Committee for Public Counsel Services v. Middlesex and Suffolk County District Courts

• Court: Massachusetts Supreme Judicial Court
• Decided: March 16, 2026
• Docket: SJC 13824
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-13824

COMMITTEE FOR PUBLIC COUNSEL SERVICES1 vs. MIDDLESEX AND SUFFOLK COUNTY DISTRICT COURTS & others.2

Suffolk. November 5, 2025. – March 16, 2026.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.

Supreme Judicial Court, Superintendence of inferior courts. Constitutional Law, Judiciary, Separation of powers, Assistance of counsel. Practice, Criminal, Assistance of counsel. Attorney at Law, Compensation. Committee for Public Counsel Services. District Court. Boston Municipal Court.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 18, 2025.

The case was reported by Wendlandt, J.

Rebecca A. Jacobstein, Committee for Public Counsel Services (Benjamin H. Keehn, Committee for Public Counsel Services, also present) for the petitioner.

1 On behalf of unrepresented defendants in Middlesex and Suffolk Counties.

2 Boston Municipal Court; and district attorney for the Suffolk district, intervener. 2

Marina Pullerits, Assistant Attorney General (Jennifer K. Zalnasky, Assistant Attorney General, also present) for Middlesex and Suffolk County District Courts & another. Elisabeth Martino, Assistant District Attorney, for the intervener. The following submitted briefs for amici curiae: Shira M. Diner & Claudia Leis Bolgen for Massachusetts Association of Criminal Defense Lawyers. Nicholas J. Louisa, Max D. Stern, Howard M. Cooper, & Shayla Mombeleur for Kenneth C. Allison & others. Jessie J. Rossman, Jennifer M. Herrmann, & Matthew R. Segal for American Civil Liberties Union of Massachusetts, Inc., & another.

BUDD, C.J. Bar advocates3 have played a crucial role in the

Commonwealth's criminal legal system for decades. On May 27,

2025, many bar advocates stopped accepting assignments to

represent indigent defendants to protest the rate of

compensation, which is set by the Legislature. The Committee

for Public Counsel Services (CPCS or petitioner)4 has asked us to

determine whether, in light of the resulting shortage of defense

counsel, State court judges are authorized to increase

compensation rates for bar advocates above levels set by the

Legislature. Because we conclude that CPCS has not demonstrated

the existence of extraordinary circumstances that would justify

3 Bar advocates are private counsel who are paid by the Commonwealth to represent indigent criminal defendants.

4 CPCS is the entity that administers the bar advocate program. 3

the judicial intervention it seeks, the requested relief is

denied.5

Background. 1. The judiciary's role in administering

public defense in the Commonwealth. In the early days of the

Commonwealth's long history of appointing counsel to indigent

criminal defendants, the judiciary led the way in administering

the provision of public defense. This court began appointing

counsel for capital defendants in the late Eighteenth Century,

before the Legislature recognized a capital defendant's right to

counsel in 1820.6 See generally Carrasquillo v. Hampden County

Dist. Courts, 484 Mass. 367, 371 & n.4 (2020). Most attorneys

accepted such appointments without compensation until 1893, when

the Legislature enacted a statute authorizing reasonable

compensation for court-appointed counsel representing capital

defendants. Id. at 371 & n.6.7 Under the statute, expenses

would need to be approved by the judge presiding over the case.

5 We acknowledge the amicus briefs submitted by the Massachusetts Association of Criminal Defense Lawyers; 328 Massachusetts Bar Advocate Attorneys; and the American Civil Liberties Union of Massachusetts, Inc., and American Civil Liberties Union, Inc. 6 General Laws c. 277, § 47, is the present-day version of the 1820 statute. See St. 1820, c. 14, § 8. 7 The statute provided that reasonable compensation to and reasonable expenses incurred by counsel for defendants indicted for murder "shall be paid by the county in which the trial or other proceedings take place." St. 1893, c. 394, §§ 1, 2 (currently codified as G. L. c. 277, §§ 55, 56). 4

See St. 1893, c. 394, §§ 1, 2. In 1958, this court expanded the

right to counsel by promulgating a rule requiring appointment of

counsel in all Superior Court noncapital felony cases and

affirmed "the inherent discretionary power of any court to

appoint counsel" in any other case. S.J.C. Rule 10, 337 Mass.

