The Committee for Public Counsel Services, with the support of defense attorney groups, argues that the Legislature has failed in its duty and the court should step in to ensure defendants’ constitutional right to an attorney is not violated.
But several justices suggested that could involve the courts overstepping their authority.
“This is ordering the Legislature to go find some money and redo its budget,” Justice Dalila Argaez Wendlandt said skeptically.
The seven-justice panel of the state’s highest court took the case under advisement following the oral arguments, and will grapple with the colliding constitutional issues of due process and separation of powers as they craft a decision. There’s no set timeline for when they will rule; it often takes months for the court to render a decision.
The hearing comes amid open questions of how long the crisis will languish if there’s no action. On Wednesday, a lawyer for CPCS said the number of unrepresented defendants has dropped to about 900, far lower than the peak of over 3,000 over the summer and a mark around 2,000 just a few weeks ago. But a new, short-lived incentive meant to lure some lawyers from other counties to take cases in Suffolk and Middlesex, where the crisis is centered, runs out Nov. 17.
The stoppage began in May, as a large group of the bar advocates stopped taking cases as they sought a higher pay rate from the state. At the time, they made a base of $65 an hour, far lower than their equivalents in surrounding states. In Massachusetts, bar advocates typically represent about 80 percent of the state’s indigent defendants, with CPCS staff attorneys covering the rest; that split is tipped much further toward bar advocates than most other states, so the private attorneys wielded major leverage through a work stoppage.
In July, Wendlandt, presiding over a related case as a single justice of the SJC, ordered the implementation of an emergency procedure known as the Lavallee protocol, which requires hearings for cases that have languished without an attorney, requiring the release of some defendants and the dismissal of cases that have passed certain time thresholds. That protocol remains in place, and has led to the dismissal of about 1,600 cases.
Then in August, Governor Maura Healey signed a bill to hike the rate by $20 over two years and also double the ranks of CPCS staff public defenders, meaning bar advocates would not cover quite so large of a proportion of cases once CPCS staffs up over the next two years.
Because the bar advocates are all independent contractors who each would be making their own decisions on whether to take or leave the new pay rate, the move was a gamble on whether it would be enough to coax attorneys back to taking new cases.
Some bar advocates have started taking cases again, though fewer are doing so than before the stoppage.
On Wednesday, CPCS attorney Rebecca Jacobstein argued that the rates are unconstitutionally low and must be raised temporarily to stop what remains a crisis in which defendants’ rights are being violated.
“We are in a perpetual state of emergency,” she said. “The Legislature cannot underfund the judiciary so that it can’t meet its functions.”
On Wednesday, the SJC’s justices pushed her on the fact that the Legislature had already spoken, and the results from it are still playing out.
“You got your answer. You don’t like it, but you got it,” Justice Frank Gaziano said.
Jacobstein responded, “We got an answer, but it’s not a sufficient answer.”
Multiple justices pushed Assistant Attorney General Marina Pullertis, who was arguing on behalf of the Massachusetts Trial Court that judges should not be allowed to set the rates, on what the courts can do to stem a crisis if the Lavallee protocol has not fully worked.
“People’s constitutional rights are being violated right now,” Chief Justice Kimberly Budd said. “What are we going to do about that?”
Pullertis said the court does have the ability to declare the the rate too low, but cannot go further.
“The courts can indeed consider the constitutionality of a rate paid for bar advocates,” she said. “What they cannot do is go the next step and set that rate.”
Several justices saw something missing with that logic.
“If they don’t respond, do we then hold the Legislature in contempt?” Justice Scott Kafker said.
Later in the hearing, Suffolk Assistant District Attorney Elisabeth Martino, who was also arguing that the courts should not be able to set the rates, argued that while the courts were “a mess,” the process to try to disentangle them was largely working as laid out.
Though people are facing violations of the constitutional rights, “Dismissal is the remedy for due-process violations,” she said, and that is happening.
“There are a lot more lawyers taking duty days now,” she said. “The courts are functioning.”
CPCS is also arguing for a tightening of the Lavallee protocol. Currently, it requires anyone held for a week without a lawyer to be released, and any case that’s languished without an attorney for longer than 45 days to be dismissed without prejudice, meaning it can be reopened at a later date. In a hearing next week before Wendlandt, CPCS will argue that those time thresholds should be reduced, and that dismissals should be done with prejudice, meaning that the cases cannot be reopened.
The public-defender agency said that the situation still remains serious despite the decreasing numbers of unrepresented.
“One person appearing in court without counsel is too many, and the fact that there are still 900 unrepresented defendants illustrates that there continues to be an unprecedented constitutional crisis,” CPCS spokesperson Robert McGovern said Wednesday. No doubt the incentive program has made a difference for a number of clients, and it has eased some of the strain on the system — but it is a temporary measure that has not, and will not, fix the ongoing situation.”
Sean Cotter can be reached at sean.cotter@globe.com. Follow him @cotterreporter.
