BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 259 (Smyth)
As Amended June 25, 2012
Hearing date: June 26, 2012
Government Code
MK:dl
COUNTY PUBLIC DEFENDER
HISTORY
Source: Los Angeles County Board of Supervisors
Prior Legislation: None
Support: Former Attorney General John Van de Kamp; Law Office of
Felipe Plascencia
Opposition:California Public Defenders Association; Crime
Victims Action Alliance; Latino Public Defenders
Association of the Los Angeles County Public Defenders;
Los Angeles County Black Public Defenders' Association;
Office of the Sacramento County Public Defender;
Atlantic Center for Capital Representation; Yolo County
Public Defender's Office; Fresno County Public
Defender's Office; Office of the Marin County Public
Defender; California Attorneys for Criminal Justice;
Alameda County Public Defender; Fresno County Public
Defender; Gay and Lesbian Employee Association of the
Los Angeles County Public Defender's Office; Offices of
the Public Defender of San Bernardino County; Alameda
County Public Defenders Association; Public Defenders
Chapter of Local 21 IFPTE; a number of individual
defense attorneys; Solano County Public Defender;
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Public Defender of San Francisco; Alameda County Public
Defender
Assembly Floor Vote: Ayes 56 - Noes 13
KEY ISSUE
SHOULD THE QUALIFICATIONS FOR THE APPOINTMENT OF THE LOS ANGELES
COUNTY PUBLIC DEFENDER BE CHANGED TO ALLOW THE APPOINTMENT OF A
PERSON WHO IS A JUDICIAL OFFICER OR ELECTED OFFICIAL WHO PREVIOUSLY
PRACTICED LAW?
PURPOSE
The purpose of this bill is to allow the appointment of a judge
or elected official to the office of the public defender in Los
Angeles County.
Existing law permits the board of supervisors of any county to
establish the office of public defender for the county, and
allows any county to join with one or more counties to establish
and maintain the office of public defender to serve such
counties. (Government Code § 27700.)
Existing law requires the board of supervisors, at the time of
establishing the office, to determine whether the public
defender is to be appointed or elected. (Government Code §
27702.)
Existing law provides that if the public defender of any county
is to be appointed, he or she shall be appointed by the board of
supervisors to serve at its will, and that the public defender
of any two or more counties shall be appointed by the boards of
supervisors of such counties. (Government Code § 27703.)
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Existing law provides, except as specified, that a person is not
eligible to a county or district office, unless he or she is a
registered voter of the county or district in which the duties
of the office are to be exercised at the time that nomination
papers are issued to the person or at the time of the
appointment of the person. Existing law also authorizes the
board of supervisors or any other legally constituted appointing
authority in a county or district to waive these requirements
for an appointed county or district office if it finds that the
best interests of the county or district will be served.
(Government Code § 24001.)
Existing law provides that a person is not eligible to the
office of district attorney unless he or she has been admitted
to practice in the Supreme Court of the State. (Government Code
§ 24002.)
Existing law provides that no person shall be eligible to the
office of Attorney General unless he or she has been admitted to
practice before the Supreme Court of the state for a period of
at least five years immediately preceding his election or
appointment to such office. (Government Code § 12503.)
Existing law provides that a judge of a court of record may not
practice law, and during the term for which the judge was
selected is ineligible for public employment or public office
other than judicial employment or judicial office, except a
judge of a court of record may accept a part-time teaching
position that is outside the normal hours of his or her judicial
position and that does not interfere with the regular
performance of his or her judicial duties while holding office.
(Article VI, Section 17 of the California Constitution.)
Existing Rules of Court provide that in order to be eligible to
serve as lead counsel in a death penalty case, an attorney must:
(1) Be an active member of the State Bar of California;
(2) Be an active trial practitioner with at least 10 years'
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litigation experience in the field of criminal law;
(3) Have prior experience as lead counsel in either:
(A) At least 10 serious or violent felony jury trials,
including at least 2 murder cases, tried to argument,
verdict, or final judgment; or
(B) At least 5 serious or violent felony jury trials,
including at least 3 murder cases, tried to argument,
verdict, or final judgment;
(4) Be familiar with the practices and procedures of the
California criminal courts;
(5) Be familiar with and experienced in the use of expert
witnesses and evidence, including psychiatric and forensic
evidence;
(6) Have completed within two years before appointment at least
15 hours of capital case defense training approved for Minimum
Continuing Legal Education credit by the State Bar of
California; and
(7) Have demonstrated the necessary proficiency, diligence, and
quality of representation appropriate to capital cases.
