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Full Opinion
OPINION
The Sixth Amendment to the United States Constitution safeguards some of our basic liberties. Among its protections is the guarantee that, “[i]n all criminal prosecutions, the accused shall .,. have the Assistance of Counsel for his defence.” U.S. Const., Amend VI. In the seminal case of Gideon v. Wainwright, the United States Supreme Court held that this bedrock right extended to state courts by application of the Due Process Clause of the Fourteenth Amendment. 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Since Gideon, the Sixth Amendment has required not only federal courts but state courts as well to provide counsel to all those who are criminally accused but who cannot afford to pay for an attorney.
The Public Defender Act, 16 P.S. § 9960.3, requires each Pennsylvania county to maintain a public defender’s office charged with fulfilling Gideon’s dictates. These offices are chronically underfunded and understaffed, and are hard-pressed to meet the baseline demands of the Sixth Amendment, raising the disconcerting question of whether counties are comply
The question that we confront today is whether a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office. Pursuant to Gideon and its progeny, and because remedies for Sixth Amendment violations need not await conviction and sentencing, we hold that such a cause of action exists, so long as the class action plaintiffs demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
I. Background
In May 2010, the Luzerne County Board of Commissioners appointed Al Flora, Jr., Esq., an attorney who served in the Luzerne County Office of Public Defender (“OPD”) for approximately thirty years, to be Chief Public Defender. When Flora assumed the Chiefs position, the OPD already was riddled with problems stemming from understaffing and underfunding, deficiencies most prominently displayed at the- time by the OPD’s inability to represent juveniles facing delinquency petitions. A report prepared in the aftermath of the notorious “Kids for Cash”
In June 2010, Flora submitted a report to the Luzerne County Board of Commissioners regarding the state of the OPD. In the report, Flora outlined his belief that, for want of sufficient resources and funding, the OPD could not provide adequate representation to Luzerne County’s indigent criminal defendants in a manner sufficient to satisfy the Public Defender Act, the Sixth Amendment to the United States Constitution, or Article I, Section 9 of the
1. Caseloads for OPD attorneys exceeding national standards;
2. Insufficient support staff;
3. Insufficient number of attorneys due to Luzerne County’s refusal to authorize hiring;
4. Lack of appellate attorneys, requiring trial attorneys untrained in appellate practice to litigate appeals;
5. Facilities unsuitable for confidential meetings with indigent defendants; and
6. Inadequate information technology.
Amended Complaint, 5/15/2013, at 12 ¶ 29. Flora informed the Commissioners that, without additional. attorneys and support staff, “the [OPD] will begin declining applications for representation within 60 days.” Id. ¶ 30.
In July 2010, Flora provided the Lu-zerne County Board of Commissioners with a short-term plan to address the deficiencies. The plan included recommendations to hire new appellate attorneys as well as additional trial attorneys, and to create and implement a caseload-monitoring system. The Board of Commissioners denied each recommendation. Then, in his 2011 and 2012 budget proposals, Flora sought the addition of two appellate attorneys, an investigator, and a secretary. On each occasion, the Board of Commissioners rejected Flora’s requests.
In December 2011, Flora decided to implement his 2010 proposal to decline representation to certain applicants. Faced with mounting caseloads and overwhelmed attorneys, Flora directed the OPD to reject applicants who were not incarcerated and who were charged only with minor offenses. The OPD continued to refuse representation to such individuals until June 2012.
In January 2012, despite Flora’s ongoing requests, Luzerne County decreased the OPD’s funding by approximately 12%. The reduction would have required the OPD to eliminate four full-time positions from its already-strained staff. Flora was able to reallocate funds to retain those positions, but doing so significantly limited the OPD’s ability to retain experts in some matters, including capital eases and complex juvenile proceedings.
In early 2012, a number of attorneys resigned from the OPD. Because Luzerne County implemented a hiring freeze in February of that year, Flora could not fill the positions. By April, the OPD staff consisted of only four full-time attorneys, thirteen part-time attorneys, three investigators, four secretaries, one receptionist, and one office administrator. The OPD continued to operate with five unfilled attorney positions, three full-time and two part-time. Most of the attorneys who worked for the OPD did not have their own desks, telephones, or computers.- One part-time attorney informed Flora that he could not accept any more cases because, due to his current caseload, he could not satisfy his ethical duties to any additional defendants.