813 (1958). See Carrasquillo, supra at 372. The rule was later

amended to require counsel for indigent defendants facing

imprisonment. S.J.C. Rule 10, as amended, 347 Mass. 809 (1964).8

Despite the expansion of the requirement for counsel, the

Legislature did not explicitly provide additional statutory

authority or funding for attorney compensation. See Abodeely v.

County of Worcester, 352 Mass. 719, 721-722 (1967) (discussing

G. L. c. 277, §§ 47, 55, and 56, applicable to capital

defendants only, as only existing statutes explicitly providing

compensation for counsel).

Throughout most of the Twentieth Century, the judiciary

continued to play a central role as the Commonwealth's public

defender system evolved. In 1960, the Legislature established

the Massachusetts Defenders Committee (Defenders Committee), the

first Statewide, publicly funded criminal defense agency. See

St. 1960, c. 565, § 1. But the Legislature had yet to

8 See Carrasquillo, 484 Mass. at 372. The current version of rule 10 is S.J.C. Rule 3:10, as appearing in 475 Mass. 1301 (2016). 5

appropriate funds for court-appointed private counsel for

noncapital defendants, and we held in 1967 that attorneys so

appointed were entitled to compensation pursuant to G. L.

c. 213, § 8, which authorized the courts to "allow accounts for

services and expenses incident to their sittings" and order

payment "out of the respective county treasuries." Abodeely,

352 Mass. at 722-724, quoting G. L. c. 213, § 8. The resource-

limited Defenders Committee and the "patchwork of county

defender programs" ultimately were unable to provide effective

counsel to all indigent defendants entitled to representation.

Deputy Chief Counsel for the Pub. Defender Div. of the Comm. for

Pub. Counsel Servs. v. Acting First Justice of the Lowell Div.

of the Dist. Court Dep't, 477 Mass. 178, 184 (2017) (Deputy

Chief Counsel). In response, the Legislature in 1983 enacted

G. L. c. 211D, thereby creating CPCS as a centrally administered

and financed system for providing counsel to indigent

defendants. See G. L. c. 211D, § 1. See also Deputy Chief

Counsel, supra at 185-186.

The creation of CPCS shifted the responsibility of

administering the public defender system away from the courts.

CPCS became the "sole statutory entity with the authority to

'plan, oversee, and coordinate the delivery of criminal . . .

legal services' to indigent defendants." Deputy Chief Counsel,

477 Mass. at 185-186, quoting G. L. c. 211D, § 1. The system 6

has two main components: a public defender division composed of

salaried public defenders, and a private counsel division that

contracts with local bar advocate programs to supply private

counsel (bar advocates) for indigent defendants not represented

by the public defender division. G. L. c. 211D, § 6. CPCS is

required to "maintain a system in which not less than [twenty

percent] of indigent clients shall be represented by public

defenders." St. 2024, c. 140, § 2, line item 0321-1500. The

statute also requires CPCS to establish administrative

requirements and performance standards governing all attorneys

representing indigent defendants, and to provide training and

supervision for those attorneys. G. L. c. 211D, § 9.

In addition to centralizing the system for appointing

counsel, G. L. c. 211D changed the way private attorneys were

compensated by creating a centralized compensation scheme

subject to legislative control. See G. L. c. 211D, § 11. The

rate scheme went through a couple of changes over the years.

From 1983 to 2005, G. L. c. 211D, § 11 (a) (§ 11 [a]),

authorized CPCS to "establish rates of compensation" for bar

advocates "subject to appropriation" of funds by the

Legislature. St. 1983, c. 673, § 2. However, during this

period, the Legislature repeatedly rejected the rates proposed 7

by CPCS and specified lower rates to be paid.9 See Lavallee v.

