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