BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SB 166 (Liu) - Juveniles: attorney qualifications.
Amended: As Introduced Policy Vote: Public Safety 5-1
Urgency: No Mandate: No (See Staff Comments)
Hearing Date: May 23, 2013 Consultant: Jolie Onodera
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: SB 166 would require the Judicial Council to
establish minimum hours of training and education necessary in
order to be appointed as counsel in delinquency proceedings.
This bill would require the Judicial Council to adopt rules of
court establishing required training areas for counsel in
juvenile delinquency proceedings, as specified. This bill
contains codified legislative findings and declarations.
Fiscal Impact:
One-time minor costs (Trial Court Trust Fund) for the
Judicial Council to establish the training and education
standards and adopt the rules of court.
Potential ongoing state-reimbursable local costs in excess
of $150,000 (General Fund) per year to the extent the rules
of court establish guidelines mandating delinquency-specific
training and education requirements for court appointed
counsel, including public defenders.
To the extent the minimum qualifications established result
in more experienced representation in delinquency
proceedings, potential long-term cost savings to the justice
system in reduced incarceration and recidivism.
Background: According to the Department of Justice (DOJ) report
on juvenile justice in California, approximately 150,000
juveniles were arrested in 2011, with nearly 74,000 cases
referred to the juvenile court for disposition and largely
represented by public defenders and court appointed counsel (93
percent).
In its Juvenile Delinquency Court Assessment 2008, the
Administrative Office of the Courts concluded, "Given the
complexity and the unique nature of the juvenile delinquency
court setting, having experienced, well-trained attorneys is
SB 166 (Liu)
Page 1
critical in 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."
A recent article in the UC Davis Journal of Juvenile Law and
Policy, Contracts for Appointed Counsel in Juvenile Delinquency
Cases: Defining Expectations (Volume 16:1, Winter 2012), stated,
"The analysis of California contracts for appointed delinquency
counsel reveals troubling deficiencies. The contracts fail, as a
whole, to include the basic elements of competent delinquency
representation. Some have well-drafted provisions with respect
to particular elements but, in general, the contracts fail to
address basic elements of delinquency representation. Moreover,
the structure for compensation in many counties raises serious
questions about whether delinquency attorneys are compensated
for providing services they are ethically and legally bound to
provide." Additionally, with regard to delinquency-specific
training, the article reported, "Disappointingly, a 2009 survey
[by the MacArthur Juvenile Indigent Defense Action Network] of
California delinquency counsel found that 47 percent 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 percent had a day or
less."
With regard to counsel in dependency proceedings, California
Rule of Court 5.660(d) establishes caseload standards, training
requirements, and guidelines for appointed counsel for children.
This bill seeks to establish a minimum level of training and
education for counsel in delinquency proceedings in order to
assure justice for youth coming before the juvenile court.
Proposed Law: 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.
Training hours approved by the State Bar for Minimum Continuing
Legal Education (MCLE) credit would be counted toward the MCLE
hours required of all attorneys by the State Bar. This bill
SB 166 (Liu)
Page 2
would also require the Judicial Council to adopt rules of court
to do all of the following:
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.
Encourage public defender offices and agencies that
provide representation in juvenile delinquency hearings to
provide training on juvenile delinquency issues. District
attorneys would also be encouraged to pursue education in
the relevant areas.
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.
Provide that attorneys practicing in juvenile
delinquency courts shall be solely responsible for
compliance with the training and education requirements
adopted pursuant to this section.
The bill specifies that the rules shall not require a
delinquency attorney to assume the responsibilities of a
probation officer, social worker, parent, or guardian, shall not
be required to provide non-legal services or assistance to the
minor, or represent the minor in any proceeding outside of the
delinquency proceedings. This bill also includes numerous
codified legislative findings and declarations.
Related Legislation: SB 988 (Liu) 2012 was similar to this
measure and required the Judicial Council to adopt rules of
court regarding the qualifications of appointed counsel in
juvenile delinquency proceedings. This bill was held on the
Suspense File of this committee.
SB 783 (Lockyer) Chapter 1073/1994 provided that all parties in
juvenile dependency cases are entitled to competent counsel and
required the Judicial Council to develop rules of court
regarding the appointment of competent counsel in dependency
proceedings.
