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HomeMy WebLinkAboutFS 2013-09-17 Item 2A - Ordinance - Public Defense StandardsJ�w1�A bV4 City of Tukwila TO: Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM Mayor Haggerton Finance & Safety Committee FROM: Rachel Turpin, Assistant City Attorney DATE: September 10, 2013 SUBJECT: An Ordinance Establishing Public Defense Standards and TMC Chapter 2.70 "Public Defense." ISSUE Whether to approve an ordinance establishing public defense standards and TMC Chapter 2.70, "Public Defense." BACKGROUND RCW 10.101.030 requires all cities that provide public defenses services to establish public defense standards. The statute outlines a number of requirements for these standards. In addition, the statute states that the public defense standards endorsed by the Washington State Bar Association should serve as a guideline to local legislative authorities in adopting standards. The City has not yet adopted public defense standards. There are currently several TMC provisions relating to public defense services. These are codified within TMC Chapter 2.68, "Municipal Court." DISCUSSION This ordinance adopts public defense standards that meet the requirements set forth in RCW 10.101.030. The standards established by this ordinance are in large part modeled after the public defense standards endorsed by the Washington State Bar Association, with minor modifications made to tailor them to Tukwila. Adoption of this ordinance would put Tukwila in compliance with state law. In addition, this ordinance would create a new TMC chapter entitled "Public Defense." This chapter would not only include the new public defense standards; it would also include the provisions relating to public defense services that are currently located in TMC Chapter 2.68, "Municipal Court." As the public defender is not part of the Tukwila Municipal Court, provisions relating to public defense services are better codified in a separate chapter. FINANCIAL IMPACT None. RECOMMENDATION The Council is being asked to approve the ordinance and consider this item at the September 23, 2013 Committee of the Whole meeting and subsequent October 7, 2013 Regular Meeting. ATTACHMENTS Draft Ordinance Establishing Public Defense Standards and TMC Chapter 2.70, "Public Defense." 1 2 RAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NO. 1472, AS CODIFIED AT TUKWILA MUNICIPAL CODE SECTIONS 2.68.430, 2.68.440 AND 2.68.450, REGARDING PUBLIC DEFENSE SERVICES; ESTABLISHING TUKWILA MUNICIPAL CODE CHAPTER 2.70, "PUBLIC DEFENSE," TO INCLUDE PUBLIC DEFENSE STANDARDS FOR INDIGENT SERVICES; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City of Tukwila prosecutes misdemeanor offenses that are committed by adults within the Tukwila city limits, and the misdemeanor offenses are filed into the Tukwila Municipal Court; and WHEREAS, pursuant to the 6th Amendment of the United States Constitution, and Article I, Section 22 of the Washington State Constitution, persons charged with misdemeanors who are deemed indigent are entitled to the effective assistance of counsel at the public expense; and WHEREAS, provisions regarding public defense services are currently codified under Tukwila Municipal Code (TMC) Chapter 2.68, "Municipal Court"; and WHEREAS, the City's public defense services are administrated by the City's executive branch, not the judicial branch, and provisions regarding public defense services should be removed from TMC Chapter 2.68, "Municipal Court"; and WHEREAS, Chapter 10.101 RCW establishes a process for determining indigency, and requires that municipalities adopt standards for the delivery of criminal defense services to the indigent; and WHEREAS, the Washington State Bar Association and Washington State Supreme Court have established guidelines for standards for indigent defense; and WHEREAS, the City currently contracts with several local law firms for the provision of indigent defense services; and W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs Page 1 of 8 3 WHEREAS, the firms that the City currently contracts with dedicate a vast majority of their practices to the defense of indigent misdemeanant defendants, and a majority of each firm's attorneys have extensive experience representing misdemeanant defendants from arraignment through appeal; and WHEREAS, the City prides itself on providing all indigent defendants with the highest quality public defense available at a reasonable cost to the public and wishes to adopt the following standards for the delivery of public defense services; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Tukwila Municipal Code (TMC) Chapter 2.70, "Public Defense," is hereby established to read as follows: Sections: 2.70.010 2.70.020 2.70.030 2.70.040 2.70.050 CHAPTER 2.70 PUBLIC DEFENSE Purpose and Intent Definitions Public Defender Appointment Public Defender — Statement for Services Public Defense Standards Section 2. TMC Section 2.70.010 is hereby established to read as follows: 2.70.010 Purpose and Intent The purpose of this chapter is ensure that indigent criminal defendants receive high - quality legal representation through a public defense system that efficiently and effectively protects the constitutional requirement of effective assistance of counsel. Section 3. TMC Section 2.70.020 is hereby established to read as follows: 2.70.020 Definitions As used in this chapter, the following terms shall have the meanings set forth in this section: 1. "Attorney." The term "attorney" shall mean an attorney under contract with the City of Tukwila for the provision of indigent defense services, and shall also mean the law firm for which the attorney works. Therefore, these standards shall also apply to law firms who are under contract with the City for the provision of indigent defense services. 