BILL ANALYSIS �
AB 259
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Date of Hearing: March 15, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 259 (Smyth) - As Introduced: February 7, 2011
SUBJECT : COUNTY PUBLIC DEFENDERS
KEY ISSUE : SHOULD THE ELIGIBILITY CRITERIA FOR OFFICE OF PUBLIC
DEFENDER, WHICH CURRENTLY REQUIRE ONLY THAT A PERSON HAS BEEN A
PRACTICING ATTORNEY IN THE STATE FOR AT LEAST ONE YEAR PRIOR TO
APPOINTMENT OR ELECTION, BE EXPANDED TO INCLUDE ELIGIBLE SITTING
OR RETIRED JUDGES AND OTHER JUDICIAL OR ELECTED OFFICIALS WHO
MEET SPECIFIED QUALIFICATIONS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by the Los Angeles County Board of
Supervisors, seeks to expand the pool of persons who are
eligible for the office of county public defender to include
sitting or retired judges, judicial commissioners, magistrates,
referees, and elected officials, who are not eligible under
existing law, no matter what qualifications or expertise for the
job they may possess, because they have not been a practicing
attorney for at least one year prior to appointment or election
to the office. To address this, the bill would make a judge or
other specified official eligible for the office of public
defender provided that (1) the person was a practicing attorney
for at least one year preceding the date of his or her election
or appointment to judicial or elected office; and (2) on or
before the date of election or appointment, the person resigns
from the judicial or elected office and is an active member of
the State Bar. The proponents of this bill question the
continued wisdom of the one-year practice requirement for
eligibility to the office of public defender when other
comparable positions do not have such limitations, even though,
as they contend, the positions require the same basic knowledge
and understanding of the practice of law in California. They
note that the current narrow practice requirement disqualifies a
large number of attorneys who may otherwise be highly qualified
for the office of public defender, unnecessarily limiting the
pool of qualified applicants who may be considered. The
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California Public Defenders Association strongly opposes this
bill. They contend that even a minimal practice requirement for
public defenders is necessary to ensure that they uphold their
constitutional obligation to zealously and expertly represent
indigent defendants-a special obligation they note does not
burden either the district attorney or county counsel.
SUMMARY : Expands the criteria for eligibility to the office of
county public defender. Specifically, this bill :
1)Makes eligible a sitting or retired judge, provided that the
judge:
a) 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; and
b) On or before the date of his or her election or
appointment to the office of public defender, 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.
2)Makes eligible a judicial commissioner, magistrate, referee,
or elected public official, provided that person:
a) 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 or appointment to judicial or elected office;
and
b) On or before the date of his or her election or
appointment to the office of public defender, resigns his
or her judicial or elected office and is an active member
of the State Bar.
EXISTING LAW :
1)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 Section 27700. All other references are to
this code unless otherwise noted.)
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2)Provides that a person is not eligible to the office of public
defender unless he 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. (Section 27701.)
3)Requires the board of supervisors, at the time of establishing
the office, to determine whether the public defender is to be
appointed or elected. (Section 27702.)
4)Provides that if the public defender of any county is to be
appointed, he 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. (Section 27703.)
5)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. 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.
(Section 24001.)
6)Provides that a person is not eligible to the office of
district attorney unless he has been admitted to practice in
the Supreme Court of the State. (Section 24002.)
7)Provides that no person shall be eligible to the office of
Attorney General unless he shall have 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. (Section 12503.)
8)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,
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Section 17 of the California Constitution.)
COMMENTS : This bill, sponsored by the Los Angeles County Board
of Supervisors, seeks to expand the pool of persons who are
eligible for the office of county public defender to include
sitting or retired judges, judicial commissioners, magistrates,
referees, and elected officials, who are not eligible under
existing law, no matter what qualifications or expertise for the
job they may possess, because they have not been a practicing
attorney for at least one year prior to appointment or election
to the office. To address this, the bill would make a judge or
other specified official eligible for the office of public
defender provided that (1) the person was a practicing attorney
for at least one year preceding the date of his or her election
or appointment to judicial or elected office; and (2) on or
before the date of election or appointment, the person resigns
from judicial or elected office and is an active member of the
State Bar.
