TRANSCRIPT OF PROCEEDINGS IN THE CHANCERY COURT FOR KNOX COUNTY, TENNESSEE October 29, 2009 IN RE: PETITION OF KNOX COUNTY ) PUBLIC DEFENDER ) Docket No.: 174552-2 ) _________________________________ APPEARANCES: FOR THE PETITIONER: Hugh J. Moore, Jr., Esq. T. Maxfield Bahner, Esq. D. Aaron Love, Esq. Chambliss, Bahner & Stophel Two Union Square 1000 Tallan Building Chattanooga, Tennessee 37402 FOR THE RESPONDENT: Douglas Earl Diamond, Esq. Senior Counsel Office of the Attorney General General Civil Division 2nd Floor, CHB 425 5th Avenue North Nashville, Tennessee 37202-0207 2 1 BE IT REMEMBERED, the above-entitled 2 cause came on for hearing this 29th day of 3 October, 2009, before the Honorable 4 Daryl R. Fansler, Chancellor of Said 5 Court, when the following proceedings were had to 6 wit: 7 * * * * * * * * * * 8 THE COURT: Good morning. Are we ready 9 to proceed in the matter of the petition of the 10 Knox County Public Defender? 11 MR. MOORE: Ready, your Honor. 12 THE COURT: All right. We are now 13 ready. Very well. You may proceed, Mr. Moore. 14 MR. MOORE: Thank you, your Honor. 15 Your Honor, I am Hugh Moore of the Chattanooga Bar 16 appearing for Mark Stephens, the Knox County 17 Public Defender. 18 With me today is Max Bahner from our 19 firm, Aaron Love from our firm, and you know 20 Mr. Stephens. 21 This case is about, at its core, it's 22 about the right to counsel. It's about the right 23 to counsel that is guaranteed by the Sixth 24 Amendment of the U.S. Constitution and by the 25 Tennessee Constitution. 3 1 Rule 13 of the Tennessee Supreme Court 2 rules was designed to ensure that indigent 3 defendants in this state receive the level of 4 representation that was mandated by the 5 constitution. 6 Rule 13, which is sort of at the center 7 of this writ, is how the Tennessee Supreme Court 8 decided to implement Gideon, the requirements of 9 Gideon, and the other case law that defines an 10 individual's right to have effective counsel. 11 And I think that's important. A 12 defendant is entitled to effective counsel. A 13 defendant is not entitled to win his or her case, 14 but a defendant is entitled to effective, 15 professional representation. 16 And that is what Rule 13 is set up to 17 ensure. It's set up to ensure that each indigent 18 individual, who appears in front of the courts, 19 receives an attorney who can provide that 20 individual with representation that is effective 21 and professional and it meets a certain standard 22 that the Supreme Court has set. 23 And that is what we are here about this 24 morning. Mark Stephens, who is the elected public 25 defender for Knox County, his office is charged 4 1 with this responsibility. He has a first-line 2 responsibility of providing this effective and 3 professional representation to indigents here in 4 Knox County. 5 Mr. Stephens brought the petition to 6 Sessions Court. And in that petition, and the 7 affidavit with it, Mr. Stephens says that he is 8 fearful, that if something is not done about the 9 caseloads in his office -- and he suggests that 10 something be done about the misdemeanor caseloads; 11 if something is not done about the extraordinary 12 heavy caseload in his office, that his office 13 would not be able, very soon, to provide the level 14 of effective representation that Gideon and the 15 other case law, the U.S. Constitution, the Sixth 16 Amendment, the Tennessee Constitution require, and 17 that Rule 13 is designed to ensure, that every 18 individual who appears has that representation 19 that is guaranteed and mandated. 20 Now, we are keenly aware of the 21 financial considerations here, but we don't think 22 that's at issue. 23 Mr. Stephens' office has a 24 constitutional responsibility. His responsibility 25 is not to the individual courts; his 5 1 responsibility is to the individuals that he is 2 appointed to represent, the men and the women who 3 Mr. Stephens and his office is appointed to 4 represent. 5 And as I said, Rule 13 sets out exactly 6 how that mandate is to be applied. And Rule 13 7 has mandatory requirements. 8 We are here today and we are asking this 9 Court to find, based on the record -- of course, 10 this is on this writ of certiorari. The Court is 11 bound -- we are all bound by the record and we 12 can't add or subtract anything from the record. 13 But, on the record, we think -- very specifically, 14 based on the June 10th, 2008 order of the General 15 Sessions judges, we think that the public defender 16 is entitled to the relief that he sought. 17 And what we are asking, is that this 18 Court find that we are correct. And then what we 19 are going to suggest, what we do suggest, is that 20 the Court perhaps refer the matter then, back to 21 the Sessions judges to work in consultation with 22 Mr. Stephens and to work out some sort of a remedy 23 that's acceptable to everybody. 24 Just briefly, to go back through the 25 procedural history of this case, Mr. Stephens 6 1 filed a petition in Sessions Court. There was a 2 hearing on June -- excuse me -- there was a 3 hearing on June 10th, 2008, an all-day hearing, 4 all sorts of witnesses. There was an order eight 5 months after that. 6 In response to that order we then filed 7 a petition for a writ with this Court. The writ 8 was granted. The record was transferred up here. 9 There was then a motion to dismiss that 10 was denied, and we are here this morning on the 11 merits of that. 12 What I want to do this morning is to 13 briefly discuss our argument. Of course, we have 14 filed a brief that sets forth our argument in 15 detail, and I will briefly discuss that. I will 16 explain why we think Mr. Stephens' office is 17 entitled to relief and why the procedure that we 18 have employed is an appropriate legal procedure. 19 And then second, I want to respond 20 briefly to the two arguments that are raised by 21 the state in its brief. They have raised two 22 arguments in opposition to the relief here. 23 Those arguments are, first, that the 24 remedy of a writ of certiorari is not available 25 because Mr. Stephens had the right to take an 7 1 appeal. 2 And the second argument the state 3 raises, is that the Supreme Court rules don't 4 allow the office to seek an office-wide remedy; 5 the remedy is only available to individual public 6 defenders on a case-by-case basis. And I want to 7 discuss that briefly. 8 First, just in passing, I want to note 9 an error in the state's brief. The state asserts, 10 at page 4 of its brief, that their motion to 11 intervene remains undecided. And as the Court 12 will recall -- and I have got a transcript page 13 here for the Court. 14 THE COURT: I was under the impression, 15 Mr. Moore, that you-all voiced no opposition -- 16 MR. MOORE: We had no opposition, 17 your Honor, and your Honor granted it and asked 18 Mr. Diamond to prepare the order. 19 MR. DIAMOND: My mistake, your Honor. 20 MR. MOORE: Okay. And that's my -- let 21 me start with Rule 13. I want to read two very 22 short portions out of what is a very long rule. I 23 also have a copy of the rule for you. 24 THE COURT: I have it. 25 MR. MOORE: Rule 13. I think it's 8 1 Section 1. It's (e)(4)(A). "When appointing 2 counsel for an indigent defendant pursuant to 3 Section 1(e)(3), the Court shall appoint the 4 district public defender's office if qualified 5 pursuant to this rule and no conflict of interest 6 exists." 7 Then down in section (D): "The 8 Court" -- that is the appointed Court -- "shall 9 not make an appointment if counsel makes a clear 10 and convincing showing that adding the appointment 11 to counsel's current workload would prevent 12 counsel from rendering effective representation in 13 accordance with constitutional and professional 14 standards." 15 I think it's important to note, first of 16 all, the rule is mandatory. "Shall not make" the 17 appointment once the requisit showing is made and 18 the burden has been met. 19 And I think that, second, it's important 20 to note that the rule itself speaks in terms of 21 the public defender's office, not an individual 22 public defender. It speaks of individual 23 appointed attorneys and the public defender's 24 office. 25 And it's the public defender's position, 9 1 in this case, that once the General Sessions Court 2 made the determination that the number of cases 3 that were handled by attorneys in the public 4 defender's office "violated professional 5 standards," using that phrase in Rule 13, then the 6 relief was mandatory. 7 That is where we get to the fundamental 8 illegality; that is, that there is a factual 9 finding, and then the ruling, relating to that 10 factual finding, is not the ruling that should 11 have been made based on those facts. 12 Now, in its brief the state concedes 13 that the Sessions Court made a factual finding 14 that professional standards were being violated by 15 these misdemeanor caseloads. 16 I think this is a very important 17 concession by the state. It's at page 13 of the 18 state's brief. "The state agrees with the public 19 defender" -- let me quote the state, because this 20 is very important. 21 "The General Sessions Court apparently 22 decided that the public defender had met his 23 burden to prove that the caseload exceeded some 24 professional standard." That's at page 13 of the 25 state's brief. 10 1 It's important, because the state, in 2 agreeing that the public defender met his 3 burden -- that's the state's language -- they 4 agree that the public defender had met the burden 5 of making this clear and convincing showing that 6 it was being compelled to provide representation 7 that was not in accordance with the standards of 8 Rule 13. 9 And that is the only burden that had to 10 be met, that there was only one burden at issue in 11 front of the Sessions Court, and that was: whether 12 we could meet that burden of making that clear and 13 convincing showing? And the state admits that we 14 met that burden. 