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Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0009.01 JAP HOUSE BILL 98­1300

STATE OF COLORADO

BY REPRESENTATIVE Adkins;

also SENATOR Wham.

REREVISED

JUDICIARY

A BILL FOR AN ACT

CONCERNING STATE ENTITIES THAT PROVIDE LEGAL REPRESENTATION FOR INDIGENT PERSONS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Effective July 1, 1998, abolishes and recreates the public defender commission and the alternate defense counsel commission to be appointed by the chief justice of the Colorado supreme court, the governor, the president of the senate, and the speaker of the house of representatives. Specifies qualifications and terms of members for both commissions. Provides that commission members shall serve without compensation except expenses incurred in performance of their duties.

Requires the public defender commission to appoint the state public defender and the alternate defense counsel commission to appoint the alternate defense counsel. Instructs both commissions to select 3 candidates for the respective offices and take public comment concerning the candidates, including testimony taken during at least one public hearing for each office.

Requires the public defender commission to annually review the public defender's performance and the alternate defense counsel commission to annually review the alternate defense counsel's performance. Requires the public defender commission and the alternate defense counsel commission to submit written and oral reports concerning performance to the judiciary committees of the senate and the house of representatives and the joint budget committee and to submit the written report to the governor.

Instructs the state public defender commission to review and approve the budget prepared by the state public defender and to make recommendations to the joint budget committee. Instructs the alternate defense counsel commission to review and approve the budget prepared by the alternate defense counsel and to make recommendations to the joint budget committee.

Requires the public defender commission to submit an annual report of the operations of the public defender's office to the governor, the joint budget committee, and the judiciary committees of the senate and the house of representatives. Requires the alternate defense counsel commission to submit an annual report of the operations of the alternate defense counsel office to the governor, the joint budget committee, and the judiciary committees of the senate and the house of representatives.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  21­1­101, Colorado Revised Statutes, is amended to read:

21­1­101. Public defender ­ policy. (1)  The office of state public defender is hereby created and established as an agency of the judicial department of state government. The general assembly hereby declares that the state public defender at all times shall serve his OR HER clients independently of any political considerations or private interests, provide legal services to indigent persons accused of crime that are commensurate with those available to nonindigents, and conduct the office in accordance with the Colorado code of professional responsibility and with the American bar association standards relating to the administration of criminal justice, the defense function.

(2)  The Colorado supreme court shall provide for the appointment, terms, and procedure for a five­member public defender commission, no more than three of whom shall be from the same political party. Three of the members of the commission shall be attorneys admitted to practice law in this state, and two shall be citizens of Colorado not admitted to practice law in this state. In making appointments to the commission, the supreme court shall consider place of residence, sex, race, and ethnic background. No member of the commission shall be at any time a judge, prosecutor, public defender, or employee of a law enforcement agency.

(3)  The public defender commission, CREATED PURSUANT TO SECTION 21­1­101.5, shall appoint and MAY discharge, for cause, the state public defender, who shall be appointed to serve a term of five years and shall serve until his OR HER successor is appointed and qualified. He THE STATE PUBLIC DEFENDER may be reappointed for one or more subsequent five­year terms. Vacancies in the office shall be filled by the public defender commission for the remainder of the unexpired term. The state public defender serving as such on July 1, 1979 JANUARY 1, 1999, shall continue to serve his OR HER current term.

(4)  Members of the public defender commission shall serve without compensation but shall be reimbursed for actual and reasonable expenses incurred in the performance of their duties.

(5)  Any expenses incurred for the commission shall be paid from the general operating budget of the office of the state public defender.

SECTION 2. Article 1 of title 21, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SECTIONS to read:

21­1­101.5. Public defender commission ­ creation ­ appointment. (1)  EFFECTIVE JANUARY 1, 1999, THE PUBLIC DEFENDER COMMISSION IS ABOLISHED, AND THE TERMS OF MEMBERS OF THE COMMISSION SERVING AS SUCH IMMEDIATELY PRIOR TO JANUARY 1, 1999, ARE TERMINATED.

