Legislature Should Fully Fund Commission on Indigent Legal Services

20 June 2017 , Posted in: Our Work

The following article ran in Maine Voices Portland Press Herald on 6/21/17.

The independent state agency is out of money, and it’s the poor of Maine who will ultimately suffer. BY WILLIAM ROBITZEK,* SPECIAL TO THE PRESS HERALD

BRUNSWICK — Anyone who can’t afford a lawyer gets one appointed for them, right? No, not right.

We are familiar with the sentence “if you cannot afford a lawyer, one will be appointed for you” from countless television shows and movies. But the right to have a lawyer appointed for you is limited. It applies only in certain cases in which the courts have decided that the stakes are so high that the U.S. Constitution requires the state to protect your rights by providing an attorney. This fundamental right was applied to criminal cases by the U.S. Supreme Court in 1963.

Justice Hugo Black, who wrote the unanimous decision, stated that “reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

The constitutional guarantee of a fair trial, however, also applies to other cases where the stakes are just as high as going to jail. Legal representation for indigent people is required as a matter of fundamental fairness in matters like child protective cases, where parents and children may be separated, and requests to involuntarily commit someone to a psychiatric hospital.

Maine’s constitutionally required indigent legal services have been administered by the Maine Commission on Indigent Legal Services, an independent state agency, since July 1, 2010. Previously, Maine had appropriated funds to the Judicial Branch for this purpose.

During the last half of 2016, the commission reported over 13,000 cases opened in which Mainers were represented in 997 child protection petitions, 59 child emancipations, 409 involuntary commitments, 435 juvenile matters, 1,396 custody matters, 166 termination of parental rights cases and 285 child protective order reviews. Each court in Maine has a roster of attorneys vetted by the commission and qualified to provide indigent legal services. The number of attorneys ranges from 11 in the Fort Kent District Court to 162 in the Portland District Court.

Although Maine law directs the commission to work “to ensure adequate funding of a statewide system of indigent legal services,” its funding is beyond its control. Providing fundamental fairness when the stakes are whether you lose your child or whether you are committed to a psychiatric facility is not inexpensive. The commission has now run out of money because of inadequate funding. Lawyers are asked to work for free in the hopes that the Legislature will catch up.

I am not asking anyone to feel sorry for the attorneys. The ones who suffer are ultimately the poor of this state, children, elderly, veterans, parents and those with psychological disabilities.

The commission has been chronically underfunded. This is not the first time that the state has exposed its citizens to the risk of lawyers just giving up on the system. As one might expect in these economic times, the needs of the indigent increase. Yet legislative funding fell by nearly $3 million from fiscal 2016 to fiscal 2017.

The commission anticipated the need for, and requested, supplemental funding for fiscal 2017 to enable it to meet the state’s constitutional requirements. The commission is out of money and that urgent request has not been acted on. Moreover, the biennial budget originally proposed for fiscal 2018 and fiscal 2019 included less-than-level funding when compared with fiscal 2017. Recently, Gov. LePage released a “change package” that includes additional funding for indigent legal services – but only through January 2018.

Reliance on continual patches and after-the-fact funding is not a solution. These simply postpone the reckoning. A continued failure to provide adequate funding risks exposing the state to lawsuits for denying constitutionally protected rights or exposing the legal system to a complete breakdown in these most important matters.

A strong, unwavering commitment to adequate state funding for fiscal 2017, through the next biennium and on an ongoing basis is essential. Perhaps it is naïve, but I believe that programs and services that the Constitution says the state must provide should always be fully funded in our state budget.

It is well past the time for Maine to fully embrace and support the constitutional and statutory rights of poor Mainers to receive the legal counsel that the Constitution is supposed to guarantee. Please join me in urging members of the 128th Maine Legislature to provide adequate funding now and in the future to the statewide system of indigent legal services overseen by the Maine Commission on Indigent Legal Services.


William Robitzek of Brunswick is president of the Maine Justice Foundation, established to increase access to justice for low-income and vulnerable people in Maine and to facilitate the legal profession’s commitment to law-related public service. He can be contacted at: bill@mainelawyerservices.com.