Over at Texas Lawyer, John Council brings word of a federal court opinion shutting down litigation over judges' selection of attorneys under the 2001 Fair Defense Act ("5th Circuit rejects suit against judges over court appointments," April 20):
Eight years after the Legislature passed the Texas Fair Defense Act, some lawyers still are not happy with how judges carry out the law, which requires judges quickly to appoint qualified attorneys to represent indigent defendants.
Lawyers get frustrated when judges exclude them from a county's rotating appointment system, and some even sue the county and the jurists. But on April 8, the 5th U.S. Circuit Court of Appeals found that a lawyer couldn't sue Tarrant County and the criminal district court judges hearing felony cases there because the judges denied his application to be put on a list to receive court-appointed cases.
Specifically, in Davis v. Tarrant County, et al. the 5th Circuit decided that when judges create a list of attorneys eligible for court appointments within the county, that is a "judicial act" protected by judicial immunity.
The 5th Circuit also ruled that Tarrant County could not be held liable for the state judges' actions because, again, the jurists were acting in their judicial capacities pursuant to their obligations under the 2001 Fair Defense Act, Article 26.04 of the Texas Code of Criminal Procedure. [See the court's opinion.]
Without having analyzed the opinion, I'll note that the folks whose views I usually trust on these matters sided with the plaintiff on this one:
The Fair Defense Project filed an amicus brief in support of Davis' position that the defendant-judges acted as county policymakers and that Tarrant County should be held liable for the defendant-judges' actions in implementing the appointment policy.
Andrea Marsh, executive director of the Texas Fair Defense Project, disagrees with [the plaintiff's attorney's] assessment that the 5th Circuit's decision undermines the Fair Defense Act.
The Fair Defense Act requires judges to set objective standards in creating an appointment list, such as requiring lawyers to try a certain number of cases before they can be put on an appointment list, Marsh says. But the act also allows judges as a group subjectively to use their discretion when deciding whether lawyers should be on the list, she says.
"The Fair Defense Act says over and over again that counties are responsible for implementing state law for indigent defendants and having policies that comply with the Fair Defense Act," Marsh says. The 5th Circuit focused on the Tarrant County judges' ability to reject individual attorney applications but did not reach whether the judges are liable for the role they play in adopting a procedure for appointments required by the act, she says.
Marsh also believes the 5th Circuit opinion will shut down similar attempts by attorneys to sue counties and judges over the appointment systems. There have been several such suits filed in Texas over the past few years, she says.
I understand Andrea's point that the crux of the Fair Defense Act remains intact and the court did not address whether judges are liable for adopting procedures that compy with the law. But this does seem like a case of judges protecting judges, excusing judicial behavior (rejecting attorneys for reasons besides their qualifications) that flouts the Fair Defense Act in deference to court-created judicial immunity. I don't know the details of the plaintiff's suit beyond what's published in the article, so I can offer no opinion whether this attorney is qualified. But I wonder, if the courts won't allow civil suits when judges violate the Fair Defense Act in their appointments, how can that law be reasonably enforced? And by whom?
RELATED: See more top-notch blogging on indigent defense issues from Mark Bennett in his excellent recent post, "Revisiting the problem of the working poor."