BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 259| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 259 Author: Smyth (R) Amended: 6/25/12 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 2-3, 6/21/11 (FAIL) AYES: Anderson, Liu NOES: Hancock, Price, Steinberg NO VOTE RECORDED: Calderon, Harman SENATE PUBLIC SAFETY COMMITTEE : 4-2, 6/26/12 AYES: Anderson, Harman, Liu, Price NOES: Hancock, Steinberg NO VOTE RECORDED: Calderon SENATE FLOOR : 19-15, 8/9/12 (FAIL) AYES: Anderson, Berryhill, Blakeslee, Cannella, Dutton, Emmerson, Fuller, Gaines, Huff, La Malfa, Lieu, Liu, Lowenthal, Rubio, Runner, Simitian, Strickland, Walters, Wyland NOES: Alquist, Corbett, Correa, DeSaulnier, Evans, Kehoe, Leno, Negrete McLeod, Padilla, Price, Steinberg, Vargas, Wolk, Wright, Yee NO VOTE RECORDED: Calderon, De León, Hancock, Harman, Hernandez, Pavley ASSEMBLY FLOOR : 56-13, 5/19/11 - See last page for vote SUBJECT : Los Angeles County Public Defender SOURCE : Los Angeles County Board of Supervisors CONTINUED AB 259 Page 2 DIGEST : This bill sets guidelines to be followed relative to eligibility and background for appointment to the Office of the Los Angeles County Public Defender. ANALYSIS : 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 (GOV) Section 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. (GOV Section 27702) Existing law provides that if the public defender of any county is to be appointed, he/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. (GOV Section 27703) Existing law provides, except as specified, that a person is not eligible to a county or district office, unless he/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. (GOV Section 24001) Existing law provides that a person is not eligible to the office of district attorney unless he/she has been admitted to practice in the Supreme Court of the State. (GOV Section 24002) Existing law provides that no person shall be eligible to CONTINUED AB 259 Page 3 the office of Attorney General unless he/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. (GOV Section 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/her judicial position and that does not interfere with the regular performance of his or her judicial duties while holding office. (California Constitution, Article VI, Section 17) Existing Rules of Court (Cal. R. Ct.) 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' 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 two murder cases, tried to argument, verdict, or final judgment; or B. At least five serious or violent felony jury trials, including at least three 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 CONTINUED AB 259 Page 4 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. (Cal. R. Ct. 4.117(d)) Existing Cal. R. Ct. 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. (Cal. R. Ct. 4.117 (b)(e)) Existing Cal. R. Ct. 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/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/she determines would qualify under (f). (Cal. R. Ct. 4.117(g)) Existing law provides that a person is not eligible to be appointed to the office of public defender unless he/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. (GOV Section 27701) This bill provides that a person is eligible for the Los Angeles County Public Defender if the person meets one of the following criteria: 1. He/she has been a practicing attorney in all of the courts of the state for at least the year preceding the date of his/her election or appointment. 2. He/she was a sitting or retired judge and both of the following apply: A. He/she was a practicing attorney in all of the CONTINUED AB 259 Page 5 courts of the state for at least the year preceding the date of his/her election or appointment to the judicial office. B. On or before the date of his/her election or appointment to the office of public defender, he/she resigns his/her judicial office, the current term of his/her office has expired, and he/she is an active member of the State Bar. 3. He/she was a judicial commissioner, magistrate, or referee authorized to perform the duties of a subordinate judicial officer, and both of the following apply: A. He/she was a practicing attorney in all of the courts of the state for at least one year preceding the date of his/her election or appointment to judicial office. B. On or before the date of his/her election or appointment to the office of public defender, he/she resigns his/her judicial office and is an active member of the State Bar. 4. He/she was an elected public official, and both of the following apply: A. He/she was a practicing attorney in all of the courts of the state for at least one year preceding the date of his/her election to public office. B. On or before the date of his/her election or appointment to the office of public defender, he/she resigns his/her elected public office, and he/she is an active member of the State Bar. This bill specifies 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 Constitution because of the unique size, scope, and complexity of the issues that the Los Angeles County Public Defender must handle, it is imperative that the Board of Supervisors have the most CONTINUED AB 259 Page 6 expansive, yet highly qualified, applicant pool from which to choose. 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/27/12) Los Angeles County Board of Supervisors (source) Former Attorney General John Van de Kamp Law Office of Felipe Plascencia OPPOSITION : (Verified 6/27/12) Alameda County Public Defender Alameda County Public Defenders Association Atlantic Center for Capital Representation California Attorneys for Criminal Justice California Public Defenders Association Crime Victims Action Alliance Fresno County Public Defender's Office Gay and Lesbian Employee Association of the Los Angeles County Public Defender's Office Latino Public Defenders Association of the Los Angeles County Public Defenders Los Angeles County Black Public Defenders' Association Office of the Marin County Public Defender Office of the Sacramento County Public Defender Office of the Public Defender of San Bernardino County Public Defender of San Francisco Public Defenders Chapter of Local 21 IFPTE Solano County Public Defender Yolo County Public Defender's Office CONTINUED AB 259 Page 7 ARGUMENTS IN SUPPORT : According to the author: Existing law, which had its origins in 1913, requires 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 or her election or appointment to judicial office; and (2) on or before the date of his or 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. 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 CONTINUED AB 259 Page 8 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 annually." 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. ARGUMENTS IN 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. CONTINUED AB 259 Page 9 Additionally, in Los Angeles County, as with all county 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. 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 CONTINUED AB 259 Page 10 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 Defenders' Association states: 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 CONTINUED AB 259 Page 11 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. ASSEMBLY FLOOR : 56-13, 5/19/11 AYES: Achadjian, Allen, Bill Berryhill, Blumenfield, Bonilla, Bradford, Buchanan, Charles Calderon, Campos, Cedillo, Chesbro, Conway, Cook, Dickinson, Donnelly, Feuer, Fletcher, Furutani, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, Harkey, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, Knight, Logue, Ma, Mansoor, Mendoza, Miller, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, Portantino, Silva, Smyth, Solorio, Valadao, Wagner, Williams, John A. Pérez NOES: Ammiano, Atkins, Beall, Fuentes, Hayashi, Lara, Mitchell, Perea, V. Manuel Pérez, Skinner, Swanson, Wieckowski, Yamada NO VOTE RECORDED: Alejo, Block, Brownley, Butler, Carter, Davis, Eng, Fong, Gorell, Bonnie Lowenthal, Torres RJG:k 8/21/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE CONTINUED AB 259 Page 12 **** END **** CONTINUED