Case 2:16-cv-00053-DB Document 58 Filed 11/07/16 Page 1 of 16

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CENTRAL DIVISION

WILLIAM COX, EDWARD PAULUS,

JOHN DOES 1-20 & JANE DOES 1-20,
Plaintiffs,

ORDER ON MOTIONS TO DISMISS,

MOTION TO CONSOLIDATE OR
TRANSFER AND MOTION TO
STAY

vs.

STATE OF UTAH, WASHINGTON

COUNTY, ALAN GARDNER, in his official
cpacity, DICK SCHONTER, in his official
capacity, VICTOR IVERSON, in his official
capacity, ZACHARY RENSTROM, in his
official capacity, GARY HERBERT, in his
official capacity, GREG HUGHES, in his
official capacity, WAYNE
NIEDERHAUSER in his official capacity &
DOES 1-20,

Case No. 2:16-cv-53-DB

Defendants.

This matter is before the Court on Defendants' motions to dismiss, Defendants' motion to
consolidate or transfer, and Plaintiffs' motion for stay. Two motions to dismiss were filed
pursuant to Federal Rule of Civil Procedure 12(b)(6) alleging failure to state a claim upon which
relief may be granted. One was brought by the State of Utah and Governor Gary Herbert, in his
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official capacity. [Dkt. 28]. The other, by Washington County, Alan Gardner, Victor Iverson and
Zachary Renstrom, in their official capacities. [Dkt. 25]. The State of Utah and Governor
Herbert, filed the motion to consolidate this case with a pending case before another judge of this
Court, Remick, et al. v. State of Utah, et al., 2:16-cv-789-RS (the Remick case). [Dkt. 41]. A
hearing on the motions to dismiss was held before the Court on July 27, 2016. Plaintiffs were
represented by Michael P. Studebaker. Defendants were represented by Eric Clarke, Parker
Douglas and David Wolf. Also present at the hearing was John P. Harrington, counsel for
plaintiffs in the Remick case. Mr. Harrington requested that he be allowed time to file an
opposition to the motion to consolidate, which the Court granted. Counsel for plaintiffs in the
Remick case also subsequently filed a motion for stay of proceedings regarding the motion to

consolidate the cases. [Dkt. 49]. All motions have now been fully briefed. Based on the oral and
written argument of the parties, as well as the relevant facts and law, the Court hereby grants
both motions to dismiss, denies Defendants' motion to consolidate and denies the motion to stay.

BACKGROUND
Plaintiffs William Cox ("Cox") and Edward Paulus ("Paulus") are residents of
Washington County, Utah. Both are defendants in separate pending criminal cases in which they
are represented by attorneys who have contracted to provide indigent defense services in
Washington County. Although it does not specify the crimes with which Cox or Paulus are
charged, the Complaint states that Cox faces at least five years in prison if convicted. Paulus
faces up to life in prison if convicted. As of the filing of this case, neither of the Plaintiffs'

Case 2:16-cv-00053-DB Document 58 Filed 11/07/16 Page 3 of 16

underlying criminal matters have been resolved.

Their Complaint asserts a class action suit under Federal Rule of Civil Procedure 23. It
alleges two causes of action pursuant to 42 U.S.C. 1983 for deprivation or potential deprivation
of the right to effective assistance of counsel. Court I claims violations of the Sixth and
Fourteenth Amendments of the United States Constitution. Count II alleges violations of the
right to counsel under Article 1, Sections 7 and 12 of the Utah Constitution. The asserted class
of plaintiffs ("the Class") is comprised of criminal defendants whose identities are not known at
this time but who, like Plaintiffs, are currently represented by public defenders in Washington
County.
Pursuant to state law, each county in Utah is responsible for establishing and
administering an indigent defense program. Utah Code Ann. 77-32-301. 1 Defendants Alan
Gardner, Dick Schonter and Victor Iverson are elected Washington County commissioners.
Defendant Gary Herbert is the elected Governor of the State of Utah. 2
Plaintiffs claim that their right to counsel has been, or is in imminent danger of being
violated because the indigent defense program in Washington County lacks "sufficient funding,

