Minnesota PDs Facing Familiar Budget Problems

We are not the only Public Defender office in the country to have to fight for our jobs and adequate numbers of attorneys to represent the thousands of indigent clients in need.  Public Defenders in Minnesota are now facing the same budget issues we have faced the last several years: http://www.startribune.com/local/19160754.html.  We can only hope that someone there will stand up for the front-line attorneys and their clients.

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“Redlined” Version of Current Contract

We have been patiently waiting for the County to provide us with copies of our current collective bargaining agreement so we can distribute it to the membership.  The contract was ratified in June of 2006 and expires in November of this year.  But the language regarding contract printing in the signed contract doesn’t have any teeth:

Section 14.11. Contract Printing:The County agrees to arrange for the printing of this Agreement in such numbers so as to provide a copy for every attorney currently in the office and those likely to be hired with while this Agreement is in effect.

Needless to say, it doesn’t say when itneeds to be printed.

In the meantime, we are providing the “redlined” version here for our members to review.  Just click this link : 2004-2008 contract

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The Complaint filed by AFSCME Council 31

Here is the text of the complaint filed by Council 31 in the Burnette v. Stroger matter:










Plaintiff complains against Defendant as follows:

1. The Plaintiff in this action is Council 31 of the American Federation of State County and Municipal Employees (“AFSCME Council 31”). Council 31 is a statewide labor organization representing over 70,000 members in the State of Illinois. Council 31 represents several hundred employees in the Office of the Cook County Public Defender (“the Public Defender”), including those in the classifications of Assistant Public Defender I, II, III and IV. Council 31 also represents investigators and other support staff employees of the Public Defender whose services are essential for the Office to implement its statutory mission.

2. The employees represented by AFSCME have designated Council 31 to be their exclusive bargaining representative with respect to the wages, hours and other terms and conditions of employment. AFSCME Council 31 therefore has standing to bring this lawsuit on their behalf.

3. The Assistant Public Defenders represented by Plaintiff AFSCME are responsible for representing indigent defendants who have been accused of crimes and in certain civil matters. Accordingly, the Assistant Public Defenders represented by Plaintiff AFSCME who work for the Public Defender handled approximately three hundred thousand felony and misdemeanor cases for poor defendants last year. The Assistant Public Defenders represented by AFSCME are organized into approximately 15 different divisions and work out offices in Chicago, Markham, Bridgeview, Skokie, Maywood, and Rolling Meadows. Similarly the investigators employed by the Public Defender and represented by AFSCME handled over 150,000 assignments last year.

4. The Office of the Public Defender is an independent agency within Cook County government. It is currently headed by Edwin A. Burnette. The powers and obligations of the Office and of the Public Defender are defined in 55 Illinois Compiled Laws, Section 5/3-4000 et. seq. In particular, 55 ILCS 5/3-4008.1 provides that the “compensation of and the appropriate number of assistants, clerks and employees [in the Office of the Public Defender] shall be fixed by the County Board and paid out of the County Treasury.”

5. The Defendant in this action is Todd Stroger. Stroger is the President of the Cook County Board of Commissioners. As President he has the responsibility to implement the annual budget enacted by the Board of Commissioners and to properly administer several departments in Cook County, including the Office of the Public Defender.

6. The 2007 budget enacted by the County Board of Commissioners appropriated funds for 465 Assistant Public Defender I, II, III and IV positions in the Office of the Public Defender.

7. Immediately after the appropriation measure was enacted, Defendant Stroger withheld funding for 34 positions within the Office of the Public Defender. These positions included 13 Assistant Public Defenders represented by AFSCME, 4 Assistant Public Defenders who were supervisors and/or managers and 17 support staff. This refusal to honor the appropriation ordinance caused the layoff of 13 Assistant Public Defenders and 13 support staff. These layoffs were illegal because they contravened the budget appropriations measure enacted by the Cook County Board of Commissioners. These layoffs were implemented in April 2007.

