BILL ANALYSIS �
AB 259
Page 1
Date of Hearing: May 10, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 259 (Smyth) - As Amended: May 4, 2011
As Proposed to Be Amended
SUBJECT : COUNTY PUBLIC DEFENDERS: ELIGIBILITY CRITERIA
KEY ISSUE : SHOULD THE ELIGIBILITY CRITERIA FOR THE 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 BROADENED TO INCLUDE
ELIGIBLE SITTING OR RETIRED JUDGES AND OTHER JUDICIAL OR ELECTED
OFFICIALS WHO MEET SPECIFIED QUALIFICATIONS AND ARE FOUND BY
COUNTY BOARDS OF SUPERVISORS TO BE THE MOST QUALIFIED?
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 broaden 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 automatically barred
from consideration under existing law, no matter what
qualifications or expertise for the job they may possess, simply
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 consideration 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 other positions, such as district attorney
or county counsel, require the same basic knowledge and
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understanding of the practice of law in California. They note
that the current narrow practice bar automatically disqualifies
a large number of attorneys who may otherwise be highly
qualified, or even the most qualified, for the office of public
defender. The California Public Defenders Association (CPDA)
and other associations of public defenders oppose this bill.
They contend that the current strict 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, that does
not apply to either the district attorney or county counsel.
SUMMARY : Broadens 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, or referee
authorized to perform the duties of a subordinate judicial
officer, 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 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 and is an active member of the State
Bar.
3)Makes eligible an elected public official, provided that
person:
a) Was a practicing attorney in all of the courts of the
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state for at least one year preceding the date of his or
her election to 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 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.)
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
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district attorney unless he has been admitted to practice in
the Supreme Court of the State. (Section 24002.)
7)Defines "subordinate judicial officer" (SJO) as a person
appointed by a court to perform subordinate judicial duties as
authorized by article VI, section 22 of the California
Constitution, including a commissioner, a referee, and a
hearing officer, and provides that a person is ineligible to
be a SJO unless the person is a member of the State Bar and:
a) Has been admitted to practice law in California for at
least 10 years or, on a finding of good cause by the
presiding judge, for at least 5 years; or
b) Is serving as a subordinate judicial officer in a trial
court as of January 1, 2003.
(California Rule of Court 10.701.)
8)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.)
9)Does not specify eligibility requirements, other than
residence qualifications, for the position of county counsel
appointed by a board of supervisors. (Sections 27640 to
27648.)
10)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,
Section 17 of the California Constitution.)
COMMENTS : This bill, sponsored by the Los Angeles County Board
of Supervisors, seeks to broaden 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 automatically barred
from consideration under existing law, no matter what
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qualifications or expertise for the job they may possess, simply
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 consideration 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.
Stated 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 public defenders' offices. 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
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
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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
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.
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Opponents of the bill, including several associations of public
defenders, 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 the current strict practice
bar 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 the case of a
retired judge, the bill allows for the possibility that such
person may be appointed even if he or she may not have practiced
law for a number of years. However, supporters note that such
appointment would only occur if the county board of supervisors,
pursuant to its existing authority, concludes that the retired
judge-or any candidate, for that matter-- is still the best of
presumably many qualified candidates evaluated by the board.
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 broaden the pool of applicants
that a county board may consider. For commissioners and
referees who have served or are serving as SJO's, this practice
requirement should pose no additional obstacle to eligibility
for public defender because, pursuant to Court Rule 10.701,
admission to practice of law or previous SJO service prior to
2003 is a prerequisite for eligibility to the SJO position.
Only those referees appointed to perform subordinate judicial
duties are eligible for public defender. The author recently
amended the bill to clarify his intent to make eligible for the
office of public defender only those referees who, like judicial
commissioners, are appointed by a court to perform subordinate
judicial duties as authorized by article VI, section 22 of the
California Constitution. The general term "referee" is also
used, however, to refer to individuals who do not perform
subordinate judicial duties but may be selected by the parties
or appointed by the court on a case-by-case basis to carry out
specific limited tasks, such as handling discovery disputes or
doing an accounting. (See, e.g., Code of Civil Procedure
Sections 638 & 639.) As a result, these type of non-SJO
referees cannot be said to categorically have been engaged in
the kind of everyday practical legal work within the court
system that is true of SJO-referees, magistrates and judicial
commissioners at the time of appointment to public defender
during their current judicial office. Therefore, only referees
appointed to perform subordinate judicial duties are eligible
for the public defender's office under this bill.
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."
Technical Question : The Committee is investigating whether
either the phrase "is an active member of the State Bar" or "is
admitted to practice in California" may be a clearer expression
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of the phrase "has been a practicing attorney in all of the
courts of the state," given that the latter phrase represents
language unchanged in the Government Code since enacted in 1947
and may be out-of-step with modern terminology. Initial
information from the State Bar of California suggests that the
two phrases are synonymous.