"Each county, city and town shall provide for the legal defense of an indigent in
criminal cases in the courts and various administrative bodies of the state in accordance with
legal defense standards as defined in Subsection 77-32-201(12)." Utah Code 77-32-301(1).
On March 22, 2016, Defendant Governor Herbert, signed into law a bill that established a
commission to review the adequacy of indigent representation and appropriated state funds to
provide grants to Utah counties who shoulder the financial cost of providing counsel to indigent
defendants. See Utah Code 77-32-801-810 (effective May 10, 2016).
2

Plaintiffs voluntarily dismissed Defendants Greg Hughes and Wayne Niederhauser from
this case. [Dkt. 27].
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sufficient attorney and professional staff, training, workload limits, adequate contracting
standards, adequate attorney qualification standards, and other indigent defense policies and
procedures," required to provide "legal representation to which they are constitutionally entitled."
Complaint at if 38.

Plaintiffs contend that Defendants do not select attorneys to participate in the program
based on merit. Rather, they contract with attorneys who: "are willing to work for the contract
amount;" "will not challenge the county attorney by advocating vigorously for their clients" and
will "not impede the ability for the prosecution to move cases forward expeditiously."
Complaint at if5 l. Plaintiffs assert that"[ c]onsequently, many indigent defense counsel lack the

qualifications and experience necessary to provide constitutionally adequate legal

representation." Id.
Plaintiffs allege that Defendants have failed to adequately monitor the public defenders.

If Defendants had, Plaintiffs contend they "would have found that many of them regularly fail to
return calls in a timely manner, if at all." Id. at if68. Many of them do not meet with indigent
defendants in advance of court hearings or devote sufficient time to interviewing and counseling
their clients. Id. at ifif69-76. They "rarely, if ever, take cases to trial" and have "umnanageably
large workloads." Id. at iii! 77-78. Plaintiffs assert that in 2015, two ofWshington County's
former public defenders closed over 350 felony cases. Id. at if85.
Plaintiffs state that Defendants fail to adequately fund the program, pointing to the fact
that in fiscal year 2016, Washington County budgeted $760,688 for its indigent defense program
and $2,816,540 for prosecutions. Id. at ifif8-l l. The State of Utah budgeted $18,587, 100 for

Case 2:16-cv-00053-DB Document 58 Filed 11/07/16 Page 5 of 16

prosecutions statewide and nothing for the indigent defense program in Washington County. Id.
The Complaint states that "Utah ranks 48 1h out of 50 states in its per capita funding of indigent
defense." Id. at if5.
Plaintiffs assert that, unlike prosecutors, public defenders in Washington County must
pay for their continuing legal education and support services out of their contract fees. Id. at if88.

If they want funding for expert and investigative services, public defenders must seek approval
from the district court and the county attorney's office. Id. at if90. Plaintiffs claim that "innocent
clients and clients with meritorious defenses are compelled to plead guilty" and "waive their
rights to trial and other due process protection under duress." Id. at if96. In sum, the Complaint
alleges that "indigent defense counsel do not or are unable to perform even the most basic tasks
necessary to provide adequate representation to their clients under the current funding and
supervision system." Id. at if92.
Plaintiffs seek the following relief: (A) a declaration that Defendants are depriving class
members of their rights to the assistance of counsel pursuant to the Sixth and Fourteenth
Amendments to the United States Constitution; (B) the issuance of a permanent injunction
restraining defendants from violating the right to counsel guaranteed by the U.S. and Utah
Constitutions; (C) the issuance of a pennanent injunction requiring Defendants to implement a
full time indigent defense program; and (D) an award of Plaintiffs' costs and attorneys' fees. 3
Complaint at ififA-E.

