Idaho’s Supreme Court will soon decide whether to revive an American Civil Liberties Union lawsuit against the state over its faulty public defense system.

Attorneys on both sides told the high court Wednesday that they agree Idaho’s public defense system has serious deficiencies. But the state’s attorneys say the blame should lie on the counties, not Idaho Gov. C.L. “Butch” Otter and the state’s Public Defense Commission.

“The plaintiffs have identified serious issues,” Idaho Deputy Attorney General Mike Gilmore said. “But they have named defendants who are not responsible for providing the services.”

The ACLU sued the stpublic_defense_commissionate in 2015 on behalf of Idahoans who rely on court-appointed public defenders when they face criminal charges. They contend that state officials have known for years that Idaho’s public defense system is broken, and that by not fixing the problems the state is violating the 6th Amendment rights of its citizens.

Indeed, Idaho Gov. C.L. “Butch” Otter, many legislators and legal experts who have studied the issue on behalf of the state have all acknowledged that Idaho’s patchwork public defense system is deficient at best, and likely unconstitutional.

But last year a lower court judge dismissed the lawsuit, partly because the judge said he believed a court ruling requiring the state to adequately fund the public defense system would violate the separation of powers. The ACLU promptly appealed.

“For the thousands of indigent criminal defendants languishing in jails across the state or trying in vain to communicate with their criminal defenders, time is short,” ALCU attorney Jason Williamson told the high court on Wednesday.

He said the state is asking the court to “pass the buck once again.”

Idaho delegates the responsibility to pay for and provide public defenders to county governments. That resulted in a patchwork system of public defenders, with high caseloads, little funding and no set standards or policies across the state. After several years of study, lawmakers created the Public Defense Commission in 2014, asking members to create minimum requirements for counties to follow. The commission got additional authority from the legislature in 2016, along with some funding to help counties cover the costs of the needed changes.

Those steps are positive, Williamson said, but the lawsuit needs to move forward so the ACLU can collect evidence to see if they’re enough to fix the unconstitutional system.

“It may be messy. It may take some time. Criminal defendants around the state can’t afford to simply wait and see what happens,” Williamson said. “The court’s responsibility is to make sure that process moves forward.”

Gilmore, the attorney for the state, said the ACLU is trying to take a shortcut and forgetting that Idaho law allows the state to delegate responsibilities like public defense to the counties.

Otherwise, Gilmore said, “if someone didn’t have a public defender at their initial appearance, the governor could be held in contempt … I think that is ridiculous.”

Chief Justice Roger Burdick questioned the state’s contention that the counties were the appropriate place for the ACLU to seek a fix.

“So if someone in the Department of Health and Welfare isn’t doing their job, you sue the underling instead of the head of the Department of Health and Welfare?” he asked Gilmore.

In that case the department director would be ultimately responsible, Gilmore conceded. Still, the attorney said, even the public defense commission doesn’t have authority to take over county public defense work unless a specific series of circumstances occur.

Idaho’s 44 counties all have different approaches to providing public defenders, which means they have different problems, Gilmore said. That makes it tough to expect one state representative to provide oversight, he told the judge.

“We have hid behind that tenant for too long,” Burdick responded. “There has to be some way to do it if it’s a constitutional right.”