Who pays for the lawyer? The county does

Counties must pay for attorneys for poor parents in child protection cases, the Minnesota Court of Appeals ruled on Tuesday.

The decision grew out of a Rice County case in which County Judge Thomas Neuville appointed a private lawyer to represent a woman whose newborn baby was taken away by the county. Neuville ordered the county to pay the lawyer, but Rice County commissioners refused and challenged the judge's order in the Court of Appeals.

Tuesday's ruling was a victory for attorney Grant Sanders, who said he is still owed money by the county for representing the impoverished 19-year-old woman, who he helped regain custody of her baby.

While all sides in the dispute agreed that the poor must be represented in such cases, the different arms of government have been fighting over which branch should pay.

"The bottom line is that public dollars are going to be used to pay for the service," said Rice County Attorney Paul Beaumaster. The issue is "whether it is being taken from the property tax rolls in each county or from the [state] general fund."

In June 2008, the state Board of Public Defense said that it would no longer provide public defenders to represent adults in "CHIPS" cases, an acronym for "Child in Need of Protective Services." The board cited its $3.8 million budget shortfall.

Beaumaster said the decision amounted to shifting the cost from a state agency to local government. He argued that the judge should have appointed a state public defender instead of a private lawyer, and then the state would have paid those costs.

This should never have become a county obligation to pay for parents in child-protection cases, said Scott Simmons of the Association of Minnesota Counties.

Counties also are grappling with big state aid cuts and state-imposed limits on how much their levy can be raised for property taxes, he said.

"You don't know how many of these cases are going to arise or when," Simmons said. "It borders on a separation of powers violation when the judicial branch is essentially ordering how a county should budget."

Sanders said he simply wants to be paid for the work that he was appointed to do. His client, Stephanie Johnson, has told the Star Tribune that without Sanders' representation, she doubts she would have gotten back her son, Ezra.

After Sanders' and other attorneys' invoices went unpaid last year, Sanders asked Neuville to order the county's Board of Commissioners to approve a system under which it would pay the fees and expenses of attorneys appointed by the court.

The panel said in essence that judges shouldn't legislate from the bench, and that it is up to the Legislature to clarify which branch of government must pay such costs.

Said Beaumaster on Tuesday: "They clearly say the Legislature should look at this."