The Court denied Plaintiffs' motion for a temporary restraining order under Federal Rule
of Civil Procedure 65. [Dkt. 13].
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MOTIONS TO DISMISS
In their motions to dismiss, Defendants seek dismissal of Plaintiffs' case on the grounds
that: (1) Plaintiffs have failed to allege sufficient facts to support their claims; (2) Plaintiffs lack
standing; and (3) Plaintiffs' claims are not ripe for adjudication by this Court. Each argument is
addressed below.

FAILURE TO STATE A CLAIM

Defendants argue this case should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6), because Plaintiffs have failed to state a claim upon which relief may be
granted. Specifically, they contend that Plaintiffs' pretrial claims of ineffective assistance of
counsel, on behalf of themselves and the Class, are not recognized by the United States Supreme
Court or the Tenth Circuit Court of Appeals. Additionally, they assert that Cox and Paulus have
failed to meet the required elements set forth by the United States Supreme Court for a traditional
ineffective assistance cause of action.
Under both the United States and Utah constitutions, indigent criminal defendants have
the right to publicly funded attorney representation at all critical stages of the criminal
proceedings. Gideon v. Wainwright, 372 U.S. 335 (1963); Montejo v. Louisiana, 556 U.S. 778.
786 (2009); Ford v. State, 199 P.3d 892, 896 (Utah 1008)("It is in accordance with the assurance
of the Utah State Constitution that an accused be provided with the assistance of counsel at every
important stage of the proceedings against him.")( citing State v. Eichler, 483 P.2d 887, 889
(Utah 1971)).

Case 2:16-cv-00053-DB Document 58 Filed 11/07/16 Page 7 of 16

Claims of ineffective assistance of counsel are traditionally governed by the two-pronged

test established in Strickland v. Washington, after the criminal trial and sentencing have
concluded. 466 U.S. 648, 687 (1984). In United States v. Cronic, 466 U.S. 648 (1984), the
Supreme Court determined that ineffective assistance can be actual or constructive.
A. Pretrial Constructive Ineffective Assistance Claim

While neither the United States Supreme Court, nor the Tenth Circuit Court of Appeals
have done so, there are a few courts that have recognized a pretrial civil cause of action for
constructive ineffective assistance of counsel. Luckey v. Harris, 860 F.2d 1012(11 111 Cir. 1988);
Kuren v. Luzerne Pa. &Robert C. Lawton, 2016 Pa. LEXIS 20190 (Pa. 2016); Hurrell-Harring

v. New York, 930 N.E.2d 217 (N.Y. 2010); Duncan v. Michigan, 774 N.W.2d 89 (Mich. Ct. App.
2009) a.ff'd 866 N.W.2d 407 (Mich. 2010). Each of the cases cited was brought as a class action
,

suit on behalf of indigent criminal defendants. They have presented the question of whether,
based on specific allegations, a particular indigent defense program has been chronically
underfunded and understaffed to the point that the public defenders have been unable to provide
constitutionally adequate representation. The courts in these cases have ruled that in order to
bring such a claim, plaintiffs must meet the "hefty burden" of showing that the public defense
program has "widespread and systemic" deficiencies that present the "likelihood of substantial
and immediate irreparable injury" to the plaintiffs for which there is no other adequate remedy at
law. Id. In each of these cases, the court allowed the claims to proceed, finding that the facts
asserted were compelling and sufficient to withstand motions to dismiss.
In Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010), the plaintiffs presented

