The revision date of this draft is 01/11/04

INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS

PREAMBLE:

The Citizens of the County of Santa Clara find and declare that:

(5) This is an initiative to define the duties and qualifications of the Public Defender of Santa Clara County, California and to provide for the direct election thereof.

Actual Language of the Draft Initiative Petition:

To the Honorable Board of Supervisors of Santa Clara County:

We, the undersigned, registered, qualified voters of California, residents of Santa Clara County, hereby propose the following amendments to the County Charter of Santa Clara County and petition the Board of Supervisors to submit the same to the voters of Santa Clara County, California for their adoption or rejection at the next succeeding statewide general election or at an election otherwise provided by law. The proposed Charter amendments read as follows:

Text of Proposed Amendments:

I.

The County Charter Shall be amended to provide as follows:

To amend Article III, Section 301. (c), to delete "Public Defender."
The Board of Supervisors shall:
(c) Appoint, suspend, or remove subject to the provisions of this charter the County Executive, County Counsel, Public Defender, Clerk of the Board of Supervisors, Chief of Correction, and members of boards and commissions.

To amend Article V, Section 501., to read as follows:

The Assessor, District Attorney, Public Defender and Sheriff are elected. The election for the Assessor, District Attorney, and Sheriff shall be held at the times and in the manner and for the term that supervisors are elected for the First and Fourth Districts in accordance with Section 202 of this Charter.

The Public Defender shall be a resident of the County of Santa Clara, and shall have resided in the County of Santa Clara for 5 continuous years prior to appointment or nomination for election, be an active member of the state Bar of California and have practiced law for a minimum of 10 years. The election for the Public Defender shall be held at the times and in the manner and for the term that supervisors are elected for the Second, Third and Fifth Districts in accordance with Section 202 of this charter. The term of the Public Defender commences at noon of the second Monday in January following election, and the term of office shall be four years. No person elected or appointed Public Defender shall serve more than two four-year terms. Any person appointed to the office of Public Defender to complete any part of a four-year term shall be deemed, for the purpose of this section, to have served one full term upon expiration of that term. Any person who shall resign, or be disqualified from holding office as mentioned herein, shall be deemed for purposes of this section to have completed two full four-year terms. Compensation for the Public Defender shall be set and determined as is fixed by law for the position of District Attorney of the County of Santa Clara

Whenever a vacancy occurs in such offices, the vacancy shall be filled by appointment of a voter of the county by the Board of Supervisors. The appointee shall hold office until the election and qualification of the successor, at the times and in the manner specified in the second paragraph of Section 203 of this Charter

Any person holding the office of Public Defender on the effective date of these amendments, shall continue in office pursuant to the provisions of this Charter until a Public Defender has been elected and sworn into office under the terms of Article V, Section 501 as hereby amended. Should a vacancy occur in the office of Public Defender prior to the first elected Public Defender being sworn into office, the Board of Supervisors shall fill the vacancy as currently provided for filling a vacancy in the office of Assessor, District Attorney and Sheriff. Any person so appointed shall be deemed to have completed two full four year terms.

Campaign contributions effect the integrity and independence of elected officials. Contributions also effect the ability of each candidate to communicate with the electors of this county. Complete disclosure of campaign contributions and contributors is essential to an informed electorate.

The County of Santa Clara shall publish to the voters of Santa Clara County in a timely manner and prior to the election of the Public Defender a campaign statement beyond the 200 word ballot statement. The statement shall consist of no less than two pages for each candidate, or its technological equivalent, and shall include camera-ready campaign material, or its technological equivalent. The cost to each candidate shall be the same cost as the filing fee, and participation in this mailing shall be voluntary.

Each candidate for Public Defender shall maintain an internet web page or its technological equivalent in which detailed contribution and contributor financial information is posted, readily available to the electors, and current on a daily basis commencing two months prior to the election.  Direct address or location of this contribution information for each candidate shall be published in a general financial appendix to the campaign statement mailing.  Each candidate for Public Defender shall furnish this address to the Registrar of Voters at the same time as the ballot statement is submitted.  No candidate for Public Defender shall accept any contributions which can cause or have the potential for causing a conflict of interest in the performance of the duties mandated herein.  Receipt of any such contributions shall cause the removal of the Public Defender from office.

TO ADD:

