Public defenders vote to strike; justice system could come to a halt

By: - March 10, 2022 2:50 pm

The Minnesota Capitol. Photo by Max Nesterak/Minnesota Reformer.

Minnesota’s public defenders and their support staff voted overwhelmingly to reject the state’s “final” offer on a two-year contract on Thursday and authorize a strike, paving the way for hundreds of attorneys and staff to walk off the job for the first time in state history. 

“I have never seen people so overwhelmingly furious at how we’re being treated,” said Darcy Sherman, who’s worked as a public defender in Hennepin County for nine years and serves as a steward for the Teamsters Local 320.  

The union filed their intent to strike with the Bureau of Mediation Services, which kicks off a 10-day cooling period, during which the union and Board will have to enter mediation to try to work out a deal. If they can’t reach a tentative agreement during that time, then some 470 attorneys and about 200 support staff could go on strike.

At the crux of their demands is the chronically low pay and high caseloads that have led to high turnover and inadequate representation for people who can’t afford a lawyer. 

The roughly 100 public defenders in Hennepin County currently have 12,000 open cases, or an average of 120 per attorney. Sherman is juggling 90 cases — including 60 felony cases — two of which are for murder. She says everyone in her office who can work on a murder case has at least two. 

The union is negotiating with the Minnesota Board of Public Defense, which employs the defense attorneys. Kevin Kajer, chief administrator of the board, acknowledged to state lawmakers in January they have just 75% of the attorneys and 60% of the support staff needed. 

But the offer from the board comes nowhere near bringing public defender salaries in line with those of prosecutors.

In a statement, State Public Defender Bill Ward called the vote “disappointing.”

“The board is ready to continue negotiating in good faith, and we remain hopeful that an agreement can be reached so that we may continue to provide excellent criminal defense services to our clients,” Ward said.

Sherman earns $78,000 a year, less than the starting salary of a Hennepin County prosecutor. She estimates she could make $50,000 more a year just by switching sides. She could earn even more at a private law firm. But she doesn’t want to. 

“I shouldn’t have to be putting people in jail in order to make a respectable salary,” Sherman said. “I should just get paid like the skilled, experienced lawyer I am when I’m on this side.” 

With public defenders representing about 90% of people charged with crimes, a strike threatens to bring much of the justice system to a screeching halt. 

“If public defenders strike in Minnesota, we shut the courts down,” said Brian Aldes, secretary-treasurer for the Teamsters Local 320.

The possibility of a strike comes as the courts are already overwhelmed with a pandemic-caused backlog of more than 11,000 cases.

Striking presents a dilemma for public defenders, however, since the people who would ultimately be hurt are the defendants they’ve sacrificed higher pay and lighter case loads to help. 

“That’s been the hardest part for people wanting to go on strike,” Sherman said. “So we have been trying to figure out how to balance making sure that our clients aren’t harmed.” 

Sherman said she expects lawyers would continue to show up for critical proceedings that would hurt their clients to postpone although they are not required to. Otherwise, supervisors who are not in the union will be responsible for bail hearings and representing low-income clients.

Public defenders say their caseloads have made it all but impossible to adequately represent their clients. In a survey conducted by the union in January, 70% of attorney respondents said the Board of Public Defense had created working conditions “that make it hard or impossible to meet ethical standards.” 

A hundred open cases would be overwhelming for any attorney, but public defenders have clients who may be distrustful and need help beyond court, like finding treatment or a place to live. 

“Even working nights and weekends without extra comp time, we can’t meet client needs, adequately review discovery, research legal issues, write motions and litigate the issues,” Cara Gilbert, an assistant public defender in Ramsey County told state lawmakers in January. 

Gilbert said if they don’t have time to watch police body camera footage, for example, they won’t be able to see issues they need to raise. 

“We don’t see the knee to the ribs when the client is on the ground. We don’t see the gap where the video turns off and then turns on and the client has new bruises,” Gilbert said. 

What they want

Public defenders have long sought pay parity with prosecutors, who can earn tens of thousands of dollars more a year to prosecute people accused of crimes rather than defend them. An assistant county attorney at the top of the pay scale earns $20,000 more a year on average than a top-earning assistant public defender: $135,607 versus $115,466.

In some areas of the state, the chasm is much larger. Prosecutors can make more than $147,000 in Ramsey County, $152,000 in Stearns County and $157,000 in Dakota County.

They also want the state to hire scores of lawyers to lower caseloads, bringing them in line with the national standard advised by the American Bar Association.

The union and the Board began negotiations in June when their last contract expired. In February, the Board offered its last, best and final offer.