(2)  EFFECTIVE JANUARY 1, 1999, THERE IS ESTABLISHED THE PUBLIC DEFENDER COMMISSION, REFERRED TO IN THIS ARTICLE AS THE "COMMISSION". THE COMMISSION SHALL CONSIST OF ELEVEN MEMBERS APPOINTED AS FOLLOWS:

(a)  FOUR MEMBERS SHALL BE APPOINTED BY THE CHIEF JUSTICE OF THE COLORADO SUPREME COURT;

(b)  FIVE MEMBERS SHALL BE APPOINTED BY THE GOVERNOR;

(c)  ONE MEMBER SHALL BE APPOINTED BY THE PRESIDENT OF THE SENATE; AND

(d)  ONE MEMBER SHALL BE APPOINTED BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.

(3) (a)  OF THE NINE MEMBERS APPOINTED BY THE CHIEF JUSTICE AND THE GOVERNOR, SIX SHALL BE ATTORNEYS ADMITTED TO PRACTICE LAW IN THIS STATE AND SHALL REPRESENT EACH OF THE SIX CONGRESSIONAL DISTRICTS. THE REMAINING THREE MEMBERS SHALL BE CITIZENS OF COLORADO NOT ADMITTED TO PRACTICE LAW IN THIS STATE, REPRESENTING THE STATE AT LARGE.

(b)  THE MEMBERS APPOINTED BY THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES SHALL BE CITIZENS OF COLORADO NOT ADMITTED TO PRACTICE LAW IN THIS STATE.

(c)  NO MORE THAN SIX OF THE MEMBERS OF THE COMMISSION SHALL BE FROM THE SAME POLITICAL PARTY. IN MAKING APPOINTMENTS TO THE COMMISSION, THE APPOINTING PARTIES SHALL, AT A MINIMUM, CONSIDER PLACE OF RESIDENCE, GENDER, RACE, AND ETHNIC BACKGROUND. NO MEMBER OF THE COMMISSION SHALL BE AT ANY TIME DURING SERVICE ON THE COMMISSION A JUDGE, PROSECUTOR, PUBLIC DEFENDER, OR EMPLOYEE OF A LAW ENFORCEMENT AGENCY.

(4)  THE MEMBERS OF THE COMMISSION SHALL SERVE TERMS OF FOUR YEARS; EXCEPT THAT, OF THE MEMBERS FIRST APPOINTED, TWO OF THE MEMBERS APPOINTED BY THE CHIEF JUSTICE AND THREE OF THE MEMBERS APPOINTED BY THE GOVERNOR SHALL SERVE TERMS OF TWO YEARS. VACANCIES ON THE COMMISSION SHALL BE FILLED BY THE ORIGINAL APPOINTING AUTHORITY FOR THE REMAINDER OF ANY UNEXPIRED TERM.

(5)  MEMBERS OF THE COMMISSION SHALL SERVE WITHOUT COMPENSATION BUT SHALL BE REIMBURSED FOR ACTUAL AND REASONABLE EXPENSES INCURRED IN THE PERFORMANCE OF THEIR DUTIES.

(6)  ANY EXPENSES INCURRED BY THE COMMISSION SHALL BE PAID FROM THE GENERAL OPERATING BUDGET OF THE OFFICE OF THE STATE PUBLIC DEFENDER.

21­1­101.7.  Public defender commission ­ appointment of state public defender ­ evaluation. (1)  THE COMMISSION SHALL APPOINT THE STATE PUBLIC DEFENDER. FORTY­FIVE DAYS PRIOR TO EXPIRATION OF THE STATE PUBLIC DEFENDER'S TERM, THE COMMISSION SHALL SELECT THREE CANDIDATES FOR THE OFFICE, ONE OF WHOM MAY BE THE PERSON THEN SERVING AS STATE PUBLIC DEFENDER, AND PUBLISH THE NAMES OF THE CANDIDATES. THE COMMISSION SHALL ALLOW AT LEAST THIRTY DAYS FOR SUBMISSION OF COMMENT BY THE PUBLIC ON THE THREE CANDIDATES. DURING SAID THIRTY DAYS, THE COMMISSION SHALL HOLD AT LEAST ONE PUBLIC HEARING AT WHICH THEY SHALL TAKE TESTIMONY CONCERNING THE THREE CANDIDATES. AT THE CONCLUSION OF THE THIRTY­DAY PERIOD, THE COMMISSION SHALL APPOINT THE STATE PUBLIC DEFENDER FROM AMONG THE THREE CANDIDATES.