15 The public defender, at that hearing, 16 and then as represented in the Sessions Court 17 order, presented quantitative evidence of a 18 qualitative problem. And it's true the 19 presentation of that quantitative evidence of the 20 qualitative problem, that Mr. Stephens had met his 21 burden. 22 Now, I would submit to the Court that 23 there is nothing unusual about using numbers of a 24 quantitative measure in order to reach -- using 25 numbers, a quantitative measure, in an effort to 11 1 reach -- and the quantitative measure here is the 2 number of cases. There is nothing unusual about 3 that, which the Supreme Court has used, in order 4 to reach a qualitative result. 5 And a qualitative result, that the cases 6 mandate and that Rule 13 was designed to ensure, 7 is as I mentioned earlier, effective 8 representation. 9 And the Supreme Court, in Rule 13, 10 really anticipates that there will be quantitative 11 proof, because it assumes from its very language 12 that, at some point, one more case, one case, 13 would result in a defendant not receiving legal 14 services that meet professional and constitutional 15 standards, because the rule says if you can show 16 that this case, this one case, puts you at that 17 level, that you have too many cases and you can't 18 deliver effective representation. As Rule 13 19 says, adding the appointment, the one appointment, 20 to the current workload. 21 Now similarly, for example, like in 22 state DUI law, it assumes that .08 is the level 23 for impaired driving, whereas, depending on the 24 size, weight, whatever individual alcohol 25 tolerance of an individual -- really it might be 12 1 .6 for some and .10 for others -- but the law 2 assumes, for the purpose of keeping roadways safe, 3 it assumes this .08 level. And I think that's -- 4 I have tried to come up with some analogy here, 5 and it's roughly analogous. 6 The Supreme Court has said you can look 7 at constitutional standards, you can determine, 8 you know, in this individual case was there 9 constitutional representation? 10 But then in addition to that, not 11 necessarily over and above, but in addition to 12 that, we are going to say you also can't have too 13 many cases; you know, we are going to say, that at 14 some point -- at some point that's just too many 15 cases. 16 And the state mentions in its brief that 17 one public defender -- and I think this is at page 18 12 in the state's brief -- one public defender, 19 through hard work, intelligence, whatever, may 20 manage to provide quality legal assistance in 21 spite of an overwhelming caseload. 22 And that is true. I mean, it's true, 23 that if you ask -- the testimony from Ms. Poston 24 and Ms. -- the two -- 25 MARK STEPHENS: Murray. 13 1 MR. MOORE: -- Murray, the two assistant 2 public defenders who testified in the Sessions 3 Court hearing, was that, well, you know, yes, they 4 just kept accepting the appointments, you know, 5 the individual -- they were, you know, yes, you 6 know, I think I can work that in. I think I can 7 work that in. 8 But the -- you know, as much as the 9 Legislature can establish this .08 standard for 10 DUI, the Supreme Court has established this 11 professional standards' limit for lawyers. 12 And through its opinion in the Baxter 13 case, the Supreme Court -- and I have copies of 14 those cases -- the Supreme Court, in the Baxter 15 case -- and I have a copy for your Honor, if 16 your Honor -- 17 THE COURT: Very well. Just hand it to 18 me. 19 MR. MOORE: Thank you. In the Baxter 20 case, please, the Supreme Court says -- this is at 21 the bottom of page 6, the bottom left-hand going 22 to the right-hand part -- it says, "Trial courts 23 and defense counsel should look to and be guided 24 by the American Bar Association Standards relating 25 to the administration of criminal justice and, 14 1 specifically, to those portions of the standards 2 which relate to the defense function." 3 And as Professor Lefstein detailed in 4 his affidavit, and then in his testimony at the 5 Sessions Court hearing, he explains how these ABA 6 standards, that the Supreme Court instructs trial 7 courts to look to and be guided by, it 8 says -- this is Judge Henry's opinion, more than 9 30 years ago. "Trial courts should look to and be 10 guided by these standards." 11 And in his testimony and affidavit 12 Professor Lefstein explains how these NAC numbers 13 are, in fact, those standards. 14 Once the showing -- once we have made 15 the showing of the violation of the quantitative 16 standards -- and we have shown that. And the 17 state admits that. The state admits that 18 Mr. Stephens' office made a showing in Sessions 19 Court. 20 And the Sessions Court, in it's June 21 10th order -- and you know, really, because we are 22 all bound by the record here. Looking in that 23 order, it's sort of the center part of this case, 24 in that order the Sessions judges said, we admit 25 that, you know, you have proved a violation of 15 1 some professional standards here. 2 Once that showing has been made, and 3 once we have met that burden, then we are entitled 4 to relief. Just like the case that we cite -- 5 what is it? 6 MR. LOVE: State versus Gant. 7 MR. MOORE: -- the Gant case, on 8 fundamental illegality. It's cited in our brief, 9 but the State verses Gant case. That's the case, 10 your Honor, where a trial court judge had a 11 hearing on the warrantless seizure of items from a 12 cell, a prisoner's cell. And the Court found that 13 there was this warrantless seizure of items from 14 the prisoner's cell, and then the Court ruled that 15 that had to be excluded from evidence. 16 And that was taken up on a writ of 17 certiorari. And it was found to be a fundamental 18 illegality, because, based upon facts found by the 19 Court, that it was a warrantless seizure from a 20 prisoner's cell, the evidence was not to be 21 excluded, although, the Court did exclude it. And 22 here, we are saying, that this is very similar. 23 You have a finding by the Sessions Court 24 that this quantitative limit, this quantitative 25 measure of qualitative -- quantitative limit has 16 1 been reached, that it had been over-reached. 2 And therefore, the Court's conclusion 3 from that was simply wrong. That is, what we are 4 saying, is if you reach that conclusion, that is 5 set out in the June 10th, 2008 order, the only 6 result, looking at Rule 13, which is mandatory, 7 the only result that can come from that is the 8 relief that we seek. 9 And as I mentioned, the relief that 10 Mr. Stephens sought, in the original petition, was 11 an end to further misdemeanor appointments until 12 the situation can be remedied. 13 And as I said when I started the 14 argument, I believe that, if appropriate, and the 15 matter was referred by this Court back to the 16 Sessions judges to work with Mr. Stephens, they 17 could quite probably come up with some sort of a 18 remedy that is satisfactory both to the judges and 19 to Mr. Stephens' office. 20 Now, in its brief the state argues that 21 these caseloads have decreased. And the state 22 includes a table, I think, at pages 2 and 3 of its 23 brief. 24 But what I would point out to the Court, 25 is that the NAC standard -- and this is included 17 1 in Professor Lefstein's affidavit -- is 400 2 misdemeanor cases per attorney, per year. And I 3 noticed, in subsequent studies the ABA made a 4 recommendation that be reduced to 300 cases per 5 year. 6 Mr. Stephens testified, and this is at 7 page 17 of the transcript of the June 10th, 2008 8 hearing, Mr. Stephens testified that he assigned 9 four public defenders to the misdemeanor cases 10 from which he is seeking relief. 11 The chart that the state submitted 12 showed 5700 misdemeanor cases in 2007. That would 13 be a little less than 1200 per attorney, which is 14 more than three times the standard that the state 15 concedes is being exceeded; that is, the state 16 concedes that the standard of 400 cases is being 17 exceeded here. It's being exceeded almost by 18 three times. 19 Let me turn to the state's brief, 20 briefly. In its brief the state raises two 21 objections to the relief that we seek. I would 22 submit that neither one of those objections is 23 even correct or sufficient to overcome the 24 mandatory instructions of Supreme Court Rule 13. 25 First, the state argues that this 18 1 fundamental illegality basis for a writ of 2 certiorari, that we base this proceeding in front 3 of your Honor on, is not available, because -- and 4 then at page 14 of the state's brief, they state: 5 because an appeal is provided to the public 6 defender by statute. Well, that's simply not 7 true. 8 This Court held in its June 25th, 2009 9 order that -- I believe your Honor's language was 10 it was abundantly clear that the Sessions Court 11 order was not final because the judges said that 12 we continue to look at these cases. 13 There is an appellate case directly on 14 point, and I can provide a copy of that to 15 your Honor. It's the case of State versus 16 Osborne. 17 (Pause in proceedings.) 18 MR. MOORE: Thank you. State versus 19 Osborne, Court of Criminal Appeals (1986) 20 your Honor, over on the -- I guess the fourth page 21 of that print, bottom left. The wording of T.C.A. 22 27-5-108 deems that "Before such an appeal" -- 23 this is about appeals from Sessions Court. 24 "Before such an appeal can be taken 25 there must have been a final judgment entered in 19 1 the General Sessions Court. An appeal under this 2 statute" -- that's the statute that allows an 3 appeal out of Sessions Court -- "an appeal cannot 4 be had for the review of an interlocutory order." 