Comparison of Public Defender Statutes

From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book

This Note compares versions of public defender statutes, written or influenced by Foltz, introduced in New York, California, and other state legislatures.

1885 Statute

In early 1885, California Senator John M. Days, a Republican who represented San Francisco introduced a public defender bill -- perhaps the first one ever. A Professional Defender, S.F. Chron., Feb. 7, 1885, at 3; A Public Defender, Sacramento Union, Feb. 10, 1885; Public Defenders, L.A. Times, Feb.13, 1885 (all describing and approving Days bill). Though Foltz’s name was not in the news stories about the public defender, the supporting rhetoric in these stories sounded like her. In the simplicity of the drafting, the Days bill also seems to bear her mark. Foltz was still an active campaigner for the Republicans at this time.

The most suggestive circumstance possibly connecting Foltz to the bill is that it provided for the defender to represent not only the indigent, but also anyone charged with a felony who asked. The absence of a means test for public defense was the most unusual facet of Foltz’s public defender, as originally conceived. Most of the discussion of the need for a public defender, even by Foltz, was about the plight of poor defendants, and all of the defender offices actually established served only the indigent.

Days and Foltz undoubtedly knew each other because he was a male ally of the suffragists. In February 1885, the month he introduced the public defender bill, Days also supported the women’s unsuccessful effort to amend the community property laws to improve the situation of widows. Practical Deadlock in the Senate, S.F. Chron., Feb. 13, 1885, at 4. It is speculation, of course, but Foltz could have given Days the bill to introduce while she was in Sacramento lobbying for the suffragists. Foltz was in California in January and February when both bills were introduced. In April, while the bill may have been still pending, Foltz gave her "Lawyers" lecture in San Francisco, which, based on the reports of the other content, could well have included the public defender idea. On Lawyers, Mrs. Clara S. Foltz’s Idea of Shyster Practitioners, S.F. Daily Examiner, Apr. 11, 1885, at 2. Despite favorable publicity, the public defender did not pass in the 1885 legislative session.

1897 Statute

Babcock, Inventing at notes 31-42.

As always with Foltz, the legislation is very simply drafted and straightforward. It is a generic statute in the sense of being easily adapted to any state system. Here is the Foltz defender bill as it was introduced in New York in 1897.

An Act to Create the Office of Public Defender, Provide for His Election, Define His Duties, and Fix His Compensation in the Several Counties, and Cities and Counties of New York, printed in Current Topics, 55 ALB. L.J. 65, 66-67 (1897) (Foltz Defender Bill), also published in Public Defenders, 23 CHI.L.NEWS191 (1897). Its sections were as follows:

• Section 1: There shall be elected by the qualified electors of each county or city and county, at the general election to be held in the year 1897, and at the general election every third year thereafter, a public defender, who shall hold office for three years from and including the first day of January next succeeding his election.

• Section 2: Any person duly admitted to practice as an attorney and counselor-at-law in this State, and who has been a resident of the county or city and county for one year, shall be eligible to the office of public defender, and no person not possessing the said qualifications shall be eligible.

• Section 3: The public defender, when authorized by the Board of Supervisors, Board of Aldermen, or other legislative body of any county or city and county in which he is public defender, may appoint one or more assistants. Every assistant public defender shall be an attorney and counselor-at-law in this State, shall be a resident of the county or city and county in which the service is to be performed, and shall take and file the constitutional oath of office before entering upon his duties. When similarly authorized, the public defender may appoint clerks or other employees. Every appointment made by the public defender shall be in writing and filed with the county clerk, and may by him be revoked by a writing similarly filed.

• Section 4: It shall be the duty of the public defender to attend all criminal courts, and to appear for and defend all persons charged with violation of the law who are without counsel and who desire an attorney to appear from them; also, to attend the courts and boards of charities and appear for and in behalf of all persons charged with being insane or lunatic.

• Section 5: The public defender of any county or city and county in which a capital or other important criminal action is to be tried, may, with the approval of a judge or justice of the court in which the action is to be tried, which approval shall be filed with the county clerk, employ counsel to assist him on such trial; and the costs and expenses thereof, duly certified by the judge presiding at the trial, shall be a charge upon the county or city and county in which the indictment was found or information filed.