The cases continued to amass. Yet, despite Flora’s efforts, no additional funding was forthcoming, and none appeared likely. Faced with no other option, and believing that the attorneys working for the OPD could not meet their ethical and professional obligations, Flora turned to the courts for relief.
Two days later, on April 12, 2012, Flora and the original plaintiffs filed a motion for a peremptory writ of mandamus and a preliminary injunction, along with a brief in support of the motions. On April 30, 2012, Appellees filed preliminary objections to the complaint, including, inter alia, an objection to the trial court’s jurisdiction, an objection to the standing of each plaintiff to sue, and a demurrer, alleging that Flora and the other, plaintiffs had failed to state a claim upon which relief could be granted. On May 10, 2012, following additional briefing and supplementation, the trial court convened a hearing to allow the parties to present oral argument on the motion for a peremptory writ of mandamus and a preliminary injunction. . •
On May 16, 2012, the trial court appointed a Master to preside over settlement negotiations. On May 24, 2012, the trial court overruled each of Appellees’ preliminary objections after determining that the objections lacked merit. The court directed Appellees to file an answer to the class action complaint within thirty-five days.
Shortly thereafter, on June 15, 2012, the trial court found that Flora and the original plaintiffs were entitled to both a peremptory writ of mandamus and a preliminary injunction, and entered a corresponding order to remain in force until the class action suit was resolved. The order mandated the following actions:
(a) [Appellees] shall not prevent the public defender from filling vacant funded positions;
(b) [Appellees] shall review the operations and staffing of the [OPD] and provide a plan to meet the constitutional obligations for indigent representation in accordance with the principles set forth in [a correspond- ' ing opinion by the court];
(c) [Appellees] shall submit a report to [the trial court] within a reasonable time outlining [their] plan to meet [their] constitutional obligations in regard to the operation, staffing and expenses of the [OPD];
(d) [County Manager Lawton] is directed to provide adequate office space in order to permit confidential communications between assistant public defenders and indigent criminal defendants within 30 days of the date of this order; and
*721 (e) [Flora and the OPD are] not permitted to refuse representation to qualified indigent criminal defendants.
Order, 6/15/2012 (emphasis in original). With regard to the individual plaintiffs, the trial court ordered Appellees to allocate the funding necessary to ensure that each such plaintiff received court-appointed, private counsel for the duration of his or her criminal proceedings. Id.
On June 28, 2012, Appellees answered the complaint. On January 29, 2013, Appel-lees filed a petition for a pre-trial conference. In that petition, Appellees explained that, at the time of the trial court’s June 15, 2012 order, they already had commenced meeting with the District Attorney’s office to discuss and initiate a plan to ensure that every indigent defendant in Luzerne County is provided with representation. Additionally, Appellees detailed the following actions that they took after the trial court’s mandate:
(a)Facilities:
- On July 13, 2012, the County’s engineer met with Chief PD. Flora to review facilities in Penn Place and provided Chief PD Flora with keys to two conference rooms to use to conduct confidential meetings.
Result:
- OPD now has space where it can conduct confidential meetings with clients that is convenient to its offices.
- In January 2013, the County began moving the Register of Wills Office out of its space in Penn Place in order to expand OPD’s offices.
# N*
- The County has complied with the Court’s Order regarding OPD’s immediate needs and has taken concrete steps toward expanding and improving the facilities available to the OPD.
(b) Backlog:
- In a period of approximately 30 days, the County’s counsel met with the District Attorney and worked on a framework for disposing of the cases in the backlog and thereafter with the assistance of the Court Administrator and Conflict Counsel, approximately 500 indigent [defendants] secured representation and disposition of. their cases.
(c) Staffing:
- The County authorized and approved the posting and advertising for the 5 attorney opening positions.
- The County agreed that Attorney Flora could convert the openings that were previously held by part time attorneys to full time positions (because the salaries of the departing part timers were sufficient to cover entry level full time attorneys).
- The County waived the application of the newly adopted Personnel Code to the filling of attorney vacancies in OPD.
- The County’s Human Resource Director assisted Attorney Flora in evaluating and ranking the candidates.
- The County authorized OPD to hire an expert in providing training for Public Defender Offices to conduct an in-house training for OPD’s newly hired Assistant Public Defenders.
