular contact with their clients and to follow up on client attempts to communicate with them. Regular contact is mandated by professional standards, and failure to maintain such contact constitutes inadequate counsel as it leaves the attorney without sufficient information to assess the prosecution's case or analyze discovery and impairs factual analysis and the development of defenses. It also prejudices plea negotiations by leaving the attorney without critical information necessary to make judgments and provide counsel to the client.
(f) Performing Work with Reasonable Diligence and Promptness 80. In addition to serious problems with client communication and lack of investigation and discovery, OPD attorneys are unable to perform their work with reasonable diligence and promptness in other ways. 81. Pursuant to Pennsylvania Rule of Criminal Procedure 579, attorneys are required to file an Omnibus Pretrial Motion within 30 days after arraignment. Because of their
• i 23

excessive workloads, OPD attorneys often file these motions late and/or based upon incomplete information due to a lack of investigation and discovery.
82. Due to their massive caseloads, OPD attorneys are unable to familiarize themselves sufficiently with their clients' cases before the pre-trial hearing. The pre-trial hearing is often the last meaningful opportunity to negotiate a plea and avoid trial. Nor can OPD attorneys, without having had an opportunity to confer with the client, discuss the case, engage in discovery, file pre-trial motions, and, if needed, utilize an investigator to meet with witnesses, canvass crime scenes, and secure 9-1-1 tapes, surveillance videos, and the like.
83. If no plea agreement is reached at the pre-trial hearing, then OPD attorneys begin trial preparation in earnest. By this time, however, it may be too late to provide effective counsel as damaging evidence cannot be suppressed and crucial witnesses and evidence may have disappeared. In short, OPD attorneys simply do not have the time for necessary trial preparation and strategy.
(g) Excessive Workloads 84. OPD attorneys are unable to provide constitutionally adequate representation because of the workloads that overwhelm the Adult Unit and impact every aspect ofthe OPD's operations. 85. The American Bar Association has stated that full-time attorney caseloads should not exceed 150 felonies, 400 misdemeanors, 200 mental health cases, or 25 appeals per year. 86. In 2011, the OPD's office received well over 4,000 new adult applications, of which approximately 250 were rejected for lack of indigency and 278 were forwarded to conflict counsel. In addition to applications from adult indigent defendants, OPD attorneys are directly appointed to cases by county judges.
24

87. The OPD generally handles over 4,000 new criminal cases per year (4,065 in

2011 and 4,187 in 2010). Of this total, well in excess of2,000 are felony cases. In addition,

more than 1,000 pending cases carry over from the previous year (1,475 from 2010 and 1,350

from 2009).

88. In addition to the 4,065 cases noted above, the OPD also litigated 23 adult

sentence appeals, 479 mental health cases and appeals, and 64 state parole cases and appeals

in 2011. The mental health and state parole cases were each handled by one part-time

attorney who specializes in that area of the law.

89. Including appeals, state parole, and mental health cases, the OPD thus handled a

total of 4,631 new cases in 2011. If the currently funded vacancies were filled, the OPD

would have the equivalent of 14 full-time attorneys. The average caseload would therefore

be approximately 331 cases per attorney based on 2011 caseload data. Using this same

analysis with 2010 caseload data, the average would be approximately 340 cases per

attorney. With carryover cases, the per attorney caseloads would be 436 and 437,

respectively. Since none of the attorneys handle a caseload comprised entirely, or even

primarily, of misdemeanors, these caseloads well exceed the maximum caseload standards

set by the American Bar Association. 90. Despite the fact that the caseloads handled by OPD attorneys regularly exceed

I

American Bar Association guidelines, these caseloads do not fully reflect the workload that

confronts OPD attorneys, especially the full-time attorneys.

91. Each OPD attorney has substantial responsibilities beyond the normal caseload.

In addition to their regular caseloads, the full-time attorneys back up the part-time attorneys

and handle warrant, bail, and miscellaneous hearings. They are also assigned homicide cases

25

periodically. The part-time attorneys are sometimes assigned to homicide cases as well,

which are extraordinarily time-intensive and require two attorneys per case.

92. The OPD's full-time attorneys are also responsible for county probation/parole revocation proceedings. In 2011, there were 1,172 of these proceedings.4 These hearings are

critical stages of a criminal case and can lead to substantial prison sentences, thus requiring

efforts on behalf of counsel similar to those that should be made at sentencing.

93. Furthermore, OPD attorneys must devote a substantial amount of time to work-

related travel since most of the attorneys are assigned to cover preliminary hearings in one or

two magisterial districts with the full-time attorneys also rotating to cover Central Court in

Wilkes-Barre. Luzerne County's seventeen magisterial districts are spaced as far as 40 miles

apart from one another.

94. Not only do OPD caseloads exceed ABA standards, but they are excessive

compared to the caseloads of public defender attorneys in comparable Pennsylvania counties.