That included up to 2.5% cost of living increases in each of the next two years in addition to “step increases” on the pay scale, leading to about $1,500 to $2,500 raises each year for most attorneys. The board offered 3.5% cost-of-living adjustments for support staff in the first year and 3% the second year. 

Taken together, the offer would result in a $1.1 million budget deficit in 2022 and a $2.2 million deficit in 2023 for the board.

The offer seems paltry to public defenders after years of small wage increases even as inflation has soared the past year. 

Based on inflation, Sherman estimated she would end up with $1,300 less in buying power if they accepted the Board of Public Defense’s offer. 

Aldes, the union secretary-treasurer, says they’re pushing for 3-4% cost of living adjustments and step increases along with the option to renegotiate the entire pay scale this year if state lawmakers approve a proposal to increase their funding by roughly 50%. Union leaders say the Board of Public Defense has not agreed to renegotiate wages in the event of a funding boost.

They’re also pushing to cap the hours for part-time public defenders, who work an average of 500 unpaid hours a year, according to the union. 

“These folks are subsidizing the public defender system because they have full-time caseloads,” said Gus Froemke, communications director for Teamsters Local 320. 

Brian Aldes (right), secretary-treasurer of Teamsters Local 320, announces public defenders and support staff have voted “overwhelmingly” to authorize a strike on March 10, 2022.

The low wages have contributed to a constant churn in public defenders’ offices across the state. On average, a public defender quits after about four years, according to the Board of Public Defense. 

And, finding people to fill those jobs has proved difficult, especially in rural areas. In the last three months of 2021, for example, there were only two applicants for full-time public defender positions in Itasca County, and one of the applicants had just recently been fired, Kajer told state lawmakers in January. 

Other places received no applications at all. 

Now is the time 

The potential for a strike comes amid a surge in labor activism across the country. In Minneapolis, teachers and support staff are striking for the first time in more than 50 years. St. Paul teachers voted to strike before ultimately reaching a deal, as did thousands of social service and clerical workers in Hennepin County. 

Public defenders see this moment as a fleeting opportunity to win a large wage increase in their next two-year contract. 

The state is flush with a projected $9.3 billion surplus, courts feel intense pressure to resolve a massive case backlog from COVID-19 and, for now, a Democrat still lives in the governor’s mansion. 

The last Republican governor, Tim Pawlenty, cut funding for public defenders to help close a state deficit. 

“In the Pawlenty years there were layoffs. There were hiring freezes. It was very, very awful,” Sherman said. 

Times are different now, but significant pay increases for lawyers to defend people accused of crimes seems unlikely to be a priority for a Republican governor. The current field of GOP candidates are all running on tough-on-crime agendas. 

But even with Democrats in charge, union leaders complain that the Board of Public Defense has failed to advocate for them.  

“Unfortunately, the leadership at the Board of Public Defense has never requested the Legislature fully fund their operation,” Aldes said. “They’re upwards of 150 lawyers short of being fully staffed … And the leader of the Board of Public Defense has never pursued parity (with prosecutors).” 

This year, the public defenders’ cause was taken up by Rep. Jamie Becker-Finn, DFL-Roseville, who’s worked as a prosecutor. 

During a hearing of the state House Judiciary Finance and Civil Law Committee in January, Ward said it would cost an additional $50 million — a 50% increase to the Board’s $106 million budget — to hire enough lawyers, investigators, paralegals and other staff to meet national standards. 

Becker-Finn then took that number and put it in a bill (HF 2738) to direct that funding toward the Board of Public Defense in 2023. Becker-Finn also authored a bill that would direct $84.2 million toward civil legal services in 2023 to help low-income Minnesotans with evictions, court-ordered protections, challenging denials of disability benefits and other cases for which people are not guaranteed representation.  

Becker-Finn says the leaders of the Board of Public Defense have been too timid at the Legislature. 

“It boggles my mind that you would not start at a place of looking at what you need to function, and then figuring out how to get that,” Becker-Finn said. “If you don’t even ask, then of course you’re never going to get it.” 

During January’s committee hearing, Ward acknowledged he had never asked for full funding because it seemed to be a pipe dream. 

“Our budget was cut in 2008, ‘09 and ‘10. I laid off 17% of my staff … it took us six years just to get back to the deficit we were faced with,” Ward said. “No, we’ve never asked for an additional $50 million but we’ve certainly been very, very upfront about the national standards.” 

*This story previously misstated the maximum salaries of assistant county attorneys in Ramsey, Stearns and Dakota counties. It has been corrected.

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Max Nesterak
Max Nesterak

Max Nesterak is the deputy editor of the Reformer and reports on labor and housing. Previously, he was an associate producer for Minnesota Public Radio after a stint at NPR. He also co-founded the Behavioral Scientist and was a Fulbright Scholar to Berlin, Germany.