(California Rules of Court 4.117(d).)
Existing Rules of Court further provide for the minimum
qualifications for co-counsel on a death penalty case and
provides that meeting the minimum qualifications for a death
penalty counsel does not alone make a person qualified to take
such a case. (California Rules of Court 4.117 (b)(e).)
Existing Rules of Court provides that when the court appoints
the Public Defender under Penal Code section 987.2, the Public
Defender should assign an attorney from that office or agency as
lead counsel who meets the qualifications described in (d) or
assign an attorney that he or she determines would qualify under
(f). If associate counsel is designated, the Public Defender
should assign an attorney from that office or agency who meets
the qualifications described in (e) or assign an attorney he or
she determines would qualify under (f). (California Rules of
Court 4.117(g).)
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Existing law provides that a person is not eligible to be
appointed to the office of public defender unless he or she has
been a practicing attorney in all of the courts of the state for
at least the year preceding the date of his election or
appointment. (Government Code § 27701.)
This bill provides that a person is eligible to the office of
public defender in Los Angeles County, if the person meets one
of the following criteria:
(a) He or she has been a practicing attorney in all of the
courts of the state for at least the year preceding the date
of his or her election or appointment.
(b) He or she was a sitting or retired judge and both of the
following apply:
(1) He or she was a practicing attorney in all of the
courts of the state for at least the year preceding
the date of his or her election or appointment to the
judicial office.
(2) On or before the date of his or her election or
appointment to the office of public defender, he or
she resigns his or her judicial office, the current
term of his or her office has expired, and he or she
is an active member of the State Bar.
(c) He or she was a judicial commissioner, magistrate, or
referee authorized to perform the duties of a subordinate
judicial officer, and both of the following apply:
(1) He or she was a practicing attorney in all of the
courts of the state for at least one year preceding the
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date of his or her election or appointment to judicial
office.
(2) On or before the date of his or her election or
appointment to the office of public defender, he or she
resigns his or her judicial office and is an active member
of the State Bar.
(d) He or she was an elected public official, and both of the
following apply:
(1) He or she was a practicing attorney in all of the
courts of the state for at least one year preceding the
date of his or her election to public office.
(2) On or before the date of his or her election or
appointment to the office of public defender, he or she
resigns his or her elected public office, and he or she is
an active member of the State Bar.
This bill provides in uncodified language that the Legislature
finds and declares that a special law is necessary and that a
general law cannot be made applicable within the meaning of
Section 16 of Article IV of the California Constitutional
because of the unique size, scope and complexity of the issues
that Los Angeles County Public Defender must handle, it is
imperative that he Board of Supervisors have the most expansive,
yet highly qualified, applicant pool from which to choose.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
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early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
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-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Existing law, which had its origins in 1913, requires
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a county public defender to be a practicing attorney
for at least one year preceding the date of his or her
election or appointment. This precludes judges or
other qualified judicial officers with prior
experience from being considered as Public Defender.
The needs of the Office of the Public Defender have
changed since its inception in 1913. When the post of
Public Defender was codified in 1921 by Government
Code Section 27701, the Public Defender was the person
who walked into court and represented defendants.
Today, many Public Defenders serve in primarily an
administrative capacity. For example, the Los Angeles
County Public Defender oversees over 1,000 employees
and an office that represents over 300,000 individuals
annually. Existing law does not provide county boards
of supervisors with the necessary flexibility to
consider the full range of qualified candidates.
AB 259 would expand Government Code Section 27701 to
provide that a person is eligible for appointment to
the Office of Public Defender if he or she is a
sitting or retired judge, is a judicial commissioner,
magistrate or referee, or elected official meeting two
specific requirements: (1) he or she was a practicing
attorney for at least the year preceding the date of
his/her election or appointment to judicial office;
and (2) on or before the date of his/her election or
appointment to the Office of Public Defender, the
person resigns from judicial or elective office, and
is an active member of the State Bar.