Petition for Pre-trial Conference, 1/29/2013, at 3-4 ¶ 7. Appellees further alleged that, the court-ordered mediation sessions were failing, in large part due to unwillingness on the part of Flora and the plaintiffs to make any concessions. Appel-lees believed that the mediation process had “run its course” and evolved into a “forum for Plaintiffs to raise, petty griev-
Following a March 26, 2013 pre-trial conference, the court scheduled trial for June 24, 2013. However, on April 25, 2013, Flora and the plaintiffs filed a praecipe to remove Volciak and Holman from the case, wherein they noted that both of these individuals sought to discontinue their claims voluntarily and without prejudice. The praecipe further stated that plaintiffs believed that Hammonds also would voluntarily discontinue his claim, but that, at the time of the praecipe, Hammonds had been transferred to the Allegheny County Jail and had not yet formally consented to the discontinuation. Because of the efforts undertaken by Appellees as described above, each of these plaintiffs had been provided with a criminal defense lawyer and no longer suffered from the deprivation of counsel that was alleged in the complaint.
After the pretrial conference, Lawton designated Steven M. Greenwald to serve as Chief Public Defender. Flora was formally terminated on April 17, '2013. The Luzerne County Board of Commissioners confirmed Greenwald on April 29, 2013. In light of these events, Flora and Ham-monds, who still had not been removed as plaintiffs, filed a motion to amend their class action complaint on May 1, 2013. Over the objection of Appellees, the trial court granted the motion to amend the complaint, without prejudice to Appellees’ right to file preliminary objections to the amended complaint.
On May 15, 2013, Flora and Hammonds filed an amended complaint naming Joshua Lozano, Adam Kuren, and Steven Alla-baugh (hereinafter “Appellants”) as replacement plaintiffs for Volciak and Holman. Each of these three individuals was indigent and facing criminal charges in Luzerne County, and each had been assigned an attorney by the OPD. However, Appellants alleged that, due to the financial straits of the OPD, and the limited time and resources that the OPD’s attorneys could devote to each case, the representation that Appellants would receive as their cases progressed would not meet constitutional norms.
By the time that the amended complaint was filed, Flora had implemented several measures to mitigate the costs associated with operating the OPD, and had continually sought assistance from potential funding sources. For instance, Flora applied for grants and reallocated funds to purchase computers for OPD lawyers. Flora also began sending OPD attorneys to initial bail hearings in an effort to decrease the amount of time that defendants spent in jail, an initiative which saved Luzerne County money that could have been allocated to the OPD, but was not. Flora then worked with the OPD attorneys to shift the workload from busier lawyers to those with a lighter caseload to ensure that defendants were receiving the best representation possible. As noted above, however, Flora was fired as Chief Public Defender nonetheless.
Flora’s attempts to reduce the burden on the OPD did not substantially alleviate the growing crisis. Caseloads continued to mount, but no increase in funding was in the offing. When the amended complaint was filed, the OPD employed ten full-time attorneys, eleven part-time attorneys, three investigators, four secretaries, one receptionist and one office administrator.
In the amended complaint, Appellants detailed the effects that the inadequate funding had upon the OPD’s ability to meet its constitutional mandate. Appellants first delineated six essential components of competent “legal representation” that offices servicing indigent defendants require in order to comply with the Sixth Amendment: (1) the attorneys must have adequate knowledge of the relevant areas of the law; (2) the attorneys must be assigned to represent indigent clients at the earliest possible stage; (3) the attorneys must be present at every critical stage of the client’s ease; (4) the office and attorneys must be able to conduct reasonable factual and legal pre-trial investigations, pursue and comply with the discovery rules, and utilize investigators when necessary; (5) the attorneys must be able to consult with their clients to discuss the material aspects of the case, as well as the client’s substantive and procedural rights, to ensure that the client is making informed decisions regarding the case; and (6) the attorneys must be able to perform their work with reasonable diligence and promptness. These criteria, according to Appellants, comprised the necessary elements of constitutional representation of indigent defendants. Due to the lack of funds and resources, Appellants alleged that the OPD could not satisfy any one of these six criteria, let alone all of them, and, therefore, could not provide constitutionally adequate representation.