Need for the bill : The author asserts that the longstanding
eligibility requirement of at least one year prior practice of
law is antiquated, inconsistent with requirements for comparable
legal offices, and no longer serves the needs of the county and
public defender's office. According to the author:
�In 1913] 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 (by the
Legislature) in 1921, the Public Defender was the
person who walked into court and represented
defendants. Today the Los Angeles Public Defender
oversees over 1,000 employees and an office that
represents over 300,000 yearly, and the needs of the
Office have changed. AB 259 is a recognition that
current law is so narrow that it unnecessarily
excludes a large group of potentially qualified
applicants.
Appointment of the public defender from qualified applicants .
In California, the office of public defender is an appointed
position in every county except for San Francisco, where the
public defender is publicly elected but subject to the same
eligibility requirement under state law. As head of the public
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defender's office, this individual may represent clients
directly in court, but is also generally responsible for
administrative functions of the office, including managing and
supervising attorneys and other subordinates. Because the
public defender is almost always appointed by the county board
of supervisors to serve at the board's will, it stands to reason
that a board will desire to have the widest pool of qualified
applicants from which to choose the person it concludes is the
best appointee for the office. The bill does not favor
appointment of any particular category of applicant, but
continues the authority of the county board of supervisors to
evaluate and ultimately appoint who it feels is the best of the
qualified candidates for the office.
Eligibility criteria for positions comparable to the Public
Defender, such as the District Attorney and the Attorney General
-- where they even exist -- do not include an immediate practice
requirement. Existing law provides that a person is not
eligible to the office of public defender unless he 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. (Section 27701.) However, state law governing
county officers (Division 2 of Title 3 of the Government Code)
does not impose any such practice requirement as a condition of
eligibility for other comparable positions, such as the District
Attorney or county counsel. By contrast, pursuant to Section
24002, the only eligibility requirement specific to the office
of district attorney is that the person has been admitted to
practice in the Supreme Court of the state, not that the person
has been a practicing attorney for any specified prior period of
time. Even the State Attorney General is not required to have
been a practicing attorney for at least one year preceding his
or her date of election or appointment. In order to be eligible
to the office of Attorney General, a person need only to have
been admitted to practice before the Supreme Court for a period
of at least five years immediately preceding his election or
appointment to the office. (Section 12503.) In short, the
office of public defender is the only one of these positions
that restricts eligibility to individuals based on the immediate
prior practice of law, rather than admission to practice in the
courts.
Supporters of this bill question the continued wisdom of the
one-year practice requirement for eligibility to the office of
public defender when other comparable positions do not have such
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limitations, even though, as they contend, the positions require
the same basic knowledge and understanding of the practice of
law in California. They contend that the practice requirement
disqualifies a large number of attorneys who are otherwise
highly qualified for the office of public defender,
unnecessarily limiting the pool of qualified applicants who may
be considered.
Opponents of the bill, primarily the California Public Defenders
Association, contend that the unique constitutional obligation
of the public defender's office to defend indigent criminal
defendants against possible deprivation of liberty by the state
justifies what they view as a minimal competency standard for
public defenders. They contend that even a minimal practice
requirement for public defenders is necessary to ensure that
they uphold their constitutional obligation to zealously and
expertly represent indigent defendants-an obligation that does
not burden either the district attorney or county counsel.
The one-year practice requirement applies differently to judges
than it does to other judicial and elected public officials.
This bill does not do away with the longstanding one-year
practice requirement for most applicants to the office of public
defender. Instead, it creates additional criteria that apply to
sitting or retired judges, judicial commissioners, magistrates,
referees, or elected public officials that would make them
eligible despite not having practiced law in the year
immediately preceding election or appointment to the public
defenders' office.
Under this bill, a sitting or retired judge is eligible only if
he or she had been a practicing attorney "for at least the year
preceding" the date he or she was elected or appointed to the
judicial office-the most recent possible year that the judge
could have satisfied the existing one-year practice requirement
before holding his or her judicial office.
In contrast, this bill provides that with respect to judicial
commissioners, magistrates, referees, or elected public
officials, the person is eligible if 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 appointment or election
to the judicial or elected office. Therefore, it appears that,
at least for non-judge officials, this bill allows the one-year
prior practice requirement to be satisfied by experience in any
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year before appointment to the public defender's office, not
necessarily the immediate preceding year.
