ASSEMBLY, No. 2720
STATE OF NEW JERSEY
INTRODUCED FEBRUARY 3, 1997
By Assemblymen RUSSO and CARABALLO
An Act concerning the appointment and funding of municipal public defenders, 1[amending N.J.S.22A:3-4,]1 supplementing Title 2B of the New Jersey Statutes and repealing N.J.S.2B:12-28.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Legislature finds and declares:
a. Municipal public defenders are a critical component of New Jersey's system for the administration of justice and the effective, fair and equal representation of the poor.
b. As the New Jersey Supreme Court stated in Rodriguez v. Rosenblatt, 58 N.J.281 (1971), "as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other 3[consequences] consequence3 of magnitude without first having had due and fair opportunity to have counsel assigned without cost."
c. The appointment of municipal public defenders increases the efficiency and effectiveness of the system and the professionalism of the municipal courts.
d. Not all municipalities employ municipal public defenders, and in order to ensure the uniform and proper administration of justice, it is essential to require the appointment of municipal public defenders by each municipal government in the State.
2. (New section) As used in this act:
"Indigent defendant" means a person who is entitled to be represented by a municipal public defender pursuant to this act, and does not have the present financial ability to secure competent legal representation, as determined by section 9 of this act.
1["Intermunicipal court" means a municipal court established by two or more municipalities in accordance with statutes authorizing municipalities to combine for the purposes of establishing a single court with jurisdiction over the territory of the participating municipalities.]1
"Municipal court" means a municipal 1, central1 or 1[intermunicipal] joint municipal1 court established pursuant to 1[statute] N.J.S.2B:12-11.
"Municipal public defender" means a person, as defined in section 4 of this act, appointed to represent indigent defendants in proceedings over which the municipal court has jurisdiction.
1["Municipal Public Defender Fund" means the fund established pursuant to section 18 of this act.]1
3. (New section) Each municipal court in this State shall have at least one municipal public defender appointed by the governing body of the municipality in accordance with applicable laws, ordinances and resolutions. Any municipal court with two or more municipal public defenders shall have a "chief municipal public defender" who shall be appointed by the governing body of the municipality. The chief municipal public defender of 1[ an intermunicipal] a joint municipal1 court shall be appointed upon the concurrence of the governing bodies of each municipality. The chief municipal public defender shall have authority over other municipal public defenders serving that court with respect to the performance of their duties.
4. (New section) a. A municipal public defender shall be an attorney-at-law of this State in good standing, and shall serve for a term of 2[three years] one year2 from the date of his appointment, and may continue to serve in office pending re-appointment or appointment of a successor. A municipal public defender may be appointed to that position in one or more municipal courts. The provisions of this act shall apply to each such position held. A municipal public defender need not reside in the municipality where he acts as a municipal public defender.
b. A municipal public defender of 1[an intermunicipal] a joint municipal1 court shall be appointed upon the concurrence of the governing bodies of each of the municipalities in accordance with applicable laws, ordinances or resolutions.
c. In accordance with applicable laws, ordinances and resolutions, a municipality may appoint additional municipal public defenders as necessary to administer justice in a timely and effective manner in its municipal court. Additional appointments shall be subject to the provisions of this act, including appointments in 1[an intermunicipal] a joint municipal1 court.
d. Appointments to fill vacancies in the position of municipal public defender shall be made in accordance with the provisions of this act as soon as practicable.
e. In addition to any other means provided by law for the removal from office of a public official, a municipal public defender may be removed by the governing body of a municipality for good cause shown and after a public hearing, and upon due notice and an opportunity to be heard. 2Failure to reappoint a municipal public defender for a second or subsequent term does not constitute a “removal from office” within the meaning of this subsection.2
f. The municipal public defenders may represent private clients in any municipality, including the municipality where they act as a municipal public defender, subject to the 1[Attorney Rules of Professional Conduct] Rules of Court Governing the Conduct of Lawyers, Judges and Court Personnel1.
5. (New section) A municipal public defender shall 2[be paid annual] receive2 compensation 2[to be fixed and paid by] , either on an hourly, per diem, annual or other basis as2 the municipality 2[served] may provide2. In the case of 1[an intermunicipal] a joint municipal1 court, participating municipalities, by similar ordinances, shall enter into an agreement fixing the compensation of the municipal public defender and providing for payment. The compensation of a municipal public defender for services rendered pursuant to the provisions of this act shall be in lieu of any and all other compensation by the municipality. The ordinance, resolution or agreement setting compensation shall set forth any additional compensation to be paid for interlocutory appeals in the Superior Court.