5 That's exactly what we have here. So I 6 think the state's first argument, that we are 7 entitled to an appeal, I disagree with that. 8 And I think, again, there is a 9 concession by the state in its brief that's 10 important. At page 7 of its brief the state 11 concedes that a writ will lie for fundamental 12 illegality, one, in the absence of an appellate 13 remedy, and we believe here there is the absence 14 of an appellate remedy, and two, where there is a 15 plain and patent error. 16 And as I said, the state here conceded 17 that the Sessions Court decided that the public 18 defender had met its burden. We believe, in our 19 view, it then becomes mandatory. 20 The other argument advanced by the state 21 is office-wide relief; Mr. Stephens coming into 22 the Court and seeking relief for his office is not 23 possible and that the decisions have to be made, 24 as the state says in its brief at page 17, out of 25 one court, adjudicating one -- one court 20 1 adjudicating one individual case. 2 And as we noted in our June 6th, 2009 3 memorandum, that is not true. If that were true, 4 then in Rule 13 the Supreme Court would not have 5 referred, very specifically, to "appointment of 6 the public defender's office." 7 All of the other references in Rule 13 8 are to individual counsel, but not the reference 9 to the appointment of the public defender's 10 office. 11 And there is a very good reason for 12 this. In appointing the public defender's office, 13 and not an individual attorney, the Court, that 14 is, the General Sessions Court, the Criminal 15 Court, that Court expects Mr. Stephens' office to 16 handle the case. They don't expect the individual 17 assistant public defender, or Mr. Stephens, 18 whoever is there that morning, whoever happens to 19 be appearing before the judge, that judge is not 20 expecting that person to handle the case; they are 21 expecting Mr. Stephens' office to handle the case. 22 And the office is appointed, so that 23 Mr. Stephens, as the elected public defender, can 24 make the best use of the resources in his office 25 in how he assigns lawyers to cases and to courts. 21 1 For that reason we think that the state 2 is wrong when it asserts -- and this is at page 17 3 of the state's brief -- we think the state is 4 wrong when it asserts that the Court must 5 appoint -- this is a quote -- "a particular lawyer 6 from the public defender's office to a specific 7 case." 8 And then the state argues only this 9 particular lawyer can apply for relief under 10 Rule 13. But that just doesn't make any sense. 11 And that's really not the way things happen in the 12 real world. 13 Now, as I have said earlier, specific 14 attorneys out of Mr. Stephens' office are not 15 appointed specific cases, because he may have to 16 decide somebody else needs to handle that 17 case -- so and so is going on vacation -- that 18 case is too complicated for you -- I mean, all 19 manners of other reasons. And it's up to the 20 office to handle the case. 21 Under the state's theory, these 22 individual assistant public defenders would have 23 to constantly appear back in front of the 24 appointed judge saying, I am sorry, I am going to 25 be on vacation the next two weeks, can this go to 22 1 this? Can you move the appointment? You know, 2 please relieve me of the appointment and have this 3 attorney appointed. 4 And that is not practical. It doesn't 5 happen. That is why the office is appointed and 6 that is why the office can seek relief. 7 This relief is being sought because 8 Mr. Stephens' office is over-burdened. It's not 9 being sought because one of the twenty or 10 twenty-five attorneys in the office is 11 over-burdened. 12 If just one of the attorneys, or two of 13 of the attorneys in Mr. Stephens' office, are 14 over-burdened, that's a problem Mr. Stephens is 15 supposed to take care. 16 The Courts expect Mr. Stephens' office 17 to handle the work. It's incumbent on him, 18 likewise, to tell the Court, as he did in his 19 petition, when his office can't provide the 20 effective representation that Gideon and the other 21 cases, the Tennessee Constitution, the Sixth 22 Amendment to the U.S. Constitution and Rule 13 are 23 designed to provide. 24 Rule 13 sets out these standards where 25 the public defender should not be appointed, and 23 1 Rule 13 contemplates when it is appropriate that 2 the "office," rather than the individual lawyer, 3 will be appointed; therefore, the Court has the 4 power to determine that the office can't accept 5 more appointments, not that John Doe or Jane Smith 6 can't accept more appointments, but that the 7 "office" can't accept more appointments. 8 Moreover, as a practical matter, and we 9 have argued this earlier, if the public defender 10 was required to accept these appointments on an 11 individual attorney, case-by-case basis, and then 12 make these arguments, the I-am-too-busy-argument, 13 it would create an incredible burden on the 14 Sessions Courts and the Criminal Courts, and the 15 courts really wouldn't have much time to do 16 other -- to consider individual arguments by 17 public defenders about their cases. 18 Furthermore, let me point out, nothing 19 in Rule 13, or the statutes that govern the 20 appointment of the public defender -- and there is 21 some mention of this in the state's brief, I 22 think, at page 14 and 15 -- nothing requires the 23 public defender to be available to accept 24 appointments in all courts. 25 Mr. Stephens' duty, and the duty of each 24 1 assistant in Mr. Stephens' office, is to the 2 individual client, and it's a duty to provide 3 effective representation to that individual 4 client. 5 Mr. Stephens doesn't have a duty, 6 statutory, constitutional or otherwise, to the 7 Misdemeanor Division of Sessions Court; he has 8 that duty to the individuals that he and his 9 office is appointed to represent. 10 In promulgating and setting out Rule 13 11 the Supreme Court exercised, not only statutory 12 authority, but really its inherent power to 13 regulate the practice of law in the state. 14 We think there is clear authority for 15 the relief that the public defender seeks; that is 16 because Rule 13 requires that the office be 17 appointed. It only makes sense that the "office" 18 be entitled to ask for the relief that we have 19 sought here. 20 In conclusion, let me say briefly, 21 your Honor, the state has conceded the essential 22 points that underlie our argument; that is, first, 23 the state conceded in its brief -- and we quote 24 this again: "The General Sessions Court apparently 25 decided the public defender had met his burden to 25 1 prove that his caseload exceeded some professional 2 standards." 3 Second, the state conceded that if there 4 were no appellate remedy, and there is no 5 appellate remedy here, that there was "plain error 6 and the remedy of a writ of certiorari was 7 correct." 8 We think the relief for the office that 9 we have sought, and Mr. Stephens has sought, we 10 think that complies both with the letter and the 11 spirit of Rule 13, of the law, of the law in 12 Tennessee. We think it makes sense. 13 And finally, your Honor, we submit that 14 the substantive relief requested in this writ of 15 certiorari should be granted. 16 And as I mentioned when I started, we 17 would suggest that the matter be referred to the 18 General Sessions Court, sort of like you refer 19 things to a master, but that it be referred to the 20 Sessions Court, and Mr. Stephens, for them to get 21 together, that's the people who are involved here, 22 and to work out some appropriate relief that is 23 satisfactory, both to the five judges and to 24 Mr. Stephens' office. 25 Also, because the initial hearing in 26 1 this case was almost eighteen months ago, they may 2 wish to have another hearing or get current facts. 3 That's all, I think, very reasonable. 4 And like I said, we ask that -- we think 5 that's an appropriate next step for this Court. 6 And that concludes my argument, and I am 7 ready to accept any questions from the Court or 8 the -- 9 THE COURT: Let's hear from Mr. Diamond 10 and then I may have questions for both sides, 11 Mr. Moore. 12 MR. MOORE: Thank you, your Honor. 13 THE COURT: Mr. Diamond? 14 MR. DIAMOND: May it please the Court, I 15 am Doug Diamond from the Attorney General's 16 Office, here on behalf of the Attorney General in 17 his official capacity, and the Administrative 18 Office of the Courts. 19 Before I get into my argument I want to 20 dispute a couple of supposed concussions that I 21 made, at least their characterization by opposing 22 counsel. 23 First, and this is one we have heard 24 repeatedly in the argument just concluded, I am 25 supposed to have conceded -- or the state is 27 1 supposed to have conceded that the public defender 2 made a showing, by clear and convincing evidence, 3 that his caseload violated professional standards. 4 And that's a little bit strong. What I 5 actually wrote was: The General Sessions Court 6 apparently decided the public defender had met his 7 burden of proof that his caseload exceeded at 8 least some professional standards. 9 But I go on to point out that those are 10 professional standards promulgated by trade groups 11 that are essentially -- lawyer groups. 12 But the General Sessions Court did got 13 find that the public defender's caseload exceeded 14 these standards set out by our own Supreme Court 15 in the Rules of Professional Conduct. 16 And then I went on to discuss 17 constitutional standards. We don't concede that 18 the public defender made a case for exceeding all 19 professional standards; possibly for some. 20 The General Sessions Court made no 21 finding by clear and convincing evidence. It's 22 hard to tell quite what finding the General 23 Sessions Court made. And I am only talking about, 24 not what I am conceding, but what the General 25 Sessions Court found. 