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By Steve Mocarsky
The Pennsylvania Supreme Court has agreed to hear the appeal of former Luzerne County chief public defender Al Flora in the case he filed against the county and county Manager Robert Lawton.
The state’s highest court on Tuesday entered an order granting Flora’s petition for an allowance of appeal on two issues:
• Whether or not the county’s alleged failure to adequately fund the public defender’s office would amount to denial of counsel, in violation of the constitutions of Pennsylvania and the United States.
• Whether or not a court could order the county to properly fund the office the court determined the office was underfunded and defendants were being denied effective counsel, or whether there were other avenues to resolve the issue.
“We are very pleased the Supreme Court has chosen to take this matter up, and we are optimistic that the ultimate outcome will serve not just the indigent defendants in the county, but throughout the commonwealth,” said Kimberly Borland, Flora’s attorney.
The history
Flora filed suit in April 2012, arguing that insufficient funds allocated to the public defender’s office by the county prevented the office from adequately representing indigent clients, depriving them of their Sixth Amendment right to counsel.
His allegations made national news and were featured in a front-page USA Today article on the 50th anniversary of a Supreme Court ruling granting the indigent the constitutional right to a lawyer. The article described Flora as a “rebel” for suing in an effort to secure more staff to fulfill this mandate.
Flora was terminated as chief public defender in April 2013. Attorney Stephen M. Greenwald was appointed as Flora’s replacement.
Flora then filed a separate lawsuit in federal court, claiming his ouster was in retaliation for reforms he was imposing in the Public Defender’s Office, and Flora ’s revelation that 3,000 juvenile cases associated with the kids-for-cash scandal had not been expunged, despite a 2009 state Supreme Court order.
Luzerne County Judge Joseph Augello dismissed Flora’s staffing/funding case in October 2013, upholding the county’s argument that Flora lacked standing since he was no longer in the post, and Flora appealed to Commonwealth Court. A year later, Commonwealth Court issued an opinion upholding Augello’s dismissal of the case.
The Supreme Court will not hear arguments on the issue of Flora’s standing, but the case can move forward on appeal because there are co-plaintiffs — three people who were facing charges in county court when the lawsuit was filed.
Federal suit
Flora’s federal lawsuit against the county is still in the pre-trial stage.
In March 2014, U.S. District Court Judge Malachy Mannion dismissed the federal suit, ruling that the county’s decision to fire Flora could not be construed as retaliation in violation of his First Amendment rights because those actions were done in Flora ’s official capacity as Chief Public Defender.
“As such,” Mannion wrote, Flora “was acting as a government employee, not a private citizen. His actions are therefore not protected by the First Amendment.”
Flora appealed the ruling and the U.S. Court of Appeals for the Third Circuit overturned Mannion’s dismissal and sent the case back to be heard in U.S. District Court.
Steve Mocarsky may be reached at 570-970-7311 or on Twitter @TLSteveMocarsky.