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SJC-12121

  DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE
  COMMITTEE FOR PUBLIC COUNSEL SERVICES & another1 vs. ACTING
   FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT
                           DEPARTMENT.



            Suffolk.    November 9, 2016. - May 24, 2017.

    Present:     Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.


Committee for Public Counsel Services.     District Court, Drug
     court session.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 23, 2016.

     The case was reported by Duffly, J.


     Paul R. Rudof, Committee for Public Counsel Services (Ryan
M. Schiff, Committee for Public Counsel Services, also present)
for the plaintiffs.
     Bethany L. Stevens for the defendant.


     HINES, J.    This matter is before us on a reservation and

report, by a single justice of this court, of a petition for


     1
       Deputy Chief Counsel for the Private Counsel Division of
the Committee for Public Counsel Services.
                                                                     2


relief under G. L. c. 211, § 3.   The petition, brought by the

Deputy Chief Counsel for the Public Defender Division of the

Committee for Public Counsel Services and the Deputy Chief

Counsel for the Private Counsel Division of the Committee for

Public Counsel Services (collectively CPCS), sought an order

affirming CPCS's independent authority under G. L. c. 211D to

select and supervise attorneys for indigent defendants in the

pilot program it had launched in the drug court session of the

Lowell Division of the District Court Department (drug court).

The issue arose after the Acting First Justice of the Lowell

District Court (Justice), citing the need for a "team" approach

to cases in the drug Court, removed CPCS attorneys from drug

court cases to which they had been assigned and excluded CPCS

attorneys from assignment to any new case in the drug court.

    The single justice, in her reservation and report, observed

that "the matter raises some important legal questions that

ought to be decided by the full court, concerning specialty

courts in general and adult drug courts in particular, and the

respective roles and responsibilities of judges, [CPCS], and

individual defense attorneys."    The issue highlights the tension

that may arise between an attorney's duty to zealously advocate

for the rights of the drug court defendant and a drug court

model that favors a collaborative and nonadversarial approach to

supervision of the drug court defendant.    We recognize that the
                                                                     3


success of drug court outcomes depends in large part on an

unconditional commitment to the goal of treatment from all

members of the drug court team, including the drug court

defendant.   Nonetheless, we conclude that CPCS has the sole

authority under G. L. c. 211D for the assignment of counsel to

indigent criminal defendants and that a judge may not override

that authority to accommodate a preference for attorneys willing

to assume a collaborative and nonadversarial role in drug court

proceedings.

     Background.   1.   The drug court model.   Drug courts have

been developed to provide the option of treatment as an

alternative to incarceration in cases where the underlying

criminal behavior is thought to be motivated by a defendant's

substance abuse.   Executive Office of the Trial Court, Adult

Drug Court Manual, A Guide to Starting and Operating Adult Drug

Courts in Massachusetts at 2-3 (2015) (drug court manual).      Drug

courts are defined as "problem-solving courts that operate under

a specialized model in which the judiciary, prosecution, defense

bar, probation, law enforcement, substance use, mental health,

and social service communities work together to provide

treatment to people with substance use challenges" with the

ultimate goal of public safety and reduction of recidivism.        Id.

at 3.
                                                                    4


    To accomplish these purposes, drug courts necessarily are

different from regular criminal sessions during which a judge

may impose probation to accommodate a need for treatment rather

than a sentence of incarceration.    A defendant's success with

substance abuse treatment in such circumstances more often than

not depends on his or her self-motivation and the availability

of resources to support the treatment alternatives.    Drug

courts, by contrast, are premised on the truism that successful

treatment, though achievable, is difficult for a defendant with

little more than sincere motivation and good intentions at his

disposal.    Thus, drug courts are distinguished from regular

criminal sessions by the "integration of treatment and services

with judicial case oversight and intensive court supervision."

Id. at 39.   In accordance with this formula for success, the

drug court model incorporates features, described infra, not

common in regular criminal sessions.

    The structure of the drug court is informed by "evidence-

based best practices" emphasizing the necessity of a team

approach to the development and oversight of the defendant's

prescribed course of substance abuse treatment.    Id. at 3.    A

judge is the leader of the drug court team and, in that

capacity, assembles the team which typically includes the

"program coordinator, assistant district attorney, defense

attorney, probation officer(s), clerk, case manager, specialty
                                                                     5


court clinician, treatment providers, local law enforcement, and

representatives from local organizations that provide services

to drug court participants."   Id. at 8.   In keeping with the

treatment purpose, team members must have expertise in substance

use disorders and therapeutic options, and be sensitive to

issues of gender, age, race, language, and cultural issues that

may bear on the drug court defender's likelihood of success.