For example, the Berks County Public Defender's Office had 24 full-time attorneys handling

4,900 adult and juvenile cases for a per attorney caseload ofapproximately 204 in 2009. The

I

Dauphin County Public Defender managed 6,000 adult and juvenile cases in 2009 with 23

~

full-time attorneys for about 261 cases per attorney. During the same period, the Lancaster County Public Defender had the equivalent of 26 full-time attorneys handling 6,200 adult and

I

juvenile cases for a per attorney caseload of approximately 238.

(h) Additional Problems Due to Insufficient Funding

95. The Adult Unit has no social workers, paralegals, or trial assistants to assist the

attorneys in adequately preparing their cases at various stages. By comparison, the District

4 These proceedings are included in the 2011 and 2010 new case totals discussed above. 26

.

Attorney's Office in 2010 had 6 trial assistants, I case manager, and 7 victim coordinators in

i

addition to its attorneys, investigators, and clerical staff.

'},

96. The OPD also has an insufficient amount of clerical staff. Currently, a

receptionist and 4 secretaries assist 21 attorneys (including funded vacancies). Thus, each

secretary is assigned to 4 or 5 attorneys. Given the caseloads of the attorneys, it is

impossible for the secretaries to adequately assist all the attorneys to which they are assigned.

In contrast, the District Attorney's Office in 2010 had 1 executive secretary, 10 clerk typists,

and 1 administrative assistant. With 26 assistant district attorneys, the ratio of lawyers to

clerk typists was less than 3 to 1. In 2009, the York County Public Defender's Office had 7

legal assistants, plus 2 prison liaisons, for 19 full-time attorneys. Dauphin County had 4

secretaries, 4 paralegals, and a law clerk for 23 full-time attorneys, and Lancaster County had

8 secretaries for 27 attorneys.

97. The OPD lacks appropriate scheduling software to keep track of important case

deadlines and provide reminders. Due to their massive workloads, OPD attorneys sometimes

face scheduling conflicts because they are supposed to appear in both a magisterial and a

Common Pleas courtroom simultaneously. In other instances, attorneys may be scheduled to

appear in two different magisterial districts at the same time. Inadequate scheduling software

I

only exacerbates this problem.

I

98. The OPD lacks an appropriate computerized data or case management system to

track cases and provide meaningful breakdowns of attorney caseloads.

99. Many attorneys do not have their own desks or workspaces. Plaintiff Flora and

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the office administrator are the only individuals with dedicated offices. All other OPD

I

employees share rooms, cubicles, or whatever space is available.

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27

100. The OPD lacks the necessary equipment to enable attorneys to adequately

represent their clients. Between the two units, eight attorneys have no computers and ten

have desktop computers with an older operating system. The Adult Unit does not have a

scanner, which is particularly problematic given the growing trend of electronic court filings.

Finally, the OPD does not possess any audio/visual equipment for trial presentations.

101. Due to the time-consuming caseloads, Plaintiff Flora and his First Assistant are

unable to provide consistent, ongoing supervision of the attorneys. Supervision and

oversight occur only when a serious issue is brought to the attention of Plaintiff Flora.

102. As a result, the Adult Unit does not have any performance standards or guidelines

for its attorneys. Given the lack of resources and associated excessive workloads in the

OPD, Adult Unit attorneys would frankly be incapable of complying with any substantive

standards or guidelines that Plaintiff Flora would institute.

103. The NLADA Performance Guidelines require criminal defense attorneys, in part:

a. To have "sufficient time, resources, knowledge and experience to offer quality

representation to a defendant in a particular matter.... (and] to keep the client

informed of the progress of the case ...." Guideline 1.3.

b. To engage in an initial interview with their clients. During this interview, the

d

attorney is expected to "be familiar with the elements of the offense and the

I

potential punishment, where the charges against the client are already known" and

to have obtained all available relevant documents. Guideline 2.2.

c. To appear at the arraignment. Guideline 3.1.

f

d. To be familiar with the facts of the case prior to appearing at the preliminary hearing. Guideline 3.2.

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28

e. To promptly conduct an independent investigation of the facts of the case,

including interviewing witnesses and retaining experts, when necessary.

Guideline 4.1.

f. To pursue formal and informal discovery as soon as practicable. Guideline 4.2.

g. To file a variety of pretrial motions, when appropriate. Guidelines 5.1-5.3.

h. To engage in comprehensive trial preparation. Guideline 7.1.

104. OPD attorneys are clearly unable to meet the NLADA Performance Guidelines

due to the excessive workloads they face.

..
1

105. The December 2011 report by the Joint State Government Commission's Task

Force and Advisory Committee on Services to Indigent Criminal Defendants found that the

OPD is operating under excessive workloads and would require an additional 8.5 full-time

attorneys to meet nationally recognized standards. This number does not account for the four

(4) funded vacancies in the Adult Unit that Plaintiff Flora has not been authorized to fill.

106. Given the demands placed on the OPD beyond its criminal caseload numbers, the

OPD would need more than 8.5 additional full-time attorneys to fulfill its constitutional and

statutory obligations.