Justices in the Hampden Superior Court, 442 Mass. 228, 231 n.8

(2004). In 2005, the Legislature amended § 11 (a) establishing

the system currently in place, in which the Legislature directly

determines hourly rates for bar advocates. St. 2005, c. 54,

§ 2. The rates are subject to periodic review at public

hearings that "shall take place" at least every three years.

G. L. c. 211D, § 11 (a). Consistent with its pre-2005 practice,

the Legislature appropriates funds specifically for bar advocate

compensation in the form of a line item in its proposed annual

budget. See, e.g., St. 2019, c. 41, § 2, line item 0321-1510;

St. 2023, c. 28, § 2, line item 0321-1510.

2. The Lavallee protocol. In 2004, CPCS brought a G. L.

c. 211, § 3, petition on behalf of indigent criminal defendants

who could not obtain representation due to a shortage of bar

advocates in Hampden County. Lavallee, 442 Mass. at 229-230.

Appropriation acts from fiscal years 1998 to 2005 all 9

maintained the following hourly rates: thirty dollars for District Court cases, thirty-nine dollars for Superior Court nonhomicide cases, and fifty-four dollars for homicide cases. See, e.g., St. 1997, c. 43, § 2, line item 0321-1510; St. 1999, c. 127, § 2, line item 0321-1510; St. 2001, c. 177, § 2, line item 0321-1510; St. 2004, c. 149, § 2, line item 0321-1510. These rates were significantly lower than the amounts requested by CPCS. In 2002, for example, CPCS set the rates at sixty dollars for District Court cases, ninety dollars for Superior Court nonhomicide cases, and $120 for homicide cases. See The Spangenberg Group, Indigent Defense in Massachusetts: A Case History of Reform 2 n.2 (Aug. 2005). 8

Although we acknowledged that low statutory rates for bar

advocate compensation were a significant factor contributing to

the shortage of counsel,10 we declined to increase the rates in

the circumstances presented, leaving that decision in the hands

of the Legislature. Id. at 229, 243-244. However, recognizing

that the lack of representation violated the defendants'

constitutional right to counsel, this court devised what has

become known as the Lavallee protocol to address the

constitutional concern. Id. at 246-247.

The Lavallee protocol established "presumptive time limits

for the assignment of counsel." Carrasquillo, 484 Mass. at 382.

The protocol requires courts to schedule "prompt status

hearing[s]" for those defendants who have been detained for more

than seven days and those whose cases have been pending for more

than forty-five days. Lavallee, 442 Mass. at 247-248. At the

hearing, a judge is required to determine whether, "despite good

faith efforts of CPCS" and bar advocate programs "to secure

representation for any such defendant, there is still no counsel

10When Lavallee was decided in 2004, the authorized hourly rates were the same as those set in fiscal year 1998, see note 9, supra (thirty dollars for District Court cases, thirty-nine dollars for Superior Court nonhomicide cases, and fifty-four dollars for homicide cases). St. 2003, c. 26, § 2, line item 0321–1510. See Lavallee, 442 Mass. at 229-230. In 2005, the Legislature increased the hourly rates to fifty dollars for District Court cases, sixty dollars for Superior Court nonhomicide cases, and one hundred dollars for homicide cases. St. 2005, c. 54, § 2. 9

willing and available to represent a defendant." Id. at 248.

If the judge makes such a determination, he or she is required

to release from custody any defendant who has been held for

longer than seven days, and to dismiss without prejudice charges

that have been pending for longer than forty-five days, until

counsel is made available. Id. at 248-249. By authorizing

release or dismissal of charges when good faith efforts to

obtain counsel have failed, the Lavallee protocol balances the

constitutional rights of indigent defendants with concerns for

public safety. Carrasquillo, supra at 383.