Id.   Collectively, the team members have the knowledge and

experience to develop an appropriate treatment plan for each

drug court defendant.   Just as important, they are adept at

identifying the personal and societal causes of failure and the

ways to undercut their impact on the treatment goals.

      The probation officer, clerk, and treatment providers are

essential to the mission of the team.   They are present at each

drug court session, providing a consistency in the oversight of

drug court defendants at each drug court session.    Participation

by the assistant district attorney and defense counsel is

encouraged but not always possible.   Defense counsel has no

formal role in the drug court sessions because in the post-

adjudicative setting, the drug court defendant has no right to

counsel.   However, if a drug court defendant is issued a

probation violation notice, defense counsel is appointed and is

expected to "zealously advocate for the rights of his or her

client."   Id. at 8.
                                                                        6


    The work of the drug court is accomplished during the

weekly session over which the judge presides with the assistance

of the other team members.     In preparation for each drug court

session, the team is assembled for a "staffing," the purpose of

which is to review the progress of each drug court defendant who

will appear before the court that day.      Id. at 27.   During the

staffing, the team determines whether sanctions are necessary.

However, if sanctions are to be considered, the discussion is

deferred until defense counsel has been notified and given the

opportunity to appear.   After the staffing, the formal drug

court session is held with the defendant in attendance.      Only

drug court cases are on the session docket.       During the session,

the judge interacts personally with each drug court defendant

and offers words of encouragement or praise.      The session is

open to all drug court defendants scheduled to appear that day

with the expectation that the opportunity to "see the

consequences of others' actions [will] build[] a sense of mutual

support among the participants."     Id. at 28.

    In accordance with the drug court manual, drug courts are

encouraged to have "clear, objective, and specific eligibility

criteria" for admission.     Id. at 15.   Typically, a defendant

must meet three eligibility criteria for admission to the drug

court:   (1) the defendant must have a substance use disorder;

(2) the defendant must have been found guilty, pleaded guilty,
                                                                       7


or admitted to sufficient facts for a continuance without a

finding; and (3) the defendant must have been placed on

supervised probation.    Id.   An eligible defendant is entitled to

the advice of counsel on the risks and benefits of drug courts.

      Drug court defendants must agree to a one-year commitment

during which they may be required to submit to "random and

comprehensive drug and alcohol testing multiple times weekly,

weekly meetings with the probation officer and attendance at a

weekly or bi-weekly status hearing before the judge."      Id. at

21.   These conditions purposely are more demanding based on the

underlying philosophy that drug court defendants must exhibit an

unconditional commitment to engage in and comply with a rigorous

substance abuse treatment program.     Id. at 19.   And, as with any

probationer, the drug court defendant risks a violation of

probation if he or she fails to comply with the conditions of

probation.

      2.   The pilot program in the Lowell drug court.   The drug

court commenced operations in June, 2014, and from its

inception, the Justice has been the judge with primary

responsibility to oversee the court.     In July, 2015, CPCS

initiated a drug court pilot program (pilot), which, in a

departure from CPCS's long-standing policy, permitted the

assignment of counsel to indigent drug court defendants for

every stage of the drug court proceedings.     CPCS's policy was
                                                                     8


driven by the legal principle that in the drug court

postdisposition proceedings, drug court defendants had no right

to counsel; the right to counsel attached only if the defendant

was subject to a probation violation hearing.   CPCS was

constrained as well by budgetary considerations.    No funding had

been appropriated to defray the costs associated with the

assignment of counsel to this class of defendants beyond the

reach of the right to counsel provided by G. L. c. 211D.

    The impetus for the pilot was a series of discussions that

began in December, 2013, among CPCS, judges, and other

representatives of the Administrative Office of the Trial Court.

The advocacy for this expanded access to defense counsel was

informed by the experiences of judges in other drug court

sessions who touted the efficacy and desirability of assigned

counsel at all stages of the drug court sessions.    These judges

and others involved in the management of the drug court sessions

believed that a drug court defendant's likelihood of success in

substance abuse treatment would be enhanced if defense counsel

gained expertise in addiction issues and was familiar with the

team's view of the defendant's participation.   This pilot

innovation permitted assigned counsel to participate in drug

court "staffings" which ordinarily would not involve the

presence of appointed counsel.
                                                                    9


    The pilot began after the Justice was notified by a letter

dated July 15, 2015, of CPCS's proposal to locate the pilot

program in the drug court.    This letter advised that "the task

of assuring counsel for participants already determined indigent

in the trial session will be handled by our staff office and by

Middlesex Defense Attorneys   . . . just as is done in all court

sessions."   The record contains no evidence that the Justice

rejected these conditions for the implementation of the pilot in

the drug court.