28 1 Secondly, the other concession I am 2 supposed to have made is that there is no 3 appellate remedy; certiorari is correct. 4 Well, that's not true on a couple of 5 levels. First of all, on the appellate remedy, I 6 did not maintain that an interlocutory appeal is 7 somehow -- or an interlocutory order is somehow 8 appealable. 9 Instead, what I said in my brief, was 10 that there is a statutorily prescribed, 11 regularized appeal, and that there is nothing to 12 prevent the public defender from having filed, 13 right away in the Circuit Court, if he felt the 14 order wasn't final by which -- this reading 15 here -- nothing has prevented the public defender 16 from filing a motion asking for a final order and 17 going forward regularly with a statutorily 18 prescribed appeal to the Circuit Courts. 19 Otherwise, any interlocutory appeal 20 entered by a Circuit Court, that finds the 21 evidence in favor of one side or another, but 22 leaves something else unresolved, is open to 23 appeal to this Court. 24 And as I pointed out in my brief, one of 25 the cases, one of the very few cases to apply 29 1 writs of cert, says that's a big issue with these 2 writs of certiorari; you don't want the exception 3 to prove -- or to swallow the rule. And that is 4 precisely the danger that this Court runs in 5 accepting and deciding this writ for certiorari. 6 Instead, if anything, it should refer 7 the case back for a final order and a regularized 8 appeal; that is why the Legislature set out the 9 appeal system that it has. 10 THE COURT: What authority do I have for 11 that, Mr. Diamond? I mean, I know that I can 12 refer the case back under a common-law writ. To 13 the lower tribunal I can remand it for further 14 action consistent with this Court's opinion, but 15 what authority do I have to refer it back and 16 order the General Sessions' judges to enter a 17 final judgment in that case? 18 MR. DIAMOND: Because you certainly 19 have -- even broad certiorari authority. I don't 20 think there is any prescribed -- you have got wide 21 authority on appeal to order the remedy necessary. 22 If somehow there is the conception that 23 the General Sessions Court did not enter a final 24 order, I think it's required to do so. It just 25 can't sit on an order, because that, in itself, is 30 1 barring the other side from the right to appeal. 2 And there are certain cases just on that 3 point, where clerks wouldn't accept notices of 4 appeal, for instance. The Court below has to 5 timely provide a right of appeal. 6 You can't just sit or enter a final 7 verdict that basically denies the relief sought 8 and sit there for ten years on an interlocutory 9 order. 10 I think that writ of cert is available 11 for that. And you can order, as the superior 12 tribunal, be it an inferior tribunal, to prepare a 13 final order, so that the appellant can file a 14 regular appeal in the case. I think that's 15 precisely what writs of certiorari are aimed at, 16 among other things. 17 But there is a vast quantity of 18 caseloads saying that if the lower tribunal, or 19 its offices, prevent a regularized timely -- they 20 say a speedy, timely, adequate appeal, that is 21 exactly what a writ of cert is aimed at 22 correcting. So you have ample authority to do 23 exactly that. 24 I also did not say that:if there is no 25 appellate remedy then a certiorari review and 31 1 decision is correct. You have quote the absence 2 of the appellate remedy and the fundamental 3 illegality. And that will launch me to my 4 argument, because we think both, that the public 5 defender meet a standard. 6 When the public defender filed his 7 petition in March of 2008, the public defender 8 conceded that he was providing constitutionally 9 adequate representation to his clients, both in 10 the past and was continuing to do so. 11 He claimed, instead, a spective relief 12 saying -- and he -- saying that further 13 appointments might jeopardize his ability to 14 provide constitutionally effective representation. 15 He based his petition solely on Rule 13 16 of the Supreme Court which says that the attorney 17 should not be appointed if counsel can make a 18 clear and convincing showing that had an 19 appointment -- and it speaks in a singular, this 20 is an individual case, regardless of whether it's 21 the public defender's office as a whole -- which I 22 have no problem with that, the interpretation of 23 the statute, or the individual lawyer -- that 24 adding an appointment to the current caseload will 25 prevent the counsel from defending the defendant, 32 1 a defendant, constitutionally and professionally 2 in an effective manner. 3 Now, we moved to intervene after the 4 filing of that petition; in fact, that was the 5 case -- that was the proceeding in which our 6 motion was never decided; in fact, the order isn't 7 final from General Sessions. That's the reason, 8 more than anything, that you had a non-final 9 order. 10 Therefore, since we were not allowed to 11 intervene, on June 10th, 2008 the public defender 12 put on a massive, voluminous, but one-sided case 13 in favor of his petition. 14 The problem was this. While his case 15 showed that he was perhaps not meeting -- or had a 16 caseload in excess of some professional standards 17 promulgated by national trade groups, he did not 18 show or even allege that he was providing 19 constitutionally ineffective representation. 20 And in fact, his on figures -- and he 21 was the only person submitting evidence, the only 22 party to the case. His own figures show that his 23 overall total caseload dropped dramatically. 24 In 2006 he had 15,240 cases. And I am 25 referring to the tables on page 2 and 3 of my 33 1 brief, which I think are what guided the General 2 Sessions Court in a collateral proceeding with the 3 Criminal Courts in this matter. So he had 15,000 4 cases in 2006. In 2007 that dropped to 13,204. 5 In 2008, 11,511. 6 That's a 25 percent drop nearly, in the 7 three years that he had. Similarly, he had a 8 declining case caseload, expressed in percentages, 9 between '06 and '07: 10 to 14 percent in '06 and 10 '07. And those were the only figures available, 11 because this was partly through '08. 12 His caseload dropped 10 to 14 percent in 13 Sessions Courts. Twenty-five to thirty percent in 14 the Criminal Courts. That is a marked drop. 15 I just don't see how the defendant can 16 claim that he is currently supplying 17 constitutionally ineffective representation, that 18 his caseload is dropping, that he then can't 19 continue to provide, what he has been doing all 20 along, a higher caseload. It doesn't make logical 21 sense. 22 Now, for some time nothing happened in 23 Sessions Court. And perhaps for that reason the 24 public defender petitioned in Criminal Courts to 25 be relieved from representation there as well. 34 1 And they are not in the record, and they are not 2 part of the Sessions record, I don't believe. But 3 I think that they are important to this case, 4 because they tend to show why Sessions Court 5 wanted to go with this case rather than the 6 Circuit, which was already skeptical of his 7 petition. 8 And I would like to move this Court for 9 permission to enter the filings and the orders of 10 the Criminal Courts into the record in this case. 11 I think you can probably take judicial notice of 12 them; they are certainly up on the public 13 defender's website, widely available and public 14 knowledge. 15 The public defender withdrew that 16 Criminal Court petition, after a fairly skeptical 17 hearing, in the fall of 2007. Of course, 18 in -- or 2008; excuse me. 19 MR. MOORE: Your Honor please, I am 20 going to object to a discussion of something that 21 is outside the perimeter here. A writ of 22 certiorari is clear -- 23 THE COURT: I would have to sustain 24 that. I can't -- even if it's something I can 25 take judicial notice of, it's not part of what was 35 1 before the underlying tribunal, Mr. Diamond, and I 2 don't think I can consider it in this case. 3 MR. DIAMOND: Thank you, your Honor. 4 The Sessions Court order went down in February of 5 2009 and, of course, we followed with a writ of 6 certiorari to this Court. 7 This Court needs to bear in mind a writ 8 of certiorari is an extraordinary remedy; it is 9 extremely limited in its scope. 10 As now Justice Coch said, in Robinson 11 versus Clement, Courts may not inquire into the 12 intrinsic correctness of the inferior tribunal's 13 decision, two, they may not reweigh evidence that 14 support an inferior tribunal, and three, may not 15 substitute a judgment for that of the inferior 16 tribunal. 17 You know, there is -- this is our 18 remedy, an exceptional remedy. There is an even 19 more rare exception to the general rule a superior 20 court may not inquire into the intrinsic 21 correctness of the lower court decision, and 22 that's the so-called "fundamental illegality 23 rule." 24 It's rarely used. In State versus 25 Johnson, I think the Court explained it fairly 36 1 well. The Court below had suppressed evidence 2 that the state wanted to introduce in a criminal 3 case. The ruling was clearly against the law and 4 it had the effect of fundamentally killing the 5 state's case. And as the ruling was interlocutory 6 in nature, the state had absolutely no right to 7 appeal. 8 The Supreme Court ruled a petition for 9 certiorari was appropriate in that case. And now 10 it's a fundamental illegality exception. 11 And here is the two things that we need 12 to invoke that very rare exception, one, a plain 13 and patent error, and two, that, has got to be 14 coupled with the absence, the absolute absence in 15 this case of an appellate remedy. 