BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 166 (Liu)
As Introduced February 1, 2013
Hearing date: April 2, 2013
Welfare and Institutions Code
AA:mc
JUVENILE JUSTICE:
EDUCATION AND TRAINING FOR APPOINTED COUNSEL
HISTORY
Source: California Public Defenders Association; Youth Law
Center
Prior Legislation: SB 988 (Liu) - 2012, held on suspense in
Senate Appropriations
Support: East Bay Children's Law Offices; Commonweal Juvenile
Justice Program
Opposition:California District Attorneys Association
KEY ISSUE
SHOULD THE JUDICIAL COUNCIL BE REQUIRED TO ESTABLISH MINIMUM HOURS
OF TRAINING AND EDUCATION FOR APPOINTED COUNSEL IN DELINQUENCY
CASES?
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PURPOSE
The purpose of this bill is to require the Judicial Council to
establish minimum hours of
training and education necessary in order to be appointed as
counsel in delinquency proceedings, as specified.
Current law provides that minors under the age of 18 years may
be adjudged to be a ward of the court where they "persistently
or habitually refuse to obey the reasonable and proper orders or
directions of his or her parents, guardian, or custodian," are
"beyond the control of that person," "violated any ordinance of
any city or county of this state establishing a curfew based
solely on age . . . ," or are habitually truant, as specified.
(Welfare and Institutions Code ("WIC") § 601.)
Current law further provides that minors under the age of 18
years may be adjudged to be a ward of the court for violating
"any law of this state or of the United States or any ordinance
of any city or county of this state defining crime," as
specified. (WIC § 602.)
Current law generally provides that when a minor is adjudged a
ward of the court on the ground
that he or she is delinquent - delinquency generally pertaining
to the status and criminal conduct described above - the court
may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
minor, including medical treatment, subject to further order of
the court, as specified. (WIC § 727(a).)
Current law requires that counsel appointed in a dependency case
"shall have a caseload and training that ensures adequate
representation of the child. The Judicial Council shall
promulgate rules of court that establish caseload standards,
training requirements, and guidelines for appointed counsel for
children . . . ." (WIC § 317(c); See also California Rule of
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Court 5.660(d)<1>.)
This bill would require the Judicial Council to establish
minimum hours of training and education necessary in order to be
appointed as counsel in delinquency proceedings, and would
provide that this training would be counted toward continuing
legal education credits required of attorneys, as specified.
The bill would require the Judicial Council to adopt rules of
court to do all of the following:
(1) Establish required training areas that include, but are
not limited to, developments in juvenile delinquency law, child
and adolescent development, special education, mental health
issues, child abuse and neglect, counsel's ethical duties,
appellate issues, direct and collateral consequences for a minor
of court involvement, and securing effective rehabilitative
resources.
(2) Encourage public defender offices and agencies that
provide representation in delinquency proceedings, as specified,
to provide training on juvenile delinquency issues that the
State Bar has approved for MCLE credit. District attorneys
should also be encouraged to pursue education in the relevant
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<1> California Rule of Court 5.660(d) provides: "(d) Competent
counsel () Every party in a dependency proceeding who is
represented by an attorney is entitled to competent counsel.
(1) Definition. "Competent counsel" means an attorney who is a
member in good standing of the State Bar of California, who has
participated in training in the law of juvenile dependency, and
who demonstrates adequate forensic skills, knowledge and
comprehension of the statutory scheme, the purposes and goals of
dependency proceedings, the specific statutes, rules of court,
and cases relevant to such proceedings, and procedures for
filing petitions for extraordinary writs. (2) Evidence of
competency. The court may require evidence of the competency of
any attorney appointed to represent a party in a dependency
proceeding. (3) Experience and education. Only those attorneys
who have completed a minimum of eight hours of training or
education in the area of juvenile dependency, or who have
sufficient recent experience in dependency proceedings in which
the attorney has demonstrated competency, may be appointed to
represent parties. In addition to a summary of dependency law
and related statutes and cases, training and education for
attorneys must include information on child development, child
abuse and neglect, substance abuse, domestic violence, family
reunification and preservation, and reasonable efforts. Within
every three years attorneys must complete at least eight hours
of continuing education related to dependency proceedings. (4)
Standards of representation. Attorneys or their agents are
expected to meet regularly with clients, including clients who
are children, regardless of the age of the child or the child's
ability to communicate verbally, to contact social workers and
other professionals associated with the client's case, to work
with other counsel and the court to resolve disputed aspects of
a case without contested hearing, and to adhere to the mandated
timelines. The attorney for the child must have sufficient
contact with the child to establish and maintain an adequate and
professional attorney-client relationship. The attorney for the
child is not required to assume the responsibilities of a social
worker and is not expected to perform services for the child
that are unrelated to the child's legal representation. (5)
Attorney contact information. The attorney for a child for whom
a dependency petition has been filed must provide his or her
contact information to the child's caregiver no later than 10
days after receipt of the name, address, and telephone number of
the child's caregiver. If the child is 10 years of age or
older, the attorney must also provide his or her contact
information to the child for whom a dependency petition has been
filed no later than 10 days after receipt of the caregiver's
contact information. The attorney may give contact information
to a child for whom a dependency petition has been filed who is
under 10 years of age. (6) Caseloads for children's attorneys.