Article V, Section 510. The Public Defender shall be the executive officer of the Office of the Public Defender, and shall perform the duties prescribed by the laws of the State of California and County of Santa Clara. The provisions of Article I, Section 103 shall apply to the position of Public Defender. The Public Defender shall work with Federal, State, County, City and private agencies to accomplish rehabilitative objectives, local criminal bar competency, equity within the criminal justice system, increased community involvement in the prevention of criminal activity through educational programs and preventative legal counseling services in the County of Santa Clara.  The Public Defender shall provide legal advice or representation to any resident of Santa Clara county requesting such assistance when such resident is a defendant in an action brought by any state, county or city agency, or by the United States when Constitutional freedoms are at issue, within the jurisdiction of Santa Clara County, California. Such legal assistance shall be subject to the client's ability to subsequently pay.  This representation shall apply to natural persons only. The Public Defender shall fully perform the duties required by Government Code Section 27706.  The Public Defender shall review each case upon conclusion to insure that the client enjoyed due process of law.  The Public Defender shall speak out vigorously on behalf of Constitutional rights and shall undertake extraordinary activities to educate concerning the law, constitutional rights, and constitutional freedoms. Subject to the provisions of law, labor agreements with the County of Santa Clara, and the California State Bar Rules of Professional Responsibility, the Public Defender shall have the power to appoint, suspend or remove all deputies, clerks, and other employees necessary to conduct the work of the Office of the Public Defender.  Not withstanding any other provision of law, all assistant public defenders shall serve at the pleasure of the Public Defender.  Not withstanding any other provision of law, all employees of the office of the public defender shall be paid in keeping with the prevailing wages paid within the county of Santa Clara for similar work  

The first election for the position of Public Defender shall occur at the next general election of county officials after enactment of this initiative into law, as provided for in Article II, Section 202.

TO ADD:

Article VI, Section 602 (c). The Board of Supervisors shall retain a personnel and time management firm to make a detailed audit, analysis and evaluation of the Public Defender's Office. This firm shall make recommendations designed to improve and optimize, on a cost effective basis, the operation, performance, morale, division of duties, and structure of the Public Defender's Office. The firm shall also establish a time table and plan for the conversion of the Office of the Public Defender to time accounting programs currently used by the private practice of law firms of similar size.

Unless a conflict of interest prevents the Office of the Public Defender from doing so, the Public Defender shall be able to contract with other persons and entities to insure that the services mandated by this measure are competently provided and duties effectively performed.

In all cases in which the Public Defender represents a prevailing party in an action, and attorney fees are recoverable against the opposing party, the Public Defender shall seek the sums allowed and have these sums payable to and deposited to the County of Santa Clara in a fund so designated. 

The Public Defender shall defend and advocate for the honor and integrity of juries and the right to trial by jury.   The Public Defender shall undertake extraordinary activities on a continuing basis to fully inform citizens of the historical significance of juries as well as of their importance and inherent rights as jurors and their duties and rights as citizens. The Public Defender shall, upon request, provide legal counsel and representation without cost to any juror in any matter related to the juror’s service.

In matters in which the Public Defender has provided representation, and a  verdict in favor of the Public Defender client is rendered, and unless prohibited by other provisions of the law, the Public Defender shall request in appropriate cases a special verdict in which the jury is asked to vote YES or NO on the question of a factual finding of innocence, or on the question as to whether the client is the prevailing party if the matter is a non-criminal matter. If other provisions of law prevent the jury from making such a factual finding, then the Public Defender shall ask the trial judge to make the finding. Should the answer to the question of a factual finding of innocence or prevailing party be YES,  the Public Defender shall then seek to recover against the budget of the prosecuting agency the cost of representation and all costs and financial losses suffered by the Public Defender client as a result of the prosecution, as provided for herein.  In all cases where a factual finding of innocence or prevailing party has been made, the Public Defender shall request the trial judge consider this fact if fees are ordered against the defendant.   The Public Defender shall report in the annual Report herein required on judicial and governmental compliance with this provision.

The Public Defender shall have the authority to bring an action against any governmental or corporate entity, and their officers and agents, or on behalf of a client, when such an action is expected to result in the enforcement of an important right affecting the public interest or involving common interests of significant societal importance.  The Public Defender shall advocate on behalf of natural persons over that of fictitious entities.  

The recommendations of the audit firm shall keep in mind the legal mandates of the Public's Defender's Office and the duties imposed by this initiative, including the time accounting procedures and the recovery of attorney's fees. There shall be an audit performed on the Office of the Public Defender at least once every four years, with the results of said audit made available to the electors of the County of Santa Clara within 30 days of the completion of the audit. The Public Defender shall fully cooperate with all audits and evaluations of the Office of the Public Defender. The first audit, analysis, evaluation and recommendation shall be completed and published no later than 180 days prior to the date set for the first election of the Public Defender in paragraph 2 of Article V, Section 510. The Public Defender shall publish and release to the electors of Santa Clara County an annual "State of the County Criminal Justice Report" for the preceding calendar year. The Public Defender shall publish this Report no later than March 1 each year. Failure by the Public Defender to publish the annual Report shall result in the suspension of pay for the Public Defender, by the Board of Supervisors of Santa Clara County, until such time as the Report is published.  This report for the preceding year shall not be required when a duly elected Public Defender takes office for the first time in January of the year that the report is due.

The County of Santa Clara shall provide to the Public Defender the support necessary to accomplish, maintain, and fulfill the responsibilities, duties and provisions of this measure.

II.

If any portion of this initiative or the application thereof to any person or circumstance is found to be unlawful or invalid, the remaining sections shall be given full force and effect, and the remainder of this initiative and the application of that or those provision(s) to other persons or circumstances shall not be affected thereby.