Case 2:16-cv-00053-DB Document 58 Filed 11/07/16 Page 8 of 16

specific facts that "raised serious questions" about "whether any attorney-client relationship
existed at all between many of the plaintiffs and their putative attorneys." Id. at 222-24. The
court found that the plaintiffs' allegations went well beyond routine claims of ineffective
assistance of counsel, and were sufficient to sustain "a claim for constrnctive denial of the right
to counsel by reason of insufficient compliance with the constitutional mandate of Gideon." Id.
at 225 (citing Gideon v. Wainright, 372 U.S. 335 (1963)). Half of the class members named in
the complaint did not have counsel assigned to them for their preliminary arraignments, which
resulted in most of them being incarcerated because their bail was set greater than they could
afford. Those who were assigned counsel alleged their attorneys were unavailable to them,
sometimes for months. Plaintiffs claimed their attorneys had waived their constitutional rights
without any consultation; and that their counsel served only "as conduits for plea offers, some of
which purportedly were highly unfavorable." The attorneys were so overburdened that they
frequently missed court hearings and were unprepared when they did appear.
In Duncan v. Michigan, 774 N.W.2d 89 (Mich.Ct.App. 2009)4, the Michigan Court of
Appeals detennined that plaintiffs' "highly detailed complaint" set forth various specific
instances in which appointed counsel failed adequately to represent members of the class during
their criminal cases. Plaintiffs alleged that the public defenders lacked independence from the
prosecution and judiciary which resulted in wrongful convictions, longer terms of incarceration
and guilty pleas lacking in evidentiary foundations. Counsel was unprepared at hearings and trial
which led to the introduction of evidence that should have been suppressed or rnled inadmissible

ajf'd 866 N.W.2d 407 (Mich. 2010).

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had counsel filed pretrial motions. Id. at 99-123. Counsel advised clients to wave hearings and
'

rights without confidential discussions of the consequences of such decisions; failed to provide
police reports and other discovery materials to defendants; and neglected to discuss the charges
with defendants. The court found that in several counties, the criminal defendants were without
representation that could "put the cases presented by prosecutors to 'the crncible of meaningful
adversarial testing ... "' Id. at 99 (quoting United States v. Cronic, 466 U.S. 648, 659 (1984)).

InKuren v. Luzerne County, 2016 Pa. LEXIS 20190 (Pa. 2016), the Pennsylvania
Supreme Court determined that plaintiffs' allegations of "routine failures of counsel" showed a
"widespread and endemic inability" of the public defenders to provide counsel to indigent
defendants. The attorneys were "so constrained in time and resources that they could not provide
the basic services that sustain and foster the attorney client relationship and could not devote the
effort necessary to investigate and defend against the prosecution's case." They missed deadlines
and waived issues. They failed to appear on behalf of clients at arraignments which resulted in
higher bail than necessary and longer pretrial incarcerations. The attorneys were unprepared and
unable to provide meaningful advice. At their insistence, defendants accepted plea bargains that
were unfavorable and even unsupported by law or fact. The investigators were too busy to
perform investigations or gather facts. Attorneys lacked desks, phones and private workspaces.
The office was without vital support staff and had no facilities where defendants could meet
confidentially with their attorneys. Despite reports of studies analyzing the county's program
which outlined numerous deficiencies and the need for increased resources, funding was
decreased by an additional twelve percent which resulted in even more "significant" limits on the

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office. Attorneys resigned because their obligations and responsibilities were unrealistic. "To
describe the state of affairs in the office of the public defender as approaching crisis stage is not
an exaggeration." Id. (quoting trial court opinion 6.15.2012 at 16). The Class "demonstrated
that the systemwide deficiencies have created circumstances in which the constructive denial of
counsel is imminent and likely, if not all but certain." Id. at 89.
Here, in the case before this Court, Plaintiffs allege that the circumstances surrounding
the indigent defense program in Washington County amount to constructive denial of counsel.
As noted above, neither the Supreme Court nor the Tenth Circuit Court of Appeals have
recognized a pretrial cause of action for constructive ineffective assistance. Here, the Court does
not reach the issue of whether such a cause of action should be recognized in this District
because Plaintiffs' allegations would be insufficient to make the necessary showing to bring such
an action if it were recognized.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556
U.S. 662, 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Naked
assertions devoid of further factual enhancement" are insufficient. Id. (quoting Twombly, 550
U.S. at 557). In order to bring a pretrial claim of constructive ineffective assistance, as defined
by the courts that have recognized such a cause of action, a plaintiffs claims must be based on
more than the alleged deprivation of meaningful and effective representation. Hurrell-Harring,
930 N.E.2d at 222. The allegations must present more than hypothetical harm. Duncan, 774
N.W.2d at 124. Plaintiffs have a "hefty burden" for a class to satisfy to meet the elements of this