The attorney for a child must have a caseload that allows the
attorney to perform the duties required by section 317(e) and
this rule, and to otherwise adequately counsel and represent the
child. To enhance the quality of representation afforded to
children, attorneys appointed under this rule must not maintain
a maximum full-time caseload that is greater than that which
allows them to meet the requirements stated in (3), (4), and
(5)."
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areas.
(3) Provide that experts whose appointment is requested by
delinquency attorneys are agents of the attorneys and require
those experts to adhere to the attorney-client privilege, as
specified.
(4) Provide that attorneys practicing in juvenile delinquency
courts shall be solely responsible for compliance with the
training and education requirements.
The bill also would expressly provide that adopted rules shall
not require a delinquency attorney to do any of the following:
(1) Assume the responsibilities of a probation officer,
social worker, parent, or guardian.
(2) Provide nonlegal services or assistance to the minor.
(3) Represent the minor in any proceeding outside of the
delinquency proceedings.
This bill contains codified legislative findings concerning the
complexity of representing minors in the juvenile justice
system, and the importance of ensuring competent legal
representation in delinquency proceedings, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
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scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
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whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states in part:
Despite the high stakes involved in today's juvenile
court proceedings, many children still fail to receive
effective legal representation. In some
jurisdictions, children appear in delinquency
proceedings with no attorney at all, one that is
under-trained, or one who has not been trained at all
to handle the unique and complex issues raised in
juvenile delinquency court. Disappointingly, a 2009
survey by the MacArthur Juvenile Indigent Defense
Action Network of California delinquency counsel found
that 47% of panel and contract attorneys had no
specific juvenile training when they began to
represent children in delinquency cases, and that of
those who did have some training, 48% had a day or
less. In California, attorney resources are available
but they are not always used.
Competent representation in juvenile proceedings is
important to the young person and her family, the
juvenile justice system, and the community at large.
Even a relatively minor offense exposes youth to
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life-changing consequences. Because juveniles have not
yet developed mature judgment, delinquency
representation requires counsel to have special skills
both in the defense of the case and in working with
young clients. Competent representation is needed to
preserve the integrity of the justice system, prevent
wrongful conviction, and reduce unnecessary
incarceration. The adequacy of delinquency
representation has a direct impact on systemic costs
for unnecessary incarceration, court challenges, and
ultimately, whether the young person will succeed in
the community (Burrell, 2012).
. . .
As the counterpart to juvenile delinquency court, the
dependency court has long recognized the need for
standards of practice for all participants in that
sector. Not only are dependency attorneys required to
meet mandatory minimum training and education
requirements to certify that they are qualified to
represent children in proceedings, all stakeholders in
dependency court are required to meet mandatory
minimum education and training requirements and
standards of practice before working in dependency
court and on a continuing basis.
Given the extensive knowledge required to provide
competent representation, contracts for delinquency
counsel should require a specified amount of training
before someone may be appointed. . . .
2. What This Bill Would Do
As explained more fully above, this bill would require the
Judicial Council to establish minimum hours of training and
education necessary in order for an attorney to be appointed as
counsel in delinquency proceedings. These training hours (which
are not specified in the bill) may be counted toward the minimum
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continuing legal education hours required by the State Bar of
California. The bill includes a non-exclusive list of training
areas, and encourages (but does not require) district attorneys,
public defenders and agencies that provide delinquency
representation to provide training in this area, as specified.
3. Previous Bill
This Committee heard and passed (5-1) a similar bill, SB 988
(Liu), a year ago. Somewhat different than the bill now before
the Committee, SB 988 proposed to require defense attorneys in
delinquency proceedings to complete 8 hours of continuing
education relating to juvenile delinquency law and practice, as
specified. After it was heard by this Committee, SB 988 was
amended to require the Judicial Council to adopt rules of court
regarding qualifications of and training for delinquency
attorneys, as specified. SB 988 was held in Senate
Appropriations under its suspense file.