8. In addition to causing the layoffs set forth in the preceding paragraph, Defendant Stroger has refused to allow the Public Defender to fill vacant positions. The result has been that the total number of attorneys in the office has decreased by 42 positions since the end of 2006. This number includes 32 lawyers who are in the classifications represented by AFSCME and 10 supervisor/managers. Defendant Stroger’s refusal to allow the filling of vacant positions has also resulted in a decrease in the number of investigators and support staff.

9. The impact of the decrease in the number of attorneys has been to increase the caseloads of the remaining Assistant Public Defenders. Consequently, the caseloads of the Assistant Public Defenders now greatly exceed the recommended caseloads for Public Defenders as established by recognized standard setting agencies such as the American Bar Association. The Assistant Public Defenders assigned to felony courtrooms now have caseloads which average 60% more than the caseloads recommended by national standards. The Assistant Public Defenders assigned to misdemeanor courtrooms now have caseloads which average more than 400% than the caseloads recommended by national standards.


Count I

(Relief for Illegal Layoffs)

This Count is brought by AFSCME on behalf the Assistant Public Defenders and the support staff employees of the Public Defender for their unlawful layoff. AFSCME realleges and incorporates by reference Paragraphs 1 to 9 above as Paragraphs 1-9 of this Count. It seeks reinstatement and damages for the support staff employees who are still laid off from the Public Defender and damages in the form of back pay for the support staff and the Assistant Public Defenders who have now been recalled to work.

10. The decision of Defendant Stroger to withhold the money appropriated by the County Board for the Office of the Public Defender caused the layoffs of 13 Assistant Public Defenders and 13 support staff employees. The actions of Defendant Stroger contravened the appropriations measure passed by the Cook County Board of Commissioners and state law.

11. All of the Assistant Public Defenders represented by AFSCME and all but 2 of the support staff represented by AFSCME who have been laid off have now been recalled to work. Wherefore, AFSCME seeks the following relief on behalf of its members and requests the Court to take the following action:

a) declare that the layoffs ordered by Defendant Stroger violated the appropriations measure and state law;

b) order the reinstatement of the employees who are still laid off;

c) order the payment of back pay to employees for the period they were illegally laid off; and

d) order any other relief the Court deems equitable and just.


Count II

This Count is brought by AFSCME obtain an order to require Defendant Stroger to promptly take action to allow the Public Defender to fill vacancies in his Office. AFSCME realleges and incorporates by reference Paragraphs 1 to 9 above as Paragraphs 1-9 of this Count.

10. Defendant Stroger has a legal duty to honor the appropriation for the Public Defender by the Cook County Board of Commissioners under state law.

11. Since the beginning of the 2007 budget year, Defendant Stroger has prevented the Public Defender from filling vacancies in his office for positions for which funds were appropriated by the Cook County Board of Commissioners in the 2007 budget ordinance. The actions of Defendant Stroger have therefore violated his legal duty under state law to honor the appropriations of the Board for the Public Defender.

12. These actions of Defendant Stroger will continue unless halted by this Court.

13. These actions by Defendant Stroger have caused the caseloads of the Assistant Public Defenders represented by AFSCME to increase substantially.

14. This increase in caseloads has undermined the ability of the Assistant Public Defenders represented by AFSCME to carry out their constitutional, statutory and ethical obligation to effectively represent their clients. It has also made their jobs more difficult and time consuming without any concomitant increase in compensation.

15. Sufficient funds exist in the Treasury of the County of Cook to honor the appropriations ordinance enacted by the Cook County Board of Commissioners for the Public Defender.

Wherefore, Plaintiff requests that this court order the following relief:

a) declare that Defendant Stroger has violated his obligation to honor the appropriations of the Cook County Board of Commissioners and that he has a duty to allow the Public Defender to promptly fill vacancies that occur in his Office;

b) order Defendant Stroger to allow the Public Defender to promptly fill vacancies in budgeted positions and to cease actions that interfere with the efforts of the Public Defender to fill such positions; and

c) any other relief the Court deems equitable and just.