AB 259 will allow otherwise qualified judicial
officers with prior experience as practicing attorneys
to be considered for the position of Public Defender.
2. Change to Qualifications for the Public Defender
Existing law authorizes counties to establish an office of the
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public defender and provides that a person is not eligible to be
appointed public defender unless he or she has been a practicing
attorney in all of the courts of the state for at least one year
preceding the date of his or her appointment. This bill would,
in addition, allow a person to be appointed the public defender
of in Los Angeles County if he or she:
Was a sitting or retired judge if he or she was
a practicing attorney for at least one year preceding
the date of his or her election or appointment tor
judicial office; he or she resigns from the post on
or before the date of the appointment as public
defender; and he or she is an active member of the
state bar; or,
Was a judicial commissioner, magistrate, or
referee authorized to perform the duties of a
subordinate officer; he or she was a practicing
attorney for at least one year preceding the date of
his or her election or appointment to judicial
office; on or before the date of the appointment
resigns from his or her commissioner position; and is
active member of the state bar; or,
Was an elected public official, who was a
practicing attorney in all of the courts of the state
for at least one year preceding the date of his or
her election to public office; on or before the date
of his or her election or appointment to the office
of the public defender resigns the elected office;
and is an active member of the state bar.
3. Background
During the recent search to fill the vacancy left by the
retiring public defender in Los Angeles County, the Board of
Supervisors became aware of the fact that a sitting judge could
not apply for that position. While a suitable candidate was
found from within the office, the Board of Supervisors agreed
that in the future they would like the option of exploring a
wider range of candidates.
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4. Findings
This bill provides in uncodified language that:
The Legislature finds and declares that a special law
is necessary and that a general law cannot be made
applicable within the meaning of Section 16 of Article
IV of the California Constitutional because of the
unique size, scope and complexity of the issues that
Los Angeles County Public Defender must handle, it is
imperative that he Board of Supervisors have the most
expansive, yet highly qualified, applicant pool from
which to choose.
While the Los Angeles County Public Defender's Office is large,
it is unclear that "the scope and complexity" of their issues is
any different than any other place in the state. One could
argue that the size of their office would lead to more eligible
candidates just from within the office than counties whose
offices are much smaller. In fact the current Los Angeles
Public Defender was chosen from a group of qualified applicants
under the existing requirements.
5. Support for This Bill
According to the Los Angeles County Board of Supervisors:
The needs of the Office of the Public Defender have
changed since its inception in 1913 Ýwhen existing law
was enacted]. The Los Angeles County Board of
Supervisors established the position of Public
Defender in response to the fact that many indigent
defendants did not have adequate access to qualified
legal counsel. When the post of Public Defender was
codified in 1921 by Government Code Section 27701, the
Public Defender was the person who walked into court
and represented defendants. Today, the Los Angeles
County Public Defender oversees over 1,000 employees
and an office that represents over 300,000 individuals
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annually.
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Former Attorney General John Van de Kamp also supports this bill
stating:
The existing limitations unduly narrows those
eligible, eliminating many with many years of both
attorney and judicial experience-i.e., judges.
I spoke to this issue in August 2010 when the L.A.
County Board of Supervisors were looking at candidates
for the open office of Public Defender. One of the
potential candidates was Judge Espinoza who has been
the presiding judge of the criminal side of the L.A.
Superior Court. He had been on the bench for many
years, following a career as a practicing attorney. I
did not support his appointment-since I had not had
the opportunity to review the other candidates-but
certainly based on his history he should have been
considered. But he was barred from consideration
because the existing law requires one to be a
practicing attorney for at least a year preceding the
date of his election or appointment. And it similarly
affects recently retired attorneys.
ÝThis bill] corrects that.
6. Opposition
The California Public Defenders Association opposes this bill
noting:
In Los Angeles County, as with all county public
defender offices, the chief defender must be familiar
with criminal law, both substantive and procedural,
rules of evidence, and a host of other technical areas
as the chief public defender is, legally, the attorney
of record for every client his or her office
represents.
Additionally, in Los Angeles County, as with all county
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public defender offices, entry level deputy public
defenders are not assigned cases for which more senior
public defenders are more adequately qualified, and
every chief public defender has at minimum had several
years of practice in criminal defense immediately prior
to being appointed or elected chief public defender.
