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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 25 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 1st day of April, 2005 , are as follows:

BY VICTORY, J. : 2004-KA-1841 STATE OF LOUISIANA v. ADRIAN CITIZEN AND STATE OF LOUISIANA V. BENJAMIN G. TONGUIS (Parish of Calcasieu) (Funding for Indigent Defendants in Criminal Cases) For the reasons stated herein, the judgment of the trial court is reversed. We order that unless adequate funds are identified and made available in a manner authorized by law as expressed in this opinion, upon motion of the defendants, the trial judge may halt the prosecution of these cases until adequate funds become available to provide for these indigent defendants' constitutionally protected right to counsel or take other measures consistent with this opinion which protect the constitutional or statutory rights of the defendants. REVERSED AND REMANDED. JOHNSON, J., concurs in part, dissents in part and will assign reasons. KNOLL, J., concurs in the result.

04/01/2005

SUPREME COURT OF LOUISIANA
No. 04-KA-1841* STATE OF LOUISIANA v. ADRIAN CITIZEN and STATE OF LOUISIANA v. BENJAMIN G. TONGUIS ON APPEAL FROM THE 14th JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, HONORABLE ALCIDE GRAY, JUDGE VICTORY, J. These consolidated cases present the issue of funding for indigent defendants in criminal cases in the State of Louisiana. In particular, the legislature has enacted statutes which require the State to provide the funds for indigent defense through the Louisiana Indigent Defense Assistance Board ("LIDAB") and statewide indigent defender boards in each judicial district but has at the same time failed to provide adequate appropriation to support these services. Further, the legislature has exempted local governmental entities from the payment of such expenses. FACTS AND PROCEDURAL HISTORY The instant direct appeal arises out of two unrelated Calcasieu Parish killings. After a Calcasieu Parish grand jury returned a first degree murder indictment on April 11, 2002 against Benjamin Tonguis, the trial court appointed the Chief Public Defender for the parish, Ronald Ware, to represent him. Ware informed the court of his prohibitive caseload, and the court removed him from the case and sought to

On September 23, 2004, this Court ordered that this appeal and a writ application filed in State of Louisiana v. Adrian Citizen, 04-KD-1154, be "consolidated for oral argument, hearing, and decision."

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appoint solo practitioner Phyllis E. Mann.1 On December 10, 2003, counsel filed a document captioned as a Motion to Determine Source of Funds to Provide Competent Defense. Counsel also requested that the court adopt into the record a transcript from a 2001 hearing in three consolidated prior cases in which the trial court could not readily find funding for court appointed attorneys in private practice.2 The trial court set counsel's funding motion for a hearing and granted her request to supplement the record. On January 30, 2004, the trial court consolidated the Tonguis case with that of Adrian Shannondoah Citizen, another Calcasieu Parish first-degree murder defendant indicted on October 10, 2002, seeking to be represented by appointed counsel Phyllis Mann.3 Also on that date, the trial court held a hearing on the funding issues raised by Mann. At this hearing, counsel for the Calcasieu Parish Police Jury (the "CPPJ") filed a motion to dismiss his client as a party to Mann's motion, as in his view La. R.S. 15:304 and La. R.S. 15:571.11 forbid local funding for the representation of indigent defendants. The court then explored the possibility with prosecutors of amending the charges against each defendant to second-degree murder and, after receiving no favorable response, considered the testimony adduced at the prior October 2001 hearing regarding the financial status of the CPPJ, with an eye toward using it as a funding source.

