SENATE, No. 1886

STATE OF NEW JERSEY

INTRODUCED MARCH 10, 1997

By Senator MARTIN

An Act concerning the appointment and funding of municipal public defenders, 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. 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 consequences 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. 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.

    "Municipal court" means a municipal, central or joint municipal court established pursuant to N.J.S.2B:12-1.

    "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.

    3. 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 a joint municipal 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. a. A municipal public defender shall be an attorney-at-law of this State in good standing, and shall serve for a term of one year 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 a joint municipal 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 a joint municipal 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. Failure 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.

    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 Rules of Court Governing the Conduct of Lawyers, Judges and Court Personnel.

    5. A municipal public defender shall receive compensation, either on an hourly, per diem, annual or other basis as the municipality may provide. In the case of a joint municipal 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. 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 shall be provided in every case. 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.

    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.

    7. a. 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 of a penal nature where, in the opinion of the municipal court, there is a likelihood that the person, if convicted, will be subject to imprisonment.

    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 appoints 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. Once appointed, 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. All communications between the indigent defendant and the municipal public defender or any other attorney appointed 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. 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) and guidelines promulgated by the New Jersey Supreme Court.

    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. 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. 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. 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. 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. 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. 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. 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 and shall also be permitted to collect counsel fees and costs from the defendant for such collection action so that the same are not borne by the municipality.

    17. A municipality may require by ordinance a person applying for representation by a municipal public defender to pay an application fee of not more than $100.00. The municipal court may waive any required application fee, in whole or in part, only if the court determines, in its discretion, upon a clear and convincing showing by the applicant that the application fee represents an unreasonable burden on the person seeking representation. The funds collected pursuant to this section are to meet the costs incurred in providing a municipal public defender.

    18. N.J.S.2B:12-28 is repealed.

    19. This act shall take effect on the 180th day after enactment.

STATEMENT

    The bill requires each municipality to have a municipal public defender to represent indigent defendants in certain municipal court proceedings. The bill defines the role, responsibilities and duties of the office, and provides a mechanism for funding.

    The bill requires that each municipal court shall have a least one municipal public defender appointed by the municipal governing body. Municipal public defenders would be appointed for a term of one year and they would be compensated by the municipality. Municipalities may appoint more than one municipal public defender. If a municipality does appoint more than one municipal defender, a chief municipal public defender who would have authority over the others, would be designated by the municipality.

    If there is a vacancy in the office of municipal public defender, if the municipal public defender is temporarily unavailable or if a conflict of interest precludes a municipal public defender from handling a proceeding, the municipal court may appoint any qualified attorney to provide representation. Unless rates are otherwise established by the municipality, the attorney shall be entitled to compensation in the same rate as the rate used in conflict cases in the public defender office. The attorney shall meet all requirements and carry out all the duties of the municipal public defender for the case that is the subject of the appointment.

    A municipal public defender may be removed by the municipal governing body for good cause upon due notice and an opportunity to be heard.

    The municipal public defender is required to represent, except in cases of temporary unavailability or conflict of interest, any indigent defendant charged in municipal court with an offense where there is a likelihood that the person, if convicted, will be subject to imprisonment. Eligibility is determined on the basis of need in accordance with specific factors. The bill specifies means by which, in appropriate cases, the municipal attorney may recover all or part of the money in connection with the representation. The bill provides that the municipal attorney may 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.

    The bill repeals N.J.S.2B:12-28 but recompiles the portion of that statute which provides for an application fee in section 17 of the bill. A municipality by ordinance may require a person applying for representation by a municipal public defender to pay an application fee of not more than $100.00. The municipal court may waive any required application fee, in whole or in part, if the court determines, upon a clear and convincing showing by the applicant that the application fee represents an unreasonable burden on the person seeking representation.