The Lavallee protocol was invoked sixteen years later in

Carrasquillo, 484 Mass. at 370, when this court again was

confronted with a shortage of bar advocates in Hampden County.

Having once more identified low compensation rates as the main

driver of counsel shortages, we again declined the request to

increase the rates in deference to the Legislature and instead

implemented the Lavallee protocol. Id. at 392-394. We also

clarified the process by which CPCS may seek to trigger the

protocol in filing a G. L. c. 211, § 3, petition. Id. at 370,

389-391. Under Carrasquillo, a single justice of this court may

issue an order imposing the protocol if they determine that,

"despite good faith efforts by CPCS and the local bar advocate

organization, there is an ongoing systemic violation of indigent

criminal defendants' constitutional rights to effective 10

assistance of counsel due to CPCS's incapacity to provide such

assistance through its staff attorneys or through bar

advocates." Id. at 390-391.

3. Present litigation. On May 27, 2025, many bar

advocates in Suffolk and Middlesex Counties began refusing to

accept new appointments because of the low hourly rates, which

were then sixty-five dollars for District Court cases, eighty-

five dollars for Superior Court nonhomicide cases, and $120 for

homicide cases. St. 2022, c. 126, §§ 96-100. CPCS has reported

that neighboring New England States all had higher minimum

hourly rates.11 Partly due to the low rates, the number of bar

advocates available has been in decline for several years, and

Suffolk and Middlesex Counties struggled to fill duty day slots12

even before the work stoppage. CPCS also has reported that the

line item for bar advocate compensation was not adequately

funded to support the existing rates in fiscal year 2026 prior

to the supplemental budget, see infra.

11CPCS reported the minimum hourly rates in other States in the region as follows: eighty-eight dollars in Connecticut; $150 in Maine; $125 in New Hampshire; $112 in Rhode Island; and one hundred dollars in Vermont.

12Both public defenders and bar advocates sign up for duty days. On a duty day, an attorney is assigned to a particular court for an entire day to accept appointments on behalf of indigent defendants, typically at arraignment. 11

In Suffolk and Middlesex Counties -- where the majority of

bar advocates stopped taking new District Court cases --

arraignment sessions were unstaffed or understaffed, and a

significant number of indigent criminal defendants were left

without representation. On June 18, 2025, CPCS filed an

emergency petition pursuant to G. L. c. 211, § 3, on behalf of

unrepresented defendants, seeking implementation of the Lavallee

protocol in the Suffolk and Middlesex County District Courts13

and the Boston Municipal Court (respondent courts or

respondents). The petitioner also sought "preliminary relief in

the form of [temporarily] increased compensation rates."

At the time of filing, CPCS reported that there were almost

800 indigent criminal defendants without representation across

the two counties, more than seventy of whom were in custody.

CPCS also stated that its own public defender division soon

would reach capacity and therefore would not be able to bridge

the gap created by the work stoppage. Although the respondent

courts did not oppose the implementation of the Lavallee

protocol, they did oppose the petitioner's request for

judicially ordered compensation rates, arguing that the latter

would violate the separation of powers doctrine. The district

13The District Court has twelve locations in Middlesex County and one in Suffolk County (Chelsea District Court). 12

attorney for the Suffolk district -- an intervener in the

proceeding -- took the same position as the respondent courts.

On July 2, 2025, the single justice conducted an

evidentiary hearing. She found that the number of unrepresented

defendants at the time of the hearing, which had already far

exceeded those in Lavallee and Carrasquillo, would likely

increase given, inter alia, CPCS's report that its public

defender division soon would be unable to take on new cases.

The single justice also found that there was "a shortage of

available defense counsel caused in large part by inadequate

compensation rates." She later stated that "[w]hether one views

the present shortage . . . as resulting from the work stoppage

or the inability to attract a sufficient volume of defense

attorneys, . . . the root cause is the same: the low rate of

attorney compensation."