Author's Clarifying Amendments. To correct a drafting error in
subdivision (d) of the May 4 amendments, and to incorporate
non-substantive organizational changes subsequently requested by
Legislative Counsel, the author now proposes the following
amendments:
On page 2, strike lines 4 to 26, and insert:
"(b) He or she was a sitting or retired judge, and both of
the following apply:
(1) He or she 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.
(2) On or before the date of his or her election or
appointment to the office of public defender, he or she
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.
(c) He or she was a judicial commissioner, magistrate, or
referee authorized to perform the duties of a subordinate
judicial officer, and both of the following apply:
(1) 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 election or appointment to judicial
office.
(2) On or before the date of his or her election or
appointment to the office of public defender, he or she
resigns his or her judicial office and is an active member
of the State Bar.
(d) He or she was an elected public official and both of the
following apply:
(1) 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 election to office.
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(2) On or before the date of his or her election or
appointment to the office of public defender, he or she
resigns his or her elected office and is an active member
of the State Bar."
ARGUMENTS IN SUPPORT : In his letter of support, former state
Attorney General and former Federal Public Defender John Van de
Kamp contends that the existing statute at issue, limiting those
eligible for the office of public defender to those who are
practicing attorneys in the state for at least a year preceding
the date of election or appointment to the office, should be
broadened. Van de Kamp states:
The existing limitations unduly narrow those eligible
(for public defender), eliminating many with many years
of both attorney and judicial experience-i.e. judges.
AB 259 corrects that.
The rules as they apply to the Office of Public
Defender are simply outdated. Appointing officials
should be able to appoint "the best and the brightest"
who are appropriate for the job. This bill will
effectively broaden the pool of those eligible for
consideration.
Some will argue that only deputy public defenders or
defense counsel should be considered. Nonsense, I say
this from a personal vantage point. I served as an
Assistant U.S. Attorney, U.S. Attorney, and Director of
the Executive Office for U.S. Attorneys before being
appointed the first Federal Public Defender in the
Central District of California, a position that I held
I became Los Angeles District Attorney, and later
California's Attorney General.
In my role as Federal Public Defender I had to be a
good administrator as well as a practitioner serving my
client's needs within the ethical boundaries of the
profession. To be a good public defender, both those
skills are necessary. And to limit the pool as the
present statute does deprives us of some very capable
candidates.
As part of its supporting materials submitted to the Committee,
the author provided a transcript from the August 10, 2010
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meeting of the Los Angeles County Board of Supervisors which
reflects the testimony of several stakeholders and commentators
in support of broadening 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
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.
Finally, the California Judges Association writes in
support of the bill:
This legislation is good, well-written, and narrowly
tailored to address a specific problem. Under the
current statutes, a person who takes the position of
county public defender must be previously serving as
an attorney. This requirement precludes judicial
officers. AB 259 would allow sitting judges whose term
has expired to take that position as well. Former
judicial officers could bring valuable experience and
expertise to the county public defender office, and
giving judicial officers transitioning off the bench
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the freedom to pursue that office creates a win-win
situation for them and county alike.
ARGUMENTS IN OPPOSITION : Several associations of public
defenders oppose this bill for a litany of reasons, most of
which are reflected in the letter of opposition received from
the California Public Defenders' Association, stating 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
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
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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?
Barry Melton, former Public Defender in Yolo County and former
president of the California Public Defenders Association, writes
in opposition that this bill could strain the relationship
between public defenders and their clients, explaining:
Every day, those who serve in public defender offices
throughout the State of California are fighting "the
good fight." However, it is not uncommon that lawyers
who serve in public defender offices are wrongly
perceived by their clients as . . . unwilling to
aggressively defend their clients, solely because of
the fact the lawyers who work in public defender
offices are government employees. This propose
legislation, by creating a direct path from the bench
to the public defender's office, would aggravate an
already difficult problem of perception and further
erode lawyer-client communications for lawyers who
serve in public defender offices.
REGISTERED SUPPORT / OPPOSITION :
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Support
Los Angeles County Board of Supervisors (sponsor)
California Judges Association
Felipe Plascencia (Law Offices of Felipe Plascencia)
John Van de Kamp (Dewey & LeBoeuf)
Opposition
Alameda County Public Defender
Alameda County Public Defenders Association
Asian Pacific Public Defenders' Association
Barry Melton (attorney at law)
Black Public Defenders' Association
California Public Defenders' Association
Gay and Lesbian Public Defender Employee Association
Latino Public Defenders' Association
Public Defenders Chapter of Local 21 IFPTE
Yolo County Public Defender's Office
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334