Public defender agency tells House appropriators vacancies and rising caseloads threaten constitutionally required representation

Travis Fink, executive director of the North Dakota Commission on Legal Counsel for Indigence, told the House Appropriations Government Operations Division that the agency is short on attorneys, facing rising case assignments and seeking targeted funding to avoid failing to provide constitutionally guaranteed counsel.

Fink told committee members the commission operates six public defender offices (Williston, Dickinson, Bismarck, Fargo, Grand Forks and Minot) with an administrative office in Jamestown and a statutory mission established in North Dakota Century Code 50‑04‑61. He said the agency currently lists 41 full‑time equivalent positions, with seven attorney vacancies and turnover that has averaged about 25 percent per calendar year; for the current biennium the commission has turned over 19 of 41 FTEs. Fiscal year 2024 was the agency's highest year for case assignments, 16,671, and Fink said the commission is seeing a sustained increase in felony work, which takes far more attorney hours than misdemeanors.

The staffing shortages have pushed the commission to rely heavily on contract attorneys. Fink said the statutory model anticipates a roughly 50/50 mix of public defenders and contractors but that last fiscal year contractors provided closer to 73 percent of assignments because of vacancies and turnover. He told legislators the agency sometimes must pay attorneys to travel long distances—for example, to drive from Dickinson to Watford City for five‑minute court events—because local staffing is not available.

Why this matters: the agency is charged with providing counsel consistent with the U.S. Constitution and state law. Fink warned that persistent understaffing could force the commission to notify courts that it has insufficient attorneys to cover cases, which would halt proceedings. He and committee members discussed several possible responses, including declassifying agency attorneys from the executive classified service to permit a wage scale tied to years of service, targeted equity increases, hiring investigators and expanding loan‑forgiveness or recruitment efforts.

Key details and proposals presented to the committee include: - Eligibility standard: Fink said indigence is determined by an application the client fills out; the agency applies a cutoff of 125 percent of the federal poverty guidelines or $20,000 in assets. Juveniles are now presumed indigent under recent statute change. (Representative Bosch asked for and received this definition in the hearing.) - Staffing and caseloads: when fully staffed the agency would have 20 attorneys in the field offices; Fink said six of those positions were vacant at the time of testimony and overall the agency had seven vacancies of 41 FTEs. He reported turnover approaching 50 percent for the biennium in staff positions and that many remaining attorneys are covering extra geographic territory. - Pay and recruitment: entry salaries for new attorneys were described as about $70,000–$74,000; Fink and lawmakers contrasted that with county and other government starting salaries reported to be substantially higher in some jurisdictions (examples cited by legislators included county offers in the $100,000+ range for certain positions). Fink said the agency is typically $10,000–$15,000 behind comparable public sector peers and far below private practice in many places. - Requested budget items: Fink said the commission had requested five investigators (to bring the staff from 41 to 46 FTEs) and additional funding to establish an internal wage scale and increase the hourly rate paid to contract attorneys. He said the commission asked for $5.2 million to reach a target percentage of the federal Criminal Justice Act (CJA) rate, and that governors’ recommendations and the Senate had differed (Governor Burgum recommended $1.5 million; Governor Armstrong increased that to $2.0 million and the Senate provided $2.0 million toward raising contract attorney rates). He also identified a request for $805,000 tied to equity/wage scale adjustments and investigators; funding levels and which items were included or trimmed varied across executive and Senate recommendations. - Caseload standards and time commitment: Fink cited national caseload standards (the commission uses case‑assignment measures distinct from prosecutor and court counts) and said many commission attorneys currently exceed the older 1973 caseload standards used in the state. He noted that felony representation requires substantially more attorney hours than misdemeanor work. - Related bills discussed: Fink described several bills that affect the commission’s funding and obligations. He identified House Bill 1417 (elimination of a $35 public defender application fee, which flows to the agency's indigent defense fund), Senate Bill 2057 (a broader filing‑fee bill whose criminal fee provisions the House committee had reportedly removed), and Senate Bill 2,226 (a measure the commission supported to presume indigence at initial appearances so counsel would be present at those first appearance hearings). Fink estimated counsel‑at‑first‑appearance under SB 2,226 would cost roughly $615,000 statewide and said the commission supported the measure because it believes counsel at initial appearances is constitutionally required and would help stave off litigation. - Support and concerns from other parts of the system: Fink and committee members noted the judiciary and county prosecutors provided testimony or petitions of support in hearings; judges’ and prosecutors’ associations have signaled concern about indigent defense capacity. Committee members asked whether expanding pretrial services and using remote appearances (video/Zoom) could mitigate travel burdens; Fink said courts, pretrial programs and local partners would have to cooperate and that some judges accept remote appearances while others do not.

Committee discussion and testimony: Representatives pressed on recruitment options (loan forgiveness, declassification to permit different pay schedules, targeted equity increases) and operational changes (mentorship, hiring retired attorneys, using pretrial services and remote appearances). Leah Visti, a staff attorney with the Fargo Public Defender’s Office who testified, described front‑loaded public defense work—early investigative, discovery and mitigation efforts—that can be time consuming and said investigators and mentorship are essential supports for less experienced attorneys.

Ending: Fink and committee members agreed to carry forward the budget conversation; the Senate and executive recommendations differ on several line items (investigators and equity funding). No formal vote or appropriation was taken during the hearing. Fink said he would return for additional hearings and follow up with detailed budget figures and requested the committee consider putting the equity/investigator request on a worksheet for continued review.