The single justice concluded that, despite CPCS's and local

bar advocate organizations' good faith efforts, there was a

"systemic violation of indigent criminal defendants'

constitutional rights to effective assistance of counsel,"

quoting Carrasquillo, 484 Mass. at 391. Accordingly, she

ordered the implementation of the Lavallee protocol in the

respondent courts. The single justice also denied the

petitioner's request for a rate increase without prejudice,

noting that this court previously had deferred to the 13

Legislature when presented with similar requests. See id. at

393; Lavallee, 442 Mass. at 243.

In August 2025, the respondent courts asked the single

justice to clarify that individual trial court judges are not

permitted to order rate increases for attorneys who would agree

to accept appointments. The request came after a District Court

judge ordered that one hundred dollars per hour be paid to

attorneys representing defendants whom the judge did not release

following Lavallee hearings. Thereafter, on September 18, 2025,

the single justice reserved and reported to the full court the

question whether this or any court had authority to order

increased rates in light of the shortage of counsel for indigent

defendants.

4. Legislative action and recent developments. On August

5, 2025, the Legislature passed, and the Governor signed, a

supplemental budget package that increased the rate of attorney

compensation for District Court cases to seventy-five dollars as

of August 1, 2025, and to eighty-five dollars as of August 1,

2026. St. 2025, c. 14, §§ 49-50, 104-105. This represented the

largest rate increases for bar advocates since Lavallee.14 The

Legislature also appropriated $40 million for CPCS to hire 160

14Indeed, the increase was more than what CPCS had asked for in its budget request for fiscal year 2026. 14

salaried public defenders by the end of fiscal year 2026, and an

additional 160 by the end of fiscal year 2027. St. 2025, c. 14,

§ 2A, line item 0321-1599. These additions would increase the

size of CPCS's public defender division by about sixty percent.15

CPCS likewise took actions to address the counsel shortage.

Most notably, on October 20, 2025, CPCS began offering incentive

payments to attorneys who accepted assignments in the respondent

courts.16 CPCS reported that nearly one hundred attorneys had

applied to accept more than 1,300 cases during the first ten

days of the program. As a result of its success, although

scheduled to end on November 17, the program was extended to

March 31, 2026. As of February 24, more than 1,800 cases have

been assigned counsel through the program.

During the time the CPCS incentive program has been in

effect, the number of unrepresented defendants has decreased

significantly, and the number of assignments taken by counsel

has increased. As of late December 2025, seventy-four percent

of the defendants who were unrepresented at arraignment have had

15According to its website, CPCS currently has about 500 public defenders. See https://www.publiccounsel.net /hr/divisions/#:~:text=Most%20representation%20is%20provided%20b y,in%20appeals%20of%20those%20case [https://perma.cc/78GF-CLJE].

16To minimize disruptions in other counties, the program required participating attorneys to fulfill two duty days in their home county by year's end. 15

counsel assigned, as compared to the twenty-five percent

assignment rate reported in early August. In late February

2026, there were eight unrepresented indigent defendants in the

respondent courts due to the counsel shortage. None of those

defendants was in custody for more than seven days,17 and no

defendants in custody have required a seven-day Lavallee hearing

since mid-October.

Discussion. The petitioner contends that, considering the

recent dearth of counsel to represent indigent criminal

defendants in Suffolk and Middlesex Counties, this court, a

single justice of this court, or any justice of any trial court

department may order increased compensation rates for bar

advocates beyond those provided by the Legislature. We

disagree. Because there is no evidence in the record that the

Legislature's response to the shortage of counsel (including the

rate increases for bar advocates and the authorized increase in

CPCS staffing) and the incentive program developed by CPCS,

together with the existing Lavallee protocol ordered by the

single justice, are insufficient to maintain a constitutionally

adequate court system, and because there has been no showing

17This number does not include defendants who were defaulted for failure to appear. Lavallee hearings are not scheduled for defendants in default. 16

that attempts at remediation have been exhausted, it would be

inappropriate for the judiciary to order rate increases.