At some time post-indictment, the trial court also apparently sought to appoint M. Michele Fournet and Gary Proctor as co-counsel for the various parties. Unless specified for the sake of clarity, this report refers to all three interchangeably as "defense counsel." Court minutes indicate that Ms. Mann submitted a Motion and Order to Enroll as Co-Counsel on behalf of Ms. Fournet, which the trial judge signed on December 10, 2003. In that case, the trial court found that while La. R.S. 15:304 and La. R.S. 15:571.11 did not authorize local funds to be used to pay defense counsel, they did not preclude such use either. See State v. Smith, Turner and Winfree, 01-3128 (La. 1/11/02), 805 So. 2d 133. In the alternative, the trial court found both statutes unconstitutional, as they unlawfully interfered with a defendant's right to counsel. The Calcasieu Parish Police Jury appealed, and this Court found that the trial court unnecessarily ruled the statutes unconstitutional as it had resolved the funding issue on statutory grounds. Id. Accordingly, this Court remanded the matter to the court of appeal, which denied writs first without finding an unresolved controversy, State v. Smith, Turner and Winfree, 02-0065 (La. App. 3 Cir. 3/15/02) ("The only issue in the State's writ application to this court was disposed of in State v. Smith, et al., 01-3128 (La. 1/11/02), 805 So. 2d 133"), and then on procedural grounds. State v. Smith, Turner and Winfree, 01-1606 (La. App. 3 Cir. 4/9/02) (noting writ filed untimely and without proper notice to trial court). It thus appears that defense counsel in that case procured funds from the Calcasieu Parish Police Jury, although the record in the instant case does not contain conclusive evidence of such payment. Court minutes indicate that the trial judge signed a Motion and Order to Enroll as Counsel filed by Ms. Mann and Mr. Proctor on December 10, 2003.
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During that October 2001 hearing, counsel for the CPPJ explained that the current system for maintaining the criminal justice system in Calcasieu Parish, apparently unique among the 64 parishes in Louisiana, evolved in 1985 after voters in the parish approved an ad valorem tax specifically dedicated to maintaining the Criminal Court Fund, established pursuant to La. R.S. 15:571.11(A). Voters renewed the tax in 1995 and will consider it again in 2005. As explained by the parish attorney, this system has clearly been an overwhelming success. Using the figures from the last fiscal year, the attorney explained that in 2000, the tax, as supplemented by fines and forfeitures, put into the Criminal Court Fund $3,500,000, by far the largest portion of the total amount of $5,300,000, which also included funds from other sources such as grant programs. By agreement, 20% of the Fund portion generated by the ad valorem tax and fines and forfeitures goes into the witness and juror fee account, 60% to the D.A.'s office, and 40% to the district courts. Any surplus remaining in the witness and jury fee account at the end of the year does not revert to the general parish fund4 but is split on a 50/50 basis between the courts and the D.A.'s office. In 2000, that surplus amounted to some $440,000, an average figure over a seven year period.5 Counsel for the CPPJ further explained that his client would not mind allocating a portion of these funds for capital defense, but could not do so without the agreement of both the 14th J.D.C. and the Calcasieu Parish District Attorney. However, by the time of the January 30, 2004, hearing, the attitude of the CPPJ had apparently changed. The parish attorney explained that the CPPJ had concluded that since voters in Calcasieu Parish had approved the ad valorem tax, by far the biggest component of the Criminal Court Fund, specifically for the purpose of maintaining the court system and the District Attorney's Office, the CPPJ had no

In 2000, the general fund for the parish enjoyed an overall surplus of some $7,000,000. However, the parish invests all of that surplus and the parish attorney explained that tapping into the surplus for any reason, including criminal defense, would cause considerable portfolio distress. As for the overall health of the fund, the parish attorney explained that in 2000, the fund had $5,563,000 in assets and $2,626,000 in liabilities, leaving it with an overall balance of $2,937,000. That balance was then split between the courts ($1,100,000) and the District Attorneys Office ($1,800,000). Whatever the problems elsewhere in the state, Calcasieu Parish appears to have secured ample funding of its criminal justice system with substantial monies in reserve.
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obligation, or even the authority, to divert some of that tax money to criminal defense. Chief Public Defender Ware underscored the problem facing the court by stating that his office currently owed close to $47,000 for capital defense and expected to owe at least an additional $150,000 in upcoming cases which he had already committed to fund. He further informed the court that his office generated approximately $5,550 per month. Despite the apparent intransigence of the CPPJ, Prosecutor Wayne Frey suggested that the court pay defense counsel from the surplus monies contained in the CPPJ's Criminal Court Fund (provided the parties agreed upon a funding cap), and the court agreed to propose the idea to his fellow judges and to go before the CPPJ with a funding proposal. However, an increase in jury and witness fees had reduced the surplus in the Fund from a previous average of $450,000 to approximately $300,000. The court expressed its frustration with the continued lack of funding and the fact that it faces some version of the same funding dilemma in virtually every criminal case before it. The court vowed to address the issue at the next judges' meeting, and informed the parties that if the judges (and presumably the district attorney and police jury) could not resolve the funding issue collectively, then the court would issue an order that the money needed to pay defense counsel would come from the CPPJ. On April 27, 2004, after meeting no success with the judges and district attorney, the court found that the CPPJ was the only possible source of adequate funding. The court went on to find La. R.S. 15:304 and La. R.S. 15:571.11 "ambiguous," and that the statutes unconstitutionally deprive the defendants of their right to a fair and speedy trial and their right to counsel. Finally, the court ordered the CPPJ to place $200,000 into the court registry to be distributed to the attorneys representing Tonguis and Citizen. In its ensuing written reasons, the court also ordered the CPPJ to place into an escrow account $75,000 for expert witness fees and case related expenses. Both the State and the CPPJ have appealed to this Court the trial court's declaration of unconstitutionality, see La. Const. art. V,

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