Regarding the first component, adequate knowledge of the relevant law, Appellants pleaded that the OPD could not sufficiently train its attorneys in the Adult Unit because there simply were no funds to do so. Those attorneys who were tasked with capital cases were required to pay out of their own pocket for the continuing legal education required for capital-qualified attorneys. Moreover, even though the OPD recently had hired one appellate attorney, many of the trial attorneys nonetheless had to brief, file, and argue the appeals that arose from their trial dockets. Because the OPD lacked the time and resources for appellate training, these trial attorneys were underqualified to perform appellate litigation, often proceeding without proficiency in the rules of appellate procedure and governing case law. As a result, the attorneys often missed deadlines or otherwise failed to comply with the technical requirements of an appeal. The time required to pursue appeals also critically reduced the OPD attorneys’ time to consult with clients and prepare for trials.
As to the criterion of early assignment to clients, Appellants averred that the ongoing constraints upon the OPD prevented the assignment .of attorneys to assist clients at initial arraignments. This stage, Appellants pointed out, is a critical one, at which- the right to counsel attaches. See Amended Complaint, 5/15/2013; at 19 (citing Rothgery v. Gillespie County, 554 U.S. 191, 213, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008)).
With regard to the third criterion, Appellants maintained that the OPD could not furnish counsel at all critical stages of the clients’ proceedings. Appellants asserted that the heavy caseload and inadequate resources and manpower prevented the OPD attorneys from best serving their clients’ interests at the pre-trial stages. Due to the heavy caseload, OPD attorneys frequently had to postpone hearings, which delayed cases and often forced indigent clients to spend more time in jail than they would have had counsel been more available. Additionally, their overwhelming caseloads denied OPD attorneys the time necessary to consult adequately and fully
Next, Appellants asserted that the OPD attorneys were unable to conduct reasonable factual investigations and discovery. Time â– constraints often prevented any investigation. Even when an attorney obtained discovery materials, he or she rarely had any time to review the materials rigorously. Attorneys frequently entered into plea negotiations on behalf of their clients without a full understanding of the cases.
The attorneys themselves lacked the time or resources to interview witnesses, visit crime scenes, or otherwise investigate the facts alleged by the Commonwealth. The OPD also lacked the investigators necessary to perform these critical functions. At the time of the amended complaint, the OPD employed three investigators to service twenty-one attorneys and the 4000 new cases that come to the OPD every year. By way of comparison, the Luzerne County District Attorney’s Office employed ten detectives, who assisted twenty-six attorneys. OPD investigators often could not perform investigative duties during the work day because they were required . to perform administrative duties, such as entering information into a case management system or delivering mail, due to the lack of support staff.
Regarding the fifth component, consultation with clients, Appellants averred that OPD attorneys lacked the resources to conduct in-person visits at the jail, and had to consult with incarcerated clients via video conferences, which are not confidential. Moreover, many clients met their attorney for the first time immediately before their preliminary .hearing, and without any meaningful, confidential discussion about the case or the nature of the hearing itself. After the preliminary hearing, OPD attorneys rarely contacted their clients in the approximately three months between the hearing and the status conference, or between the status conference and the pretrial conference. Clients were left in the dark during these critical months, Similarly, Appellants maintained that the OPD attorneys were not available for substantive meetings with clients before either trial or sentencing. Stated differently, the OPD attorneys were not able to maintain regular or sustained contact with their clients, which substantially hindered the attorney-client relationship and compromised the ability to present an effective defense or to negotiate favorable plea agreements.
As to the final component, Appellants pleaded that the OPD attorneys were unable to perform their work with reasonable diligence and promptness. Motions were not filed on time, and were rarely accompanied by a full review of discovery materials. Plea negotiations similarly were uninformed. Trial preparation was hasty, and often came too late to uncover the facts necessary to mount an effective defense.
Appellants detailed the workload required of each OPD attorney. In 2010 and 2011, the OPD received over 4,000 new criminal cases, 2,000 of which were felonies. There were also over 1,000 carry-over cases from prior years. In addition, the OPD processed appeals, mental health commitment proceedings, and parole hearings. Each case requires out-of-court preparation, consultation, investigation, and, in some instances, travel. This caseload had
Appellants next addressed the other problems that plagued the OPD due to underfunding. The OPD was unable to employ enough social workers, paralegals, assistants, clerical workers, or other necessary support staff. Many attorneys lacked desks, phones, or private workspaces. The circumstances improved after the County took efforts to comply with the trial court’s order granting the preliminary injunction, including providing spaces for confidential communications. Nonetheless, facilities necessary to operate a constitutionally adequate office were not provided.