Class Action Allegations

107. Pursuant to Rule 1701, et seq., of the Pennsylvania Rules of Civil Procedure,

Plaintiffs Samantha Volciak, Yolanda Holman, and Charles Hammonds bring this action on

behalf of themselves and a class of all other similarly situated persons who are or will in the

future be adversely affected by the unlawful and unconstitutional practices of Defendants and

I

who seek equitable relief from the Defendants' failure to ensure that the OPD is able to

I

29

provide constitutionally adequate assistance of counsel to all those individuals eligible for

and entitled to its services.

108. The class consists of all persons who have been or will be charged with criminal

offenses in Luzerne County who qualify for public representation but who have been or will

be refused representation by the OPD due to the Defendants' refusal to provide necessary

funding and resources to enable the OPD to meet ethical, legal, and constitutional standards

of representation.

109. The requirements of Rule 1702 are met in that:

a. The class is so numerous that joinder of all members is impracticable, as there are

approximately three hundred (300) members of the class.

b. There are questions of law or fact common to the class. Specifically, each

member has been deprived of his or her right to counsel, guaranteed by the U.S.

and Pennsylvania Constitutions, as a result of Defendants' failure to provide the

legally required adequate system of indigent defense.

c. The claims or defenses of the representative parties are typical of the claims or

defenses of the class.

d. The representative parties will fairly and adequately assert and protect the

interests of the class.

e. A class action provides a fair and efficient method for adjudication of this controversy pursuant to the criteria established by Rule 1708. Specifically:

I

1. Trying these actions separately would create a risk of inconsistent and

incompatible adjudications with respect to individual members of the

class.

30

u. No litigation has been commenced by or against members of the class involving the same issues.
111. Common questions of law and fact predominate over any questions affecting individual members.
iv. Luzerne County is an appropriate forum for the litigation of the claims of the entire class, as each class member has been charged with a crime in Luzerne County and has been denied their right to counsel, guaranteed by the U.S. and Pennsylvania Constitutions, by Defendants Luzerne County and Luzerne County Manager.
v. The class is numerous enough to render joinder of all members or the maintenance of separate suits impracticable, and the difficulties likely to be encountered in the management of this action as a class action are minimal.
vi. Defendants have refused to act on grounds generally applicable to all members of the class.
110. The representative parties will fairly and adequately assert and protect the interests of the class pursuant to Rule 1709, in that:
a. Attorneys for the representative parties are experienced in class action litigation and will adequately represent the interests ofthe class.
b. The representative parties do not have a conflict of interest in the maintenance of the class action.
31

'-
c. The attorneys are representing the parties pro bono. The attorneys for the

representative parties have adequate financial resources to assure that the interests

of the class will not be harmed.

Class Representative Samantha Volciak 111. Named Plaintiff Samantha Volciak is a lifelong resident of Luzerne County and is

currently a full-time student at Bloomsburg University. Ms. Volciak is studying English and

aspires to be a teacher. Ms. Volciak has nearly completed her degree. She needs only one

more semester of classroom work and a period of student teaching before she can graduate.

112. On December 27, 2011, Samantha Volciak was charged by mail with DUI

General Impairment- Incapable of Safe Driving under 75 Pa. C.S.A. § 3802(a)(l), DUI High

Rate Alcohol- BAC .10 to .159 under 75 Pa. C.S.A. § 3802(b), and Back Up Vehicle

Improperly under 75 Pa. C.S.A. § 3702(a).

113. Samantha Volciak applied to the OPD for legal assistance on January 4, 2012. On

January 9, 2012, the OPD notified Ms. Volciak that although she qualified for public

defender representation, the OPD had to deny her application at that time because it lacked

the necessary resources to provide her with adequate assistance of counsel as required by

law. Ms. Volciak is currently without counsel.

114. Ms. Volciak is experiencing ongoing harm as a consequence of the denial of her

constitutional right to counsel. An attorney capable of providing the adequate defense to

which Ms. Volciak is entitled would inquire into the facts, investigate the allegations,

including the interviewing of witnesses, consider and file necessary pre-trial motions,

consider sentencing mitigation and alternatives, counsel the client about the process and her

rights, fight for a favorable plea agreement, and, if the case cannot be pled, prepare a constitutionally vigorous defense.

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1

Class Representative Yolanda Holman 115. Named Plaintiff Yolanda Holman is a wedded mother of four children and has been a resident of Luzerne County for five and one-half years. 116. On November 18, 2.()11, the Office oflnspector General charged Yolanda Holman with Fraudulently Obtaining Food Stamps/Assistance under 62 P.S. § 48l(a). 117. Yolanda Holman applied for legal assistance through the OPD on January 5, 2012. On January 5, 2012, the OPD notified Ms. Holman that although she qualified for public defender representation, the OPD had to deny her application at that time because it lacked the necessary resources to provide her with adequate assistance of counsel as required by law. Ms. Holman is currently without counsel. 118. Ms. Holman is experiencing ongoing harm as a consequence of the denial of her constitutional right to counsel. An attorney capable of providing the adequate defense to which Ms. Holman is entitled would inquire into the facts, investigate the allegations, including the interviewing ofwitnesses, consider and file necessary pre-trial motions, consider sentencing mitigation and alternatives, counsel the client about the process and her rights, fight for a favorable plea agreement, and, if the case cannot be pled, prepare a constitutionally vigorous defense.
Class Representative Charles Hammonds 119. Named Plaintiff Charles Hammonds is a resident of Westmoreland County. 120. Mr. Hammonds was charged with Theft by Deception-False Impression under 18 Pa. C.S.A. § 3922(a)(1) on July 6, 2011. 121. On January 10, 2012, Mr. Hammonds applied for legal assistance through the OPD. Mr. Hammonds was informed that although he qualified for public defender representation, the OPD had to deny his application at that time because it lacked the
33