• Section 6: The Board of Supervisors, Board of Aldermen, or other legislative body of the county or city and county, shall provide suitable rooms for the use of the public defender, and shall fix his salary or compensation and that of his assistants and employees, and the same shall be a charge upon the county or city and county.

• Section 7: Nothing in this act shall be construed to prevent any person from employing special counsel to defend him, or to limit his right therein, and such special counsel may appear and defend him alone, or may join therein with the public defender, at the option and discretion of the defendant.

Clara Foltz’s 1897 statute, which she said was introduced in more than a dozen states, Public Defenders, at 31 Am. L. Review 393, was different from any defender ever actually enacted in two important respects. Anyone charged with a violation of the law could obtain the services of the public defender; at the option of the accused he might have both a public and a privately paid defense counsel. Second, the public defender would have both regular assistants and might also with the approval of the court retain private counsel to aid him in the trial of “a capital or other important criminal action.”

The private counsel sections of the bill (5 and 7) would seem to continue and even enlarge the disparity among defendants that Foltz was trying to ameliorate. Rich and notorious defendants could have better representation (public and private defenders) than even the most deserving poor man charged with an ordinary crime. Foltz did not explain or justify these private counsel provisions in the supporting documents she sent out with her statute, or later.

Maybe she put them in so that the public defender could operate even if a county chose not to fund the official it was forced to elect. He still could do his job by bringing in private counsel to assist him. Or perhaps Foltz thought these sections were necessary analogs to the powers of the prosecutors. They sometimes got help from private lawyers paid for by the complaining witness, or hired special counsel out of public funds in difficult cases. Remember that Foltz’s first big case was as a paid assistant in the prosecution of Wheeler the Woman Slayer. See chapter two.

Fundamentally, however, the hiring of special private counsel was inconsistent with the ideal of public prosecution – an ideal that Foltz lauded in her "Duties of a District Attorney" piece, where she also denounced the hiring of special counsel because it opened the public treasury to “pillage.” Id. at 416. In her World’s Fair speech, Foltz reproved the practice of “hired counsel… joined in the prosecution, counsel in no sense representing the majesty of the State, but rather the malice of a prosecuting witness.” 48 Alb. L.J. 248 (1893).

Maybe Foltz put in the possibility of private counsel to assist the public defender in order to soothe the opposition from the lawyers the public defender might displace. They could hope that defendants who had money would still hire them, or that the public defender would call on them to assist. Perhaps she was thinking that the private lawyer the public defender could hire might be Clara Foltz herself.

Finally, Foltz’s 1897 statute provided that the defender would represent those “charged with being insane” before private charitable boards as well as in court. This provision probably reflected her experience in Von Schmidt versus the Home for the Inebriates, discussed in Chapter Three.

In Public Defenders, 31 AM. L. REVIEW at 393, Foltz wrote that her bill was introduced in more than a dozen states. But she did not say which states (this is a point on which it would have been especially useful to have her papers). In 2003-04 my research assistant Angela Schwartz, then a Stanford Law School student wrote to the State archives and libraries of all states in which we thought that Clara Foltz might have contacts from her lecture tours and suffrage activities. We received many courteous replies, usually to the effect that it was very difficult, time consuming and costly to track old un-passed bills introduced in the legislature.

But we did hit pay-dirt with the introduction of Foltz’s bill in Indiana. While we could not locate the actual bill, a news story in the AUBURN COURIER, Feb. 4, 1897 p. 4 relates that “At the request of the lieutenant governor, Senator Nusbaum introduced a bill providing for the creation of the office of public defender, to stand at the opposite of the public prosecutor. Lieutenant Governor Haggard says that the bill was sent to him by Mrs. Clara Foltz, a New York lawyer, with the request that it be introduced. …On behalf of her bill the author stays that it would prevent the innocent from being railroaded to prison and would prevent unscrupulous lawyers who frequent courts from getting hold of prisoners and fleecing them.”