Based upon these averments, Appellants raised three counts in their amended complaint. In count I, Appellants sought a writ of mandamus compelling Luzerne County to provide sufficient funding to enable the OPD to satisfy its constitutional mandate. Supporting this count, Appellants specifically averred that the OPD attorneys frequently were:
a. unable to interview or' meet with clients prior to preliminary hearings;
b. unable to contact them clients between court appearances;
c. unable to conduct significant investigation or discovery;
d. unable to engage in significant motion practice;
e. unable to gather information needed for effective plea negotiations;
f. unable to engage in sufficient trial preparation; and
g. unable to [ ] litigate appeals because of a lack of appellate experience,
Amended Complaint, 5/15/2013, at 34, ¶ 106. In count II, Appellants alleged a violation of the Civil Rights Act. See 42 U.S.C. § 1983. Specifically, Appellants claimed that Appellees’ refusal to provide the OPD with adequate funding resulted in a violation of the indigent plaintiffs’ right to counsel pursuant to the Sixth and Fourteenth Amendments to the United States Constitution. Finally, in count III, Appellants asserted a violation of the right to counsel enshrined in Article I, Section 9 of the Pennsylvania Constitution, for the same reasons set forth in counts I and II.
In their prayer for relief, Appellants sought a writ of mandamus and a permanent. injunction compelling Appellees to provide whatever funding was necessary to meet the demands of representing the indigent population being charged with crimes in Luzerne County, attorneys’ fees pursuant to 42 U.S.C. § 1988, and any other relief that the court saw fit.
On June 3, 2013, in light of the federal section 1983 claim raised by plaintiffs, Ap-pellees removed the case to the United States District Court for the Middle District of Pennsylvania. See 28 U.S.C. § 1441 (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”). However, on August 26, 2013, upon Appellants’ motion, the District Court remanded the matter to state court for disposition.
On September 11, 2013, Appellees filed preliminary objections to the amended complaint. Specifically, Appellees contended, inter alia, that Flora lacked standing because he no longer was the Chief Public Defender in Luzerne County; that the individual plaintiffs lacked standing to contest government budgeting; and that Appellants had failed to state a cause of action under either their claim for mandamus relief or their claims of constitutional violations. Regarding mandamus, Appellees
Shortly thereafter, Appellees filed a motion to disqualify plaintiffs’ counsel. According to the Appellees’ motion, counsel for plaintiffs went to the Luzerne County Correctional Facility and met with individuals who were represented by the OPD without the permission of the OPD attorneys representing those individuals, in an effort to find new plaintiffs to be named in the lawsuit. Appellees alleged that this interaction violated, inter alia, Pennsylvania Rule of Professional Conduct 4.2, which provides that, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Pa.R.P.C. 4.2.
Following briefing by both parties on the preliminary objections and the motion to disqualify counsel, the trial court heard oral arguments on October 8, 2013. On October 21, 2013, the trial court denied the motion to disqualify plaintiffs’ counsel. On the following day, October 22, 2013, the trial court sustained Appellees’ preliminary objections to Flora’s and the individual plaintiffs’ standing, and sustained Appel-lees’ preliminary objection upon the basis that Appellants had failed to state a cause of action for mandamus or a constitutional violation. The trial court dismissed the amended complaint. Contemporaneously* the trial court issued an opinion explaining the basis for its rulings.
On November 20, 2013, Appellants filed a notice of appeal from the order sustaining Appellees’ preliminary objections. On December 2, 2013, Appellees filed a cross-appeal from the order denying their motion to disqualify plaintiffs’ counsel. On December 19, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a), in which the court incorporated the rationale set forth in its October 22, 2013 opinion.
In a published decision, the Commonwealth Court unanimously affirmed the trial court. Flora v. Luzerne Cty., 103 A.3d 125, 140 (Pa. Cmwlth. 2014). The court first held that Flora lacked traditional standing to sue Appellees. Citing Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655, 660 (2005), the Commonwealth Court explained that Flora was not personally aggrieved by Luzerne County’s alleged failure to fund the OPD, and therefore could not establish that he had a “substantial, direct, and immediate interest in the outcome of the litigation.” Flora, 103 A.3d at 131-32 (quoting Pittsburgh Palisades, 888 A.2d at 660).