This is an important distinction that further helps expand the
pool of applicants that a county board may consider. For
example, according to a 2004 Judicial Council report, 48 percent
of referees appointed during the study period (July 2001 to
September 2003) were retired judicial officers. ("Use and Cost
of References in General Civil Cases," August 2004.) Under this
bill, a referee who immediately prior to refereeing was a
retired judicial officer is still eligible as long as he or she
had been a practicing attorney for one year during his or her
career prior to working as a judicial officer or referee, and in
addition, is an active member of the State Bar on or before the
date of appointment to public defender.
Constitutional requirement for expiration of office . Article
VI, Section 17 of the California Constitution 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, with an exception for a part-time teaching
position, as provided. In order to avoid violating this
constitutional provision, this bill necessarily provides an
additional eligibility condition for sitting or retired judges,
namely that "the current term of his or her office has expired."
ARGUMENTS IN SUPPORT : The Committee did not receive any letters
of support other than that from the Los Angeles County Board of
Supervisors (Board), the sponsor of this bill. However, as part
of its supporting materials submitted to the Committee, the
author provided a transcript from the August 10, 2010 meeting of
the Board which reflects the testimony of several stakeholders
and commentators in support of amending state law to expand
eligibility to the office of public defender as reflected in
this bill. For example, according to the provided transcript,
Sherry Correalba, on behalf of the Latino Prosecutors'
Association and the Latino City Attorneys' Association
testified:
Under this antiquated law, a variety of experienced
professionals are precluded from seeking this position
(of Public Defender). As seen across the state,
individuals who have previously served as judges, for
instance, have gone on to serve in distinction as
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District Attorney, county counsel, and Attorney
General. Why should the Office of Public Defender be
denied equal access to these same highly qualified
individuals? We should embrace a more diverse and
experienced pool of applicants, not seek to limit it.
In addition, Erwin Chemerinsky, a prominent constitutional law
scholar and dean at UC Irvine School of Law, testified through a
prepared statement read in his behalf:
What is crucial is having a public defender with
substantial legal and administrative experience. This
is best accomplished by having the widest possible
pool of qualified individuals to choose from. It
makes no sense to exclude all commissioners and judges
when there may be an individual leaving the bench who
has exactly the knowledge and experience that would be
ideal for this position.
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association vigorously opposes this bill for multiple reasons as
stated in their letter of opposition as follows:
As currently written, Government Code section 27701
requires a minimal guarantee that the person appointed
or elected public defender at least be a practicing
attorney for a year prior to becoming public defender.
This minimal requirement should not be undone as the
unintended consequence may be that the rights of
indigent defendants are not upheld, and our
Constitutional Obligation to uphold those rights goes
unmet.
Why does this admittedly minimal requirement make a
difference? While it is usually in the smaller offices
where chief public defender representation may be
"hands on," in larger offices the chief public
defender is often consulted on legal issues that may
arise during a case, including discussions on tactics.
Even in larger offices, the chief public defender may
choose to try certain cases himself. Ultimately, the
public defender may be required to decide if, in a
given case, there is a legal conflict that would
require the public defender to withdraw as attorney of
record. Experience and knowledge of the law is
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required to do all of this. The most important job of
the chief public defender of course is to defend the
rights of indigent criminal defendants. If we have no
statutory guarantee, however minimal, that candidates
are qualified, then we have no guarantee that this
most important role will be carried out as the
Constitution intended.
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.
The reverse concern also applies as the proposal would
allow appointment or election of an individual who had
been a judge the year prior. This measure even
authorizes this where the candidate was a judge in
criminal court-deciding cases which may be argued on
appeal once appointed or elected chief public
defender. Setting aside for a moment the question of
legal ethics, we must ask, during these economic
times, would expenditure on conflict counsel to appeal
those cases be the wisest allocation of public
resources?
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Board of Supervisors (sponsor)
Opposition
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California Public Defenders Association
Black Public Defenders' Association
Gay and Lesbian Public Defender Employee Association
Latino Public Defenders Association
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334