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SJC-12121
DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE
COMMITTEE FOR PUBLIC COUNSEL SERVICES & another1 vs. ACTING
FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT
DEPARTMENT.
Suffolk. November 9, 2016. - May 24, 2017.
Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.
Committee for Public Counsel Services. District Court, Drug
court session.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 23, 2016.
The case was reported by Duffly, J.
Paul R. Rudof, Committee for Public Counsel Services (Ryan
M. Schiff, Committee for Public Counsel Services, also present)
for the plaintiffs.
Bethany L. Stevens for the defendant.
HINES, J. This matter is before us on a reservation and
report, by a single justice of this court, of a petition for
1
Deputy Chief Counsel for the Private Counsel Division of
the Committee for Public Counsel Services.
2
relief under G. L. c. 211, § 3. The petition, brought by the
Deputy Chief Counsel for the Public Defender Division of the
Committee for Public Counsel Services and the Deputy Chief
Counsel for the Private Counsel Division of the Committee for
Public Counsel Services (collectively CPCS), sought an order
affirming CPCS's independent authority under G. L. c. 211D to
select and supervise attorneys for indigent defendants in the
pilot program it had launched in the drug court session of the
Lowell Division of the District Court Department (drug court).
The issue arose after the Acting First Justice of the Lowell
District Court (Justice), citing the need for a "team" approach
to cases in the drug Court, removed CPCS attorneys from drug
court cases to which they had been assigned and excluded CPCS
attorneys from assignment to any new case in the drug court.
The single justice, in her reservation and report, observed
that "the matter raises some important legal questions that
ought to be decided by the full court, concerning specialty
courts in general and adult drug courts in particular, and the
respective roles and responsibilities of judges, [CPCS], and
individual defense attorneys." The issue highlights the tension
that may arise between an attorney's duty to zealously advocate
for the rights of the drug court defendant and a drug court
model that favors a collaborative and nonadversarial approach to
supervision of the drug court defendant. We recognize that the
3
success of drug court outcomes depends in large part on an
unconditional commitment to the goal of treatment from all
members of the drug court team, including the drug court
defendant. Nonetheless, we conclude that CPCS has the sole
authority under G. L. c. 211D for the assignment of counsel to
indigent criminal defendants and that a judge may not override
that authority to accommodate a preference for attorneys willing
to assume a collaborative and nonadversarial role in drug court
proceedings.
Background. 1. The drug court model. Drug courts have
been developed to provide the option of treatment as an
alternative to incarceration in cases where the underlying
criminal behavior is thought to be motivated by a defendant's
substance abuse. Executive Office of the Trial Court, Adult
Drug Court Manual, A Guide to Starting and Operating Adult Drug
Courts in Massachusetts at 2-3 (2015) (drug court manual). Drug
courts are defined as "problem-solving courts that operate under
a specialized model in which the judiciary, prosecution, defense
bar, probation, law enforcement, substance use, mental health,
and social service communities work together to provide
treatment to people with substance use challenges" with the
ultimate goal of public safety and reduction of recidivism. Id.
at 3.
4
To accomplish these purposes, drug courts necessarily are
different from regular criminal sessions during which a judge
may impose probation to accommodate a need for treatment rather
than a sentence of incarceration. A defendant's success with
substance abuse treatment in such circumstances more often than
not depends on his or her self-motivation and the availability
of resources to support the treatment alternatives. Drug
courts, by contrast, are premised on the truism that successful
treatment, though achievable, is difficult for a defendant with
little more than sincere motivation and good intentions at his
disposal. Thus, drug courts are distinguished from regular
criminal sessions by the "integration of treatment and services
with judicial case oversight and intensive court supervision."
Id. at 39. In accordance with this formula for success, the
drug court model incorporates features, described infra, not
common in regular criminal sessions.
The structure of the drug court is informed by "evidence-
based best practices" emphasizing the necessity of a team
approach to the development and oversight of the defendant's
prescribed course of substance abuse treatment. Id. at 3. A
judge is the leader of the drug court team and, in that
capacity, assembles the team which typically includes the
"program coordinator, assistant district attorney, defense
attorney, probation officer(s), clerk, case manager, specialty
5
court clinician, treatment providers, local law enforcement, and
representatives from local organizations that provide services
to drug court participants." Id. at 8. In keeping with the
treatment purpose, team members must have expertise in substance
use disorders and therapeutic options, and be sensitive to
issues of gender, age, race, language, and cultural issues that
may bear on the drug court defender's likelihood of success.
