AUGUSTA — The ACLU of Maine and the Maine Commission on Indigent Legal Services agreed Friday to keep negotiating a possible settlement of a lawsuit over the commission’s inability to provide legal representation to people who cannot afford attorneys – something the state is constitutionally required to do.
During a 15-minute hearing, Kennebec County Superior Court Justice Micheala Murphy granted the parties’ request for assistance from a judicial settlement officer in those negotiations, and asked them to update the court 30 days after their initial meeting.
Murphy said she would move quickly to appoint a judicial officer to help with negotiations. “I will get right on that today,” she said.
An attorney representing the commission suggested they were eager to resume talks in hopes of reaching a settlement that would be accepted by the court.
“We want to get this done,” Assistant Attorney General Sean Magenis said.
Friday’s hearing follows Murphy’s rejection of an initial settlement agreement, which took the parties over a year to reach.
The ACLU of Maine sued the commission in March 2022 on behalf of five incarcerated clients who claimed they were not getting enough time or attention from their attorneys. That July, Murphy granted the case class action status, meaning it would affect thousands of clients in similar situations, rather than just the five named in the lawsuit.
In August, the ACLU and MCILS announced they had reached a settlement agreement that would have halted any litigation for four years while the commission continued to advocate for more resources from the Legislature, update its rules for participating attorneys and issue regular reports on its progress.
But the agreement was immediately panned by critics, because it did not obligate the state to actually provide the additional resources needed to ensure the state meets its constitutional obligation to provide adequate legal representation for people who are incarcerated.
Murphy, who must find that such an agreement is fair, reasonable and adequate, refused to sign off on it, saying it was not in the best interests of the plaintiffs.
“The court is simply not willing to subject class members to the risk of losing the right to pursue those important constitutional claims in this action, or in another forum,” she wrote. “What is at stake, depending on the evidence presented, could be the deprivation of the fundamental rights to due process and to liberty, and the failure on the part of the State of Maine to fulfill a core function of government.”
Lawmakers have taken steps in recent years to address the issue, including nearly doubling the hourly reimbursement rate to $150 for private attorneys who take on indigent clients. And the most recent budget included additional funding for the state’s first public defenders office.
But those moves have not solved the problem.
In August, Valerie Stanfill, chief justice of the Maine Supreme Judicial Court, wrote to the state’s largest law firms, imploring them to encourage their attorneys to take on indigent clients. Stanfill included a list of 26 former law clerks whom she thought would be able to handle what she described as largely procedural cases.
“The need is dire,” Stanfill wrote this week in a letter to individuals at seven firms. “Won’t you please help?”
MCLIS Executive Director James Billings said in an interview after the hearing that the commission has been working with about 10 attorneys who responded to Stanfill’s letter, some of whom have applied to be added to the commission’s roster. But that is not enough to meet the need.
“The number of attorneys willing to take cases is woefully inadequate,” Billings said.
He said lawmakers need to continue investing in Maine’s fledgling public defender system, which could be used to recruit young defense attorneys. Such a move would create a “true hybrid” system of both public defenders and private attorneys.
The state hired its first five public defenders in late 2022 and received funding for 10 additional positions in the current budget.
“We need to keep building out capacity in Maine and create more public defender jobs,” he said.
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