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Criminal suspects could go free: MN Shutdown could include courts

The Minnesota Board of Public Defense is concerned about the effects of government shutdown on Minnesota's judicial system, and has asked a district judge to include the public defender system with other essential state functions.

A shutdown on July 1 could mean that people accused of minor offenses will have to sit in jail for three days because there's no judge to let them out.

Or worse, that people accused of serious crimes will go free, either for lack of a public defender or failure by the state to meet its requirement for a timely trial.

That's according to attorney David Stowman of Detroit Lakes, who was recently elected chairman of the seven-person Minnesota Board of Public Defense.

"I've chaired one meeting, and all of a sudden we're faced with the shutdown of the whole state system," he said.

Last time the state government shut down (for several days in 2005), a district judge ruled that "core functions" of government were essential and must continue. That kept essential state employees on the job.

But a strict interpretation of the Minnesota Constitution would be that "government can't spend money unless the Legislature appropriates it," Stowman said.

Since only an agriculture appropriations bill was passed this year, that would essentially require a full shutdown of state government.

"That would be catastrophic," Stowman said. "Prisons would be opened, people at state hospitals would be released..."

The Board of Public Defense filed a petition Tuesday in Ramsey County District Court asking that the public defender's system be included in any list of core functions.

It was a companion petition to a much more comprehensive one filed earlier by the Minnesota Attorney General's Office in Ramsey County District Court, which is set to hear the case on Thursday, Stowman said.

Last time there was a shutdown, the issue of essential services was decided by a district court judge and the shutdown was over (and state government funded retroactively) before the state supreme court could weigh in on the matter.

This time around, four Republican state senators want to make sure that doesn't happen. They have asked the state supreme court "to decide by Thursday whether there is such a thing as a core function," Stowman said.

They have petitioned the court "to intervene and make a finding that there is no constitutional definition of core function -- therefore the district court has no basis to make a decision (on which state employees are considered essential)," Stowman explained.

That, theoretically, means everything shuts down unless the Republican-controlled Legislature and Gov. Mark Dayton, a DFLer, are able to come together on a budget solution.

"If they close down the courts, local police and prosecutor staffs -- they are all funded out of local funds, they're not state employees -- will continue," Stowman said. "People will continue to be thrown in jail. The way I understand it, they are all going to be treated alike," whether it's a teen picked up for drinking over the July 4 weekend or someone accused of murder. "They'll be held for 72 hours, then have to be released."

Cases may end up being dismissed because of a shutdown.

"You could have people charged with serious crimes have their charges dismissed because of the lack of a speedy trial," he said.

"I'm inclined to think the Supreme Court will move pretty fast on this and put everything else aside," Stowman said.

The Board of Public Defense will argue that the U.S. Constitution guarantees legal counsel to those accused of crimes, and overrides the state constitution via the Supremacy Clause, Stowman said.

The 425 attorneys who work either full- or part-time as public defenders are already overworked, Stowman said. They handle about 165,000 cases a year -- nearly double the caseload recommended by the American Bar Association.

Like other state agencies, the public defender system has taken a financial beating over the past three or four years. But it can't raise fees or tuition, and has had to stretch its $66 million budget through staff cuts.

Stowman's board oversees 347 fulltime equivalent attorneys, down from 421 FTE attorneys just three years ago.

"We lost 53 attorneys in 2008, and since then we've lost another 45 attorneys that we have been unable to fill just trying to keep within our budget," Stowman said. "That's going to be a concern in the next biennium -- are we going to be able to keep the attorneys we have, or will there be more layoffs?"

Every public defender lost means a higher caseload for those that remain, he said.

"We handle about 90 percent of all serious criminal cases and about 90 percent of all juvenile cases -- we are critical to the ongoing of the court system."