BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 259|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 259
Author: Smyth (R)
Amended: 6/25/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 2-3, 6/21/11 (FAIL)
AYES: Anderson, Liu
NOES: Hancock, Price, Steinberg
NO VOTE RECORDED: Calderon, Harman
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 6/26/12
AYES: Anderson, Harman, Liu, Price
NOES: Hancock, Steinberg
NO VOTE RECORDED: Calderon
SENATE FLOOR : 19-15, 8/9/12 (FAIL)
AYES: Anderson, Berryhill, Blakeslee, Cannella, Dutton,
Emmerson, Fuller, Gaines, Huff, La Malfa, Lieu, Liu,
Lowenthal, Rubio, Runner, Simitian, Strickland, Walters,
Wyland
NOES: Alquist, Corbett, Correa, DeSaulnier, Evans, Kehoe,
Leno, Negrete McLeod, Padilla, Price, Steinberg, Vargas,
Wolk, Wright, Yee
NO VOTE RECORDED: Calderon, De Le�n, Hancock, Harman,
Hernandez, Pavley
ASSEMBLY FLOOR : 56-13, 5/19/11 - See last page for vote
SUBJECT : Los Angeles County Public Defender
SOURCE : Los Angeles County Board of Supervisors
CONTINUED
AB 259
Page
2
DIGEST : This bill sets guidelines to be followed
relative to eligibility and background for appointment to
the Office of the Los Angeles County Public Defender.
ANALYSIS : Existing law 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
(GOV) Section 27700)
Existing law requires the board of supervisors, at the time
of establishing the office, to determine whether the public
defender is to be appointed or elected. (GOV Section
27702)
Existing law provides that if the public defender of any
county is to be appointed, he/she 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.
(GOV Section 27703)
Existing law provides, except as specified, that a person
is not eligible to a county or district office, unless
he/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. Existing law
also 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. (GOV
Section 24001)
Existing law provides that a person is not eligible to the
office of district attorney unless he/she has been admitted
to practice in the Supreme Court of the State. (GOV
Section 24002)
Existing law provides that no person shall be eligible to
CONTINUED
AB 259
Page
3
the office of Attorney General unless he/she has 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. (GOV Section
12503)
Existing law 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/her judicial position and that does not interfere with
the regular performance of his or her judicial duties while
holding office. (California Constitution, Article VI,
Section 17)
Existing Rules of Court (Cal. R. Ct.) provide that in order
to be eligible to serve as lead counsel in a death penalty
case, an attorney must:
1. Be an active member of the State Bar of California;
2. Be an active trial practitioner with at least 10 years'
litigation experience in the field of criminal law;
3. Have prior experience as lead counsel in either:
A. At least 10 serious or violent felony jury trials,
including at least two murder cases, tried to
argument, verdict, or final judgment; or
B. At least five serious or violent felony jury
trials, including at least three murder cases, tried
to argument, verdict, or final judgment;
4. Be familiar with the practices and procedures of the
California criminal courts;
5. Be familiar with and experienced in the use of expert
witnesses and evidence, including psychiatric and
forensic evidence;
6. Have completed within two years before appointment at
CONTINUED
AB 259
Page
4
least 15 hours of capital case defense training approved
for Minimum Continuing Legal Education credit by the
State Bar of California; and
7. Have demonstrated the necessary proficiency, diligence,
and quality of representation appropriate to capital
cases. (Cal. R. Ct. 4.117(d))
Existing Cal. R. Ct. further provide for the minimum
qualifications for co-counsel on a death penalty case and
provides that meeting the minimum qualifications for a
death penalty counsel does not alone make a person
qualified to take such a case. (Cal. R. Ct. 4.117 (b)(e))
Existing Cal. R. Ct. provides that when the court appoints
the Public Defender under Penal Code Section 987.2, the
Public Defender should assign an attorney from that office
or agency as lead counsel who meets the qualifications
described in (d) or assign an attorney that he/she
determines would qualify under (f). If associate counsel
is designated, the Public Defender should assign an
attorney from that office or agency who meets the
qualifications described in (e) or assign an attorney
he/she determines would qualify under (f). (Cal. R. Ct.
4.117(g))
Existing law provides that a person is not eligible to be
appointed to the office of public defender unless he/she
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. (GOV Section 27701)
This bill provides that a person is eligible for the Los
Angeles County Public Defender if the person meets one of
the following criteria:
1. He/she has been a practicing attorney in all of the
courts of the state for at least the year preceding the
date of his/her election or appointment.
2. He/she was a sitting or retired judge and both of the
following apply:
A. He/she was a practicing attorney in all of the
CONTINUED
AB 259
Page
5
courts of the state for at least the year preceding
the date of his/her election or appointment to the
judicial office.
B. On or before the date of his/her election or
appointment to the office of public defender, he/she
resigns his/her judicial office, the current term of
his/her office has expired, and he/she is an active
member of the State Bar.