4. Issues of Concern; Court Rules and Competency of Counsel
The California District Attorneys Association, which opposes
this bill, submits:
As you know, the State Bar of California is the
professional licensure organization that oversees the
legal profession and regulates ongoing educational
standards thereof. The Bar sets rigorous requirements
as it regards continuing education and we believe this
is the appropriate way to ensure the proper training
of attorneys. We do not support micromanagement by
the Legislature when it comes to the specific nature
of legal education and we disagree that the Judicial
Council has a role to play in this regard. Though we
appreciate your attempt to guarantee excellence in one
part of the legal profession, setting educational
standards for attorneys should be the province of the
State Bar.
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Second, the bill creates a new statutory basis for
appeal, and a new basis to argue for a substitution of
counsel. Minors will be able to cite this new statute
to argue they were deprived of a statutory right to
competent counsel because their attorney was untrained
or insufficiently trained.
Finally, we are concerned that, although this bill
only applies to defense counsel, there will be future
efforts to apply similar restrictions on prosecutors.
Often, juvenile court calendars are covered by
different deputy district attorneys and this sort of
requirement, if it were to be imposed in the future,
would be a severe burden to prosecutor offices as
several attorneys would have to undergo this training
as a practical matter.
The authority of attorneys to practice in a state court of law
generally derives from the California Supreme Court; current law
provides that, upon certification by the State Bar that an
applicant has fulfilled the requirements for admission to
practice law, the Supreme Court may admit such applicant as an
attorney at law in all the courts of this State. (Business and
Professions Code § 6064.) Every person admitted and licensed to
practice law in this State is and shall be a member of the State
Bar except while holding office as a judge of a court of record.
(Art. 6, Cal. Const., § 9.) Current statute requires the State
Bar to "request the California Supreme Court to adopt a rule of
court authorizing the State Bar to establish and administer a
mandatory continuing legal education program," as specified.
(Business and Professions Code § 6070.)
With respect to the role of Judicial Council in establishing
rules concerning attorney qualifications, there are existing
examples of court rules and statutory provisions that may be
useful to consider. As explained above, current statute directs
the Judicial Council to promulgate caseload standards, training
requirements and guidelines for appointed counsel for children
in dependency cases, and existing court rules reflect that
direction. In addition, Rule of Court 4.117 addresses
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qualifications for appointed trial counsel in capital cases,
including the completion of specified continuing legal education
credits for lead counsel. (Rule of Court 4.117 (d) (6).)
With respect to the concern that the establishment of minimum
hours of education and training for counsel appointed in
delinquency proceedings may provide a basis for calling into
question the competency of counsel, members may wish to consider
the following purpose expressly stated in Rule of Court
4.117(a), concerning appointed counsel in capital cases, and
whether this language might address this concern:
This rule defines minimum qualifications for attorneys
appointed to represent persons charged with capital
offenses in the superior courts. These minimum
qualifications are designed to promote adequate
representation in death penalty cases and to avoid
unnecessary delay and expense by assisting the trial
court in appointing qualified counsel. Nothing in
this rule is intended to be used as a standard by
which to measure whether the defendant received
effective assistance of counsel.
IS THE JUDICIAL COUNCIL THE APPROPRIATE BODY TO ESTABLISH
MINIMUM HOURS OF EDUCATION AND TRAINING FOR APPOINTED
DELINQUENCY COUNSEL? ARE COURT RULES CONCERNING EDUCATION AND
TRAINING FOR APPOINTED DEPENDENCY AND CAPITAL CASE COUNSEL
DIFFERENT THAN APPOINTED DELINQUENCY COUNSEL?
COULD THE MINIMUM STANDARDS PROPOSED BY THIS BILL CREATE A BASIS
FOR QUESTIONING THE COMPETENCY OF COUNSEL APPOINTED IN
DELINQUENCY CASES? IF SO, WOULD LANGUAGE SIMILAR TO THAT QUOTED
ABOVE, FROM THE RULE OF COURT PERTAINING TO COUNSEL APPOINTED IN
CAPITAL CASES, ADDRESS THIS CONCERN?
5. Background: Delinquency Proceedings; Attorney Training and
Education
In 2010, 185,867 juveniles were arrested in California. Of
those, over 95,000 were referred to the juvenile court for
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disposition.<2>
In April of 2008, the Administrative Offices of the Court
released its Juvenile Delinquency Court Assessment. With
respect to attorneys practicing before the juvenile court, the
report concluded in part:
Results from both surveys indicate that many
prosecutors and defense attorneys are new to juvenile
delinquency. This is particularly true for
prosecutors and public defenders; many are in their
first juvenile delinquency assignment and few reported
having prior professional roles in the juvenile
system. These findings may raise some concerns
regarding the general lack of experience of some
attorneys working in the juvenile delinquency courts.