necessary resources to provide him with adequate assistance of counsel as required by law.
Mr. Hammonds is currently without counsel.
122. Mr. Hammonds is experiencing ongoing harm as a consequence of the denial of his constitutional right to counsel. An attorney capable of providing the adequate defense to
which Mr. Hammonds is entitled would inquire into the facts, investigate the allegations,
including the interviewing of witnesses, consider and file necessary pre-trial motions, consider sentencing mitigation and alternatives, counsel the client about the process and his rights, fight for a favorable plea agreement, and, if the case cannot be pled, prepare a constitutionally vigorous defense.
123. The right to counsel is fundamental to a fair trial. The indigent criminal defendant has the same right to adequate representation by an active advocate as a defendant who can afford private counsel. This right includes the obligations to confer with the client, to thoroughly investigate the relevant facts and the governing law, to compel the attendance of witnesses, to advise the accused, and to otherwise strategize and prepare the case for trial.
124. The class plaintiffs have been denied adequate assistance of counsel because they have no counsel at all. Because they cannot afford private counsel and the OPD has been denied the resources to provide constitutionally adequate representation to all eligible adult indigent criminal defendants prosecuted in Luzerne County, class plaintiffs are currently navigating the criminal justice system alone, in violation of their constitutional rights.
Causes of Action Count !-Mandamus (by Plaintiffs Individually against all Defendants) 125. Paragraphs 1 through 124 are incorporated herein by reference as if pleaded in full.
34

126. This Court has jurisdiction to hear this petition for writ of mandamus pursuant to Rule I 092(c)(I) and (2) of the Pennsylvania Rules of Civil Procedure.
127. "Mandamus is an extraordinary remedy designed to compel official performance of a ministerial act or mandatory duty ...." County ofAllegheny v. Commonwealth, 490 A.2d 402, 408 (Pa. 1985). In order to justify the use of this remedy, Plaintiffs must demonstrate "a clear legal right to relief, a corresponding duty to act in the defendant, and the lack of any other adequate remedy." Medico v. Makowski, 793 A.2d 167, 169 (Pa. Commw. Ct. 2002).
128. Plaintiffs have a clear right to relief. Plaintiff Flora has a statutory and constitutional obligation as the Chief Public Defender to provide adequate counsel to the indigent defendants represented by the OPD, and Plaintiffs Volciak, Holman, and Hammond have a constitutional right to representation in their pending criminal proceedings.
129. Plaintiff Flora in his capacity as Chief Public Defender of Luzerne County has a responsibility under the Public Defender Act to provide constitutionally competent representation to all individuals in Luzerne County who are facing criminal charges and cannot afford counsel. 16 P.S. § 9960.6. Defendants' refusal and failure to provide Plaintiff Flora with the necessary funding and resources prevents him from providing representation at all critical phases of their cases for all adult indigent defendants in Luzerne County. Specifically, attorneys in the office are frequently:
a. Unable to interview or meet with clients prior to preliminary hearings; b. Unable to contact their clients between court appearances; c. Unable to conduct significant, if any, investigation or discovery; d. Unable to engage in significant, if any, motion practice;
35

e. Unable to gather adequate information to engage in effective plea negotiations; f. Unable to engage in sufficient trial preparation; and g. Unable to properly litigate appeals because of a lack of appellate experience. 130. Since December 19, 2011, Plaintiff Flora has notified over three hundred (300) adult indigent defendants in Luzerne County that, even though they are eligible for representation, the OPD is unable to provide them with counsel due to a lack of resources. 131. Many of these individuals currently remain without representation in violation of their right to counsel under the U.S. and Pennsylvania Constitutions. See Gideon, 372 U.S. at 339; U.S. Const. amends. VI, XIV; Pa. Const. art. I,§ 9. They have not waived their right to counsel. 132. Class Plaintiffs Samantha Volciak, Yolanda Holman, and Charles Hammonds are several of the numerous individuals who are currently facing criminal charges in Luzerne County without counsel in violation of their constitutional rights. 133. Defendants have a duty to act. The Public Defender Act commands counties to provide indigent defense through a public defender as required by the U.S. and Pennsylvania Constitutions. 16 P.S. § 9960.3. 134. Defendants' legal obligation to fund a constitutionally adequate indigent defense system for Luzerne County may be fulfilled in ways other than through the OPD. For instance, the County could appropriate money to hire private attorneys on a contractual basis to supplement the OPD's services. Defendants have, however, failed to provide adequate resources to fund the OPD or any alternate system to represent indigent criminal defendants. 135. Pennsylvania courts have repeatedly stated that mandamus may be used to compel state and local goverrunents to provide the necessary resources for goverrunent officials to
36

