State urges judge to not add governor, attorney general to indigent defense lawsuit

Assistant Attorney General Sean Magenis speaks at a hearing in November in front of Supreme Judicial Court Justice Wayne Douglas, who was considering whether to keep or dismiss a petition calling on the state to identify and release anyone in jail who’s entitled to an attorney and been without one for at least seven days. Brianna Soukup/Staff Photographer, file

An attorney for the state is asking a judge to not include the governor and the attorney general in a lawsuit that accuses the state of failing to provide lawyers to poor Mainers.

Last week, the ACLU of Maine filed an amended complaint against the state of Maine and various state leaders, accusing them of failing to uphold federal and state laws that demand that the state provide attorneys for criminal defendants who can’t afford their own.

Assistant Attorney General Sean Magenis, who is representing the state and its officials in the case, argued in a filing on Thursday that the ACLU’s new complaint requires more work than the parties can handle between now and June, when the judge has ordered them to be ready for trial.

Magenis argued that the amended complaint unfairly introduces new claims and defendants who he said shouldn’t be involved – namely, Gov. Janet Mills and Attorney General Aaron Frey.

The ACLU first sued the Maine Commission on Indigent Legal Services, a quasi-state agency tasked with finding and overseeing court-appointed lawyers, two years ago. The original version of the complaint focused only on allegations that the commission was failing to adequately supervise the attorneys it’s charged with overseeing and that criminal defendants were being denied effective counsel as a result.

But as the crisis has worsened, hundreds of Mainers who are constitutionally entitled to a lawyer don’t have one and are waiting weeks, even months, to be appointed one by a judge.

After at least two failed settlement agreements, Superior Court Justice Michaela Murphy ordered the ACLU last month to file a new complaint that addresses the more pressing issue of defendants going without lawyers. She said the proposals had failed to meaningfully address defendants whose constitutional rights are being denied by not having an attorney. The June trial will focus on these hundreds of unrepresented Mainers.

Magenis has been representing the commission since the original complaint was filed in March 2022. He has been involved in several settlement meetings, during which he said the commission addressed the ACLU’s concerns two years ago.

“The case or controversy asserted by plaintiffs has been resolved by fairly, reasonably and adequately, addressing each and every claim asserted by plaintiffs,” Magenis wrote in court filings this week in response to the new complaint.

Magenis also appeared to take issue with moving ahead to trial instead of solving the issues through a settlement agreement. He wrote Thursday that compelling the ACLU and the commission to stay in court goes against a “well-established judicial preference for negotiated resolution over prolonged litigation,” and that it locks everyone in adversarial positions.

Murphy has yet to weigh in on the ACLU’s amended complaint, and it’s unclear whether she will approve adding the new defendants.

Magenis argued that the state is legally immune from some of the ACLU’s claims that it’s violating federal laws. He argued Mills and Frey shouldn’t be involved because they are not “responsible for appointing counsel … or designating counsel as eligible to receive appointments.”

The ACLU also asked Murphy to consider before trial whether criminal defendants without attorneys in Maine are being charged and locked up legally, given their lack of counsel, and whether they should be released or have their cases dismissed.

Magenis said the state is not the appropriate defendant for that request. The ACLU’s new complaint also named every county sheriff because they oversee the jails where more than a hundred defendants without lawyers are being held. As of Friday afternoon, it was unclear if the sheriffs also had filed responses to the lawsuit. A clerk at the Kennebec County courthouse said they couldn’t see any attorneys listed for the sheriffs, and Magenis is not representing them.

Maine was the only state without a public defender’s office until 2022, when lawmakers agreed to create the first team of state-employed defense lawyers, a slow start that the ACLU says in its latest complaint is tied to the current crisis.

The Legislature’s Judiciary Committee this month introduced emergency legislation to open a public defender’s office in Aroostook, Penobscot and Piscataquis counties, where there are a high number of unrepresented defendants in jail. The committee on Tuesday voted unanimously to recommend the bill. It now moves on to the full House and Senate, where it needs a two-thirds majority in each chamber to pass and take effect immediately.