We begin with the obvious: judicially ordered rates for

bar advocates raise separation of powers concerns. One of the

most fundamental principles of government under art. 30 of the

Massachusetts Declaration of Rights is that each of the

legislative, executive, and judicial branches "shall never

exercise" the powers of the other branches. An act by one

branch of the government violates art. 30 if it "unduly

restrict[s] a core function of a coordinate branch" (quotation

and citation omitted). Commonwealth v. Gonsalves, 432 Mass.

613, 619 (2000).

"The power to direct the spending of State funds is a

quintessential prerogative of the Legislature." County of

Barnstable v. Commonwealth, 422 Mass. 33, 45 (1996) (Barnstable

II). See Opinion of the Justices, 302 Mass. 605, 612 (1939)

("An underlying feature of our form of government is that the

power to raise money, levy taxes and control the expenditure of

public funds is vested in the General Court" [citation

omitted]). Indeed, "[h]owever difficult it may be to draw the

line between legislative and other powers, there can be no doubt

as to the side of the line upon which the power of appropriation

falls." Opinion of the Justices, supra at 613. Choices

regarding "how much money to spend and how to spend it are in 17

every instance political decisions" because of the

Commonwealth's finite financial resources and competing policy

priorities. Hancock v. Commissioner of Educ., 443 Mass. 428,

472 (2005) (Cowin, J., concurring). Thus, leaving the

appropriation power in the hands of the Legislature ensures that

popularly elected representatives, rather than the executive or

the judicial branch, determine legislative policy. This is

especially important "in times of limited fiscal resources."18

County of Barnstable v. Commonwealth, 410 Mass. 326, 329 (1991)

(Barnstable I).

By enacting G. L. c. 211D, § 11, the Legislature imposed

extensive control over bar advocate compensation, exercising its

prerogative to "make laws and appropriate funds." Carrasquillo,

484 Mass. at 370-371. Judicially ordered rates would encroach

on both of these core legislative functions.

First, rates inconsistent with § 11 (a) would contradict a

duly enacted statute and contravene the Legislature's policy

determination as to the most appropriate rates for bar

advocates. It is not within the judiciary's constitutionally

18The Commonwealth is currently facing a fiscally challenging environment with competing fiscal demands, widespread funding cuts, and significant uncertainty. See Press Release, Governor Healey Signs $60.9 Billion Fiscal Year 2026 Budget (July 4, 2025), https://www.mass.gov/news/governor- healey-signs-609-billion-fiscal-year-2026-budget [https://perma .cc/P4BU-FFCN]. 18

circumscribed role to second-guess the Legislature's judgment as

to the most effective system for the provision of public defense

of indigent criminal defendants. Thus, any unilateral change by

the judiciary to the legislatively designed compensation system

requires exercise of considerable caution. Moreover, because

the Legislature ties its appropriation for bar advocate

compensation to the statutory rates it sets, increasing the

rates would necessarily require funding beyond what has been

appropriated for that purpose. We "cannot compel . . . an

appropriation" without violating art. 30 "in the ordinary case."

Bromfield v. Treasurer & Receiver Gen., 390 Mass. 665, 670 n.9,

672-673 (1983).

As it did during the Lavallee and Carrasquillo litigation,

CPCS here urges us to exercise the judiciary's inherent power to

order rates in excess of what the Legislature has set, and this

court's general superintendence powers to order the disbursement

of funds.

We agree with CPCS that the judiciary has "inherent common

law and constitutional powers . . . to protect and preserve the

integrity of the judicial system and to supervise the

administration of justice." Shaw's Supermkts., Inc. v.

Melendez, 488 Mass. 338, 339-340 (2021). Ancillary to these

inherent powers, the judiciary has the authority "to protect

[the] court from impairment resulting from inadequate facilities 19

or a lack of supplies or supporting personnel." O'Coin's, Inc.

v. Treasurer of the County of Worcester, 362 Mass. 507, 510

(1972).