These practical consistencies are necessary to ensure
that the indigent defendants we are tasked with
representing are provided the zealous advocacy required
by the Constitution.
The attempt to remove even the minimal requirement for
one to be appointed or elected public defender is
misguided. Under the proposed change, a person who has
not been engaged in the actual practice of law for
twenty or thirty years could be appointed or elected as
a public defender. Practicing attorneys every year are
required to complete a certain number of hours of
mandatory continuing legal education. This requirement
is not present for elected officers, or even judges,
who resisted requirements for mandatory continuing
legal education. Thus, under the provisions of this
measure, it may be possible that a person who has not
practiced law for years, and has had no requirement for
continuing legal education, who only knows the law as
it was written and interpreted in the years long ago,
could be appointed or elected as the public defender
for a county.
A number of opponents raise concerns about the potential
conflicts that will arise in the office when a sitting judge is
appointed public defender. Specifically, the Crime Victims
Action Alliance states:
ÝA]ppointing a judicial officer who handled and/or
supervised active criminal cases with cause the public
defender's office to have to declare a "conflict" for
any matter in which the judicial officer played any
role no matter how minor or seemingly insignificant.
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Because a "conflict" can be declared or found at any
point during a criminal proceeding, there would be the
potential for hundreds of cases being delayed so that
alternate counsel for a defendant can be appointed.
In a complex case such as a first degree murder case
or a complex fraud case this type of delay could case
the postponement of a criminal case for many months'
even years. Just like a defendant, a crime victim has
a right to have their case proceed in a speedy manner.
Having to delay justice because of the appointment of
a judicial officer as a chief public defender is an
unnecessary delay. It has been said many times, and
it is true, that justice delayed is justice denied.
Many of the opposition note their concern regarding the
independence and perceived integrity of the public defender.
The Office of the Sacramento County Public Defender states:
The American Bar Association and the California Bar
Association have listed "Independence" of counsel as
the first principle of a Public Defense Delivery
System. If AB 259 passes, the potential for political
interference in the selection process, and the risk
that the public defender position could be awarded as
patronage to a sitting judge or retiring public
official will undermine the effectiveness of a public
defender. How will indigent defendants and the public
perceive the office when the selection of the public
defender is viewed as questionable? Public defenders
often have a hard enough time establishing trust with
clients who cannot afford to hire a "real lawyer."
Will the public's respect for indigent defense be
enhanced if they see the office head as a position
that keeps term-limited politicians on the public
payroll?
Further, the Los Angeles County Black Public Defender's
Association states:
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Our client base is comprised of the lowest rung of the
socio-economic ladder. Far too often, they are among
the most severely disenfranchised and come to the
system in an often well-deserved mistrust of the
government and authority. Although we as public
defenders work diligently to assure our clients that
their interests are always primary, they often view our
office as part of a system that is designed to destroy
them. WE deal with regular accusation s of being on the
"same side" as the District Attorney, as well as the
court system. What better way to confirm their
suspicions than to, for example, allow a previously
sitting judge to then become head of the very office
that seeks to protect their rights? A sitting judge,
who at some point may have sentenced this person? It
smacks of hypocrisy.
It is a tremendous mistake to underestimate the
significance of the public defender clients' ability to
confide in and trust our office. It is a tremendous
mistake to underestimate the significance of the Public
Defenders' ability to lead a group of lawyers in the
charge to represent the downtrodden and outcast. The
Public Defender position personifies the standard each
deputy hopes to achieve as independent, unbiased, and
staunch protectors of our client's rights.
We believe that it is a profound mistake to allow a
sitting judge to be appointed as the Public Defender
without a SUBSTANTIAL "cooling off" period. This
minimal time period of one year as provided for by the
current statute serves to mitigate the embroilment of a
bench officer in the daily affairs of our clients and
our attorneys.
SHOULD THE REQUIREMENTS FOR APPOINTMENT TO BE THE PUBLIC
DEFENDER OF LOS ANGELES COUNTY BE EXPANDED TO INCLUDE PEOPLE WHO
WERE JUDGES AND ELECTED OFFICIALS IN THE YEAR PRIOR TO THE
APPOINTMENT?
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