6. (New section) a. It shall be the duty of the municipal public defender to represent, except in the case of temporary unavailability or conflict of interest, any defendant charged with an offense in municipal court who is an indigent municipal defendant entitled to representation pursuant to this act. All necessary services and facilities of representation 2[, including both expert and lay investigation and testimony as well as other preparations,]2 3, including both expert and lay investigation and testimony as well as other preparations,3 shall be provided in every case. 2[The municipality shall be responsible for payment for services pursuant to this section.]2 3The municipality shall be responsible for payment for services pursuant to this section.3 The factors of need and real value to a defendant may be weighed against the financial constraints of the municipality in determining the necessary services and facilities of representation. 2[The final determination as to necessity for services required pursuant to this section shall be made by the court.]2 3The final determination as to necessity for services required pursuant to this section shall be made by the court.3
b. A municipal public defender shall be responsible for handling all phases of the defense, including but not limited to discovery, pretrial and post-trial hearings, motions, removals to federal district court and other collateral functions reasonably related to the defense. As used in this subsection, "post-trial hearing" shall not include de novo appeals in Superior Court.
3c. Nothing in this section shall be deemed to require a municipality to pay for expert and lay investigation or testimony for a period of one year after the effective date of P.L. , c. (C. ) (now pending before the Legislature as this bill).3
7. (New section) a. 3[The municipal public defender shall represent an indigent defendant charged in municipal court with a disorderly persons or petty disorderly persons offense or with a crime as specified in N.J.S.2B:12-18 or with the violation of any statute , ordinance or regulation 1[of a penal nature]1 2of a penal nature2 where 2,in the opinion of the municipal court,2 there is a 1[likelihood that the person, if convicted, will be subject to imprisonment or, in the opinion of the municipal court, any other]1 2[consequence of magnitude as set forth in law] likelihood that the person, if convicted, will be subject to imprisonment.2]3
3The municipal public defender shall represent an indigent defendant charged in municipal court with a crime as specified in N.J.S.2B:12-18 or, if in the opinion of the municipal court there is a likelihood that the defendant, if convicted, of any other offense will be subject to imprisonment or other consequence of magnitude, the municipal public defender shall represent an indigent defendant.3
b. If there is a vacancy in the office of municipal public defender, if the municipal public defender is temporarily unavailable or if a finding of conflict of interest precludes the municipal public defender from representing an indigent defendant, the municipal prosecutor may prosecute the offense if the municipal court 1[engages] appoints1 a qualified attorney to represent the indigent defendant. Unless rates are otherwise established by the municipality, the attorney shall be entitled to compensation at the same rate as attorneys hired by the Office of the Public Defender in conflict cases, with payment to be made within 30 days. 1[No attorney shall be appointed to represent an indigent defendant without the attorney's prior consent.]1 Once 1[engaged] appointed1, the attorney shall carry out all duties of the municipal public defender in connection with the case that is the subject of the appointment.
8. (New section) All communications between the indigent defendant and the municipal public defender or any other attorney 1[engaged] appointed1 to act as a municipal public defender shall be fully protected by the attorney-client privilege to the same extent and degree as though counsel has been privately engaged. This shall not preclude the use by the municipal public defender of privileged material for the preparation and disclosure of statistical, case study and other sociological data, provided that in any such use there shall be no disclosure of the identity of or means for discovery of the identity of particular defendants.
9. (New section) Eligibility for services of the municipal public defender shall be determined by the municipal court on the basis of the need of the defendant, except as provided in section 11 of this act. Need shall be measured according to section 14 of P.L.1967, c.43 (C.2A:158A-14) 1and guidelines promulgated by the New Jersey Supreme Court1.
In the event that a determination of eligibility cannot be made before the time when the first services are to be rendered, or if an initial determination is found to be erroneous, the municipal court shall refer the defendant to the municipal public defender provisionally, and if subsequently it is determined that the defendant is ineligible the municipal court shall inform the defendant, and the defendant shall be obliged to engage his own counsel and to reimburse the municipality for the cost of the services rendered to that time.
10. (New section) The municipal court shall make an investigation of the financial status of each defendant seeking representation pursuant to this act and shall have the authority to require a defendant to execute and deliver written requests or authorizations required under applicable law to provide the court with access to records of public or private sources, otherwise confidential, as may be of aid in evaluating eligibility. The court is authorized to obtain information from any public record office of the State or of any subdivision or agency thereof on request and without payment of the fees ordinarily required by law.