In describing the qualifications for prosecutors, the
National Prosecution Standards . . . on the Standards
for Juvenile Justice recommends that training and
experience should be required for handling juvenile
delinquency cases and that entry-level attorneys
working in juvenile delinquency should receive
training related to juvenile matters. According to
the National Juvenile Defender Center's Principles in
Practice, legal representation of children is
considered to be a specialized area that requires
ongoing, delinquency-specific training. Although no
specific recommendation is made regarding the level of
expertise necessary for juvenile delinquency
attorneys, the principles do state that new defenders
should be supervised by more experienced attorneys to
ensure high-quality legal work and manageable
caseloads.
Given the complexity and the unique nature of the
juvenile delinquency court setting, having
experienced, well-trained attorneys is critical in
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<2> Juvenile Justice in California 2010 (California Dept. of
Justice) (http://ag.ca.gov/cjsc/publications/misc
/jj10/preface.pdf?).
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order to ensure the fair processing of delinquency
cases and quality representation for youth who enter
the delinquency system. The fact that there are many
professionals who are new to the delinquency system
indicates the importance of early training when first
entering a juvenile delinquency assignment. Training,
along with other practices that allow for attorneys
with delinquency-related experience to handle or
supervise delinquency cases, should be encouraged by
district attorneys' and public defenders' offices.<3>
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<3> Juvenile Delinquency Court Assessment: Attorney Report
(AOC, April 2008) (http://www.courts.ca.gov/
documents/JDCA2008V2Ch4.pdf.)(Footnotes omitted).
As part of this report, the Family and Juvenile Law Advisory
Committee recommended that judicial officers, attorneys, and
probation should be adequately trained and educated to
understand the myriad issues in delinquency court and the
importance of the work.<4>
A recent law review article<5> addresses the quality of
counsel in delinquency cases, and argues for the type of
minimum education and training standards proposed by this
bill. The article states in part:
The quality of legal representation plays a critical
role in assuring justice for individual youth,
reducing the societal costs of juvenile crime, and
assuring the integrity of the justice system. With so
much at stake, youth need legal assistance that is
knowledgeable, skilled and zealous. Delinquency
representation requires a complex set of specialized
skills that includes knowledge of criminal and
juvenile law, juvenile court procedure, trial and
appellate skills, adolescent development, juvenile
adjudicative competence, rehabilitative services, and
collateral consequences of court involvement. The
systems providing appointed counsel for young people
in juvenile proceedings must be designed to provide
this specialized legal representation.
Research into appointed counsel contracts in
California reveals a disappointing lack of attention
into these basic components of delinquency
representation. The prevalent use of generic
contracts for multiple kinds of cases means that cases
are regularly handled without reference to critical
issues such as post-disposition representation. The
failure of many contracts to include qualifications
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<4> Juvenile Delinquency Court Assessment 2008 (AOC, Center for
Families, Children & the Courts), p. 8
(http://www.courts.ca.gov/documents/JDCA2008V1Full.pdf).
<5> The article is written by a Staff Attorney at the Youth Law
Center, a co-sponsor of this bill.
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for employment represents a missed opportunity for
contracting agencies to obtain experienced,
well-trained counsel and to provide ongoing training
requirements and quality assurance. More importantly,
counsel appointed under these contracts are left with
little idea of what is expected of them, and no basis
from which to negotiate resources and conditions of
employment that are needed to provide competent
representation. The contracts also provide a window
into troubling deficiencies with respect to
compensation, oversight, and lack of independence for
appointed counsel.
Competent representation is most likely to occur if
appointed counsel contracts include the elements that
make juvenile delinquency representation its own
specialty, and provide adequate compensation for each
element. Appointed counsel systems are most likely to
uphold the right to competent delinquency
representation if attorneys are experienced and
properly trained. The integrity of the system is most
likely to be protected if appointed counsel systems
operate independently and have meaningful oversight.
By including delinquency-specific ethical
requirements, scope of work, experience, training,
compensation, quality assurance and oversight, and
independence of the appointment system, contracts will
help to ensure that youth are represented by qualified
counsel who know what is expected and that counsel are
compensated for providing the full range of services
required for competent representation. In this way,
both the parties to the contract, and the youth whose
lives are in the balance, will receive the benefit of
the bargain.<6>
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<6> Burrell, Contracts for Appointed Counsel in Juvenile
Delinquency Cases: Defining Expectations (Winter 2012) UC Davis
Journal of Juvenile Law & Policy Vol. 16:1.
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