BILL ANALYSIS �
AB 259
Page 1
ASSEMBLY THIRD READING
AB 259 (Smyth)
As Amended May 11, 2011
Majority vote
JUDICIARY 8-2
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|Ayes:|Feuer, Wagner, Dickinson, | | |
| |Hagman, Huber, Huffman, | | |
| |Jones, Monning | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Atkins, Wieckowski | | |
| | | | |
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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 California State Bar (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 Bar.
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3)Makes eligible an 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 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 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.
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.
3)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.
FISCAL EFFECT : None
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
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
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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 Bar.
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, "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 recognition
that current law is so narrow that it unnecessarily excludes a
large group of potentially 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
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.
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. However,
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state law governing county officers 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, 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 (AG) 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 the AG, 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. 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.
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.
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,
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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
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 subordinate judicial
officers (SJOs), 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.
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
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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."
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0000574