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cause of action." Id.; Luzerne, 2016 Pa. LEXIS 20190 at 77-78. The focus must be on the
allegations in the complaint. Id. at 123. Plaintiffs must show instances of deficient performance
which are widespread and systemic. Id. The "aggregate of harm" must reach "such a level as to
be pervasive and persistent." Id. at 123-24.
In contrast to the cases cited above, Plaintiffs set forth a 108 paragraph Complaint
asserting sweeping yet unsupported allegations. For example, they allege that "Defendants hire,
appoint or contract for [sic] attorneys not because they are competent, but instead because they
are willing to work for the contract amount, they will not challenge the county attorney by
advocating vigorously for their clients, or will they [sic] not impede the ability for the
prosecution to move cases forward expeditiously." Complaint at if5 l. They provide no facts or
examples in support of this statement. Likewise, they assert, "Defendants do not obtain the
meaningful information essential to fulfilling their constitutional duties of providing indigent
defense services." Id. at if63. "Defendants do not take reasonable steps to ensure that the private
practices of the public defenders do not impair the public defense system." Id. at if65.
"Defendants have failed to establish an effective system for preventing conflicts of interest." Id.
at if66. "If Defendants adequately monitored the public defenders, Defendant would have found
that many of the public defenders regularly fail to stand with indigent defendants during court
hearings." Id. at if74. These are just a sampling of the naked and conclusory allegations put forth
in the Complaint.
Where more specific facts are alleged, for instance: the amount of money allotted to the
defense compared to the prosecution offices; or that Utah is 48 111 out of 50 states in funding; or

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the number of cases two of the attorneys closed last year, the facts fail to illustrate how any of the
Plaintiffs have been hanned. They are reminiscent of the types of allegations made in United
States v. Cronic, 466 U.S. 648 (1984). There, the defendant alleged ineffective assistance of
counsel following his conviction at trial where his attorney was " young and inexperienced in
criminal matters;" had never before participated in a jury trial; was given 25 days to prepare for
trial where the charges "were grave" and involved a "complex" mail fraud and check kiting
scheme; where some witnesses were not readily accessible; and the prosecution had spent over
four years investigating and preparing the case. The United States Supreme Court held that these
allegations did not provide a basis for finding ineffective assistance in the absence of a showing
of actual ineffectiveness. The Court stated that to find otherwise would require a detennination
of ineffective assistance of counsel based on the surrounding circumstances, "even if the lawyer's
actual performance was flawless." Id. at 652-53.
The Court finds that even if a pretrial cause of action for constrnctive ineffective
assistance of counsel were recognized in this District, Plaintiffs would fail to meet the standards
required to bring such an action in this case. Plaintiffs' allegations in the Complaint are
conclusory and general. They do not meet the "hefty burden" of showing that Washington
County's public defender program has "widespread and systemic" deficiencies that present the
likelihood of substantial and immediate irreparable injury for which there is no other adequate
remedy at law.