(2) (a)  THE COMMISSION SHALL ANNUALLY REVIEW THE PERFORMANCE OF THE STATE PUBLIC DEFENDER. SAID REVIEW SHALL ADDRESS, BUT SHALL NOT BE LIMITED TO, THE STATE PUBLIC DEFENDER'S PERFORMANCE IN:

(I)  DEVELOPING AND MAINTAINING COMPETENT AND COST­EFFECTIVE REPRESENTATION;

(II)  MANAGING THE OFFICE OF THE STATE PUBLIC DEFENDER; AND

(III)  OPERATING EFFECTIVELY WITHIN THE BUDGET REVIEWED BY THE COMMISSION PURSUANT TO SUBSECTION (3) OF THIS SECTION.

(b)  THE COMMISSION AND THE STATE PUBLIC DEFENDER SHALL ANNUALLY MEET WITH THE JUDICIARY COMMITTEES OF THE HOUSE OF REPRESENTATIVES AND THE SENATE. THE MEETING SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, DISCUSSION OF THE STATE PUBLIC DEFENDER'S PERFORMANCE REVIEW DESCRIBED IN PARAGRAPH (a) OF THIS SUBSECTION (2).

(3)  THE COMMISSION SHALL ANNUALLY REVIEW THE BUDGET PREPARED BY THE STATE PUBLIC DEFENDER FOR THE OFFICE OF THE STATE PUBLIC DEFENDER AND MAKE RECOMMENDATIONS TO THE JOINT BUDGET COMMITTEE OF THE GENERAL ASSEMBLY.

21­1­107. Annual report. (1)  ON OR BEFORE MARCH 1, 1999, AND ON OR BEFORE EACH MARCH 1 THEREAFTER, THE STATE PUBLIC DEFENDER SHALL SUBMIT TO THE GOVERNOR, THE JOINT BUDGET COMMITTEE OF THE GENERAL ASSEMBLY, AND THE JUDICIARY COMMITTEES OF THE SENATE AND THE HOUSE OF REPRESENTATIVES AN ANNUAL REPORT INCLUDING:

(a)  THE NUMBER OF CASES HANDLED BY THE OFFICE OF THE STATE PUBLIC DEFENDER DURING THE PRECEDING FISCAL YEAR, CATEGORIZED BY THE LEVEL OF OFFENSES CHARGED;

(b)  THE NUMBER OF CLASS 1 FELONY CASES HANDLED DURING THE PRECEDING FISCAL YEAR BY THE OFFICE OF THE STATE PUBLIC DEFENDER IN WHICH THE PROSECUTION SOUGHT THE DEATH PENALTY AND THE COSTS INCURRED BY THE OFFICE IN CONNECTION WITH THE DEFENSE OF SAID CASES; AND

(c)  THE EXPENDITURES, TOTALED BY KIND, MADE DURING THE PRECEDING FISCAL YEAR IN CARRYING OUT THE RESPONSIBILITIES OF THE OFFICE OF THE STATE PUBLIC DEFENDER.

SECTION 3. 21­1­102, Colorado Revised Statutes, is amended to read:

21­1­102. State public defender ­ deputies and employees ­ regional offices. (1)  The state public defender shall have been licensed to practice law in this state for at least five years prior to his appointment, and he shall devote full time to the performance of his THE duties OF THE OFFICE and shall not engage in the private practice of law.

(2)  The compensation of the state public defender shall be fixed by the general assembly and may not be reduced during the term of his appointment.

(3)  The state public defender shall employ and fix the compensation of a chief deputy public defender, deputy state public defenders, investigators, and any other employees necessary to discharge the functions of the office. All salaries shall be reviewed and approved by the PUBLIC DEFENDER COMMISSION AND THE JOINT BUDGET COMMITTEE OF THE GENERAL ASSEMBLY. Colorado supreme court. The chief deputy public defender and deputy public defenders shall serve, on a full­time basis, at the pleasure of the state public defender and shall not otherwise engage in the practice of law.

(4)  The state public defender shall establish such regional offices as he OR SHE deems necessary to carry out his THE duties OF THE OFFICE OF THE STATE PUBLIC DEFENDER under this article.