Probably she followed the same procedure in other states as in Indiana—sending her bill to a leading politician and asking him to see to its introduction in the first session of the legislature in 1897. The quotes in the AUBURN COURIER about the need for public defense are like those attributed to Foltz at the introduction of the New York bill, see Editor’s Note, 55 Alb. L. J. 66, 69 (1897); See also Public Defenders, 29 Chi. Legal News 23, 191 (1897) (describing why the statute is necessary), and were like those in her World’s Fair Speech.

The description of the bill introduced in Indiana is not quite the same as the New York version. One difference is that the Indiana bill would provide only for the defense of persons “too poor to employ counsel.” Also, the public defender would not draw a salary but would be paid by the courts for “the work actually done.” The Indiana bill also mentioned specifically one of Foltz’s World’s Fair speech points, that the defender would have “the same access to police records and documents as is given to the prosecutor”—a provision not included in the New York version of the bill.

The Lieutenant Governor of Indiana to whom Foltz sent the bill was William Haggard, a distinguished politician, who had fought in some of the major battles of the Civil War as a boy of fifteen. Haggard held several elective offices, was a prominent Republican, and was at one time a newspaper publisher. RUSSEL M. SEEDS, HISTORY OF THE REPUBLICAN PARTY OF INDIANA, 142-144 (1899). Foltz may have known him from her father’s Indiana Republican connections, see On-line Bibliographic Note: Family, supra.

The 1912 Los Angeles Charter Provision and the 1921 California Statute

Babcock, Inventing at nn. 43-68.

The enacted defender statutes were like Foltz’s in providing for one year’s experience at the Bar as the only formal qualification for the office. Otherwise these two California defender provisions were very like each other and quite different from Foltz’s 1897 measure. On the Los Angeles public defender statute which came about as part of the Progressive city charter, see R.S. Gray, The Public Defender, 4 J. AM. INST. CRIM. L. & CRIMINOLOGY 650 (1913-14). LOS ANGELES COUNTY CHARTER, § 23, at 20 (2006), available at http://lacounty.info/charter.pdf. The 1921 statute is at Cal. Stat. 1921, ch. 245, § 5, at 354.

Both the enacted statutes assigned the public defender civil responsibilities to represent persons suing for wages (of less than $100), and to defend indigent persons being harassed or persecuted by civil suits. Most important, the public defender actually enacted represented only indigent people rather than everyone who asked. What should we make of the substantial differences between Foltz’s 1897 conception and the statutes actually passed?

Foltz herself did not recognize a distinction. Instead she claimed in many of the biographical entries published in the last part of her life that she not only founded the public defender movement, but “authored” the statutes passed in California. She also said she had “introduced” the Foltz Defender Bill in thirty-two states. See, e.g., Clara Shortridge Foltz, in Historical and Contemporary Review of Bench and Bar in California 109 (The Recorder Mar. 1926) (recording that Foltz “pioneered the movement for the establishment of the office of Public Defender,” authored bills introduced in the “legislature of thirty-two states,” and had public defender included in the Los Angles charter and in state-wide legislation in 1921) at 109. See also, Jennie Allen, The Fight for a Public Defender, 13 W. COAST MAG. 43, 43-44 (1912) (noting the public defender legislation “will be forever known as the ‘Foltz Defender Bill’”).

Which statute she referred to (her 1897 bill or the one enacted in California) and what she meant by “introducing,” is, as noted above, not at all clear. Interestingly enough, a Bill that tracks the California statute was introduced in the Wisconsin Senate in 1907 by Milwaukee Socialist Jacob Rummel. State of Wisconsin, Senate Bill No. 475, introduced Febrary 14, 1907. The introductory sentences of the bill say that it is proposed “in obedience to the mandate of the constitution, section 9, article 1, that justice shall be free.” That provision of the Wisconsin constitution (a form of due process clause) reads: Remedy for wrongs. Section 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.

“Free justice” was one of Clara Foltz’s main slogans in her public defender campaign, but she did not cite state constitutional provisions like Wisconsin’s in support of the idea. California does not have such a free justice clause.