Who pays legal fees to protect children?

After 19-year-old Stephanie Johnson gave birth to a boy named Ezra last September in Faribault, a hospital social worker asked what had happened to her other child, born in Alabama when Johnson was 15.

The teen admitted that her toddler had been taken away.

She was later packing to leave the Faribault hospital, she said, when a police detective and Rice County social worker showed up to take Ezra Ragland, then five days old. The officials said having one child taken away, with parental rights terminated, mandated taking the next child. They placed Ezra in foster care.

Four months later, Johnson's court-appointed attorney won a dismissal, and Ezra was returned to his single mother's care. These days, Johnson would like nothing more than for the county to simply get out of their lives.

But for her court-appointed attorney, Grant Sanders, the case drags on. That's because he hasn't been paid.

At issue is whether Rice County or the state judiciary branch should pay for attorneys in such child protection cases. A Rice County judge ordered the county to pay Sanders, a private attorney, but the county appealed that order to the Minnesota Court of Appeals, saying the local judge should have appointed a state public defender instead.

The showdown comes after last June's decision by the state Board of Public Defense to quit providing public defenders for custodial parents in child-protection cases. That agency faces a $3.8 million deficit.

While all sides in the dispute agree that the poor must be represented in such cases, the different arms of government are at loggerheads over which branch of government should pay for the attorneys. It's a debate grown all the more intense because money is tight. Some experts worry that the quality of representation for the poor will suffer.

"You have two government agencies fighting over who has to provide a mandated service," said Northfield attorney David Ludescher, who is owed more than $5,000 for child-protection cases in Rice County.

He's among local attorneys holding such invoices and waiting for a Minnesota Court of Appeals ruling on the issue within 90 days.

Throughout Minnesota, county officials and lawyers are watching to see what happens with Rice County's case. Nearly all counties have provided money to pay private attorneys in cases of child protection or termination of parental rights since the state stopped providing public defenders for such cases.

But not all. Rice County is one exception.

Rice County commissioners passed a resolution saying the county will not pay private, court-appointed attorneys for custodial parents in child protection cases. The commissioners have refused for months to pay Sanders' $4,000 bill, as well as the bills of other private attorneys appointed to child protection cases.

A panel of appellate judges heard the appeal in Rochester on Thursday. Rice County Attorney Paul Beaumaster contended that a state-paid public defender should have been appointed for Johnson. He said the case represents the judicial branch of state government legislating at the district court level, and shifting a mandate.

Sanders argued that this wasn't a case of "cost-shifting," but rather a matter of Rice County in effect interfering with Johnson's right to counsel by not paying her attorney. Sanders said Minnesota statutes say the county must pay.

The Minnesota Association of Criminal Defense Lawyers filed a friend-of-the-court brief detailing concerns with the Rice County appeal.

Northfield attorney John Fossum wrote, in part: "The very idea that a political subdivision may refuse the order of the state district court by simple fiat flies in the face of the orderly administration of justice and is well beyond the powers of the county board or any political subdivision of the state."

Watching, too, are Crow Wing County commissioners, whom a judge found in contempt after they refused his order to pay fees for attorney services rendered. Some of those bills have since been paid.

"The question is why does the county have to pay for it when the state took over the [court] system?" Crow Wing Attorney Don Ryan said Friday.

Crow Wing County is also appealing the issue to the Minnesota Court of Appeals, he said, and, if needed, will take it to the state Supreme Court.

"It is a state obligation," Ryan said, "not a county obligation."

Caught in the middle of the dispute are poor parents whose kids are getting taken away and who need attorneys.

Because Johnson was indigent, a Rice County judge appointed Sanders to represent her.

"He really came through for me," Johnson said, cuddling her baby and breaking into tears. "If I didn't have my lawyer, I wouldn't have the joy in my life today."

Johnson, who has a high school equivalency diploma, said she could not have represented herself in court.

"I had no idea what they were talking about most of the time," she said. "The legal terms I didn't understand at all. If I didn't have my lawyer, they would have taken my baby away and I would have never seen him again."

Sanders said appointing attorneys, then reneging on paying them, will discourage many from taking cases, especially if they have to pay for expert witnesses and other costs out of pocket.

He fears weaker representation of the poor will be an unintended consequence of state budget cuts on the judiciary.

"They are balancing the budget on the backs of people who can least afford it," he said.

Ludescher said the case also raises the question of what happens when units of government refuse to carry out a mandate. Where, he questions, will it stop? Will counties refuse to pay legal fees for commitments of sex offenders or the mentally ill, for example?

"It's going to be a huge issue," he said. "It's been a problem in legal circles for a long time: How do you get good representation for the poor?"

Joy Powell • 952-882-9017