Id. Collectively, the team members have the knowledge and
experience to develop an appropriate treatment plan for each
drug court defendant. Just as important, they are adept at
identifying the personal and societal causes of failure and the
ways to undercut their impact on the treatment goals.
The probation officer, clerk, and treatment providers are
essential to the mission of the team. They are present at each
drug court session, providing a consistency in the oversight of
drug court defendants at each drug court session. Participation
by the assistant district attorney and defense counsel is
encouraged but not always possible. Defense counsel has no
formal role in the drug court sessions because in the post-
adjudicative setting, the drug court defendant has no right to
counsel. However, if a drug court defendant is issued a
probation violation notice, defense counsel is appointed and is
expected to "zealously advocate for the rights of his or her
client." Id. at 8.
6
The work of the drug court is accomplished during the
weekly session over which the judge presides with the assistance
of the other team members. In preparation for each drug court
session, the team is assembled for a "staffing," the purpose of
which is to review the progress of each drug court defendant who
will appear before the court that day. Id. at 27. During the
staffing, the team determines whether sanctions are necessary.
However, if sanctions are to be considered, the discussion is
deferred until defense counsel has been notified and given the
opportunity to appear. After the staffing, the formal drug
court session is held with the defendant in attendance. Only
drug court cases are on the session docket. During the session,
the judge interacts personally with each drug court defendant
and offers words of encouragement or praise. The session is
open to all drug court defendants scheduled to appear that day
with the expectation that the opportunity to "see the
consequences of others' actions [will] build[] a sense of mutual
support among the participants." Id. at 28.
In accordance with the drug court manual, drug courts are
encouraged to have "clear, objective, and specific eligibility
criteria" for admission. Id. at 15. Typically, a defendant
must meet three eligibility criteria for admission to the drug
court: (1) the defendant must have a substance use disorder;
(2) the defendant must have been found guilty, pleaded guilty,
7
or admitted to sufficient facts for a continuance without a
finding; and (3) the defendant must have been placed on
supervised probation. Id. An eligible defendant is entitled to
the advice of counsel on the risks and benefits of drug courts.
Drug court defendants must agree to a one-year commitment
during which they may be required to submit to "random and
comprehensive drug and alcohol testing multiple times weekly,
weekly meetings with the probation officer and attendance at a
weekly or bi-weekly status hearing before the judge." Id. at
21. These conditions purposely are more demanding based on the
underlying philosophy that drug court defendants must exhibit an
unconditional commitment to engage in and comply with a rigorous
substance abuse treatment program. Id. at 19. And, as with any
probationer, the drug court defendant risks a violation of
probation if he or she fails to comply with the conditions of
probation.
2. The pilot program in the Lowell drug court. The drug
court commenced operations in June, 2014, and from its
inception, the Justice has been the judge with primary
responsibility to oversee the court. In July, 2015, CPCS
initiated a drug court pilot program (pilot), which, in a
departure from CPCS's long-standing policy, permitted the
assignment of counsel to indigent drug court defendants for
every stage of the drug court proceedings. CPCS's policy was
8
driven by the legal principle that in the drug court
postdisposition proceedings, drug court defendants had no right
to counsel; the right to counsel attached only if the defendant
was subject to a probation violation hearing. CPCS was
constrained as well by budgetary considerations. No funding had
been appropriated to defray the costs associated with the
assignment of counsel to this class of defendants beyond the
reach of the right to counsel provided by G. L. c. 211D.
The impetus for the pilot was a series of discussions that
began in December, 2013, among CPCS, judges, and other
representatives of the Administrative Office of the Trial Court.
The advocacy for this expanded access to defense counsel was
informed by the experiences of judges in other drug court
sessions who touted the efficacy and desirability of assigned
counsel at all stages of the drug court sessions. These judges
and others involved in the management of the drug court sessions
believed that a drug court defendant's likelihood of success in
substance abuse treatment would be enhanced if defense counsel
gained expertise in addiction issues and was familiar with the
team's view of the defendant's participation. This pilot
innovation permitted assigned counsel to participate in drug
court "staffings" which ordinarily would not involve the
presence of appointed counsel.