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Rumors of his Demise Greatly Exaggerated

The hearing on the proposed resolution to remove Ed Burnette has been cancelled.  Upon information and belief, attorneys representing Ed Burnette have reached an agreement with attorneys for President Todd Stroger to resolve their differences in court through the pending litigation in Burnette v. Stroger.NO HEARING ON THE RESOLUTION WILL BE HEARD ON 5/20/08 SO DO NOT ATTEND THE COUNTY BOARD MEETING

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Daily Herald Wants Open Hearing on Removal Resolution.

As printed in the May 17, 2008 edition of the Daily Herald: 
Let public in on public defender hearing

Few people, even the most ardent advocates of open government, would argue that personnel evaluations ought generally to be conducted in open public meetings. But there are times …Take the case of Cook County Public Defender Ed Burnette. Here we have a civil servant whose job is specifically designed to be independent of politics facing the possibility of being fired for purely political reasons.It won’t surprise you to learn who is trying to fire him in such circumstances. That would be Cook County Board President Todd Stroger. Nor, sadly, will the specifics of Burnette’s case surprise anyone remotely familiar with the brazen cynicism of Cook County government. Burnette’s job is on the line because he challenged Stroger at least twice. First by filing suit to assert his independence when the Cook County board president ordered him to trim the size of his staff, then by objecting when Stroger placed on Burnette’s payroll an employee who did no work for the public defender and was answerable only to the county board president.For such determination, Burnette was labeled insubordinate and Stroger set a hearing for his firing. The hearing is required because state law pointedly distinguishes the public defender position from every other administrative role in the county. The public defender’s office exists to ensure justice for some of society’s most vulnerable individuals — the indigent accused of crimes but lacking the means to defend themselves. Such a function, the law wisely realizes, must be protected against the whims of fickle politics, and the person leading it cannot be constantly answering to political rather than legal demands.Thus, the job is established as a fixed six-year appointment, and any attempt to remove the public defender requires a formal hearing. If a political powerbroker aiming to find a new department in which to stash patronage workers wants to remove an impediment, he at least has to show a legitimate job-based cause.Does Stroger have job-based justification here? Well, Burnette certainly has defied his authority. But the question, as Burnette’s suit seeks to clarify, is what authority the public defender has defied.The answer to that question ought to be left to the courts. Curiously, Stroger seems unable to wait that long. Burnette has only a year remaining on his appointment, so the county board president will be able to name whatever puppet he likes soon enough, as long as the person isn’t so clearly incompetent that even the board members in Stroger’s pocket can’t vote to confirm.Why then is Burnette’s dismissal so urgent? What offense has he committed that justifies challenging the critical independence built into the nature of his office? Burnette himself has asked these questions and wants the county board to let them be presented on the public stage. We do, too.This is not a case of violating an employee’s privacy. It’s a case either of the county board president’s simple assertion of power or of the public defender’s inability to accomplish the job he’s been doing for five years. The public should get a free and open opportunity to watch the proceeding and judge for itself.

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Removal Resoultion to be Heard May 20th

The hearing on whether to terminate the employment of Edwin Burnette, Public Defender of Cook County is now set for next week on the 20th.  As mentioned before, members are encouraged to attend the hearing but should put in for appropriate time off in advance of the date.  It has been suggested that the proceedings will be behind closed doors, even though Mr. Burnette wants the world to see what is going on.As concerned citizens, we have a right to attend and at least let our elected commissioners know what we think of the allegations in the resolution.  It is unlikely that the commissioners will “vote” on the removal, leaving the decision up to the President,  but perhaps our presence will make him think twice about conducting a sham hearing. Please make an effort to attend the hearing.

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Court Set to Revisit Chimel and Belton

After arresting the driver of a car the police may search that car….or maybe not. In Arizona v Grant,  2007 Ariz. LEXIS 73 the usually pro state Arizona Supreme Court said the following.”This case requires us to determine whether the search incident to arrest exception to the Fourth Amendment’s warrant requirement permits the warrantless search of an arrestee’s car when the scene is secure and the arrestee is handcuffed, seated in the back of a patrol car, and under the supervision of a police officer. We hold that in such circumstances, a warrantless search is not justified.”Not surprisingly, the U.S. Supreme Court has granted certiori at 2008 U. S. LEXIS 2022. Until such time as the U.S. Supreme Court explains how the Arizona court’s clear reasoning is in error, members should raise this issue in car search cases.