2. "Defendant." The term "defendant" shall mean a person who has been charged with a misdemeanor offense in the Tukwila Municipal Court, and who is represented by an attorney as the term "attorney" is defined in TMC Section 2.70.020. W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs 4 Page 2 of 8 Section 4. TMC Section 2.70.030 is hereby established to read as follows: 2.70.030 Public Defender Appointment The judge of the Municipal Court of the City is authorized to appoint, on a case -to -case basis as may be required, an attorney licensed to practice before the courts of the State of Washington to act as public defender in representing indigent persons charged with offenses tryable in the Municipal Court and cases appealed therefrom. Section 5. TMC Section 2.70.040 is hereby established to read as follows: 2.70.040 Public Defender — Statement for Services The attorney appointed to act as public defender shall present his statement for services to the City, and the same shall be paid in the same manner as the other obligations of the City. Section 6. TMC Section 2.70.050 is hereby established to read as follows: 2.70.050 Public Defense Standards The following Public Defense Standards are hereby adopted: Standard 1: Compensation. The charges submitted by the public defender and approved by the City Council shall be paid from the current fund. The City's contracts for public defense services should provide for compensation at a rate commensurate with the attorney's training and experience. To attract and retain qualified personnel, compensation and benefit levels should be comparable to those of attorneys and staff in prosecutorial offices in the South King County region. Assigned counsel should be compensated for out -of- pocket expenses. Contracts shall provide for additional compensation for jury trials and appeals. Attorneys who have a conflict of interest shall not have to compensate the new, substituted attorney out of their own funds. Standard 2: Duties and Responsibilities of Counsel. Attorneys shall provide services in a professional and skilled manner consistent with the minimum standards of the Washington State Bar Association, Washington's Rules of Professional Conduct, applicable case law, the Constitutions of the United States and the State of Washington, and the court rules that define the duties of counsel and the rights of defendants. At all times during the representation of a defendant, the attorney's primary responsibility shall be to protect the interests of the defendant. Standard 3: Caseload Limits, Types of Cases, and Limitations on Private Practice. Attorneys shall maintain a caseload such that he or she can provide each and every defendant effective assistance of counsel as guaranteed by these standards. The attorney shall be mindful of the number of open cases for which he or she is counsel of record, the type or complexity of those cases and any W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs Page 3 of 8 5 prospective cases, his or her experience, the manner in which the jurisdiction processes cases, and any private practice in which he or she is engaged. When contracting with an attorney, the City may, if appropriate, limit the number of cases an attorney may handle. Such limitation may be based upon the experience of the attorney, the training the attorney has received, the complexity of the cases being assigned the attorney, defense services the attorney may provide to other municipalities, the scope and extent of the attorney's private practice, justified complaints that may have been made against the attorney, and any other relevant factors. On or before January 1, 2015, the City shall develop and implement a case weighting system as required by Washington State Supreme Court Order No. 25700 -A -1023. Standard 4: Responsibility for Expert Witness Services. The City's contracts for public defense services should provide reasonable compensation for expert witnesses when necessary. Expert witness fees should be maintained and allocated from funds separate from those provided for defender services. Requests for expert witness fees should be made through an ex parte motion. The defense should be free to retain the expert of its choosing and in no cases should be forced to select experts from a list pre- approved by either the court or the prosecution. Standard 5: Administrative Expenses and Support Services. The City's contracts for public defense services should provide for or include administrative costs associated with providing legal representation. These costs should include but are not limited to travel, telephones, law library including electronic legal research, financial accounting, case management systems, computers and software, office space and supplies, training, meeting the reporting