perform their duties to constitutional and statutory standards. Medico, 793 A.2d at 171; PA State Ass 'n ofCounty Comm 'rs v. Commonwealth, 681 A.2d 699, 702-03 (Pa. 1996); County ofAllegheny, 490 A.2d at 406; Leahey v. Farrel/66 A.2d 577, 579-80 (Pa. 1949); Kistler v. Carbon County, 35 A.2d 733, 735 (Pa. Super. Ct. 1944).
136. Defendants have repeatedly denied Plaintiff Flora's requests for additional funding and have thus been deliberately indifferent to Plaintiffs' constitutional rights.
137. Defendants have also refused to fill funded vacancies in the Adult Unit of the Public Defender's Office, further devastating the OPD's resources and ability to comply with statutory and constitutional mandates.
138. Plaintiffs have no other adequate remedy at law or equity that can protect their rights and interests.
139. Plaintiff Flora has no other adequate remedy available to him to secure the resources needed to perform his statutory and constitutional duties as Defendants have refused to provide Plaintiff Flora with sufficient funding.
140. Plaintiffs Volciak, Holman, and Hammonds have no other adequate remedy available to them to rectify the deprivation of their constitutional right to counsel in criminal proceedings.
141. As Defendants have refused to meet their statutory and constitutional obligation to provide Plaintiff Flora with the necessary funds to fulfill his constitutional and statutory duties and have thereby denied Class Plaintiffs Volciak, Holman, and Hammonds their constitutional right to counsel, mandamus is the appropriate remedy under Pennsylvania law to compel Defendants to provide the requisite funds for Plaintiff Flora to fulfill his
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37

I

f

constitutional and statutory responsibilities and restore Plaintiffs' constitutional right to

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counsel.

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Count II- United States Constitution, Sixth and Fourteenth Amendments, and 42 US. C. § 1983 (by Class Plaintiffs against all Defendants)

142. Paragraphs 1 through 141 are incorporated herein by reference as if pleaded in

full.

143. Defendants' failure to provide adequate resources for indigent defense in Luzerne

County violates Class Plaintiffs' right under the Sixth and Fourteenth Amendments to the

U.S. Constitution to counsel in a criminal prosecution.

144. At all times relevant herein, Defendant Lawton acted under color of state law in

his official capacity as the Luzerne County Manager.

145. Class Plaintiffs' requests for counsel in their criminal proceedings were denied

because the OPD lacks sufficient funding and resources to represent competently all eligible

indigent criminal defendants prosecuted in Luzerne County.

146. The right to counsel is clearly established under the Sixth Amendment to the U.S.

Constitution, as applied to the states by the Fourteenth Amendment. Gideon, 372 U.S. at

339. The right attaches at "a criminal defendant's initial appearance before a judicial officer,

i

where he learns the charge against him and his liberty is subject to restriction ...."

I

Rothgery, 554 U.S. at 213.

147. Class Plaintiffs have appeared before judicial officers without counsel when they

were constitutionally entitled to representation. Class Plaintiffs have not waived their right to

counsel. Because Class Plaintiffs have not waived their right to counsel but have been

compelled to appear before judicial officers without representation, their Sixth and

I

Fourteenth Amendment right to counsel has been violated.

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!
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148. Defendants are directly responsible for the violation of Class Plaintiffs' Sixth and Fourteenth Amendment right to counsel.
149. Defendants have refused to provide the OPD with the necessary funding and resources to supply counsel, who have the time and resources to provide adequate representation and prepare a proper defense, to all eligible indigent criminal defendants prosecuted in Luzerne County. Defendants have also refused to permit Plaintiff Flora to fill four (4) funded vacancies within the OPD due to a County-instituted hiring freeze or to appropriate monies necessary to hire additional staff sufficient to enable the OPD to provide services that satisfy Sixth and Fourteenth Amendment requirements.
150. Defendants have a duty under the Public Defender Act to provide the OPD with the necessary funding and resources to fulfill its constitutional and statutory duties. 16 P.S. §§ 9960.3, 9960.5(a), 9960.7, 9960.9.
151. Defendants' legal obligation to fund a constitutionally adequate indigent defense system for Luzerne County may be fulfilled in ways other than through the OPD. For instance, the County could appropriate money to hire private attorneys on a contractual basis to supplement the OPD's services. Defendants have, however, failed to provide adequate resources to fund the OPD or any alternate system to represent indigent criminal defendants.
152. Therefore, Defendants have caused the violation of Class Plaintiffs' Sixth and Fourteenth Amendment right to counsel, by failing to provide the necessary funding and resources to serve indigent criminal defendants in Luzerne County, be it through the OPD or some alternate system of assigning competent counsel.
Count III - Pennsylvania Constitution. Art. I, § 9 (by Class Plaintiffs against all Defendants)
39