This inherent power is not contrary to, and is in fact

rooted in, separation of powers: a properly functioning

judiciary is constitutionally required. As an independent and

coequal department of the government, "the judiciary must have

adequate and sufficient resources to ensure the proper operation

of the courts." O'Coin's, Inc., 362 Mass. at 510. Moreover,

the Legislature cannot through its control over appropriation

"prevent [the judiciary] from fulfilling its responsibilities to

the people under the Constitution": the administration of

justice. Id. at 511.19

However, we must exercise such power responsibly with "due

consideration" for legislative prerogatives. Carrasquillo, 484

Mass. at 394, quoting O'Coin's, Inc., 362 Mass. at 515-516.

Thus, we refrain from interfering with the Legislature's funding

decisions in the absence of extraordinary circumstances, such as

where the available funds are insufficient to maintain a

constitutionally adequate court system, and even then, we would

19 Indeed, our inherent power is not limited to remedying specific constitutional violations. Instead, it allows us to do that which is necessary to "protect the operations of the judicial branch." Barnstable II, 422 Mass. at 44. See Shaw's Supermkts., Inc. 488 Mass. at 339-340; O'Coin's, Inc., 362 Mass. at 510. 20

consider such action only after we have exhausted all

"established methods" of remediation (citation omitted).

O'Coin's, Inc., supra at 516 (only when "[established] methods

fail . . . does occasion arise for the exercise of the inherent

power" [citation omitted]). See Barnstable I, 410 Mass. at 335

("We may interfere with the Legislature's action only on proof

that its decision results in insufficient provision for the

judiciary's constitutionally required needs").

That is not the case here. There is no dispute that the

counsel shortage presents "a systemic problem of constitutional

dimension." Lavallee, 442 Mass. at 244. It is equally clear

that this court's power (whether framed as our superintendence

power under G. L. c. 211, § 3, or our inherent power) not only

allows -- but requires -- us to "fashion an appropriate remedy

to the continuing constitutional violation suffered by indigent

criminal defendants" in Suffolk and Middlesex Counties. Id. In

present circumstances, we conclude that the Lavallee protocol

provides a sufficient remedy.20

20As the entity responsible for the provision of public defense, CPCS also has significant responsibility in safeguarding defendants' right to counsel. The Lavallee protocol recognizes this by requiring CPCS to demonstrate that it has made good faith efforts to secure counsel before the court can dismiss a case or releases a defendant for lack of counsel. See Carrasquillo, 484 Mass. at 383. 21

The protocol is currently functioning as designed to

protect the liberty interests of indigent criminal defendants

affected by the work stoppage. The respondent courts have been

holding Lavallee hearings when required and working with CPCS to

facilitate the assignment of counsel. Indigent defendants for

whom counsel could not be found after the presumptive time

limits have been released and had their cases dismissed

according to the Lavallee requirements. Thus, there are

presently no extraordinary circumstances that justify deviating

from the traditional division of authority between the

legislative and judicial branches.21 Cf. Barnstable II, 422

Mass. at 46 (refusing to order appropriation for court house

repairs absent evidence that "conditions in a particular

facility [had] deteriorate[d] to the point that it bec[ame]

unacceptably difficult or hazardous to continue holding court

sessions in all or part of a building"); O'Coin's, Inc., 362

Mass. at 517 (court-ordered purchase of recorder without prior

appropriation warranted where "the only alternative . . . was to

suspend the criminal sitting indefinitely").22

21We note that CPCS's request to modify the Lavallee protocol is not within the scope of the question reserved and reported to this court by the single justice.

22CPCS has pointed to no Massachusetts authority supporting its contention that the judiciary has the power to order appropriation of funds outside of extraordinary circumstances. Most of the extrajurisdictional cases it cited involved State- 22

Further, there are pragmatic reasons to refrain from

crossing the boundary of legislative authority to set attorney

compensation rates. The Legislature made a decision to move

away from the old model for compensating court-appointed

counsel, in which individual judges set rates on a case-by-case

basis and payments were made with little legislative oversight.