requirements imposed by these standards, and other costs necessarily incurred in the day -to -day management of the contract. Public defense attorneys shall have an office that accommodates confidential meetings with clients and receipt of mail, and adequate telephone services to ensure prompt response to client contact. Standard 6: Investigators. Public defense attorneys shall use investigation services as appropriate and shall employ investigators with investigation training and experience. A minimum of one investigator should be employed for every four attorneys. The City's contracts for public defense services shall provide reasonable compensation for investigation services when necessary. Standard 7: Support Services. Public defense attorneys shall have adequate access to support staff and services. At least one full -time legal assistant should be employed for every four attorneys. Fewer legal assistants may be necessary, however, if the agency or attorney has access to word processing staff or other additional staff performing clerical work. Public defenders should have a combination of technology and personnel that will meet their needs. Social work staff should be available to assist in developing release, treatment, and dispositional alternatives. Each agency or attorney should have access to mental health professionals to perform mental health evaluations. Investigation staff should be available as provided in Standard 6 at a ratio of one investigator for every W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs 6 Page 4 of 8 four attorneys. Each agency or attorney providing public defense services should have access to adequate and competent interpreters to facilitate communication with non - English speaking and hearing- impaired clients for attorneys, investigators, social workers, and administrative staff. Standard 8: Reports of Attorney Activity. Attorneys shall maintain a case reporting and case management information system, which includes number and type of cases, attorney hours and disposition. This information shall be provided to the City upon request and shall also be made available to the Office of the Administrator of the Courts. Any such system shall be maintained independently from client files so as to disclose no privileged information. A standardized voucher form should be used by those attorneys seeking payment upon completion of a case. For attorneys under contract, payment should be made monthly, or at times agreed to by the parties, without regard to the number of cases closed in the period. Standard 9: Training. The City's contracts for public defense services shall require that attorneys participate in regular training programs on criminal defense law, including a minimum of seven hours of continuing legal education annually in areas relating to their public defense practice. In offices of more than seven attorneys, an orientation and training program for new attorneys and legal interns should be held to inform them of office procedure and policy. All attorneys should be required to attend regular training programs on developments in criminal law, criminal procedure and the forensic sciences. Attorneys in civil commitment and dependency practices should attend training programs in these areas. Offices should also develop manuals to inform new attorneys of the rules and procedures of the courts within their jurisdiction. Every attorney providing counsel to indigent accused should have the opportunity to attend courses that foster trial advocacy skills and to review professional publications and other media. Standard 10: Supervision. Each firm providing public defense services to the City should provide one full -time supervisor for every ten staff lawyers or one half- time supervisor for every five lawyers. Supervisors should be chosen from among those lawyers in the office qualified under these guidelines to try Class A felonies. Supervisors should serve on a rotating basis, and except when supervising fewer than ten lawyers, should not carry caseloads. Standard 11: Monitoring and Evaluation of Attorneys. Attorneys will establish a procedure for systematic monitoring and evaluation of attorney performance based upon publicized criteria. Supervision and evaluation efforts should include review of time and caseload records, review and inspection of transcripts, in -court observations, and periodic conferences. Performance evaluations made by a supervising attorney should be supplemented by comments from judges, prosecutors, other defense lawyers and clients. Attorneys should be evaluated on their skill and effectiveness as criminal lawyers or as dependency or civil commitment advocates. W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs Page 5of8 7 Standard 12: Substitution of Counsel and Assignment of Contracts. Attorneys should remain directly involved in the provision of representation and shall not sub - contract with another firm or attorney to provide representation without first obtaining the express written permission of the City. If the contract is with a firm or office, the City should request the names and experience levels of those attorneys who will actually be providing the services to ensure they meet minimum qualifications. The employment agreement shall address the procedures for continuing representation of clients upon the conclusion of the agreement. Alternate or conflict counsel shall be available for substitution in conflict situations at no cost to the counsel declaring the conflict. Standard 13: Limitation on Private Practice. Private attorneys who provide public defense representation shall set limits on the amount of privately retained work which can be accepted. These limits shall be based on the percentage of a full -time caseload which the public defense cases represent. Standard 14: Qualifications of Attorneys. Attorneys providing defense services shall meet the following minimum professional qualifications: A. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; and B. Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area; and C. Be familiar with the Washington Rules of Professional Conduct; and D. Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association; and E. Be familiar with the consequences of a conviction or adjudication, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction; and F. Be familiar with mental health issues and be able to identify the need to obtain expert services; and G. Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice. H. Each attorney who is counsel alone for a case on appeal to the Superior Court from the Tukwila Municipal Court should have had significant training or experience in either criminal appeals, criminal motions practice, extensive trial level briefing, clerking for an appellate judge, or assisting a more experienced attorney in preparing and arguing an RALJ (Rules for Appeal of Decisions of Courts of Limited Jurisdiction) appeal. W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs 8 Page 6 of 8 I. Each attorney who is counsel for a case on appeal to the Washington Supreme Court or to the Washington Court of Appeals shall: 1. Have filed a brief with the Washington Supreme Court or any Washington Court of Appeals in at least one criminal case within the past two years; or 2. Have equivalent appellate experience, including filing appellate briefs in other jurisdictions, at least one year as an appellate court or federal court clerk, extensive trial level briefing or other comparable work. Standard 15: Disposition of Client Complaints. Attorneys shall have a method to respond promptly to client complaints. Complaints should first be directed to the attorney, firm or agency that provided representation. If the client feels that he or she has not received an adequate response, they can contact the City Administrator and /or his /her designee to evaluate the legitimacy of complaints and to follow up on meritorious ones. The complaining client should be informed as to the disposition of his or her complaint in writing. Standard 16: Cause for Termination of Defender Services and Removal of Attorney. The City's contracts for indigent defense services shall include the grounds for termination of the contract by the parties. Termination of a contract should only be for good cause. Termination for good cause shall include the failure of the attorney to render adequate representation to clients; the willful disregard of the rights and best interests of the client; and the willful disregard of the standards herein addressed. Removal by the court of counsel from representation normally should not occur over the objection of the attorney and the client. Standard 17: Non - Discrimination. Neither the City, in its selection of an attorney, firm or agency to provide public defense representation, nor the attorneys selected, in their hiring practices or in their representation of clients, shall discriminate on the grounds of race, color, religion, national origin, age, marital status, gender, sexual orientation or disability. Both the City and the contractor shall comply with all federal, state, and local non - discrimination requirements. Standard 18: Guidelines for Awarding Public Defender Contracts. The City shall award contracts for public defense services only after determining that the attorney or firm chosen can meet accepted professional standards. Under no circumstances should a contract be awarded on the basis of cost alone. Attorneys or firms bidding for contracts must demonstrate their ability to meet these standards. Contracts should only be awarded to: 1. Attorneys who have at least one year's criminal trial experience in the jurisdiction covered by the contract (i.e., City and District Courts, Superior Court or Juvenile Court), or 2. A firm where at least one attorney has one year's trial experience. City attorneys, county prosecutors, and law enforcement officers should not select the attorneys who will provide indigent defense services. W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs Page 7 of 8 9 Section 7. Repealer. Ordinance No. 1472 is hereby repealed, thereby eliminating TMC Sections 2.68.430, 2.68.440 and 2.68.450. Section 8. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section /subsection numbering. Section 9. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 10. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2013. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney W: Word Processing \Ordinances \Public defense services 8 -6 -13 RT:bjs 10 Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Page 8 of 8