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B. Traditional Ineffective Assistance Claim

Plaintiffs have failed to assert facts sufficient to sustain a traditional ineffective assistance
claim under Strickland v. Washington, 466 U.S. 648 (1984).
Individual criminal defendants who wish to challenge their convictions based on
ineffective assistance of counsel, must meet the two-pronged test established in Strickland. They
must prove that: (1) "counsel's '"representation fell below an objective standard of
reasonableness;' and (2) counsel's deficiency caused prejudice, which the Supreme Court defined
as 'a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. Any violation of the right to counsel must be
reviewed in the context of the whole trial process, as the determination of the effectiveness of
counsel is whether the defendant had the assistance necessary to justify reliance on the outcome
of the proceeding. Id. at 692.
Cox and Paulus have counsel. Neither has alleged that he has not been represented at any
point in his proceeding. Both of their criminal cases are pending and neither has been convicted
or sentenced. Accordingly, at this point procedurally, neither can state a claim for ineffective
assistance of counsel under either Gideon or Strickland.
Additionally, even if Plaintiffs were in a procedural posture to assert such claims, the
Complaint does not specifically allege how Plaintiffs' counsel have been materially deficient
under the standards set forth in Strickland. The Complaint makes no specific allegations
regarding Cox's representation. Regarding Paulus, the Complaint states that the contract of his

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original public defender was not renewed, so his initial trial date had to be continued. It also
alleges that Paulus's first attorney did not retain an expert witness. Complaint at if39-40.
Although, it does not state what kind of expert he contends should have been retained or why his
first attorney's failure to do so has harmed his case at this point. His first attorney had, however,
obtained a private investigator who interviewed a number of witnesses. Id. at if40. Paulus's new
counsel allegedly has a workload of 350 cases, 80 percent of which are felonies. Id. At if42.
However, Plaintiffs cannot direct the Court's attention to any particular action by their lawyers
that has been materially deficient under the standards set forth in Strickland. Strickland requires
proof of actual prejudice and here, there is no showing that any prejudice has been suffered by
Cox or Paulus. Their allegations in the Complaint do not fonn the basis of a claim for ineffective
assistance of counsel upon which relief can be granted.

STANDING
Defendants argue that Plaintiffs lack standing to bring this case. "Standing under Article
III is, of course, a threshold issue in every case before a federal court .... " Jutchinson v. Pfeil,
211 F.3d 515, 525 (10 111 Cir. 2000)(emphasis original). To establish standing a plaintiff must
meet three requirements: "First, the plaintiff must have suffered an injury in fact- an invasion of
a legally protected interest which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical. Second, there must be a causal connection between the injury
and the conduct complained of - the injury has to be fairly traceable to the challenged action of
the defendant, and not the result of the independent action of some third party not before the

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court." Third, it must be "likely" as opposed to merely "speculative" that the injury will be
"redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Because, as discussed above, Plaintiffs have failed to establish any injury in fact, the
Court finds they lack standing to bring this case on behalf of themselves or their proposed
prospective class members.

RIPENESS
Defendants assert that Plaintiffs' case should be dismissed because it is not ripe for
adjudication. "Ripeness is a justicability doctrine 'drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to exercise jurisdiction.'" United States

v. Vaquera-Juanes, 683 F.3d 734, 736 (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43,
57 n.18 (1993)). Generally, courts consider two-factors in determining ripeness: "the fitness of
the issue for judicial resolution and the hardship to the parties of withholding judicial
consideration." New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.
1995) (quoting Sierra Club. v. Yeutter, 911F.2d1405, 1415 (10th Cir. 1990)).
As discussed above, Plaintiffs' criminal cases have not yet concluded, nor have they
alleged any injuries they have incurred as a result of their appointed counsels' representation.
The Court finds that the case is not ripe for adjudication.

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MOTION TO CONSOLIDATE

Because Defendants' motions to dismiss are granted, Defendants' motion to consolidate

is moot.
MOTION TO STAY

Because Defendants' motions to dismiss are granted, the motion for stay filed in this case
by plaintiffs' counsel in the Remick case, is moot.

CONCLUSION

Based on the foregoing, Defendants' motions to dismiss are hereby GRANTED.

Defendants' Motion to Consolidate is hereby DENIED. The Motion to Stay is hereby DENIED.

IT IS SO ORDERED.

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DATED this --=.l_ day of November, 201~

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Dee Benson
United States District Judge

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