16 And that is true of every case that is 17 applied to this doctrine, a total absence and 18 preclusion, not just an interlocutory order with 19 eventual appealability to be pardoned, but an 20 absolute lack of appellate remedy. 21 The public defender can point to only 22 four modern cases in which the fundamental 23 illegality exception was applied. And Tennessee's 24 appellate courts venture to enter into this very 25 circumscribed arena. And they all relate to only 37 1 one issue: expungement. 2 Therefore, in Adler, from a trial court, 3 and this is the first of the series of four cases, 4 the trial court had expunged a criminal record, 5 and the state was precluded by the Rules of 6 Appellate Procedure from ever appealing that 7 court's record. The court accepted the appeal as 8 a writ of certiorari, because the court for the 9 state was absolutely precluded from appeal. 10 As I mentioned earlier, they have to 11 look at another factor: was there a fundamental 12 illegality? And the appellate court said, no, 13 there was not. 14 Then Gifford followed Adler. It's 15 basically the flip side. Here, we had a defendant 16 who was denied expungement, and again, under 17 Rule 3(C) of the Rules of Appellate Procedure, had 18 no way to appeal the adverse decision, ever. It 19 wasn't just an interlocutory order. It was, as to 20 him, a final bar-the-door. 21 The Court accepted the petition. And 22 here, unlike the -- illegality, the trial court 23 had refused expungement to a defendant who had 24 pled guilty, but the statute didn't preclude 25 people who pled guilty from expungement, only 38 1 those who were convicted by the trial court. 2 There was never a conviction. So the statute 3 doesn't apply. 4 You almost, as a ministerial matter, 5 have to grant expungement if the party meets the 6 standards of the statute. 7 Scates, again, very similar to Gifford, 8 no other right of appeal. The trial court 9 blatantly violated the law requiring, also as a 10 ministerial matter, expungement, when no true bill 11 was returned. And no true bill was returned in 12 that case. The case was dismissed. 13 And "Robinson" is the final case, the 14 same as Gifford and Scates: no right of appeal to 15 a defendant. The trial court denied expungement 16 on a contempt matter holding contempt was not a 17 crime that could invoke expungement. 18 The Court, thus, said no. Contempt is a 19 crime. It's a misdemeanor. Therefore, if you 20 show that you were found innocent of this crime, 21 or otherwise the case was dismissed, as a matter 22 of absolute right, ministerially, the trial court 23 has to grant the expungement. 24 Thus, in modern application, this 25 fundamental illegality exception has been applied, 39 1 and only one classification, which obviously we 2 don't have here, an expungement -- and has had two 3 prerequisites, absolutely no possibility of 4 appeal, not just an interlocutory, non-appealable 5 order on its own, but no possibility of appeal. 6 And secondly, the Court's ruling is 7 pretty much ministerial. It's not a matter of 8 weighing evidence. There is no dispute about 9 evidence. You either come in with a piece of 10 paper showing what the disposition was of your 11 criminal matter and, based on that piece of paper, 12 you either do or do not have expungement. It's 13 not a matter of debate or the weighing of 14 evidence. 15 The public defender in this case meets 16 neither of those prerequisites. Rule 13 requires 17 a lawyer or an office to make a showing that an 18 appointment would violate his ability to provide 19 professional and constitutional standards. 20 They can't just sit on professional 21 standards, which is what the public defender is 22 trying to do in this matter; you have to look to 23 constitutional standards as well. 24 And that is why I said in my brief you 25 can violate -- you can have a caseload that 40 1 exceeds professional standards but still is within 2 constitutionally effective representation. In 3 fact, that is precisely what the public defender 4 has necessarily said has been going on all along. 5 He had higher cases in the past. He says he is 6 providing constitutionally effective 7 representation, so therefore, he is living proof 8 that you can have caseloads that may violate some 9 professional standards, yet do not preclude the 10 provision of constitutionally effective 11 representation. 12 And that is what the General Sessions 13 Court found. They applied both words. Words have 14 meaning; they are not put in there for no reason 15 by the Legislature. You have got to show not only 16 professional standards violated, but 17 constitutional standards. 18 The General Sessions Court applied the 19 rule and they weighed the evidence. They said 20 apparently some professional standards had been 21 exceeded. The public defender may have proved 22 that much, but -- and they are certainly in a 23 position to know, because he was prefacing in 24 front of them on a daily basis, in addition to the 25 pleadings, they certainly could take judicial 41 1 notice of the performance of the public defender 2 in their courts. They said that the public 3 defender had not proven that his caseload exceeded 4 constitutional standards. 5 And while they didn't allude to it 6 directly, I think it was because of the numbers 7 that we put into a chart. We compiled his on 8 numbers that showed dramatic caseload drops. 9 You can't say I am providing 10 constitutionally effective representation at 11 fifteen thousand cases, I am now at ten, but I 12 can't take more or I won't be able to provide the 13 same representation I could at fifteen thousand. 14 It makes no sense. 15 Moreover, the public defender was not 16 precluded from appeal. And I am not saying that 17 the order was appealable. I believe it was. But 18 this Court has ruled differently, and I am 19 prepared to accept that. That doesn't mean that 20 the public defender could not have applied for a 21 final order; people do that all the time. And I 22 said General Sessions can make it final. 23 Instead, he chose to plead to this 24 court, perhaps because he didn't want to go back 25 to the General Sessions or to the Circuit Courts 42 1 under the regularized set of standards provided by 2 statute. 3 What he is trying to do here is short 4 circuit an ordinary writ of appeal. There is 5 nothing to prevent him from having asked for a 6 final order. If that had been denied, he might 7 have a better chance of coming to this Court. 8 Because the public defender has not 9 shown any fundamental illegality, he is basically 10 asking this Court to reweigh the evidence and find 11 not only that -- 12 THE COURT: Let me assure you I won't do 13 that, Mr. Diamond. 14 MR. DIAMOND: I know you will not. 15 THE COURT: They either have -- and if I 16 understand your argument correctly, you are saying 17 that it was a failure of proof in the General 18 Sessions Court, because he didn't prove both -- 19 MR. DIAMOND: That is right. 20 THE COURT: -- the inability to provide 21 constitutional representation and professional 22 standards. 23 If I understand your argument correctly, 24 and the other side has argued differently, if they 25 are correct and you are wrong, I only have to 43 1 prove one, then we are in a situation where at 2 least the General Sessions Court's satisfaction is 3 that professional standards have been exceeded. 4 Then the question is: what should they have done 5 once that finding was made? 6 MR. DIAMOND: I think there is a little 7 more nuance than that, your Honor, because the 8 standard is not just national professional 9 standards; it's just professional standards. 10 The Sessions Court didn't find, again, 11 that he has exceeded the Supreme Court standards, 12 our very own rules, not some trade group 13 standards, but what are applicable requirements 14 under the rules of the Supreme Court. 15 But I don't want to go into debating 16 that too much, because I think you have got the 17 nut of the argument there certainly. 18 I think that precludes certiorari 19 under -- due to the general rule or the 20 fundamental illegality exception. 21 But I do think, if you want to really 22 look at where you have got certiorari jurisdiction 23 in this case, just the general rule provides you 24 ample, ample reason, to question whether the 25 General Sessions Courts exceeded their 44 1 jurisdiction. 2 General Sessions Court is limited to 3 jurisdiction over proceedings expressly provided 4 for by statute, that's Caldwell versus Wood, a 5 case I cited and attached to my brief. 6 The only statute, rule, or authority 7 invoked here is Rule 13. And I don't care whether 8 you characterize it as an office of lawyers or a 9 lawyer; that is sort of a red herring argument. 10 It is clear from the language in Rule 13 11 it's talking about individual cases. It does 12 not -- I am not aware of any other proceeding, in 13 this state's history or in case law, that has 14 interpreted Rule 13 to provide to the public 15 defender a right to have a panel, not just an 16 individual judge, but a panel of General Sessions 17 Court judges, sit en banc and grant perspective 18 indefinite relief to the public defender to 19 withdraw from courts. 20 If anything, the public defender here is 21 really inviting the General Sessions Court to 22 invade on his own authority, which is to allocate 23 his own resources. And we have cited cases, that 24 part of an administrative officer's discretion and 25 authority is to take the resources, which he or 45 1 she is provided, and assign them accordingly to 2 what he is given. 3 And to ask a Court to cover an 4 administrative decision with the imprimatur of a 5 court order is bad public policy. It's involving 6 the courts in what is essentially a political and 7 administrative issue. 