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Case Name Flora v. Luzerne County PD-PA-0002
Docket / Court 3:12-cv-00665 ( M.D. Pa. )
State/Territory Pennsylvania
Case Type(s) Indigent Defense
Attorney Organization ACLU Chapters (any)
Case Summary
On April 10, 2012, the Public Defender of Luzerne County, Pennsylvania filed a lawsuit in the United States District Court for the Middle District of Pennsylvania under 42 U.S.C. § 1983 against Luzerne County. Represented by the ACLU of Pennsylvania, the plaintiff alleged that his termination was ... read more >
On April 10, 2012, the Public Defender of Luzerne County, Pennsylvania filed a lawsuit in the United States District Court for the Middle District of Pennsylvania under 42 U.S.C. § 1983 against Luzerne County. Represented by the ACLU of Pennsylvania, the plaintiff alleged that his termination was threatened because of complaints he had made against the county about the lack of funding for the public defender's office, lack of attorneys for the public defender's office, and inability to adequately represent clients. The plaintiff alleged that the threatened termination would violate his 1st and 14th Amendment rights and he sought injunctive relief. The plaintiff also requested a temporary restraining order to prevent his removal from the position of Chief Public Defender for Luzerne County, preliminary and permanent injunctions, and attorneys' fees.

The same day, the plaintiff in this case, along with citizens who were unable to obtain a public defender based on lack of availability, filed a class action in state court under the Civil Rights Act, §1983, and Article I, § 9 of the Pennsylvania Constitution. The class action sought to compel the County to increase resources for the Public Defender. Plaintiffs requested an order requiring Defendants to promptly appoint private or conflict counsel when the Office of the Public Defender (OPD) declines representation of any adult defendant due to excessive workloads or lack of resources. The plaintiffs also sought a writ of mandamus compelling the defendants to lift the hiring freeze; an order allowing the plaintiff Public Defender to continue with his work until the OPD had adequate resources to represent all indigent adult criminal defendants prosecuted in Luzerne County; a peremptory judgment compelling defendants to provide necessary funding so that the OPD is capable of providing representation to all qualified indigent defendants prosecuted in Luzerne County that satisfy the standards set by the U.S. and Pennsylvania Constitutions; and attorneys' fees and costs.

In the federal court case, the plaintiff moved for a preliminary injunction. On April 19, 2012, the parties entered a stipulation requesting withdrawal of the plaintiff's request for preliminary injunction. The judge approved the request to withdraw that same day. The terms of the withdrawal stipulated that the plaintiff shall remain in his official capacity as public defender, that he will not be subject to any adverse employment action in retaliation for protected First Amendment activity, and that his job was not in imminent danger. The case was dismissed on March 11, 2013.

The class action was assigned to Judge Joseph Augello. On June 15, 2012, Judge Augello ordered the county to lift the hiring freeze, immediately provide confidential meeting space for OPD clients and lawyers, provide counsel for people turned away from the OPD either by hiring private counsel or by expanding OPD, and not to turn away any more indigent clients. Judge Aurello also ordered the parties to meet and create a plan to fix the problems with OPD. The parties attended mediation for months but could not agree to a solution. The county replaced the Chief Public Defender in April 2013 and asked the court to dismiss the class action, arguing that only the chief public defender could sue the county over the condition of the OPD. Judge Augello agreed with the county and dismissed the case on October 22, 2013.

The plaintiffs for the class action appealed to the Pennsylvania Commonwealth Court, arguing that the clients of the OPD were entitled to bring suit to protect their rights. On October 14, 2014, the Pennsylvania Commonwealth Court affirmed the ruling. As part of its opinion, the Court noted that mandamus was not an available form of relief because the Appellants had not demonstrated a clear right to relief.

The plaintiffs next appealed to the Pennsylvania Supreme Court, which changed the name to Kuren v. Luzerne to reflect the that Flora was no longer a party to the suit. Because of the importance of the case, the U.S. Department of Justice as well as numerous national legal organizations, including the American Bar Association and the Innocence Project, filed friend-of-the-court briefs in support of the plaintiffs.

In a landmark opinion issued on September 28, 2016, the Pennsylvania Supreme Court noted that Gideon v. Wainwright extends the Sixth Amendment right to counsel to state courts, and also noted that Sixth Amendment violations need not await conviction and sentencing. As such, the Court ruled that public defender clients have the right to sue counties to force them to provide adequate funding to their public defender offices, as long as they demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” Here, the Court found that the plaintiffs met that standard by demonstrating the possible risk of injury due to Luzerne County’s alleged failure to provide adequate funding.

With respect to the mandamus, the Pennsylvania Supreme Court affirmed the lower court’s decision, ruling that the writ of mandamus was not an available remedy in this case. The Court stated that mandamus is employed to compel the performance of a ministerial duty, or to compel action in matters involving judgment and discretion. It is not used to direct the exercise of judgment or discretion in a particular way, as the Appellants sought here by requesting that the hiring freeze be lifted.

The case was remanded for proceedings consistent with the opinion. The docket for the trial court's proceedings could not be found. The case is now closed.

