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Ohman states, “Once the determination was made that Mr. Napeli was not eligible for taxpayer funded counsel, the District Court had no authority to order OPD to provide counsel: If the applicant does not request a hearing on the motion to rescind appointment, does not appear at a hearing on the motion to rescind appointment, or does not testify or present evidence regarding financial eligibility at the hearing on the motion to rescind appointment, the court shall find the applicant is not eligible to have counsel assigned under Title 47 and shall grant the motion to rescind appointment and order the assignment of counsel to be rescinded.” Ohman requested that the Supreme Court reverses Bidegaray’s order to assign counsel. “Although well-intentioned, the District Court’s order appointing OPD counsel to represent a criminal defendant who does not qualify is a mistake of law that would cause a gross injustice to OPD’s constitutional and statutory mandates to serve indigent defendants. OPD has no right of appeal, and the issue is a pure legal question of statutory authority.” In her response, Bidegaray agrees that the District Court lacks statutory authority to issue such an order and doesn’t disagree that its order was a mistake of law. But Bidegaray then notes that her response wasn’t going to stop there. The judge disagrees with OPD’s contention that the District Court’s order constitutes, “A gross injustice to OPD’ s constitutional and statutory mandates to serve indigent defendants.” Bidegaray argues that OPD’s constitutional and statutory mandates are essentially not impacted by this single erroneous order, but it is undeniable that the mandates are under attack by the Montana Legislature and the governor as they continue to push for “austerity in defiance of the basic purpose of government.” She notes a reduced budget for both OPD and the judicial branch as a whole questions the idea that Montana is operating a “justice” system. She mentions the right to counsel in criminal cases. “In eastern Montana, that guarantee is in serious peril for those who do not qualify for OPD services. In 2008, Richland County had 38 felony criminal cases. In 2015, that number had increased to 152. The other counties in the Seventh District have experienced similar exponential increases in caseloads over the last 10 years.
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