3. He/she was a judicial commissioner, magistrate, or
referee authorized to perform the duties of a
subordinate judicial officer, and both of the following
apply:
A. He/she was a practicing attorney in all of the
courts of the state for at least one year preceding
the date of his/her election or appointment to
judicial office.
B. On or before the date of his/her election or
appointment to the office of public defender, he/she
resigns his/her judicial office and is an active
member of the State Bar.
4. He/she was an elected public official, and both of the
following apply:
A. He/she was a practicing attorney in all of the
courts of the state for at least one year preceding
the date of his/her election to public office.
B. On or before the date of his/her election or
appointment to the office of public defender, he/she
resigns his/her elected public office, and he/she is
an active member of the State Bar.
This bill specifies that the Legislature finds and declares
that a special law is necessary and that a general law
cannot be made applicable within the meaning of Section 16
of Article IV of the California Constitution because of the
unique size, scope, and complexity of the issues that the
Los Angeles County Public Defender must handle, it is
imperative that the Board of Supervisors have the most
CONTINUED
AB 259
Page
6
expansive, yet highly qualified, applicant pool from which
to choose.
Background
During the recent search to fill the vacancy left by the
retiring public defender in Los Angeles County, the Board
of Supervisors became aware of the fact that a sitting
judge could not apply for that position. While a suitable
candidate was found from within the office, the Board of
Supervisors agreed that in the future they would like the
option of exploring a wider range of candidates.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/27/12)
Los Angeles County Board of Supervisors (source)
Former Attorney General John Van de Kamp
Law Office of Felipe Plascencia
OPPOSITION : (Verified 6/27/12)
Alameda County Public Defender
Alameda County Public Defenders Association
Atlantic Center for Capital Representation
California Attorneys for Criminal Justice
California Public Defenders Association
Crime Victims Action Alliance
Fresno County Public Defender's Office
Gay and Lesbian Employee Association of the Los Angeles
County Public Defender's Office
Latino Public Defenders Association of the Los Angeles
County Public Defenders
Los Angeles County Black Public Defenders' Association
Office of the Marin County Public Defender
Office of the Sacramento County Public Defender
Office of the Public Defender of San Bernardino County
Public Defender of San Francisco
Public Defenders Chapter of Local 21 IFPTE
Solano County Public Defender
Yolo County Public Defender's Office
CONTINUED
AB 259
Page
7
ARGUMENTS IN SUPPORT : According to the author:
Existing law, which had its origins in 1913, requires a
county public defender to be a practicing attorney for
at least one year preceding the date of his or her
election or appointment. This precludes judges or other
qualified judicial officers with prior experience from
being considered as Public Defender.
The needs of the Office of the Public Defender have
changed since its inception in 1913. When the post of
Public Defender was codified in 1921 by Government Code
Section 27701, the Public Defender was the person who
walked into court and represented defendants. Today,
many Public Defenders serve in primarily an
administrative capacity. For example, the Los Angeles
County Public Defender oversees over 1,000 employees and
an office that represents over 300,000 individuals
annually. Existing law does not provide county boards
of supervisors with the necessary flexibility to
consider the full range of qualified candidates.
AB 259 would expand Government Code Section 27701 to
provide that a person is eligible for appointment to the
Office of Public Defender if he or she is a sitting or
retired judge, is a judicial commissioner, magistrate or
referee, or elected official meeting two specific
requirements: (1) he or she was a practicing attorney
for at least the year preceding the date of his or her
election or appointment to judicial office; and (2) on
or before the date of his or her election or appointment
to the Office of Public Defender, the person resigns
from judicial or elective office, and is an active
member of the State Bar.
AB 259 will allow otherwise qualified judicial officers
with prior experience as practicing attorneys to be
considered for the position of Public Defender.
According to the Los Angeles County Board of Supervisors,
"The needs of the Office of the Public Defender have
changed since its inception in 1913 �when existing law was
enacted]. The Los Angeles County Board of Supervisors
established the position of Public Defender in response to
CONTINUED
AB 259
Page
8
the fact that many indigent defendants did not have
adequate access to qualified legal counsel. When the post
of Public Defender was codified in 1921 by Government Code
Section 27701, the Public Defender was the person who
walked into court and represented defendants. Today, the
Los Angeles County Public Defender oversees over 1,000
employees and an office that represents over 300,000
individuals annually."
Former Attorney General John Van de Kamp also supports this
bill stating:
The existing limitations unduly narrows those eligible,
eliminating many with many years of both attorney and
judicial experience-i.e., judges.
I spoke to this issue in August 2010 when the L.A.
County Board of Supervisors were looking at candidates
for the open office of Public Defender. One of the
potential candidates was Judge Espinoza who has been the
presiding judge of the criminal side of the L.A.
Superior Court. He had been on the bench for many
years, following a career as a practicing attorney. I
did not support his appointment-since I had not had the
opportunity to review the other candidates-but certainly
based on his history he should have been considered.
But he was barred from consideration because the
existing law requires one to be a practicing attorney
for at least a year preceding the date of his election
or appointment. And it similarly affects recently
retired attorneys.
�This bill] corrects that.