Although "[i]t is not for this court to judge the wisdom" of a

legislative policy, Mellor v. Berman, 390 Mass. 275, 283 (1983),

we note that the uniform compensation system has several

advantages over the previous one, including eliminating the risk

of idiosyncratic rate setting and improving quality of service.

See Deputy Chief Counsel, 477 Mass. at 185. We also note that,

as with all funding decisions, determining the appropriate

compensation rates for bar advocates is a matter of policy

requiring the consideration of diverse factors, such as overhead

costs, living expenses, market rates for comparable work, and

incentive structure. The Legislature is in a better position

specific statutory fee caps that were held to be unconstitutional as they failed to offer just compensation to attorneys for services rendered to indigent defendants, thereby amounting to an unconstitutional taking. See Arnold v. Kemp, 306 Ark. 294, 305-306 (1991); People ex rel. Conn v. Randolph, 35 Ill. 2d 24, 30-31 (1966); State v. Lynch, 1990 OK 82, ¶¶ 27- 28. The other case cited, Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 513-514 (1940), involved a circumstance in which attorneys received no compensation at all. Attorneys' constitutional rights are not at issue here. 23

than the judiciary to gather and evaluate the information

relevant to such determinations.

Indeed, the Legislature has recently acted. As mentioned

above, in early August 2025, the Legislature passed a

supplemental budget that increased bar advocate compensation

rates and provided CPCS with significant resources to strengthen

its public defender division. In doing so, the legislative

branch has demonstrated its awareness of "defendants'

constitutional right to counsel, and of the demands that right

makes on the public treasury." Lavallee, 442 Mass. at 243.

Additionally, the availability of counsel has substantially

improved following the announcement of legislative action and

CPCS's incentive program.23 See supra. And CPCS acknowledged

that access to additional public defenders may eventually

resolve the counsel shortage. Given these fluid circumstances,

increases to bar advocate compensate rates undertaken by the

judiciary would be inappropriate.

We likewise reject CPCS's argument that, under the current

circumstances, S.J.C. Rule 3:10, § 6, as appearing in 475 Mass.

23In a submission to the single justice in November 2025, CPCS represented that it did not believe there were "a significant number of attorneys holding out for increased compensation." 24

1301 (2016), authorizes individual judges to appoint counsel

without CPCS involvement and compensate them at higher rates.

Rule 3:10, § 6, allows a judge to use different procedures to

assign counsel under "exceptional circumstances." CPCS contends

that the Legislature's statutory rates are not binding for cases

assigned through alternative procedures, because § 11 (a)

applies only to counsel appointed through CPCS "in accordance

with [G. L. c. 211D, § 6]." We are not persuaded. Trial court

judges are subject to our superintendence authority. We have

exercised that authority to implement the Lavallee protocol as a

temporary, system-wide response to the exceptional circumstances

created by the shortage of counsel, which is not particular to

individual cases. The protocol does not allow individual judges

to raise compensation rates in an effort to attract counsel, and

nothing in rule 3:10, § 6, would authorize a judge to approve

expenditures not covered by existing appropriations.

Conclusion. Because the petitioner has not provided

evidence that the current statutory rates for bar advocates are

insufficient to maintain a constitutionally adequate judiciary

capable of protecting indigent criminal defendants' right to

counsel, we decline to disturb the Legislature's funding

decision. As we did in Lavallee and Carrasquillo, we defer to

the Legislature "[a]s the representative branch in charge of

making laws and appropriating funds" to determine the best 25

approach to administering and funding the Commonwealth's system

for providing legal counsel to indigent criminal defendants.

Lavallee, 442 Mass. at 243-244. We remand the matter to the

single justice for further proceedings consistent with this

opinion.

So ordered.