153. Paragraphs 1 through 152 are incorporated herein by reference as if pleaded in full.
154. Defendants' failure to provide adequate resources for indigent defense violates Class Plaintiffs' right under Article I, § 9 of the Pennsylvania Constitution to counsel in criminal prosecutions.
155. Class Plaintiffs' requests for counsel in their criminal proceedings were denied because the OPD lacks sufficient funding and resources to represent all eligible indigent criminal defendants prosecuted in Luzerne County.
156. The right to counsel under the Pennsylvania Constitution attaches at the same time as the right to counsel provided by the Sixth and Fourteenth Amendments to the U.S. Constitution.
157. Class Plaintiffs have appeared before judicial officers without counsel when they were entitled to representation under the Pennsylvania Constitution. Class Plaintiffs have not waived their right to counsel. Because Class Plaintiffs have not waived their right to counsel but have been compelled to appear before judicial officers without representation, their right to counsel under the Pennsylvania Constitution has been violated.
158. Defendants are directly responsible for the violation of Class Plaintiffs' right to counsel under the Pennsylvania Constitution.
159. Defendants have refused to provide the OPD with the necessary funding and resources to supply counsel to all eligible indigent criminal defendants prosecuted in Luzerne County. Defendants have also refused to permit Plaintiff Flora to fill four (4) funded vacancies within the Office due to a County-instituted hiring freeze or to appropriate monies
40

necessary to hire additional staff sufficient to enable the Public Defender to provide services that satisfy constitutional requirements.
160. Defendants have a duty under the Public Defender Act to provide the OPD with the necessary funding and resources to fulfill its constitutional and statutory duties. 16 P.S. §§ 9960.3, 9960.5(a), 9960.7, 9960.9.
161. Defendants' legal obligation to fund a constitutionally adequate indigent defense
system for Luzerne County may be fulfilled in ways other than through the OPD. For
instance, the County could appropriate money to hire private attorneys on a contractual basis to supplement the OPD's services. Defendants have, however, failed to provide adequate resources to fund the OPD or any alternate system to represent indigent criminal defendants.
162. Therefore, defendants have caused the violation of Class Plaintiffs' right to counsel under the Pennsylvania Constitution, by failing to provide the necessary funding and resources to serve indigent criminal defendants in Luzerne County, be it through the OPD or some alternate system of assigning competent counsel.
Prayer for Relief WHEREFORE, Plaintiffs request the following relief: 1. An order requiring Defendants to promptly appoint private or conflict counsel when the OPD declines representation ofany adult defendant due to excessive workloads or lack of resources; 2. An order requiring Defendants to lift the hiring freeze and authorize Plaintiff Flora to fill the four (4) funded vacancies in the OPD;
3. An order allowing Plaintiff Flora to continue the December 19, 2011 policy until such time as the OPD has adequate resources to represent all indigent adult criminal defendants prosecuted in Luzerne County;
41

4. An order requiring Defendants to authorize PlaintiffFlora to hire two (2) attorneys to handle appellate cases and one (1) secretary to help with office administration;

5. A peremptory judgment under Pennsylvania Rule of Civil Procedure 1098 compelling Defendants to provide necessary funding to allow the OPD to hire additional trial
attorneys and support staff as well as upgrade the physical and technological
resources such that the OPD is capable of providing representation to all qualified indigent defendants prosecuted in Luzerne County that satisfies standards set by the U.S. and Pennsylvania Constitutions;

6. Attorneys' fees and costs pursuant to 42 U.S.C. § 1988;

t

7. Any other such relief deemed appropriate by the Court.

I

Dated: ~'f.,,_.:h.:.d_.,_:.~._~___

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l£.v:itAf:Jfi:(i £

Borland & Borland, LLP Attorney ID#23673 11th Floor 69 Public Square Wilkes-Barre, PA 18701 (570) 822-3311 (570) 822-9894 (fax) Stephen J. McConnell Id. No. 80583 Alicia M. Farley Id. No. 208136 Nathan McClellan Id. No. 307848 Sean P. McConnell Id. No. 307740 DECHERTLLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 Tel: (215) 944-4000 stephen.mcconnell@dechert.com

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Witold J. Walczak Id. No. 62976 AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel: (412) 681-7864 vwalczak@aclupa.org
Mary Catherine Roper Id. No. 71107 Hilary J. Emerson Id. No. 311823 AMERICAN CIVIL LIBERTIES FOUNDATION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel: (215) 592-1513 x 116 Fax: (215) 592-1343 mroper@aclupa.org hemerson@aclupa.org
David Rudovsky Id. No. 15168 KAIRYS, RUDOVSKY, MESSING & FEINBERG, LLP 718 Arch Street, Suite 501 S Philadelphia, PA 191 06 (215) 925-4400 drudovsky@krlawphila.com
43

_..__.._

- -- ····-- - --

--· ~

VERIFICATION I, Yolanda Holman, verify that the facts set forth in the foregoing Complaint relating to me are true and correct to the best of my information, knowledge and belief. I understand that the statements contained herein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities.