    Although the record does not establish the precise date on

which the pilot commenced, disagreement between the Justice and

CPCS attorneys surfaced on September 15, 2015, in an incident

involving one of the CPCS attorneys chosen to participate in the

pilot.   It is not necessary to recite the details of that

incident; the upshot was that the Justice removed the attorney

from the assigned case and informed the attorney in charge of

the CPCS office in the Lowell Division of the District Court

Department that this attorney would not be permitted to

represent probationers in the drug court.    The Justice removed

the attorney without specifying the reason or providing an

opportunity for the attorney to be heard.   On November 16, 2015,

CPCS attorneys filed a motion for recognition of counsel and for

the recusal of the Justice on behalf of the probationer who had

been represented by the attorney removed by the Justice.     On
                                                                   10


December 10, 2015, the Justice issued a memorandum of decision,

denying the motion as moot.2

     On several occasions in December, 2015, the Justice

declined to recognize previously assigned CPCS attorneys and

appointed bar advocates as substitute counsel.   Eventually the

Justice announced a categorical ban on CPCS attorneys in the

drug court, effectively terminating the drug court pilot.

Although the Justice did not explain his reasoning for the

categorical ban on CPCS attorneys, he later expressed the belief

that CPCS attorneys in the Lowell office were "extremely

hostile" to the drug court mission and that they refused to

"participate fully" as team members.

     Discussion.   The petitioners argue that under G. L. c. 211D

and S.J.C. Rule 3:10, as amended, 416 Mass. 1306 (1993), CPCS

has independent authority to assign counsel to indigent criminal

defendants and that a judge may not remove assigned counsel

without notice and the opportunity to be heard, or categorically

exclude CPCS attorneys from assignments in the drug court.      The

Justice concedes these limitations on a court's role in the

assignment of counsel to indigent criminal defendants.     He

argues, however, that in the exercise of his authority to choose


     2
       The issue became moot after the Justice readmitted the
defendant to probation, thereby making the appointment of
counsel unnecessary.
                                                                  11


drug court "team" members and to insure fidelity to the drug

court model, he may bypass the statutorily mandated system for

assignment of counsel to give preference to volunteer "team"

attorneys in probation violation cases.    We do not doubt the

desirability and efficacy of a collaborative and nonadversarial

approach in the drug court, and we recognize its value in making

the drug court an effective intervention for defendants who

would otherwise recidivate because of their substance abuse

issues.   We conclude, however, that this purpose, laudable as it

may be, cannot trump the statutory mandate that CPCS, not the

court, is to assign counsel for indigent defendants.

    When G. L. c. 211D was enacted in 1983, the Legislature had

the benefit of decades of public advocacy for a "comprehensive,

coordinated, and independent" system to insure an indigent

criminal defendant's right to counsel.    See Rosenfeld, The Right

to Counsel and Provision of Counsel to Indigents in

Massachusetts:   The Hennessey Era, 74 Mass. L. Rev. 148, 148

(1989) (Hennessey Era).   See also St. 1983, c. 673.    That

advocacy followed this court's decisions in Pugliese v.

Commonwealth, 335 Mass. 471, 475-476 (1957) (recognizing right

to counsel where defendant lacked sufficient intelligence to

represent himself), and Brown v. Commonwealth, 335 Mass. 476,

482-483 (1957) (violation of art. 12 of Massachusetts

Declaration of Rights where defendant was not represented by
                                                                    12


counsel), both of which were decided well before the United

States Supreme Court's landmark ruling in Gideon v. Wainwright,

372 U.S. 335, 339, 343-344 (1968).     In the aftermath of these

decisions, the Supreme Judicial Court promulgated S.J.C. Rule

10, 337 Mass. 813 (1958), which required the appointment of

counsel for indigent defendants in noncapital felony cases in

the Superior Court.3

     In 1960, the Legislature created the Massachusetts

Defenders Committee, the first State-wide publicly funded

defender agency.   St. 1960, c. 565.    Plagued by a shortage of

resources, however, the defender's committee was unable to

deliver on its mission to provide counsel to all indigent

defendants eligible to receive the service.     Goodwin, Comment,

Massachusetts' Struggle to Adhere to the Gideon Mandate:     Will

the Lavallee Decision, Coupled With Legislative Reform, Finally

Establish a State Indigent Criminal Defense System that is

Constitutionally Sound?   32 New Eng. J. on Crim. & Civ.

