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Al Flora v. Luzerne County

Commonwealth Court of Pennsylvania

October 14, 2014

Al Flora, Jr., and Adam Kuren and Steven Allabaugh, on behalf of themselves and all others similarly situated, Appellants
v.
Luzerne County of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in his official capacity; Al Flora, Jr., and Adam Kuren and Steven Allabaugh, on behalf of themselves and all others similarly situated
v.
Luzerne County of the Commonwealth of Pennsylvania and Robert C. Lawton, County Manager, in his official capacity, Appellants

Argued June 16, 2014

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[Copyrighted Material Omitted]

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Appealed from No. April Term, 2012, No. 04517. Common Pleas Court of the County of Luzerne. Augello, Senior Judge.

Mary C. Roper and John S. Summers, Philadelphia, for appellants.

John G. Dean, Wilkes-Barre, and James C. Crumlish, III, Blue Bell, for appellees.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.

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OPINION

MARY HANNAH LEAVITT, Judge

Al Flora, Jr., Adam Kuren, and Steven Allabaugh appeal the order of the Luzerne County Court of Common Pleas (trial court) granting the preliminary objections of Luzerne County and County Manager Robert C. Lawton (collectively County) to their amended complaint. The amended complaint asserts that, due to inadequate funding, the Office of Public Defender of Luzerne County is unable to represent indigent clients adequately, thereby depriving those clients of their right to counsel guaranteed by the Sixth Amendment. The trial court sustained the County's objections that the plaintiffs lacked standing, for separate reasons, and that the complaint failed to state a cause of action. The trial court overruled the County's objection that the plaintiffs should have joined the current Chief Public Defender as an indispensable party. The County cross-appeals the trial court's denial of its motion to disqualify an attorney representing the plaintiffs on the basis of her alleged ethics violations.

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Background

On April 10, 2012, Al Flora, Jr., in his official capacity as acting Chief Public Defender of Luzerne County, and three indigent criminal defendants filed a class action complaint against the County for depriving the three indigent criminal defendants of their right to counsel under the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. The complaint was amended on May 15, 2013, inter alia, to aver that Flora was suing in his individual capacity because he was no longer employed by the County as Chief Public Defender. It also replaced the original indigent criminal defendant plaintiffs with Joshua Lozano,[1] Kuren and Allabaugh (Indigent Clients) as representatives of a class comprised of " all indigent adults in Luzerne County who are or will be represented by the Office of the Public Defender from this point until the Office of the Public Defender has the funding and resources necessary to enable it to meet ethical, legal, and constitutional standards of representation." Amended Complaint, ¶ 4; Reproduced Record at 851a-52a (R.R. ).

The amended complaint asserted that the Office of Public Defender, as currently funded, cannot provide adequate legal representation to indigent criminal defendants. The amended complaint generally alleged that public defenders carry caseloads that exceed the standard recommended by the American Bar Association; lack basic office resources such as individual desks and phone lines; and lack sufficient support staff. More specifically, the amended complaint alleged that public defenders are unable to provide representation at most preliminary arraignments and often must request continuances of critical proceedings, leading to longer incarcerations than might be otherwise necessary. Amended Complaint, ¶ ¶ 48-49, 53-54; R.R. 865a-67a. It further alleged that public defenders in Luzerne County are unable to prepare properly for their clients' defense or to consult with them in confidence. Amended Complaint, ¶ ¶ 61-70; R.R. 869-872. The amended complaint requested the following relief:

[a] writ of mandamus and permanent injunction compelling [the County] to provide necessary funding to allow the [Office of Public Defender] to hire additional trial attorneys and support staff as well as upgrade the physical and technological resources such that the [Office of Public Defender] is capable of providing representation to all qualified indigent defendants prosecuted in Luzerne County that satisfies standards set by the U.S. and Pennsylvania Constitutions.

Amended Complaint, Prayer for Relief ¶ 1; R.R. 885a. Notably, the amended complaint alleged that Flora had attempted numerous times to obtain additional resources from the County through the normal budgetary process. Amended Complaint, ¶ ¶ 29-37; R.R. 858a-61a. However, his requests were denied. In response, Flora adopted a policy in December 2011 that limited the clients of the Office of Public Defender to those defendants charged with homicide or felony sex offenses or who are facing extradition. Amended Complaint, ¶ 33; R.R. 860a.

