Senate panel endorses presumption of indigence at initial appearances, recommends funding for counsel

Senator Jonathan Sickler, sponsor of Senate Bill 2226, told the Senate Appropriations Committee's Government Operations Division the bill would create a presumption of indigence for the limited purpose of the initial appearance in criminal cases and provide an appropriation to the Commission on Legal Counsel for Indigence to cover the additional workload.

Sickler said the proposal grew from a task force and from developments in other jurisdictions, including a federal district-court decision in Arkansas that raised the question of whether defendants are entitled to counsel at initial appearances. He said the presumption would apply only for initial-appearance proceedings; courts would later determine indigence for purposes of the remainder of the case.

Travis Fink, executive director of the North Dakota Commission on Legal Counsel for Indigence, told the committee the commission lacks sufficient statewide staff offices to place counsel at all initial-appearance sessions and expects to meet the need primarily through contract attorneys. "If that person is indigent, there should have been an attorney there," Fink said, summarizing the policy concern that motivated the work group.

Fink described the fiscal approach used for the bill's estimate: the commission worked with clerks and the courts to count the time slots in which initial appearances occur across counties, then estimated hourly coverage (roughly one hour per session) and set compensation at an assumed rate (the fiscal note used 60% of the federal rate when preparing the $615,000 estimate). He told the committee that a separate, larger appropriation recently approved in the Senate to raise contract rates could reduce the fiscal note currently attached to SB 2226.

Committee members discussed legal context — the Sixth and Fourteenth Amendments and Gideon v. Wainwright (1963) — and the possibility that an Eighth Circuit ruling could require counsel at initial appearances in North Dakota. Fink and members noted recruiting and retention challenges for public-defense work in some regions; the commission anticipates contracting to staff many initial-appearance sessions statewide if the policy becomes required.

After discussion, the division voted to give SB 2226 a "do pass" recommendation to full appropriations. Senator Erbley moved the motion; Senator Jonathan Sickler seconded. During the roll call the following members voted aye: Senator Wanczyk, Senator Burkhart, Senator Dwyer, Senator Erboli and Senator Sickler (ayes recorded on the roll call). The committee recorded the motion as adopted and the bill was advanced to the full appropriations committee.