     3
       Rule 10 of the Supreme Judicial Court Rules, 337 Mass. 813
(1958), was amended three times thereafter. In 1962, the rule
was amended to allow the appointment of counsel in any case
warranted by the circumstances. 345 Mass. 792 (1962). In 1964,
the rule was amended a second time to require the appointment of
counsel in all cases where a sentence of imprisonment was a
possible consequence of conviction. 347 Mass. 809 (1964) In
1969, the court amended what was by then S.J.C. Rule 3:10 to
require the assignment of the Massachusetts Defenders Committee
unless exceptional circumstances dictated otherwise. 355 Mass.
803 (1969). See 351 Mass. 791 (1967) (renumbering rules of
Supreme Judicial Court).
                                                                  13


Confinement 77, 84 (2006).   Twenty years after the creation of

the defender's committee, it was still responsible for "less

than one-half" of the cases of indigent criminal defendants.

Id. at 86-87.   The patchwork of county defender programs that

operated as a complement to the defender's committee was itself

inadequate to have any salutary effect on the system for the

appointment of counsel for indigent criminal defendants.   Id. at

87.   Also, until the decision in Abodeely v. County of

Worcester, 352 Mass. 719 (1967), private attorneys appointed

under the authority of S.J.C. Rule 3:10 had no constitutional or

statutory right to payment for their services.   Abodeely, supra

at 723-724.

      Concern about these and other serious shortcomings in the

indigent defender system prompted then Chief Justice Edward

Hennessey to establish a committee,4 chaired by Associate Justice

Herbert Wilkins (Wilkins Committee), to "set out guidelines and

standards for defender programs, including such requirements as

caseload controls, training, vertical representation and

provision of support services."   Rosenfeld, Defense of Indigents



      4
      The committee, officially named the "Committee on
Appointment of Competent Counsel for Indigent Criminal
Defendants in District and Municipal Courts" (Wilkins
Committee), was established in 1976. The Wilkins Committee
released its interim report on December 16, 1976, and its final
report on March 21, 1979.
                                                                   14


in Massachusetts:   A New Approach, 28 Boston Bar J. Vol. 22, 22

(Nov./Dec. 1984).   See Hennessey Era, supra at 149.

Chief Justice Hennessey envisioned an indigent defender system

that was "centrally administered and financed . . . , within the

judicial branch but independent of the [c]ourt."   Id. at 151.

The Wilkins Committee issued reports in 1976 and 1979,

identifying the primary impediments to the system envisioned by

Chief Justice Hennessey as the lack of (1) a central

administrative and funding mechanism; (2) standards for quality

control; and (3) requirements for training and education.    Id.

at 149-150.   Armed with the work of the Wilkins Committee and

other advocacy groups supporting his vision, Chief Justice

Hennessey personally supported legislative initiatives intended

to accomplish this purpose.   Id. at 151.

     Leading up to the enactment of G. L. c. 211D in 1983, the

Legislature also had the benefit of appellate cases documenting

abuses of the then-existing system for the appointment of

counsel to indigent defendants.5   Under that system, judges,


     5
       See, e.g., Matter of McKenney, 384 Mass. 76, 77, 89, 101
(Appendix) (1981) (public censure and retirement of former judge
for misconduct including favoritism in appointment of counsel
for indigent defendants); Matter of Scott, 377 Mass. 364, 369-
370, 376-377 (Appendix) (1979) (censure for failing to ensure
that counsel was appointed for indigent party); Matter of Troy,
364 Mass. 15, 36, 73 (1973) (discipline for conditioning the
right to court-appointed counsel on defendant's surrender of
right to post bail).
                                                                    15


despite the obvious constitutional conflict in exercising that

role, had exclusive authority for the appointment of counsel.6

     Against this historical backdrop, the Legislature enacted

G. L. c. 211D in 1983, establishing CPCS as the sole statutory

entity with the authority to "plan, oversee, and coordinate the

delivery of criminal . . . legal services" to indigent

defendants.   G. L. c. 211D, § 1.   General Laws c. 211D created a

centralized agency with the responsibility for every aspect of

the system for providing counsel for indigent defendants.     Id.