9
The pilot began after the Justice was notified by a letter
dated July 15, 2015, of CPCS's proposal to locate the pilot
program in the drug court. This letter advised that "the task
of assuring counsel for participants already determined indigent
in the trial session will be handled by our staff office and by
Middlesex Defense Attorneys . . . just as is done in all court
sessions." The record contains no evidence that the Justice
rejected these conditions for the implementation of the pilot in
the drug court.
Although the record does not establish the precise date on
which the pilot commenced, disagreement between the Justice and
CPCS attorneys surfaced on September 15, 2015, in an incident
involving one of the CPCS attorneys chosen to participate in the
pilot. It is not necessary to recite the details of that
incident; the upshot was that the Justice removed the attorney
from the assigned case and informed the attorney in charge of
the CPCS office in the Lowell Division of the District Court
Department that this attorney would not be permitted to
represent probationers in the drug court. The Justice removed
the attorney without specifying the reason or providing an
opportunity for the attorney to be heard. On November 16, 2015,
CPCS attorneys filed a motion for recognition of counsel and for
the recusal of the Justice on behalf of the probationer who had
been represented by the attorney removed by the Justice. On
10
December 10, 2015, the Justice issued a memorandum of decision,
denying the motion as moot.2
On several occasions in December, 2015, the Justice
declined to recognize previously assigned CPCS attorneys and
appointed bar advocates as substitute counsel. Eventually the
Justice announced a categorical ban on CPCS attorneys in the
drug court, effectively terminating the drug court pilot.
Although the Justice did not explain his reasoning for the
categorical ban on CPCS attorneys, he later expressed the belief
that CPCS attorneys in the Lowell office were "extremely
hostile" to the drug court mission and that they refused to
"participate fully" as team members.
Discussion. The petitioners argue that under G. L. c. 211D
and S.J.C. Rule 3:10, as amended, 416 Mass. 1306 (1993), CPCS
has independent authority to assign counsel to indigent criminal
defendants and that a judge may not remove assigned counsel
without notice and the opportunity to be heard, or categorically
exclude CPCS attorneys from assignments in the drug court. The
Justice concedes these limitations on a court's role in the
assignment of counsel to indigent criminal defendants. He
argues, however, that in the exercise of his authority to choose
2
The issue became moot after the Justice readmitted the
defendant to probation, thereby making the appointment of
counsel unnecessary.
11
drug court "team" members and to insure fidelity to the drug
court model, he may bypass the statutorily mandated system for
assignment of counsel to give preference to volunteer "team"
attorneys in probation violation cases. We do not doubt the
desirability and efficacy of a collaborative and nonadversarial
approach in the drug court, and we recognize its value in making
the drug court an effective intervention for defendants who
would otherwise recidivate because of their substance abuse
issues. We conclude, however, that this purpose, laudable as it
may be, cannot trump the statutory mandate that CPCS, not the
court, is to assign counsel for indigent defendants.
When G. L. c. 211D was enacted in 1983, the Legislature had
the benefit of decades of public advocacy for a "comprehensive,
coordinated, and independent" system to insure an indigent
criminal defendant's right to counsel. See Rosenfeld, The Right
to Counsel and Provision of Counsel to Indigents in
Massachusetts: The Hennessey Era, 74 Mass. L. Rev. 148, 148
(1989) (Hennessey Era). See also St. 1983, c. 673. That
advocacy followed this court's decisions in Pugliese v.
Commonwealth, 335 Mass. 471, 475-476 (1957) (recognizing right
to counsel where defendant lacked sufficient intelligence to
represent himself), and Brown v. Commonwealth, 335 Mass. 476,
482-483 (1957) (violation of art. 12 of Massachusetts
Declaration of Rights where defendant was not represented by
12
counsel), both of which were decided well before the United
States Supreme Court's landmark ruling in Gideon v. Wainwright,
372 U.S. 335, 339, 343-344 (1968). In the aftermath of these
decisions, the Supreme Judicial Court promulgated S.J.C. Rule
10, 337 Mass. 813 (1958), which required the appointment of
counsel for indigent defendants in noncapital felony cases in
the Superior Court.3
In 1960, the Legislature created the Massachusetts
Defenders Committee, the first State-wide publicly funded
defender agency. St. 1960, c. 565. Plagued by a shortage of
resources, however, the defender's committee was unable to
deliver on its mission to provide counsel to all indigent
defendants eligible to receive the service. Goodwin, Comment,
Massachusetts' Struggle to Adhere to the Gideon Mandate: Will
the Lavallee Decision, Coupled With Legislative Reform, Finally
Establish a State Indigent Criminal Defense System that is
Constitutionally Sound? 32 New Eng. J. on Crim. & Civ.