SB 166 (Liu)
Page 3
Staff Comments: The Judicial Council would incur one-time minor
costs to establish the training and education requirements and
adopt the rules of court. The bill does not specify the number
of minimum training and education hours necessary in order to be
appointed as counsel, but requires the Judicial Council to
establish this standard, as well as establish required training
areas in the rules of court to be adopted. Staff notes that to
the extent the Judicial Council considers the State Bar of
California Guidelines on Indigent Defense Service Delivery
Systems (2006), these guidelines specify that appointed counsel,
"should receive training in understanding child emotional and
brain development, substance abuse, mental health issues and
educational rights issues, such as special education and
educational accommodation. With the scope of representation
continually expanding, counsel shall be encouraged to exceed the
mandatory minimum training required by the State Bar with
special emphases on training in areas of juvenile practice."
Although not keyed as a state-mandated local program, to the
extent the minimum hours of training and education established
by the Judicial Council include mandated delinquency-specific
training areas in its adopted rules of court, even if within the
State Bar minimum standard of 25 hours of approved MCLE credit
every three years, local costs for continued education training
courses for public defenders and court appointed counsel
representing juveniles in delinquency proceedings could result
in increased costs to local entities, including county-operated
public defender offices, that could be subject to reimbursement
by the state if so determined by the Commission on State
Mandates.
Based on the DOJ report, Juvenile Justice in California 2011,
there were 73,639 juvenile petitions filed in 2011. Of the cases
represented, nearly 26 percent were represented by court
appointed counsel, slightly more than 67 percent were
represented by public defenders, and about seven percent of
cases were represented by private counsel or other. The number
of attorneys required to represent the juvenile petitions filed
annually is estimated at about 625 attorneys based on an annual
juvenile caseload of 50 cases for court appointed counsel and
200 for public defenders. Assuming $150 to $200 for an
eight-hour training course would result in potentially
SB 166 (Liu)
Page 4
state-reimbursable costs in excess of $100,000 (General Fund)
for the minimum number of attorneys estimated to be required to
meet the representative caseload. It should be noted costs would
likely be higher, however, as juvenile delinquency cases would
not necessarily encompass an attorney's full caseload, and many
more attorneys could complete the training to meet the
requirements.
Alternatively, to the extent the minimum training and education
standards result in the need for counties to utilize more
experienced counsel (at higher cost) could also result in
increased ongoing costs, potentially significant and
state-reimbursable, to county public defenders' offices.
Contract costs for appointed counsel could also be impacted by
the new minimum standards. In the UC Davis article noted above,
the author reports, "Disturbingly, most of the contracts
compensate appointed counsel on a flat fee rate for the case, or
a lump sum based on exceedingly low per case assumptions that
would not cover even a fraction of the work required for
competent representation in the simplest case." Increases to
contract fee schedules, via increases to flat fee/lump sum or
transition to an hourly rate compensation system to account for
the increased training and education standards, could
potentially increase annual contract costs to local
jurisdictions for appointed delinquency counsel. The magnitude
of costs is unknown, but could be significant, and would be
dependent upon the level of training and education ultimately
established by the Judicial Council and the varying impacts to
local jurisdictions to meet the new standards.
To the extent the establishment of minimum qualifications for
court appointed counsel in delinquency proceedings results in
improved representation, substantial long-term cost savings from
reduced incarceration, recidivism, and ultimately, more positive
lifelong outcomes for youth, could result.
Recommended Amendments: This bill contains numerous codified
findings and declarations. In the interest of code clarity and
efficiency, staff recommends the bill be amended to place the
findings and declarations in an uncodified section of the bill.
SB 166 (Liu)
Page 5
It appears the Judicial Council has the authority to establish
the rules of court proposed in this measure in the absence of
legislation. If the intent is to encourage the Judicial Council
to take action sooner than otherwise would occur, the author may
wish to consider an amendment to specify a date by which the
Judicial Council must adopt the rules of court.
Author amendments specify the minimum hours of training and
education established by the Judicial Council shall not increase
the minimum number of MCLE hours required of all attorneys by
the State Bar.