There’s a requirement to be Humboldt County, California, Public Defender. It’s not a particularly hard requirement to meet, but apparently David Marcus, the current office holder, may have a problem.
Local attorney Patrik Griego refiled his lawsuit last week, alleging that Humboldt County Public Defender David Marcus fails to meet minimum state qualifications for his post. And this time, Griego is using Marcus’ own words against him in arguing that he is unqualified to represent the county’s indigent defendants as the chief public defender.
What is this onerous burden? Wait for it…
The heart of the suit rests on a section of the California Government Code that requires a public defender to have been “a practicing attorney in all the courts of the state for at least the year preceding the date of his election or appointment.”
A “practicing attorney” doesn’t seem to be too much of a hill to climb for most people, but Marcus has issues.
Marcus, who served as Lassen County’s chief public defender from 2005 to 2011, was working primarily as an insurance claims adjuster in Florida in February, when he was hired by the Humboldt County Board of Supervisors. The county is arguing that the state statute simply requires an attorney be licensed to practice law in California courts and that, because he kept his bar license active and was doing some remote contract work in Florida, Marcus meets the threshold.
Griego, on the other hand, argues that the statute requires an attorney to have actually been practicing law inside California courts and, in the amended complaint, raises questions about whether Marcus was even practicing law during the year preceding his appointment.
There is no doubt that Marcus was duly licensed to practice law, but was that enough to make him a “practicing attorney”? Why he spent the years in Florida as an insurance claims adjuster isn’t said, and why the Humboldt County Board of Supervisors chose a lawyer working as a claims adjuster in Florida to serve as Public Defender raises a great many questions.
But does Marcus meet the statutory requirement?
On his resume submitted to the county, Marcus represented that he’d been working as a contract attorney specializing in transactional real estate and property loss consulting since 2012 with the firm Cella, Lange and Cella, in which Marcus’ close personal friend is a partner. But Marcus claimed to have only spent about 10 hours a week working for the firm and reported receiving no monthly salary.
When pressed for details, such as anything in writing supporting his claims, Marcus came up empty.
“Did you keep track of your time for the work you did for the Cella law firm for the year prior to being appointed public defender?” Griego asked.
“Nothing in writing,” Marcus answered.
“Well, when you say nothing in writing, of course my follow-up question is how, if at all, did you keep track of the amount of time that you spent working for the Cella law firm?”
“Just mental notes.”
Was he a practicing attorney? What does practicing mean, that you are licensed to practice or that you actually, you know, do lawyer stuff. This question will almost never arise, since who would be crazy enough to appoint someone Public Defender who wasn’t actively engaged in the practice of law, or more to the point, criminal defense. Apparently, the Humboldt County Board of Supervisors. That’s who.
H/T Jim Tyre
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https://youtu.be/6TwD3A28HmI
You really have to hold onto these “gems” I mean really the monologue alone….?
So the county supervisors hire the public defenders in CA. Do you think that might contribute to their high incarceration rate?
But at least they’re tolerant and love humanity while doing so.
John’s question is ambiguous. A fairly large number of county supervisors have been incarcerated.
Not enough.
Practice? We talkin’ ’bout practice?”
“In all the courts of the state” seems to me to encompass more than mere licensure, probably intended to mean actual practice at both trial and appellate levels.
A rather Talmudic interpretation that would exclude a great many “practicing” lawyers.
B.,
California has 58 separate counties, each with its own court system Lots of different courts within each county system. 6 separate appellate court districts, plus the California Supreme Court. (Unlike New York, we know how to name our courts, the Supreme Court is the highest state court.) I’m closing in on 40 years as a CA litigator. I haven’t practiced in the great majority of those courts, and I don’t know anyone who has. If your interpretation is correct, I doubt that there’s ever been a PD in any county who qualifies.
I caught that dig to New York’s lowest court, the Supreme Court. But it makes the justices feel important, and isn’t that worth it?
It’s all about the feelz.
Perhaps you misunderstood my interpretation. My state is similarly fragmented, but the multiple district courts (all at the same level) are one institution in the sense that most general jurisdiction cases can be filed in any one of them (whether it stays there being a question of venue, not jurisdiction). Similarly, our intermediate appellate court has many panels, hearing cases in many locations, but all those cases are deemed to be in our Court of Appeals. So, it seemed to me the statutory language was designed to require practice in the trial courts, the intermediate appellate courts and the state high court (not every district and division, which would be unlikely, as you say). I don’t think a requirement to have been actively practicing at all levels would be at all unreasonable, given the stakes at issue for the clients and the fact that they can’t themselves be choosers.
For the sake of argument, let’s assume that your interpretation is correct, and let’s focus on the California Supreme Court. There are only two types of cases that CSC must hear. The first, which makes a lot of sense, is cases in which a judgment of death has been imposed by the trial court. The second, which makes much less sense, is appeals from decisions of the Public Utilities Commission. In all other cases, whether the CSC grants review is as discretionary as whether SCOTUS grants cert.
I haven’t seen recent statistics, but historically, CSC grants review in a good less than 10% of the cases in which review is sought. And, not entirely unlike SCOTUS, CSC has something of a specialty bar. Other things being equal, they’re more likely to have cases heard by CSC, simply because their work is familiar to CSC. (Whether that’s a good thing is way out of scope for this comment.)
The chances that any lawyer, including a County PD, has actually practiced in the CSC are pretty small. (One of my cousins, who’s about my vintage, has always been a private practice CDL, and has tried many dozens of death cases. But he’s never practiced in CSC. As with many trial lawyers, he hands off appeals to appellate specialists.)
So even if your interpretation is correct,, I would venture to say that most PDs haven’t actually practiced in the CSC.
Has there always been funding to pass off death cases to “appellate specialists”? And, how old is the PD qualification statute?
In an article elsewhere this morning, I saw that the statute is said to date from 1921, and the initial intent (probably then practical) was to require criminal practice at multiple levels in the system. So, as practice (and probably the court structure itself) has changed in the almost 100 years since, the statute simply hasn’t been modified to account for that.
That makes a good deal of sense, thanks. Even I’m not old enough to have been practicing in 1921. But specialists, if they existed at all, were the exception to the rule.