I
Dated: April 6, 2012

VERIFICATION I, Samantha Volciak, verify that the facts set forth in the foregoing Complaint relating to me are true and correct to the best ofmy infonnation, knowledge and belief. I Wlderstand that the statements contained herein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities.

Dated: April6, 2012

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---- ~.

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I,

FILE No .345 04/09 '12 16:38 ID:LUZ CTY PUBLIC DEFENDER FAX :570 825 1846 FA~:570 ~25 1946

PAGE 2/ 2

VJ:BU'ICAJION
r. Charles Hammond, verify that th~ facts se::t forth in the foregoing

Complaint tom~ ate true and correct to the best ofmy infonnacion, knowledge and

belief I understand that the statements contained herein are subject to the penalties

I

of lS ?a. C.S.A . 4904 r~lating to unsworn faisification to authorities,

Dated; April 9, 2012

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VERIFICATION I, AI Flora, Jr., verify that the facts set forth in the foregoing Complaint relating to the Luzerne County Public Defender's Office are true and correct to the best of my information, knowledge and belief. I understand that the statements contained herein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities.
q
Dated: April 9, 2012

 
 Case: 3:12-cv-665 As of: 03/27/2013 10:44 AM EDT 1 of 3
ATYADM,CLOSED,SCR,TH
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:12−cv−00665−MEM

Flora v. Luzerne County et al Assigned to: Honorable Malachy E Mannion Cause: 42:1983 Civil Rights Act
Plaintiff Al Flora, Jr.

Date Filed: 04/10/2012 Date Terminated: 03/11/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Hilary J. Emerson American Civil Liberties Union of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106 ATTORNEY TO BE NOTICED
Mary Catherine Roper American Civil Liberties Union of Pennsylvania P.O. Box 1161 Philadelphia, PA 18105 215−592−1513 ext 116 Email: mroper@aclupa.org ATTORNEY TO BE NOTICED
Witold J. Walczak American Civil Liberties Union of PA 313 Atwood Street Pittsburgh, PA 15213 (412) 681−7864 Email: vwalczak@aclupa.org ATTORNEY TO BE NOTICED

V. Defendant Luzerne County

represented by Deborah H. Simon Elliott, Greenleaf &Siedzikowski Union Meeting Corporate Center V 925 Harvest Dr Suite 3010 Blue Bell, PA 19422 215−977−1000 Email: dhs@elliottgreenleaf.com ATTORNEY TO BE NOTICED
Joel M Wolff Elliott Greenleaf &Siedzikowski, P.C. 201 Penn Avenue Suite 202 Scranton, PA 18503 570−346−7569 Fax: 570−969−2890 Email: jmw@elliottgreenleaf.com ATTORNEY TO BE NOTICED
John G. Dean Elliott Greenleaf &Dean 201 Penn Avenue

Case: 3:12-cv-665 As of: 03/27/2013 10:44 AM EDT 2 of 3

Suite 202 Scranton, PA 18503 570−371−5290 Email: jgd@elliottgreenleaf.com ATTORNEY TO BE NOTICED

Matthew John Carmody Elliott Greenleaf and Dean 39 Public Square Suite 1000 Wilkes Barre, PA 18701 570.371.5290 Email: mjc@elliottgreenleaf.com ATTORNEY TO BE NOTICED

Defendant
Robert C. Lawton County Manager

represented by Deborah H. Simon (See above for address) ATTORNEY TO BE NOTICED

Joel M Wolff (See above for address) ATTORNEY TO BE NOTICED

John G. Dean (See above for address) ATTORNEY TO BE NOTICED

Matthew John Carmody (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/10/2012
04/10/2012 04/10/2012 04/10/2012 04/11/2012 04/12/2012
04/13/2012
04/16/2012

# Docket Text
1 COMPLAINT against Robert C. Lawton, Luzerne County ( Filing fee $350, Receipt Number 2447820), filed by Al Flora, Jr. (Attachments: # 1 Exhibits TOC, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Civil Cover Sheet)(ep, ) (Entered: 04/10/2012)
2 Summons Issued as to Robert C. Lawton, Luzerne County and provided to Atty. Walczak for service on Defendant(s). (ep, ) (ep, ). (Entered: 04/10/2012)
3 MOTION for Preliminary Injunction by Al Flora, Jr. (Attachments: # 1 Proposed Order)(Roper, Mary) (Entered: 04/10/2012)
4 BRIEF IN SUPPORT re 3 MOTION for Preliminary Injunction filed by Al Flora, Jr.(Roper, Mary) (Entered: 04/10/2012)
SPECIAL ADMISSION AND ECF REGISTRATION FORMS SENT to Hilary Emerson. (pjr) (Entered: 04/11/2012)
5 Set/Reset Deadlines as to 3 MOTION for Preliminary Injunction., ORDER Motion Hearing set for 4/20/2012 09:30 AM in Wilkes−Barre − Courtroom 3 before Honorable A. Richard Caputo.Signed by Honorable A. Richard Caputo on 04/12/12. (ep, ) (Entered: 04/12/2012)
6 AMENDED SCHEDULING ORDER: Prel/Perm Injunction Hearing set for 4/20/2012 09:30 AM in Wilkes−Barre − Courtroom 3 before Honorable A. Richard Caputo. IT IS FURTHER ORDERED that Plaintiff shall serve Defendants with a copy of this Order forthwith.Signed by Honorable A. Richard Caputo on 4/13/12. (jam, ) (Entered: 04/13/2012)
7 NOTICE of Appearance by John G. Dean on behalf of Robert C. Lawton, Luzerne County. (Dean, John) (Entered: 04/16/2012)