11. (New section) Whenever a person entitled to representation by a municipal public defender pursuant to this act, is under the age of 18 years, the eligibility for services shall be determined on the basis of the financial circumstances of the individual and the financial circumstances of the individual's parents or legal guardians. The municipality shall be entitled to recover the cost of legal services from the parents or legal guardians as provided in section 16 of this act and the municipal court shall have authority to require parents or legal guardians to execute and deliver the written requests or authorization required under applicable law in order to provide the court with access to records of public or private sources, otherwise confidential, as may be of aid to it in evaluating eligibility.
12. (New section) If the defendant has or reasonably expects to have means to meet some part, though not all, of the cost of the services rendered, the defendant shall be required to reimburse the municipality, either by a single payment or in installments in such amounts as he can reasonably be expected to pay; but no default or failure in making payment shall affect or reduce the rendering of services.
13. (New section) a. A municipality shall have a lien on any property to which the defendant shall have or acquire an interest for an amount equal to the reasonable value of the services rendered to a defendant pursuant to this act as calculated at the same rate as the Office of the Public Defender bills clients at that time.
b. To effectuate such a lien for the municipality, the municipal attorney shall file a notice setting forth services rendered to the defendant and the reasonable value thereof with the Clerk of the Superior Court. The filing of the notice with the Clerk of the Superior Court shall constitute a lien on property for a period of 10 years from the date of filing, unless discharged sooner, and, except for such time limitations, shall have the force and effect of a judgment. Within 10 days of the filing of the notice, the municipal attorney shall send by certified mail, or serve personally, a copy of the notice with a statement of the date of the filing to or upon the defendant at the defendant's last known address. If the municipal attorney shall fail to give notice, the lien is void.
14. (New section) The municipal attorney is authorized to compromise and settle any claim for services performed pursuant to this act whenever the financial circumstances of the person receiving the services are such that, in the judgment of the municipal attorney, the best interest of the State will be served by compromise and settlement.
15. (New section) The Clerk of the Superior Court shall provide separate books for the recording of liens established pursuant to section 13 of this act, which books shall be properly indexed in the name of the judgment debtor. The municipal attorney shall not be required to pay filing or recording fees.
16. (New section) The municipal attorney in the name of the municipality may do all things necessary to collect any money due to the municipality by way of reimbursement for services rendered by a municipal public defender pursuant to this act. The municipal attorney may enter into arrangements with any State or county agency to handle collections on a cost basis. The municipal attorney shall have all the remedies and proceedings available for collection which are available for or upon the recovery of a judgment in a civil action 2and shall also be permitted to collect counsel fees and costs from the defendant for such collection action so that same are not borne by the municipality2. 2[In any such proceeding or action, the defendant may contest the value of the services rendered by the municipal public defender.]2
17. (New section) 3a.3 A municipality may require 1by ordinance1 a person applying for representation by a municipal public defender 3or court approved counsel3 to pay an application fee of not more than 3[$100.00] $200.00, but only in an amount necessary to pay the costs of municipal public defender services3. 3[The] In accordance with guidelines promulgated by the Supreme Court, the3 municipal court may waive any required application fee, in whole or in part, 2only2 if the court determines, in its discretion, 2upon a clear and convincing showing by the applicant2 that the application fee represents an unreasonable burden on the person seeking representation. 1[If the] 3[The1 funds collected pursuant to this section are 1[insufficient for the municipality]1 to meet the costs incurred in providing a 1municipal1 public defender]3 1[, the municipality may seek additional funding from the "Municipal Public Defender Fund" established pursuant to section 18 of this act]1 3The municipal court may permit a person to pay the application fee over a specific period of time not to exceed four months3.