3
Rule 10 of the Supreme Judicial Court Rules, 337 Mass. 813
(1958), was amended three times thereafter. In 1962, the rule
was amended to allow the appointment of counsel in any case
warranted by the circumstances. 345 Mass. 792 (1962). In 1964,
the rule was amended a second time to require the appointment of
counsel in all cases where a sentence of imprisonment was a
possible consequence of conviction. 347 Mass. 809 (1964) In
1969, the court amended what was by then S.J.C. Rule 3:10 to
require the assignment of the Massachusetts Defenders Committee
unless exceptional circumstances dictated otherwise. 355 Mass.
803 (1969). See 351 Mass. 791 (1967) (renumbering rules of
Supreme Judicial Court).
13
Confinement 77, 84 (2006). Twenty years after the creation of
the defender's committee, it was still responsible for "less
than one-half" of the cases of indigent criminal defendants.
Id. at 86-87. The patchwork of county defender programs that
operated as a complement to the defender's committee was itself
inadequate to have any salutary effect on the system for the
appointment of counsel for indigent criminal defendants. Id. at
87. Also, until the decision in Abodeely v. County of
Worcester, 352 Mass. 719 (1967), private attorneys appointed
under the authority of S.J.C. Rule 3:10 had no constitutional or
statutory right to payment for their services. Abodeely, supra
at 723-724.
Concern about these and other serious shortcomings in the
indigent defender system prompted then Chief Justice Edward
Hennessey to establish a committee,4 chaired by Associate Justice
Herbert Wilkins (Wilkins Committee), to "set out guidelines and
standards for defender programs, including such requirements as
caseload controls, training, vertical representation and
provision of support services." Rosenfeld, Defense of Indigents
4
The committee, officially named the "Committee on
Appointment of Competent Counsel for Indigent Criminal
Defendants in District and Municipal Courts" (Wilkins
Committee), was established in 1976. The Wilkins Committee
released its interim report on December 16, 1976, and its final
report on March 21, 1979.
14
in Massachusetts: A New Approach, 28 Boston Bar J. Vol. 22, 22
(Nov./Dec. 1984). See Hennessey Era, supra at 149.
Chief Justice Hennessey envisioned an indigent defender system
that was "centrally administered and financed . . . , within the
judicial branch but independent of the [c]ourt." Id. at 151.
The Wilkins Committee issued reports in 1976 and 1979,
identifying the primary impediments to the system envisioned by
Chief Justice Hennessey as the lack of (1) a central
administrative and funding mechanism; (2) standards for quality
control; and (3) requirements for training and education. Id.
at 149-150. Armed with the work of the Wilkins Committee and
other advocacy groups supporting his vision, Chief Justice
Hennessey personally supported legislative initiatives intended
to accomplish this purpose. Id. at 151.
Leading up to the enactment of G. L. c. 211D in 1983, the
Legislature also had the benefit of appellate cases documenting
abuses of the then-existing system for the appointment of
counsel to indigent defendants.5 Under that system, judges,
5
See, e.g., Matter of McKenney, 384 Mass. 76, 77, 89, 101
(Appendix) (1981) (public censure and retirement of former judge
for misconduct including favoritism in appointment of counsel
for indigent defendants); Matter of Scott, 377 Mass. 364, 369-
370, 376-377 (Appendix) (1979) (censure for failing to ensure
that counsel was appointed for indigent party); Matter of Troy,
364 Mass. 15, 36, 73 (1973) (discipline for conditioning the
right to court-appointed counsel on defendant's surrender of
right to post bail).
15
despite the obvious constitutional conflict in exercising that
role, had exclusive authority for the appointment of counsel.6
Against this historical backdrop, the Legislature enacted
G. L. c. 211D in 1983, establishing CPCS as the sole statutory
entity with the authority to "plan, oversee, and coordinate the
delivery of criminal . . . legal services" to indigent
defendants. G. L. c. 211D, § 1. General Laws c. 211D created a
centralized agency with the responsibility for every aspect of
the system for providing counsel for indigent defendants. Id.