8 I am not sure what -- the AOC, I am 9 sure, wouldn't be happy about it. I am not 10 sure -- and we thought about it, what we could do 11 if the public defender was simply to announce, I 12 have been given X number of resources by the 13 Legislature, I have looked at my caseload, I have 14 got discretionary ability to sign whatever -- what 15 few resources I have been given wherever I like, I 16 am going to assign X number of lawyers to the X 17 number of courts. 18 And I don't know. We could try a 19 mandamus, I guess, but I think that would be a 20 pretty tough row to hoe. I just don't -- I think 21 it would be very tough, I will have to concede 22 that. We might be successful, but -- even so, 23 that's an administrative decision, and I don't 24 think he should be running -- or cover a court 25 order to a decision that is really granted to him 46 1 to allocate his own resources. That's up to him. 2 And courts really have no business 3 interfering. And it's odd that an administrative 4 official would ask a court to come in and 5 essentially stick a court order on top of his own 6 decision and cover it with the imprimatur of a 7 court. Let the public defender decide his on 8 cases -- or decide his own resources; excuse me. 9 So if you are going to grant a writ of 10 certiorari, I think it's a lot easier, rather than 11 trying to find this exception within the exception 12 that's implied -- they don't apply to the modern 13 days -- and only four cases, having no relation to 14 this case, with no authority for any proceeding 15 such as this -- I think it's a lot easier to look 16 at the General Sessions Court case and say there 17 is no authority for a General Sessions Court to 18 convene five judges in a panel to sit en banc, to 19 decide, not an individual defendant's case, but to 20 grant to an entire administrative office, relief. 21 Perspectively, that permits that office 22 to pull out of a class of case or a class of 23 courts indefinitely with no antedate sought. 24 I just think that's well beyond the 25 scope of the General Sessions Court's authority. 47 1 And probably the decisive factor of this case, if 2 this Court should do anything on a writ of cert, 3 it should simply vacate proceedings below and 4 dismiss the petition. Let the public defender 5 make his on decisions; that is why he was elected. 6 THE COURT: A couple of questions, if 7 you are finished; I'm sorry. 8 MR. DIAMOND: I am. 9 THE COURT: All right. Let me take what 10 I perceive is the situation in this case. And 11 just bear with me for a moment. 12 MR. DIAMOND: Sure. 13 THE COURT: Let's presume that the 14 public defender has carried the burden by showing 15 that the professional standards have been 16 exceeded. 17 MR. DIAMOND: Yes. 18 THE COURT: You have argued the Adler 19 case regarding the expungement order, the comments 20 that it essentially is a ministerial function of 21 the judge at that point. 22 If I read Rule 13, and with those 23 presumptions I have asked you to bear with me on 24 for just a moment, if the Sessions Court found -- 25 and I will use your argument -- if the Sessions 48 1 Court found that an additional appointment would 2 prevent counsel from rendering effective 3 representation in accordance with constitutional 4 and professional standards, if they made that 5 finding, what choice would they have but to refuse 6 to make the appointment? 7 Because the rule, which has the force of 8 law, says the Court shall not make an appointment. 9 I mean, there is no discretion. I mean, it's 10 nothing but ministerial. They have to go to 11 someone besides the public defender's office. 12 MR. DIAMOND: In an individual case, 13 only if the public defender shows, by clear and 14 convincing evidence, not only professional 15 standards, which you have asked me to assume, and 16 I will, for the purposes of this question -- 17 THE COURT: Right. 18 MR. DIAMOND: I hope I am following your 19 question -- 20 THE COURT: All right. I even took it 21 further. I said assume that they found that they 22 both were exceeded. 23 MR. DIAMOND: Uh-huh, because he has got 24 to show also that this would prevent him from 25 providing constitutionally effective 49 1 representation. That's precisely what his 2 own -- 3 THE COURT: Well, I muddled that up when 4 I said "clear" on you. 5 MR. DIAMOND: I understand. 6 THE COURT: Let me just presume for a 7 moment that the Sessions Court had, in this 8 hearing, said okay, we find that the public 9 defender has proven, by clear and convincing 10 evidence, that the additional appointments would 11 prevent counsel from rendering effective 12 representation in accordance with constitutional 13 and professional standards. Let's accept your 14 argument. I will do that. I will accept yours 15 instead of theirs. 16 If I accept your argument, and they had 17 made that finding, then they would have to refuse 18 to make the appointment. 19 MR. DIAMOND: I agree. 20 THE COURT: And to insist that the 21 public defender take the appointment would be a 22 fundamental illegality, because -- 23 MR. DIAMOND: Yes. 24 THE COURT: -- they are ignoring a clear 25 rule that has the force of law. 50 1 MR. DIAMOND: I think you are right in 2 that distinction you are making. 3 THE COURT: Okay. 4 MR. DIAMOND: And I apologize I didn't 5 convey that clearly. It's been -- 6 THE COURT: All right. Good. 7 MR. DIAMOND: Yes. We think he has to 8 prove both. And he, in fact -- his own -- prove 9 both. 10 And I will also mention, in terms of 11 exceeding his jurisdiction, or acting illegally, 12 the Court never did decide our motion to 13 intervene. 14 So all we saw was one side's proof. I 15 had no opportunity to test that proof. And that's 16 concerning as well. Because this is -- it's a 17 proceeding -- it's a judicial proceeding that 18 presents as an adversarial proceeding. We got one 19 side of the picture. 20 But I think we don't need to go there, 21 particularly, because I think the public 22 defender's figures seal his fate, and he did it in 23 the General Sessions Court with these five judges 24 who sit and watch the performance of the office 25 every day, who have read the pleadings and have 51 1 read the rule, understood those two prongs, 2 professional and constitutional, the duty had from 3 both, not in there -- they are in there for a 4 reason. They said, yeah, we'll assume with you. 5 Professional? Yeah. Constitutional? No. 6 If you start looking at 7 "constitutional," you start reweighing the 8 evidence. And I know you are not going to do 9 that. 10 But in order for you to get to 11 constitutional, there is only one way you can do 12 it, and that's to reweigh the evidence. And I 13 think that's what this is, is a fairly -- 14 disguised attempt to ask this Court to do just 15 that. And I know you will not. 16 THE COURT: In regards to that, the 17 issue, as far as I see it, is either Rule 13 18 requires both or it does not? 19 MR. DIAMOND: Well, if that's the issue 20 you see, we'll perfectly happy to live with it. 21 THE COURT: Well, that's it. There is 22 no reweighing whether they met their burden on the 23 constitutional -- 24 MR. DIAMOND: We agree. 25 THE COURT: I live with what they said, 52 1 whatever it is. All right. Mr. Moore, I do have 2 a couple of questions. 3 MR. DIAMOND: Thank you. 4 THE COURT: If you wish to respond 5 first, then I will -- 6 MR. MOORE: Yes, briefly, your Honor, on 7 a couple of points. I don't think Rule 13 does 8 require both. If you read it to require both, it 9 reads the professional standards out of the rule. 10 It means then that just the 11 constitutional standards trump everything; that 12 is, you can violate all of the professional 13 standards of the world, but not until you violate 14 the constitutional standards is there a violation 15 of Rule 13. 16 The Court wouldn't have said "both," if 17 the word "professional" standards was to be 18 meaningless. 19 And it would be meaningless under the 20 state's arguments, because the state surely is not 21 arguing that you could -- that you could provide 22 representation that met professional standards, 23 but was unconstitutional, and that that would be 24 okay. 25 And surely I don't think they are -- I 53 1 mean, they each have to mean something. And under 2 the state's reading then, the word 3 "constitutional" trumps everything. 4 Proving a violation of professional 5 standards doesn't mean anything. You proved a 6 violation. You know, so your violating a 7 professional standard doesn't make any difference. 8 If it's constitutional, then you are 9 okay; you know, you have to go ahead and take the 10 appointment. 11 So I very seriously don't believe that 12 the Court intended to write in Rule 13, as 13 your Honor read, adding that appointment would 14 prevent counsel from rendering effective 15 representation in accordance with constitutional 16 and professional standards and then mean to have 17 half of that be meaningless. 18 Briefly, on one other point, the 19 reference -- I think there were three or four 20 references in here to these numerical standards 21 from the NAC being trade group standards. 22 And again, I would just refer the Court 23 to Justice Henry's opinion in the Baxter case. 24 The Supreme Court said, Trial Courts should look 25 to and be guided by the American Bar Association 54 1 standards relating to the administration of 2 criminal justice. 3 It's not like the, you know, the 4 National Association of Stove Manufacturers. I 5 mean, the Supreme Court says that's what you are 6 supposed to look at. You are supposed to look at 7 those standards in making your determination. 8 Very briefly on another point, without 9 going back and asking the Sessions Court to enter 10 a final order, well, when you think about that, 11 the order here was not -- it's not like they left 12 off an assessment of cost or didn't make a Rule 13 54.02 finding. 