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Appellate Court Reverses TRO

The First District Appellate Court reversed last week’s TRO entered by Judge Riley.  The County has indicated it will have a hearing on the Removal Resolution on the 20th of May.  The story, as reported in the Sun Times by Steve Patterson can be read by clicking here.   On a related note, the County Board defeated a proposal by Claypool, Quigley and Suffredin to have a hearing which accords due process.  Take a look yourself at item 8.  

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TRO Enjoins President of Cook County Board From Removing Public Defender

Judge Riley entered an order enjoining the President of the Cook County Board from proceeding with a hearing to remove the Public Defender.  The TRO was granted after Ed Burnette was allowed to intervene in the pending litigation in the Chancery Division where the litigation seeks declaratory relief as to the office’s independence from political influences in staffing by virtue of the public defender statute.  As a consequence, please do not attend the previously scheduled hearing before the County Board which was going to be held on Wednesday, May 7, 2008.  A hearing on whether the TRO will become a permanent injunction is set for 2 pm on May 9th, 2008 before Judge Riley.


************TRO was reversed on appeal.  Please see story in the In the News Section **********

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First Defense Legal Aid Fundraiser


Cordially invites you to join us
in honoring our
2008 First Defender

Clinical Associate Professor of Law
Northwestern University School of Law
MacArthur Justice Center

Thursday, May 29, 2008
generously hosted by
Jenner & Block LLC
330 North Wabash Avenue
40 South Lounge
Chicago, Illinois
5:30 p.m. – 7:30 p.m.
Refreshments and hors d’oeuvres will be served

Sponsorship Levels
$5,000 • Platinum
$3,000 • Gold
$1,000 • Silver
$ 500 • Bronze
$ 250 • Supporter
Individual Donation
Student / Public Interest Donation

Do not hesitate to pass along this invitation to other supporters!

Please make checks payable to “First Defense Legal Aid” and send to:

First Defense Legal Aid | 6400 South Kedzie Ave.| Chicago, IL 60629 (773) 434-4162 | Email: fdlegalaid@gmail.com

Or go to our website and donate using your credit/debit card:


About First Defense Legal Aid

First Defense Legal Aid (“FDLA”) is an innovative program that protects civil rights by offering free 24-hour legal representation and advice to any individual taken into Chicago Police Department custody. The Program’s services cover the initial and most critical stage of police detention: immediately after arrest until the time when a public defender has been assigned by the court system. Volunteers are trained to handle emergency calls by determining the nature of the call and whether a station visit is necessary to represent the individual in police custody. If a station visit is necessary, FDLA volunteers will interview the arrestee, inform the arrestee of his/her constitutional rights, provide the arrestee with bond information, and serve as a link between the arrestee and his/her family.

Our History

First Defense Legal Aid began in 1995, as a program of the Chicago Commons Association. It was originally named the “Police Custody Hotline Program”, but the name was quickly changed to First Defense Legal Aid at the request of community residents. FDLA became an independent corporation in 2002, and a 501(c)(3) organization in 2003.

Board of Directors                  Advisory Board                      Honorary Board

Sulaiman M. Qazi                       Jeff Brown                                Locke Bowman

Chairman                                  Patricia Smith                            Carol A. Brook

Michael Wilson              Richard Dvorak              Edwin A. Brunette

Treasurer                                   Craig Futterman             Kenneth L. Cunniff

Carolyn Gold Aberman    Scott Levy                                 John Fitzgerald

Secretary                                   John Lyke                                 Richard S. Kling

                                                Dev Parikh                                Andrea D. Lyon

Harriet McCullough                    Zenaida Alonzo               Terence F. MacCarthy

Sean P. MacCarthy                     Shaena Fazal                              R. Eugene Pincham

Scott T. Kamin              Theodore Woerthwein    Randolph N. Stone

Jonathan Peck                Wayne Novak                            Scott Turow

Kristine Neal                              Michael Finn

Jessica Hunter                Tony Hill

Nikol M. Miller                           Elfreda Dockery


John Hayes

Executive Director

Julia Sportolari

Development Director

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