That responsibility begins with the duty to establish, subject

only to the approval of the Supreme Judicial Court, the

indigency standards to be applied in determining a defendant's

right to appointed counsel.   G. L. c. 211D, § 2.   For the

benefit of those defendants qualifying for the appointment of

counsel, CPCS is charged with the duty to oversee the "training,

qualification and removal of counsel" who accept appointments as

counsel for indigent defendants.    G. L. c. 211D, § 4.   Vested

with this authority, CPCS has the ability to insure that

indigent defendants have access to effective assistance of


     6
       "The appointment of counsel by judges creates -- at the
least -- the appearance that lawyers are being assigned cases to
move dockets and that lawyers may be more loyal to the judge
than to the client." See Statement of Stephen B. Bright,
Innocence Protection Act of 2001, Hearing before the Senate
Committee on the Judiciary, 107th Cong., 1st Sess., on S.486, at
40 (June 27, 2001).
                                                                   16


counsel.   The statute also has an egalitarian approach to the

appointment of counsel, allowing that CPCS create a rotating

appointment system to "encourage open access among attorneys

participating within the private counsel division."     Id.   As

explained, infra, the over-all statutory scheme addressed a

range of issues that, prior to 1983, undermined the goal of a

comprehensive and unified system for the assignment of counsel

to indigent defendants.

    The plain language of G. L. c. 211D, § 5, viewed in the

context of the entire statutory scheme, supports for our

conclusion that CPCS has sole authority to assign counsel to

indigent criminal defendants.    The procedure in G. L. c. 211D,

§ 5, contemplates a two-step process for the assignment of

counsel.     The first step is the determination of indigency, a

duty within the exclusive authority of the judge.     Id.   The

statute is clear that, in the second step, "A justice or

associate justice shall assign a case to [CPCS]" (emphasis

supplied).    Id.   This statutory division of authority between

the judge and CPCS is reinforced in S.J.C. Rule 3:10, § 5, which

provides that "the judge shall assign [CPCS] to provide

representation for the party, unless exceptional circumstances,

supported by written findings, necessitate the use of a

different procedure that is consistent with G. L. c. 211D and

the rules of this court" (emphasis supplied).     Therefore, we
                                                                    17


discern no ambiguity in the respective roles of the judge and

CPCS.    The judge's role is to determine indigency and to assign

the case to CPCS; the role of CPCS is to assign the case to an

attorney with responsibility to represent the defendant.7

     The Justice does not dispute this interpretation of G. L.

c. 211D, § 5.    Rather, he argues that we should recognize an

exception for the drug court based on the need for the team

approach deemed essential to the success of the drug court

model.    To the extent that the social science research validates

the efficacy of a nonadversarial "team" approach in the adult

drug court model, we take no issue with that proposition.

Nonetheless, the statute provides no authority for a judge to

craft an exception for a drug court, and the Justice cites none.

As framed by the Justice, the judge, as the leader of the drug

court team, may use his authority to select the team members to

give preference to volunteer attorney "team" members in the

appointment of counsel for probation violation matters.

Although important, the authority to select team members is an

administrative duty that must give way to the clear statutory

duty of CPCS to assign counsel.    Further, this exception to the

     7
       According to CPCS, except for CPCS staff attorneys, CPCS
does not assign individual attorneys to CPCS cases. Instead,
CPCS contracts with the various county bar advocate programs
which in turn make the assignments in accordance with the
statutory mandate to fairly apportion the cases among available
attorneys.
                                                                     18


statutorily mandated procedure would effectively remove CPCS

attorneys from the pool of attorneys in the drug court.       "The

carving out of any exceptions to [a] clear [statutory] mandate

is for the Legislature, not the judiciary."     D'Avella v.

McGonigle, 429 Mass. 820, 822 (1999).

    Conclusion.   Although we acknowledge and appreciate the

important and special role of the drug court in achieving

important public policy interests, we are constrained to follow

the clear dictates of G. L. c. 211D and S.J.C. Rule 3:10, which

vest CPCS with sole and independent authority to assign counsel

for indigent defendants.   Where a drug court defendant who is

indigent is alleged to have violated the terms of probation, the

judge must appoint CPCS as counsel.    Counsel assigned by CPCS

may be removed only for cause after a hearing.

                                      So ordered.