14 The fundamental order is: we thought 15 about this, we heard your hearing, we held this 16 for eight months. The Court held it for eight 17 months before issuing the order and, after eight 18 months, they issued this order that said, you 19 know, we find that you proved that you didn't meet 20 professional standards, but we are going to keep 21 looking at this, and we'll look at it -- I think 22 it says, every quarter. 23 So it's not like I am just going back 24 and saying, excuse me, you forgot to assess cost 25 in that, or excuse me, you have got more than one 55 1 party here, you need to put the Rule 54.02 magic 2 language in it and you'll have a final order and 3 can take an appeal on it. 4 You would be going back and asking the 5 Sessions Court to completely rethink the decision 6 that they made after eight months of thinking 7 about it. And it's not simply a ministerial 8 matter. 9 I think those are the only points I want 10 to make in response, so I am ready to respond to 11 any of the Court's questions. 12 THE COURT: All right. Mr. Diamond has 13 questioned the General Sessions Court's authority 14 to sit en banc and issue this order. If it is not 15 an adversarial proceeding -- I think, in the 16 transcript, in response to his motion to 17 intervene, they said it's not an adversarial 18 proceeding. 19 MR. MOORE: And I believe they offered 20 him an opportunity to cross-examine. 21 THE COURT: But anyway, their intent was 22 that it not be an adversarial proceeding. 23 MR. MOORE: Yes. 24 THE COURT: It seems to me like it's 25 more an informational-gathering process on the 56 1 part of the judges, and then they put down this 2 order. 3 And from day one I have been struggling 4 with what this animal is I am dealing with, 5 Mr. Moore. 6 I don't have an adversarial proceeding. 7 I don't have an administrative board. I have got 8 five judges, with no particular case, sitting en 9 banc, issuing what you would perceive to be an 10 administrative order. And I am not sure what they 11 have created there. 12 Mr. Diamond pointed out in his brief 13 that the General Sessions Court judges don't even 14 have statutory authority to amend their own 15 judgments once they become final. 16 There is no Rule 60 motion in Sessions 17 Court. He says you can ask them to make a final 18 judgment. I don't know of any 54.02 being in 19 Sessions Court -- 20 MR. MOORE: Right. 21 THE COURT: -- how they can make a final 22 judgment on part of a case. But likewise, I am 23 not sure what they have done here and what I am 24 being asked to do with whatever they have done 25 here. 57 1 MR. MOORE: I'll certainly agree with 2 your Honor that this is, in part, unchartered 3 territory, and that would be -- Mr. Stephens 4 didn't ask the Sessions' judges to hear the cases 5 en banc. 6 The petition was filed. Obviously some 7 thought was given to what do you do? What do you 8 do to have it, have Rule 13? 9 You know, rather than have John Smith 10 and Jane Doe come in each day with all sorts of 11 witnesses and say, our office can't do this, you 12 know, and do that in front of, you know, 13 Judge Jackson and each of the -- Judge Emery, 14 each of the judges down there -- what do you do? 15 What do you do? And so we thought, well, let's 16 file a petition. 17 The Court decided to hear it en banc. 18 And quite frankly, just as an attorney, and this 19 is not in the record or relevant to anything, we 20 didn't know whether we were going to get five 21 orders or -- you know, we didn't know. 22 The Court decided to hear that. And 23 then the Court, after eight months of thinking 24 about it, decided to issue that joint order signed 25 by all of the judges. 58 1 So I think, with the intervention of the 2 state here, which your Honor allowed, and we don't 3 object to the state intervening or being here, I 4 think it is an adversarial proceeding. 5 I believe that it is an adversarial 6 proceeding. We are saying Rule 13 was violated; 7 the state is saying that it wasn't. I think 8 that's adversarial. I think that that presents a 9 controversy for your Honor, for the Court. 10 THE COURT: Well, Mr. Stephens is not 11 the first public defender to ever seek relief from 12 appointments. I am aware of at least one case out 13 of Florida where the public defender there filed 14 a -- objected to the appointment and obtained 15 orders in five different -- I won't say 16 courts -- let's say "divisions" of a court. And 17 they were consolidated for one judge to hear them. 18 Certainly that would have made a better 19 proceeding, because you have an actual pending 20 case. 21 But the problem I have, is I don't even 22 know if Sessions Court has a pending case with 23 this petition. 24 MR. MOORE: Well, I mean, we are 25 aware -- I mean, certainly we are aware, in 59 1 working with Professor Lefstein, who is, I guess, 2 one of the nation's top experts on this area of 3 the law -- and we are aware of those cases, of 4 cases in Louisiana and Missouri and different 5 places. In thinking it through here, this just 6 appeared to be the best forum to proceed. 7 His problem was with, as the evidence in 8 the Sessions Court transcript, and in 9 Mr. Stephen's affidavit, in his quite lengthy 10 testimony there, it shows that he thought about 11 it. 12 And then going back to what I was 13 arguing about earlier, it's up to him to run the 14 office; you know, he has got to figure out what do 15 I do with these twenty-four or twenty-five 16 assistants? How do I handle all of this most 17 appropriately? 18 And he believed that he could get -- 19 looking at all of the numbers, he could get 20 temporary relief from misdemeanor appointments in 21 Sessions Court. 22 And he set out in great detail what that 23 then would let him do. It would let him assign 24 additional attorneys to the Criminal Courts, it 25 would let him assign additional attorneys to 60 1 Felony and DUI parts of the Sessions Court. And 2 that's what he thought, and that was the relief 3 that he -- so, I mean I -- do I think we have an 4 adversary proceeding in front of your Honor? I do 5 think we have an adversary proceeding. 6 THE COURT: Well, obviously you do now; 7 down there you didn't, necessarily -- 8 MR. MOORE: Right. 9 THE COURT: -- which is -- I mean, we 10 didn't have Jones versus Smith down there or State 11 versus Smith -- 12 MR. MOORE: No. And we didn't object to 13 the state intervening down there. I mean, now I 14 am glad they have the AOC represented here. 15 The whole aim of our proceeding, which 16 started almost two years ago working on behalf of 17 Mr. Stephens and his office, is to try to find a 18 solution to a problem. And we have tried. 19 And I don't want to get into anything 20 extrajudicial here, but I mean, we have tried at 21 various levels to find a solution to the problem. 22 And certainly, taking a petition to the 23 Sessions Court, was not the first line of attack 24 of the problem, but it seemed to us to be 25 appropriate at the time. It seems to us to be 61 1 appropriate, perhaps even more appropriate now. 2 We presented evidence to the Sessions 3 Court that the Sessions Court found. It said we 4 were right. I mean, the Sessions judges said you 5 are right; you proved that you are violating these 6 professional standards. 7 And it's not like the professional 8 standards -- as I mentioned -- and I have these 9 AVA reports here, I think, Judge -- 10 THE COURT: I think you attached them. 11 MR. MOORE: It's not like the standard 12 is 400 cases and you have 401. The standard is 13 400 cases and his office has 1200 per lawyer. 14 He saw it decrease by 15 percent or 20 15 percent. I mean, he still is -- and 16 Professor Lefstein, in his affidavit, and 17 particularly in his testimony to the Sessions 18 judges, was quite eloquent in explaining what 19 happens when you have a situation like that. 20 When you have a situation like 21 that -- and Ms. Murray and Ms. Poston, who 22 testified -- and of course only two assistants 23 testified. But then the Sessions' judges agreed 24 on the record all of the other assistants who were 25 in the courtroom that morning, the Sessions judges 62 1 agreed on the record that their testimony they 2 stipulated, accepted a stipulation the testimony 3 of the other twenty-two or twenty-three assistants 4 would be just the same as Ms. Poston's and 5 Ms. Murray's testimony. 6 And so, what they were saying, was I 7 don't have time to do this; you know, I am seeing 8 people 15 minutes. I am not interviewing 9 witnesses. I have worked with Professor Black in 10 the clinic and I learned how to work up a case. 11 Now I have got to work in Mr. Stephens' office and 12 I find that I am appointed to, you know, 25 cases 13 one day and I can see people out in the hall. 14 And it's not the way I think a case 15 ought to be tried. What Professor Lefstein 16 testified to, and it's in his affidavit and in his 17 testimony, that the end result of this is quite -- 18 I mean, I guess I can't say certainly -- but his 19 testimony is quite probably, almost to a 20 certainty, the end result of this, is people are 21 pleading guilty to things that they are not 22 necessarily guilty of, just because that's the 23 system. 24 And as I said, the issue here is the 25 effective representation of these individuals, 63 1 each man, each woman, who goes out there on 2 Liberty Street and goes into the office of the 3 public defender: are they receiving effective 4 representation? 