Have you heard the rumor about Billings scheming to increase the workload for state-funded public defenders by recently making changes in its open container ordinance?
Well, many Montana legislators have heard that false claim and it appears to be a reason why the biennial state budget passed by the House last week shifts $759,000 in Office of Public Defender costs to Montana cities and counties. This legislative raid on tax money that is supposed to go back to the local governments that collected it has not been transparent, so the impact on individual cities and counties cannot be estimated yet.
The Legislative Fiscal Division erroneously reported that "the city of Billings has adopted local ordinances that reverse the statutes put in place by the legislature ... the workload of the OPD and associated costs for lower court cases many be increased in the 2021 biennium as a result."
Billings City Attorney Brent Brooks refuted that claim before an appropriations subcommittee, yet the cost shift remains in House Bill 2, the major budget bill.
Eric Bryson, executive director for the Montana Association of Counties, took issue with OPD testimony, writing to legislators that OPD leadership was "factually incorrect" in testifying to the appropriations committee that local ordinances were driving OPD costs.
On Tuesday, Yellowstone County Commissioners Denis Pitman, Don Jones and John Ostlund signed a press release titled" "Montana Legislature looks to raid local government revenues and direct money to the Office of Public Defender." The commissioners echoed Brooks and Bryson's concerns that the appropriations subcommittee moved forward with a plan to reduce payments owed to city and county governments after hearing from OPD that local ordinances are driving up the cost of public defenders in Montana.
Let's set the record straight:
- Billings hasn't changed its open container ordinance since 1967, according to Brooks.
- Billings hasn't added any jail penalties to city ordinances since the 2017 Legislature eliminated jail penalties for numerous misdemeanor offenses (e.g. first-offense shoplifting and disorderly conduct) in an effort to reduce Office of Public Defender expenses. Criminal defendants are entitled to a publicly funded attorney if the charge carries the possibility of incarceration, but no public defender is required if the offense can't result in jail time.
- Statewide, there has been a decline in the number of misdemeanor cases filed. According to data reported by the Legislative Fiscal Division, the number of cases filed in municipal and justice courts in 2018 was the lowest in five years. However, the number of felony cases in District Court increased.
- The Office of Public Defender reported that it provided representation in 383 matters involving local ordinances in fiscal year 2018. But OPD was unable to calculate what that representation cost or even how many different cases or defendants were involved. The OPD wasn't able to report how many of those matters also involved charges of violating state law.
That lack of OPD information came in the fiscal note for Senate Bill 315, which also apparently was inspired by the false rumor that Billings had changed its ordinances. Senate President Scott Sales is sponsoring SB315, which says that cities and counties must pay the cost of public defenders in cases where a person is charged only with local ordinance violation.
The Montana Association of Counties supported SB315 because its impact would be negligible, according Bryson. Montana local government leaders also expected the fiscal note to back up their position that local ordinance violations weren't driving cost overruns in the state OPD — and it does.
The Office of Public Defender provides essential services for Montana's system of justice. However, the agency has spent more than its budget every year since it was established. Part of the problem has been under-funding, part has been management problems and staff turnover.
The increase in felony cases over the past few years has already burdened city and county governments, which fund law enforcement, victim-witness advocates, court clerks, jails, city and county prosecutors and provide space for state District Courts. By state law, local governments are required to rely on property taxes for revenue, and they can increase those levies by no more than half the annual inflation rate without a vote of the electorate.
Let's get the truth out about OPD costs before the Legislature balances its budget by pushing costs off on local governments, whose only recourse is to ask city and county property taxpayers to make up the difference. The state budget must not shift costs based on false pretenses.