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association opposes this bill noting:
In Los Angeles County, as with all county public
defender offices, the chief defender must be familiar
with criminal law, both substantive and procedural,
rules of evidence, and a host of other technical areas
as the chief public defender is, legally, the attorney
of record for every client his or her office represents.
CONTINUED
AB 259
Page
9
Additionally, in Los Angeles County, as with all county
public defender offices, entry level deputy public
defenders are not assigned cases for which more senior
public defenders are more adequately qualified, and
every chief public defender has at minimum had several
years of practice in criminal defense immediately prior
to being appointed or elected chief public defender.
These practical consistencies are necessary to ensure
that the indigent defendants we are tasked with
representing are provided the zealous advocacy required
by the Constitution.
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.
A number of opponents raise concerns about the potential
conflicts that will arise in the office when a sitting
judge is appointed public defender. Specifically, the
Crime Victims Action Alliance states, "�A]ppointing a
judicial officer who handled and/or supervised active
criminal cases with cause the public defender's office to
have to declare a 'conflict' for any matter in which the
judicial officer played any role no matter how minor or
seemingly insignificant. Because a 'conflict' can be
declared or found at any point during a criminal
proceeding, there would be the potential for hundreds of
cases being delayed so that alternate counsel for a
defendant can be appointed. In a complex case such as a
CONTINUED
AB 259
Page
10
first degree murder case or a complex fraud case this type
of delay could case the postponement of a criminal case for
many months' even years. Just like a defendant, a crime
victim has a right to have their case proceed in a speedy
manner. Having to delay justice because of the appointment
of a judicial officer as a chief public defender is an
unnecessary delay. It has been said many times, and it is
true, that justice delayed is justice denied."
Many of the opposition note their concern regarding the
independence and perceived integrity of the public
defender. The Office of the Sacramento County Public
Defender states, "The American Bar Association and the
California Bar Association have listed 'Independence' of
counsel as the first principle of a Public Defense Delivery
System. If AB 259 passes, the potential for political
interference in the selection process, and the risk that
the public defender position could be awarded as patronage
to a sitting judge or retiring public official will
undermine the effectiveness of a public defender. How will
indigent defendants and the public perceive the office when
the selection of the public defender is viewed as
questionable? Public defenders often have a hard enough
time establishing trust with clients who cannot afford to
hire a 'real lawyer.' Will the public's respect for
indigent defense be enhanced if they see the office head as
a position that keeps term-limited politicians on the
public payroll?"
Further, the Los Angeles County Black Public Defenders'
Association states:
Our client base is comprised of the lowest rung of the
socio-economic ladder. Far too often, they are among
the most severely disenfranchised and come to the system
in an often well-deserved mistrust of the government and
authority. Although we as public defenders work
diligently to assure our clients that their interests
are always primary, they often view our office as part
of a system that is designed to destroy them. WE deal
with regular accusation s of being on the "same side" as
the District Attorney, as well as the court system.
What better way to confirm their suspicions than to, for
example, allow a previously sitting judge to then become
CONTINUED
AB 259
Page
11
head of the very office that seeks to protect their
rights? A sitting judge, who at some point may have
sentenced this person? It smacks of hypocrisy.
It is a tremendous mistake to underestimate the
significance of the public defender clients' ability to
confide in and trust our office. It is a tremendous
mistake to underestimate the significance of the Public
Defenders' ability to lead a group of lawyers in the
charge to represent the downtrodden and outcast. The
Public Defender position personifies the standard each
deputy hopes to achieve as independent, unbiased, and
staunch protectors of our client's rights.
We believe that it is a profound mistake to allow a
sitting judge to be appointed as the Public Defender
without a SUBSTANTIAL "cooling off" period. This
minimal time period of one year as provided for by the
current statute serves to mitigate the embroilment of a
bench officer in the daily affairs of our clients and
our attorneys.
ASSEMBLY FLOOR : 56-13, 5/19/11
AYES: Achadjian, Allen, Bill Berryhill, Blumenfield,
Bonilla, Bradford, Buchanan, Charles Calderon, Campos,
Cedillo, Chesbro, Conway, Cook, Dickinson, Donnelly,
Feuer, Fletcher, Furutani, Beth Gaines, Galgiani,
Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall,
Harkey, Roger Hern�ndez, Hill, Huber, Hueso, Huffman,
Jeffries, Jones, Knight, Logue, Ma, Mansoor, Mendoza,
Miller, Monning, Morrell, Nestande, Nielsen, Norby,
Olsen, Pan, Portantino, Silva, Smyth, Solorio, Valadao,
Wagner, Williams, John A. P�rez
NOES: Ammiano, Atkins, Beall, Fuentes, Hayashi, Lara,
Mitchell, Perea, V. Manuel P�rez, Skinner, Swanson,
Wieckowski, Yamada
NO VOTE RECORDED: Alejo, Block, Brownley, Butler, Carter,
Davis, Eng, Fong, Gorell, Bonnie Lowenthal, Torres
RJG:k 8/21/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
CONTINUED
AB 259
Page
12
**** END ****
CONTINUED