Fight ‘Em ‘Til We Can’t

Who decides whether a defendant qualifies as “indigent” for purposes of being appointed a public defender under Montana’s new Public Defender Act? That was the question the MT Supreme Court recently decided in Rios v. Harris. In brief, the Court granted a Writ of Supervisory Control saying that the Office of State Public Defender (OSPD) decides who qualifies according to the criteria specified in Title 47 of the Montana Code.

The Court said that §47-1-111(1), MCA, calls for appointment of counsel as follows:

1. The court appoints counsel to any accused person facing jail time (and also in dependent/neglect and a few other matters). See also §47-1-104(4), MCA.
2. The Office of State Public Defender (OSPD) begins representation but also determines whether the defendant meets the indigency criteria.
3. If the defendant is not eligible, the OSPD must notify the court so that the court may rescind its order appointing counsel. However, OSPD must remain as counsel until the court issues such an order.
4. The court may review the OSPD’s determination of eligibility, but only in cases where one of the parties requests such review. Under no circumstances my a court initiate such a review sua sponte.

Justice Jim Rice dissented, claiming that the majority erred in holding that a court cannot initiate the indigency determination on its own.

Does anyone have any thoughts on this opinion? Did the majority get it right or was Rice more on target? And how common is it for the Court to issue a Writ of Supervisory Control?