3b. Funds collected pursuant to subsection a. of this section shall be deposited in a dedicated fund administered by the chief financial officer of the municipality or in the case of a joint municipal court in a manner agreed to by the constituent municipalities. Such funds shall be used exclusively to meet the costs incurred in providing the services of a municipal public defender including, when required, expert and lay investigation and testimony.
c. Beginning in 1999, if it is determined by the Division of Local Government Services during its annual review of a municipal budget that the amount of money in a dedicated fund established pursuant to this section exceeds by more than 25% the amount which the municipality expended during the prior year providing the services of a municipal public defender, the amount in excess of the amount expended shall be forwarded to the Criminal Disposition and Review Collection Fund administered by Victims of Crime Compensation Board.3
1[18. (New section) There is created the "Municipal Public Defender Fund." The fund shall be a dedicated fund within the General Fund and administered by the Administrative Office of the Courts. The fund shall be the repository of moneys realized from the $5.00 court cost assessment imposed pursuant to N.J.S.22A:3-4 and any other moneys made available for the purposes of the fund.
b. A municipal court shall assess $5.00 against every person convicted of violating any statute or ordinance as provided in N.J.S.22A:3-4. This court cost assessment shall be collected by the municipal court administrator and forwarded for deposit in the Municipal Public Defender Fund
c. The Supreme Court may issue Rules of Court governing the procedures for applications by municipalities for disbursement of moneys from the "Municipal Public Defender Fund."]1
1[19. N.J.S.22A:3-4 is amended to read as follows:
22A:3-4. Fees for criminal proceedings.
The fees provided in the following schedule, and no other charges whatsoever, shall be allowed for court costs in any proceedings of a criminal nature in the municipal courts but no charge shall be made for the services of any salaried police officer of the State, county or municipal police.
For violations of Title 39 of the Revised Statutes, or of traffic ordinances, at the discretion of the court, up to but not exceeding $30.00.
For all other cases, at the discretion of the court, up to but not exceeding $30.00.
In municipal court proceedings, the court shall impose court costs within the maximum limits authorized by this section, as follows:
a. For every violation of any statute or ordinance the sum of $2.00. The court shall not suspend the collection of this $2.00 court cost assessment. These court cost assessments shall be collected by the municipal court administrator for deposit into the Automated Traffic System Fund, created pursuant to N.J.S.2B:12-30.
b. For each fine, penalty and forfeiture imposed and collected under authority of law for any violation of the provisions of Title 39 of the Revised Statutes or any other motor vehicle or traffic violation in this State the sum of $.50. The court shall not suspend the collection of this $.50 court cost assessment. These court cost assessments shall be collected by the municipal court administrator for deposit into the "Emergency Medical Technician Training Fund" established pursuant to P.L.1992, c.143 (C.26:2K-54 et al.).
c. For every violation of any statute or ordinance the sum of $5.00. The court shall not suspend the collection of this $5.00 court cost assessment. This court cost assessment shall be collected by the municipal court administrator for deposit in the "Municipal Public Defender Fund" established by section 18 of P.L. c. (C. )(now pending before the Legislature as this bill)..
The provisions of this act shall not prohibit the taxing of additional costs when authorized by R.S.39:5-39.
For certificate of judgment ......... $4.00
For certified copy of paper filed with the court as a public record:
First page ......... $4.00
Each additional page or part thereof ......... $1.00
For copy of paper filed with the court as a public record:
First page ......... $2.00
Each additional page or part thereof ......... $1.00
In addition to any fine imposed, when a supplemental notice is sent for failure to appear on a return date the cost shall be $10.00 per notice, unless satisfactory evidence is presented to the court that the notice was not received.
CONSTABLES OR OTHER OFFICERS
From the fees allowed for court costs in the foregoing schedule, the clerk of the court shall pay the following fees to constables or other officers:
Serving warrant or summons, $1.50.
Serving every subpoena, $0.70.
Serving every execution, $1.50.
Advertising property under execution, $0.70.
Sale of property under execution, $1.00.
Serving every commitment, $1.50.
Transport of defendant, actual cost.
Mileage, for every mile of travel in serving any warrant, summons, commitment, subpoena or other process, computed by counting the number of miles in and out, by the most direct route from the place where such process is returnable, exclusive of the first mile, $0.20.
If defendant is found guilty of the charge laid against him, he shall pay the costs herein provided, but if, on appeal, the judgment is reversed, the costs shall be repaid to defendant. If defendant is found not guilty of the charge laid against him, the costs shall be paid by the prosecutor, except when the Director of the Division of Motor Vehicles, a peace officer, or a police officer shall have been prosecutor.
(cf: P.L.1993, c.293, s.4)]1
1[20.] 18.1 N.J.S.2B:12-28 is repealed.
1[21.] 19.1 This act shall take effect on 3January 1, 1998 or on3 the 180th day after enactment 3, whichever is later except that sections 17 and 18 of this act shall take effect on the 90th day after enactment3.
Requires the appointment of a municipal public defender in each municipalit-y.