That responsibility begins with the duty to establish, subject
only to the approval of the Supreme Judicial Court, the
indigency standards to be applied in determining a defendant's
right to appointed counsel. G. L. c. 211D, § 2. For the
benefit of those defendants qualifying for the appointment of
counsel, CPCS is charged with the duty to oversee the "training,
qualification and removal of counsel" who accept appointments as
counsel for indigent defendants. G. L. c. 211D, § 4. Vested
with this authority, CPCS has the ability to insure that
indigent defendants have access to effective assistance of
6
"The appointment of counsel by judges creates -- at the
least -- the appearance that lawyers are being assigned cases to
move dockets and that lawyers may be more loyal to the judge
than to the client." See Statement of Stephen B. Bright,
Innocence Protection Act of 2001, Hearing before the Senate
Committee on the Judiciary, 107th Cong., 1st Sess., on S.486, at
40 (June 27, 2001).
16
counsel. The statute also has an egalitarian approach to the
appointment of counsel, allowing that CPCS create a rotating
appointment system to "encourage open access among attorneys
participating within the private counsel division." Id. As
explained, infra, the over-all statutory scheme addressed a
range of issues that, prior to 1983, undermined the goal of a
comprehensive and unified system for the assignment of counsel
to indigent defendants.
The plain language of G. L. c. 211D, § 5, viewed in the
context of the entire statutory scheme, supports for our
conclusion that CPCS has sole authority to assign counsel to
indigent criminal defendants. The procedure in G. L. c. 211D,
§ 5, contemplates a two-step process for the assignment of
counsel. The first step is the determination of indigency, a
duty within the exclusive authority of the judge. Id. The
statute is clear that, in the second step, "A justice or
associate justice shall assign a case to [CPCS]" (emphasis
supplied). Id. This statutory division of authority between
the judge and CPCS is reinforced in S.J.C. Rule 3:10, § 5, which
provides that "the judge shall assign [CPCS] to provide
representation for the party, unless exceptional circumstances,
supported by written findings, necessitate the use of a
different procedure that is consistent with G. L. c. 211D and
the rules of this court" (emphasis supplied). Therefore, we
17
discern no ambiguity in the respective roles of the judge and
CPCS. The judge's role is to determine indigency and to assign
the case to CPCS; the role of CPCS is to assign the case to an
attorney with responsibility to represent the defendant.7
The Justice does not dispute this interpretation of G. L.
c. 211D, § 5. Rather, he argues that we should recognize an
exception for the drug court based on the need for the team
approach deemed essential to the success of the drug court
model. To the extent that the social science research validates
the efficacy of a nonadversarial "team" approach in the adult
drug court model, we take no issue with that proposition.
Nonetheless, the statute provides no authority for a judge to
craft an exception for a drug court, and the Justice cites none.
As framed by the Justice, the judge, as the leader of the drug
court team, may use his authority to select the team members to
give preference to volunteer attorney "team" members in the
appointment of counsel for probation violation matters.
Although important, the authority to select team members is an
administrative duty that must give way to the clear statutory
duty of CPCS to assign counsel. Further, this exception to the
7
According to CPCS, except for CPCS staff attorneys, CPCS
does not assign individual attorneys to CPCS cases. Instead,
CPCS contracts with the various county bar advocate programs
which in turn make the assignments in accordance with the
statutory mandate to fairly apportion the cases among available
attorneys.
18
statutorily mandated procedure would effectively remove CPCS
attorneys from the pool of attorneys in the drug court. "The
carving out of any exceptions to [a] clear [statutory] mandate
is for the Legislature, not the judiciary." D'Avella v.
McGonigle, 429 Mass. 820, 822 (1999).
Conclusion. Although we acknowledge and appreciate the
important and special role of the drug court in achieving
important public policy interests, we are constrained to follow
the clear dictates of G. L. c. 211D and S.J.C. Rule 3:10, which
vest CPCS with sole and independent authority to assign counsel
for indigent defendants. Where a drug court defendant who is
indigent is alleged to have violated the terms of probation, the
judge must appoint CPCS as counsel. Counsel assigned by CPCS
may be removed only for cause after a hearing.
So ordered.