Frances Hollander - 04/07/2015
Justin Hill - 01/11/2020

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Issues and Causes of Action
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Constitutional Clause
Due Process
Content of Injunction
Other requirements regarding hiring, promotion, retention
Crowding / caseload
Access to lawyers or judicial system
Language access/needs
Quality of representation
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
State law
Defendant(s) Luzerne County
Plaintiff Description The Public Defender of Luzerne County, Pennsylvania and public defender clients
Indexed Lawyer Organizations ACLU Chapters (any)
Class action status sought Yes
Class action status granted Unknown
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Voluntary Dismissal
Filed 04/10/2012
Case Ongoing No
Additional Resources
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  Securing Reasonable Caseloads: Ethics and Law in Public Defense
Date: 2011
By: Norman Lefstein (Indiana University--Indianapolis Faculty)
Citation: (ABA 2011)
[ Detail ] [ External Link ]

  Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.
Date: Apr. 14, 2009
By: National Right to Counsel Committee (The Constitution Project)
Citation: National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009)
[ Detail ] [ PDF ] [ External Link ]

  The Third Generation of Indigent Defense Litigation
New York University Review of Law and Social Change
Date: 2009
By: Cara Drinan (Columbus School of Law, Catholic University Faculty)
Citation: 33 N.Y.U. Rev. L. & Soc. Change 427 (2009)
[ Detail ] [ External Link ]

  Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel
Date: May 7, 2007
By: Vidhya K. Reddy (Washington University in St. Louis Law Student)
[ Detail ] [ PDF ]

3:12-cv-00665 (M.D. Pa.)
PD-PA-0002-9000.pdf | Detail
Date: 03/11/2013
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint
PD-PA-0002-0001.pdf | Detail
Date: 04/10/2012
Verified Complaint [ECF# 1]
PD-PA-0002-0005.pdf | Detail
Date: 04/10/2012
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Motion for Preliminary Injunction [ECF# 3]
PD-PA-0002-0003.pdf | Detail
Date: 04/10/2012
Source: PACER [Public Access to Court Electronic Records]
Order approving re 11 Stipulation re; Motion for Preliminary Injunction [ECF# 14] (M.D. Pa.)
PD-PA-0002-0002.pdf | Detail
Date: 04/19/2012
Source: PACER [Public Access to Court Electronic Records]
Stipulated Order of Dismissal [ECF# 26] (M.D. Pa.)
PD-PA-0002-0004.pdf | Detail
Date: 03/05/2013
Source: PACER [Public Access to Court Electronic Records]
Opinion (103 A.3d 125)
PD-PA-0002-0007.pdf | WESTLAW| LEXIS | Detail
Date: 12/02/2014
Source: Westlaw
Order (118 A.3d 385)
PD-PA-0002-0008.pdf | WESTLAW| LEXIS | Detail
Date: 06/30/2015
Source: Westlaw
Brief for Appellants
PD-PA-0002-0010.pdf | Detail
Date: 09/10/2015
Source: ACLU
Brief of Amicus Curiae American Bar Association in Support of Appellants
PD-PA-0002-0011.pdf | Detail
Date: 09/10/2015
Source: ACLU
Brief for the United States as Amicus Curiae in Support of Appellants
PD-PA-0002-0012.pdf | Detail
Date: 09/10/2015
Source: ACLU
Brief for Amici Curiae the Innocence Network and the Pennsylvania Innocence Project in Support of Appellants
PD-PA-0002-0013.pdf | Detail
Date: 09/10/2015
Source: ACLU
Brief Amicus Curiae of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers in Support of Appellants
PD-PA-0002-0014.pdf | Detail
Date: 09/10/2015
Source: ACLU
Opinion (146 A.3d 715)
PD-PA-0002-0006.pdf | WESTLAW| LEXIS | Detail
Date: 09/28/2016
Source: Westlaw
Opinion (637 A.3d 715)
PD-PA-0002-0009.pdf | WESTLAW| LEXIS | Detail
Date: 09/28/2016
Source: Westlaw
show all people docs
Judges Caputo, A. Richard (M.D. Pa.) show/hide docs
Leavitt, Mary Hannah Court not on record show/hide docs
Mannion, Malachy Edward (M.D. Pa.) show/hide docs
PD-PA-0002-0004 | PD-PA-0002-9000
Plaintiff's Lawyers Borland, Kimberley D. (Pennsylvania) show/hide docs
PD-PA-0002-0001 | PD-PA-0002-0010
Emerson, Hilary J (Pennsylvania) show/hide docs
PD-PA-0002-0003 | PD-PA-0002-0005 | PD-PA-0002-9000
Pollock, Nathaniel S. (District of Columbia) show/hide docs
Roper, Mary Catherine (Pennsylvania) show/hide docs
PD-PA-0002-0001 | PD-PA-0002-0002 | PD-PA-0002-0003 | PD-PA-0002-0004 | PD-PA-0002-0005 | PD-PA-0002-0010 | PD-PA-0002-9000
Rudovsky, David (Pennsylvania) show/hide docs
PD-PA-0002-0001 | PD-PA-0002-0010
Walczak, Witold J. (Pennsylvania) show/hide docs
PD-PA-0002-0001 | PD-PA-0002-0003 | PD-PA-0002-0005 | PD-PA-0002-0010 | PD-PA-0002-9000
Defendant's Lawyers Carmody, Matthew John (Pennsylvania) show/hide docs
Dean, John G (Pennsylvania) show/hide docs
PD-PA-0002-0002 | PD-PA-0002-0004 | PD-PA-0002-9000
Simon, Deborah Hart (Pennsylvania) show/hide docs
PD-PA-0002-0004 | PD-PA-0002-9000
Wolff, Joel M (Pennsylvania) show/hide docs
Other Lawyers Brown, Paulette (New Jersey) show/hide docs

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