Case: 3:12-cv-665 As of: 03/27/2013 10:44 AM EDT 3 of 3

04/16/2012 04/16/2012 04/16/2012 04/19/2012 04/19/2012
04/19/2012 04/20/2012 07/05/2012 07/06/2012 09/07/2012
09/10/2012 01/04/2013 01/25/2013 02/15/2013 02/19/2013 02/20/2013 02/21/2013 02/26/2013 03/05/2013 03/11/2013

8 NOTICE of Appearance by Deborah H. Simon on behalf of Robert C. Lawton, Luzerne County. (Simon, Deborah) (Entered: 04/16/2012)
9 NOTICE of Appearance by Joel M Wolff on behalf of Robert C. Lawton, Luzerne County. (Wolff, Joel) (Entered: 04/16/2012)
10 NOTICE of Appearance by Matthew John Carmody on behalf of Robert C. Lawton, Luzerne County. (Carmody, Matthew) (Entered: 04/16/2012)
11 STIPULATION RE: Motion for Preliminary Injunction. (Roper, Mary) Modified on 4/19/2012 (jam, ). (Entered: 04/19/2012)
13 Consent MOTION for Extension of Time to File Answer re 1 Complaint, to Plaintiff's Complaint by Robert C. Lawton, Luzerne County. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Dean, John) (Entered: 04/19/2012)
14 Order approving re 11 Stipulation re; Motion for Preliminary Injunction.Signed by Honorable A. Richard Caputo on 4/19/12. (jam, ) (Entered: 04/19/2012)
15 ORDER granting 13 Motion for Extension of Time to Answer Robert C. Lawton answer due 7/2/2012; Luzerne County answer due 7/2/2012. Signed by Honorable A. Richard Caputo on 4/20/12 (jam, ) (Entered: 04/20/2012)
16 Consent MOTION for Extension of Time to File Answer re 1 Complaint, by Robert C. Lawton, Luzerne County. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Dean, John) (Entered: 07/05/2012)
17 ORDER granting 16 Motion for Extension of Time to Answer Robert C. Lawton answer due 8/31/2012; Luzerne County answer due 8/31/2012. Signed by Honorable A. Richard Caputo on 7/6/12 (jam, ) (Entered: 07/06/2012)
18 Joint MOTION for Extension of Time to File Answer re 1 Complaint, by Robert C. Lawton, Luzerne County. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence, # 3 Exhibit(s) State Court Orders, # 4 Certificate of Service)(Simon, Deborah) (Entered: 09/07/2012)
19 ORDER granting 18 Motion for Extension of Time to Answer. Defendants' response to the complaint due 11/15/12. Signed by Honorable A. Richard Caputo on 9/10/12 (jam, ) (Entered: 09/10/2012)
VERBAL ORDER − Case Reassigned to Honorable Malachy E Mannion. Honorable A. Richard Caputo no longer assigned to the case.Signed by Honorable A. Richard Caputo on 1/4/2013. (cw) (Entered: 01/04/2013)
20 SCHEDULING ORDER: Case Management Conference set for 2/20/2013 03:00 PM in Scranton before Honorable Malachy E Mannion.Signed by Honorable Malachy E Mannion on 1/25/13. (bs) (Entered: 01/25/2013)
21 Letter from Plaintiff's Counsel Seeking to Continue Case Management Conference. (Roper, Mary) (Entered: 02/15/2013)
22 SCHEDULING ORDER: Case Management Conference continued until 2/27/2013 11:00 AM in Scranton before Honorable Malachy E Mannion.Signed by Honorable Malachy E Mannion on 2/19/13. (bs) (Entered: 02/19/2013)
23 CASE MANAGEMENT PLAN by Robert C. Lawton, Luzerne County. (Simon, Deborah) (Entered: 02/20/2013)
24 CASE MANAGEMENT PLAN of all parties by Al Flora, Jr. (Roper, Mary) (Entered: 02/21/2013)
25 ANSWER to 1 Complaint, by Robert C. Lawton, Luzerne County. (Attachments: # 1 Certificate of Service)(Simon, Deborah) (Entered: 02/26/2013)
26 STIPULATION of Dismissal (Order) by Robert C. Lawton, Luzerne County. (Dean, John) (Entered: 03/05/2013)
27 ORDER DISMISSING CASE − granting stipulation.Signed by Honorable Malachy E Mannion on 3/11/13. (bs) (Entered: 03/11/2013)