5 Are they receiving -- and can -- that is 6 why the state's Supreme Court said professional 7 and constitutional standards. It's why to ensure 8 safety on the roads. We have a speed limit law. 9 If I am driving back to Chattanooga, and I go over 10 70 miles an hour, I am violating the law. 11 No matter what excuse I have, I am 12 sorry, I was in a hurry, there was nobody else on 13 the road and I couldn't see anybody, over 70 miles 14 an hour violates the law. 15 Also, there is a reckless driving 16 statute that is subject -- if a state trooper sees 17 me, and I am talking on a telephone weaving all 18 over the place and running off on the side of the 19 road, doing whatever, and driving 60 miles an 20 hour, that's a violation of those standards. 21 The state trooper can arrest me for 22 violating the quantitative measure: I am just 23 going too fast or, the qualitative measure: I 24 watched you drive, you need to get off the road. 25 For whatever reason you are driving recklessly. 64 1 That's why the Supreme Court here said 2 professional and constitutional standards. 3 Constitutional is subjective. Are you providing 4 constitutional representation to those people? 5 But the professional standards? I think 6 the professional standards -- and I think that is 7 why the Supreme Court let -- you know, it's not a 8 laundry list. Its professional standards 9 encompass, of course, the code of ethics. It's in 10 the Supreme Court rules. 11 But those professional standards also, 12 in looking back to the Baxter case, very 13 specifically encompass these numerical standards, 14 where the Court is saying, okay, you have got 24 15 hard-working people out there, who are doing their 16 dead-level best -- as Ms. Poston and Ms. Murray 17 testified -- to provide constitutional 18 representation to everybody, but we, as the 19 Supreme Court, are going to say, that you -- if 20 you can show to us that you are being 21 over-burdened, to the extent that these recognized 22 professional standards, standards recognized in 23 the Baxter case, are being violated -- and as he 24 showed, his attorneys, we are not arguing a close 25 case. Not 401. Not 420. It's 1200 on a standard 65 1 of three hundred or four hundred, if you can show 2 that too. That is why we put professional and 3 constitutional in the rule. 4 THE COURT: Well, there is no question, 5 based on the evidence before the General Sessions 6 Court, that the number of cases that the public 7 defender's office is assigned per year is far 8 greater than the standards that were presented to 9 the General Sessions Court judges. 10 As I think Mr. Diamond agreed, the issue 11 is: whether both constitutional and professional 12 standards have to be met or if it's one or the 13 other? 14 If both have to be met, then there is 15 nothing in the General Sessions opinion -- 16 actually the General Sessions opinion is that 17 constitutional standards were being met -- 18 MR. MOORE: Yes, your Honor. 19 THE COURT: -- and the professional 20 standards were not. If you have to have both, 21 that's the end of it. If you only have to have 22 one, then Rule 13 says they shall not appoint. 23 And they found one. 24 The problem I have in this case -- and I 25 am going to invite you-all to brief this again. I 66 1 think you recall when we first started on this I 2 said why do I have this case? 3 MR. MOORE: Yes, your Honor. I recall 4 that very first time we were here in front of you. 5 THE COURT: There are important issues 6 here and important issues regarding effective 7 assistance of counsel. 8 It's been a long time since I was in 9 General Sessions Court, but I recall three ways 10 that you started a proceeding down there: a civil 11 warrant, a criminal warrant, or a citation by an 12 officer -- that's either a criminal or a civil 13 citation. I guess that's four ways. 14 What I don't want to happen, is that we 15 take this case -- and we have spent a lot of time 16 on it. I can assure you that I, and a very abled 17 assistant, have spent a lot of time on this case. 18 I don't want this to get to the Court of 19 Appeals or to the Supreme Court and somebody says 20 there was nothing here that was subject to the 21 writ of certiorari, that there was no proceeding, 22 no lawful proceeding in the General Sessions Court 23 because there is no creature such as a petition. 24 And before we go any further I think -- 25 I mean, I have been inviting this discussion of 67 1 how do I get this case, with this proceeding, 2 whatever it is below? And Mr. Diamond has brought 3 it up, with the question of the legality of what 4 they did, whatever it is, in General Sessions 5 Court. 6 And I think that we really need to hone 7 in on this issue and I am going to invite both 8 sides to brief this further. And I would like to 9 have them within 30 days, that this needs to be 10 brought to a conclusion. 11 MR. MOORE: Your Honor, I mean, we'll -- 12 THE COURT: I think if I can come to 13 grip with what I am wrestling with here, I can 14 deal with this case straight away. 15 MR. MOORE: So what your Honor would 16 like is a brief on procedurally -- 17 THE COURT: The two issues: whether or 18 not what we had is -- there has been a lot of talk 19 about whether it's appealable or whether it's 20 subject to a writ. I am not sure it's subject to 21 anything, is what I am saying. I don't know that 22 it's appealable or subject to a writ of 23 certiorari, regardless of the form of the order. 24 MR. MOORE: All right. 25 THE COURT: And secondly, this en banc 68 1 order that they issued, I am not sure what that 2 is, to be honest with you. I know the Sixth 3 Circuit can do that. 4 MR. MOORE: Well, I mean, it appeared to 5 us that it could be an individual -- that it could 6 be -- it's signed by all five judges -- 7 THE COURT: Right. 8 MR. MOORE: -- and that it could be -- 9 THE COURT: Well, that's the nature of 10 an en banc order -- 11 MR. MOORE: Right, that exact order -- I 12 mean, like five orders combined into one. I guess 13 that's -- 14 THE COURT: Now it's consolidated, I 15 guess. 16 MR. MOORE: Right. That was 17 one -- five. But yes, we look forward to the 18 chance to brief it. 19 MR. DIAMOND: Your Honor, if I may? I 20 think, because this is a jurisdictional issue -- I 21 have addressed it, I don't think the other side 22 particularly has -- it's hard for me to write -- 23 it's really their burden to prove some kind of 24 subject matter jurisdiction. 25 THE COURT: Jurisdiction -- 69 1 MR. DIAMOND: -- and therefore -- and I 2 don't know what you had in mind, but for each of 3 us to submit briefs in 30 days, he needs to go 4 first. 5 THE COURT: You have a good point. The 6 jurisdictional issue is the petitioner's burden in 7 that. 8 MR. DIAMOND: Right. 9 THE COURT: So I will ask them to submit 10 something within 30 days. And you have already 11 started on it. Mr. Diamond, two weeks? Or do you 12 need 30 additional days? 13 MR. DIAMOND: I have a long-scheduled 14 trip to Japan with my wife in the latter half of 15 December. And I apologize for that. I would like 16 to have it done -- 17 THE COURT: Well, 30 days and 30 days? 18 Would that be -- or is that -- that's not going to 19 help you any or -- 20 MR. DIAMOND: No. It's going to give 21 me, effectively, two weeks -- 22 THE COURT: Okay. 23 MR. DIAMOND: -- because I am leaving 24 for Japan the 17th of December and back on January 25 4. So if you could set it like November 29, I 70 1 will just have that couple of weeks -- if you want 2 me to look -- I will try -- I'll tell you what, if 3 you would like, I will try to do it in those two 4 weeks. And if you would be kind enough to be 5 lenient should I need a few more weeks -- 6 THE COURT: Sure. 7 MR. DIAMOND: We've all been pretty good 8 about that. Opposing counsel and I have been -- I 9 think gotten along very well in terms of 10 extensions and all. So I will make every effort. 11 MR. MOORE: Can I have the 30th, Monday 12 the 30th of November? 13 THE COURT: November? Fine. That's 14 fine. The 30th of November. And you are 15 departing when, Mr. Diamond? 16 MR. DIAMOND: I want to say it's the 17 17th. I am bad on dates. I think it's December 18 17th. 19 THE COURT: Well, look at it. If you 20 need additional time, simply advise Mr. Moore. 21 And I will tell you now that we will give you 22 additional time. 23 MR. DIAMOND: All right. I'll do 24 everything I can. 25 THE COURT: Because we need to -- I 71 1 mean, this needs to be dealt with right here, not 2 ship it off to somebody else and prolong it. 3 Because they are doing a lot of work down there, 4 regardless of what standard you use. Let's put it 5 that way. 6 All right. And I will -- I don't think 7 you will need additional argument. I think we 8 have got the issues laid out. And I will try to 9 give you an opinion as quickly as I can after 10 receiving your briefs. 11 I would like to get all of that together 12 and bring this to a conclusion. It's awfully hard 13 to pick this case up every three or four months 14 and stay with it. So thank you. I appreciate the 15 excellent briefs and arguments this morning. 16 MR. MOORE: Thank you, your Honor. We 17 appreciate your -- 18 THE COURT: Mr. Frye, we will recess 19 until we can get that case back in here for an 20 extra day. 21 (End of proceedings.) 22 23 24 25 72 1 C E R T I F I C A T E 2 STATE OF TENNESSEE : 3 COUNTY OF KNOX : 4 I, CAROLYN N. HOLTZMAN, Court Reporter 5 and Notary Public, do hereby certify that I reported in 6 machine shorthand the above proceedings, that the forgoing 7 pages numbered 1 to 73 inclusive, were typed under my 8 personal supervision and constitute a true and accurate 9 record of the proceedings. 10 I further certify that I am not an 11 attorney or counsel for any of the parties, nor an employee 12 or relative of any attorney or counsel connected with the 13 action, nor financially interested in the action. 14 Witness my hand and official seal this 15 4th day of November, 2009. 16 17 ___________________________________ 18 Carolyn N. Holtzman Court Reporter and Notary Public 19 20 My Commission Expires: 05/04/2013 21 22 23 24 25