With their complaint, the plaintiffs filed a request for preliminary injunction, and this was granted on June 15, 2012, after a hearing. The trial court ordered the

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County to provide funding for unfilled vacancies within the Office of Public Defender and to provide office space adequate to allow confidential communication between public defenders and their clients. Additionally, the trial court ordered the County to appoint a lawyer to represent each of the original indigent criminal defendant plaintiffs, who had been deprived counsel under Flora's December 2011 policy, and ordered Flora to discontinue that policy. Finally, the trial court ordered the parties into mediation, which proved unsuccessful.

On April 17, 2013, the County dismissed Flora and appointed a new Chief Public Defender.[2] On May 31, 2013, the County removed the amended complaint to the United States District Court for the Middle District of Pennsylvania, but the case was remanded to the trial court on August 16, 2013.

On September 11, 2013, the County filed preliminary objections to the amended complaint and a motion to disqualify one of the Indigent Clients' attorneys, Mary Catherine Roper, Esq. The trial court held a hearing on October 8, 2013, on both issues. Regarding the motion to disqualify, the parties stipulated to several facts, specifically that Roper: (1) met with the Indigent Clients individually in April 2013 knowing that some of them were represented by public defenders in their criminal cases, (2) did not inform the public defenders that she was meeting with their clients and (3) brought retainer or fee agreements to the meetings that were executed afterwards.

On October 21, 2013, the trial court denied the County's motion to disqualify Roper. On October 22, 2013, the trial court sustained several of the County's preliminary objections and dismissed the amended complaint. Specifically, the trial court held that both Flora and the Indigent Clients lacked standing and that the amended complaint failed to state a cause of action. The trial court also held that the current Chief Public Defender is not an indispensable party. Flora and the Indigent Clients have appealed the order sustaining the County's preliminary objections, and the County has cross-appealed the denial of its motion to disqualify Roper.

On appeal,[3] Flora and the Indigent Clients raise two issues. First, they contend that the trial court erred in holding that Flora lacked standing in his individual capacity. Second, they argue that the Indigent Clients have standing to allege a deprivation of their Sixth Amendment right to counsel before a deprivation has actually occurred. On cross-appeal,[4] the County argues that Attorney Roper violated several rules of professional conduct

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and that the trial court erred in refusing to disqualify her.

Flora's Standing

We consider, first, whether Flora has standing to pursue his claim that the Office of Public Defender is inadequately funded. The plaintiffs contend that Flora has standing under the traditional standing test and also as a taxpayer under Application of Biester, 487 Pa. 438, 409 A.2d 848 (Pa. 1979).

To have standing, a party must establish " that he has a substantial, direct, and immediate interest in the outcome of the litigation." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655, 660 (Pa. 2005). An interest is " substantial" if the party's interest " surpasses the common interest of all citizens in procuring obedience to the law." Id. A " direct" interest requires a showing of a causal connection between the matter complained of and the party's interest. Id. Finally, an " immediate" interest requires the causal connection to not be remote or speculative. Id. The key is that the person must be " negatively impacted in some real and direct fashion." Id.

The plaintiffs argue that Flora is " aggrieved" under the traditional standing test because " his right to bring a mandamus suit was deliberately frustrated by a discharge he contends is retaliatory." Plaintiffs' Brief at 55. Therefore, they argue that Flora should be permitted to continue as a plaintiff unless and until the federal court rules on his retaliation claims. They also contend that the trial court erred in relying upon Bradford Timbers v. H. Gordon Roberts, 654 A.2d 625 (Pa. Cmwlth. 1995). Plaintiffs argue that Ambron v. Philadelphia Civil Service Commission, 73 Pa.Cmwlth. 628, 458 A.2d 1055 (Pa. Cmwlth. 1983), is a more applicable precedent because it dealt with the standing of a plaintiff challenging his removal, as is the case with Flora.

In Bradford Timbers, a district justice petitioned for a writ of mandamus to compel the county to make a clerical appointment to his personal staff. After the district justice filed his petition, our Supreme Court suspended him. This Court held that the district justice lacked standing to proceed with his mandamus action because he no longer had the authority to carry out the act he sought to compel. Bradford Timbers, 654 A.2d at 626. In Ambron, four police detectives challenged their transfer from the district attorney's office to the Philadelphia police department. After three of the four officers resigned, the complaint was challenged as moot. This Court held that because the plaintiffs were " not incapable of reinstatement," their claims were not moot. Ambron, 458 A.2d at 1056.

As the trial court noted, Flora was once Chief Public Defender and may succeed in challenging his termination as retaliatory. However, he currently has no right to manage the Office of Public Defender in any way whatsoever. In Bradford Timbers, this Court held that the suspended district justice lacked standing even though his removal was temporary. The case is stronger, here, because Flora's removal from office is permanent. Ambron is distinguishable because Flora's potential ...


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