The court then held that Flora also lacked taxpayer standing. In order to establish such standing, a taxpayer must demonstrate that (1) the governmental action would otherwise go unchallenged; (2) those directly and immediately affected by the complained-of expenditures are beneficially affected and not inclined to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no other persons are better situated to assert the claim. Id. at 132 (citing Consumer Party of Penna. v. Commonwealth, 510 Pa. 158, 507 A.2d 323, 329 (1986), abrogated on other grounds by
The court then turned its attention to the individual plaintiffs’ standing and examined whether they had stated a cause of action. The court summarized the parties’ arguments, and then, without explanation, declared that “[t]he argument on standing merges with the question of whether the amended complaint states a claim upon which relief can be granted.” Id. at 133. Accordingly, the court considered the two issues together.
The court initially directed its attention to the Sixth Amendment, and the circumstances under which a defendant traditionally could obtain relief for a violation of the right to counsel. The court noted that, pursuant to Gideon, states must provide an indigent defendant with an attorney, and that the state must do so at the earliest point at which a defendant has the right to have an attorney present. Id. (citing Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009)). Hence, if a state does not provide a lawyer to an indigent defendant, the accused may bring a claim of actual denial of counsel. Id. (citing United States v. Cronic, 466 U.S. 648, 649, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)).
The court next explained that, per Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), indigent defendants are entitled to effective assistance of counsel; if counsel fails in that duty, the remedy is a new trial. To be entitled to relief under Strickland, a defendant must demonstrate that his attorney “performed below a standard of objective reasonableness and that counsel’s performance resulted in actual prejudice to the defendant.” Flora, 103 A.3d at 134 (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Such a claim, the court pointed out, can be brought only after the defendant has been tried and convicted. In some instances, as the United States Supreme Court explained in Cronic, a lawyer’s performance falls so far below the constitutional baseline that prejudice can be presumed without an objective examination of trial counsel’s actual performance. Still, this too may occur only after the defendant has been convicted. Neither decision, according to the Commonwealth Court, addressed whether an indigent defendant can seek prospective relief.
Regarding such a claim, the Commonwealth Court considered three cases from other jurisdictions that have recognized a prospective cause of action for a violation of the right to counsel: Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), Hurrell-Harring v. New York, 15 N.Y.3d 8, 904 N.Y.S.2d 296, 930 N.E.2d 217 (2010), and Duncan v. Michigan, 284 Mich.App. 246, 774 N.W.2d 89 (2009). In Luckey, the United States Court of Appeals for the Eleventh Circuit held that class action plaintiffs who sought additional funding could proceed with their lawsuit, because, although they could not prove ineffective assistance of counsel in advance of trial, they nonetheless could suffer harm as a result of
The Commonwealth Court found the majority holdings in these cases to be unpersuasive. Instead, it agreed with the dissents in Hurrell-Harring and Duncan. The dissent in Hurrell-Harring rejected the premise that systematic underfunding creates a Sixth Amendment violation, explaining that “constructive denial of counsel is a branch from the Strickland tree, with Cronic applying only when the appointed attorney’s representation is so egregious that it’s as if [the] defendant had no attorney at all.” Hurrell-Harring, 904 N.Y.S.2d 296, 930 N.E.2d at 229 (Pigott, J., dissenting). In the Hurrell-Harring dissent’s view, lumping together multiple claims of pretrial ineffective assistance of counsel did not create one unified claim of systematic failure. The. dissent in Duncan would have found that prejudice is a necessary showing in any Sixth Amendment claim, and that Strickland provides an adequate remedy for any alleged violations.
The Commonwealth Court agreed with these dissents, citing three reasons. First, the court pointed out that the United States Supreme Court has never recognized a constructive denial of counsel claim in a civil case seeking prospective relief in the form of increased funding for an entire public defender’s office. Flora, 103 A.3d at 136. In Strickland, Cronic, and Gideon, the defendant sought a new trial for himself, not increased funding for an office. Second, the court explained that, even if a claim for funding was cognizable, Appellants failed to satisfy the requisite standard in then-amended complaint. Invoking a Strickland prejudice standard, the court determined that Appellants’ allegations of inadequate representation by the OPD attorneys did not create circumstances that are “so likely [to create prejudice] that case-by-case inquiry into prejudice is not worth the cost.” Flora, 103 A.3d at 137 (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2062). Similarly, in the Commonwealth Court’s view, Appellants did not prove that they have suffered