SECTION 4. 21­2­101, Colorado Revised Statutes, is amended to read:

21­2­101. Alternate defense counsel ­ policy. (1)  The office of alternate defense counsel is hereby created and established as an agency of the judicial department of state government. The general assembly hereby declares that the alternate defense counsel shall provide legal representation in circumstances in which the state public defender has a conflict of interest in providing legal representation and in cases where the court determines the defendant is partially indigent. The general assembly hereby declares that the alternate defense counsel at all times shall serve his or her clients independently of any political considerations or private interests, provide to indigent and partially indigent persons accused of crimes legal services that are commensurate with those available to nonindigents, and conduct the office in accordance with the Colorado rules of professional conduct and with the American bar association standards relating to the administration of criminal justice, the defense function.

(2)  The Colorado supreme court shall appoint a nine­member alternate defense counsel commission, referred to in this article as the "commission". No more than five members of the commission shall be from the same political party. Six members of the commission representing each of the six congressional districts shall be attorneys admitted to practice law in this state who are engaged in the practice of criminal defense. Three members of the commission shall be citizens of Colorado not admitted to practice law in this state. Members of the commission shall serve for terms of four years; except that, of the members first appointed, five shall serve for terms of two years. Vacancies on the commission shall be filled by the supreme court for the remainder of any unexpired term. In making appointments to the commission, the supreme court shall consider place of residence, sex, race, and ethnic background. No member of the commission shall be at any time a judge, prosecutor, public defender, or employee of a law enforcement agency. The supreme court shall establish procedures for the operation of the commission.

(3)  The ALTERNATE DEFENSE COUNSEL commission, CREATED IN SECTION 21­2­101.5, shall appoint, and may discharge for cause, a person to serve as alternate defense counsel who shall serve a term of five years and until a successor is appointed and qualified. Such person may be reappointed for one or more subsequent five­year terms. A vacancy in the office shall be filled by the commission for the remainder of the unexpired term. THE ALTERNATE DEFENSE COUNSEL SERVING AS SUCH ON JANUARY 1, 1999, SHALL CONTINUE TO SERVE HIS OR HER CURRENT TERM.

(4)  The commission shall serve as an advisory board to the alternate defense counsel and shall meet at least annually. The commission shall advise the alternate defense counsel concerning the development and maintenance of competent and cost­effective representation.

(5)  Members of the commission shall serve without compensation but shall be reimbursed for actual and reasonable expenses incurred in the performance of their duties.

(6)  Any expenses incurred for the commission shall be paid from the general operating budget of the office of the alternate defense counsel.

SECTION 5. Article 2 of title 21, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SECTIONS to read:

21­2­101.5. Alternate defense counsel commission ­ creation ­ appointment. (1)  EFFECTIVE JANUARY 1, 1999, THE ALTERNATE DEFENSE COUNSEL COMMISSION IS ABOLISHED, AND THE TERMS OF MEMBERS OF THE COMMISSION SERVING AS SUCH IMMEDIATELY PRIOR TO JANUARY 1, 1999, ARE TERMINATED.

(2)  Effective January 1, 1999, there is established the alternate defense counsel commission, referred to in this article as the "commission". The commission shall consist of eleven members appointed as follows:

(a)  FOUR MEMBERS SHALL BE APPOINTED BY THE CHIEF JUSTICE OF THE COLORADO SUPREME COURT;

(b)   FIVE MEMBERS SHALL BE APPOINTED BY THE GOVERNOR;

(c)  ONE MEMBER SHALL BE APPOINTED BY THE PRESIDENT OF THE SENATE; AND

(d)  ONE MEMBER SHALL BE APPOINTED BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.

(3) (a)  OF THE NINE MEMBERS APPOINTED BY THE CHIEF JUSTICE AND THE GOVERNOR, SIX SHALL BE ATTORNEYS ADMITTED TO PRACTICE LAW IN THIS STATE AND SHALL REPRESENT EACH OF THE SIX CONGRESSIONAL DISTRICTS. THE REMAINING THREE MEMBERS SHALL BE CITIZENS OF COLORADO NOT ADMITTED TO PRACTICE LAW IN THIS STATE, REPRESENTING THE STATE AT LARGE.

(b)  THE MEMBERS APPOINTED BY THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES SHALL BE CITIZENS OF COLORADO NOT ADMITTED TO PRACTICE LAW IN THIS STATE REPRESENTING THE STATE AT LARGE.

(c)  NO MORE THAN SIX OF THE MEMBERS OF THE COMMISSION SHALL BE FROM THE SAME POLITICAL PARTY. IN MAKING APPOINTMENTS TO THE COMMISSION, THE APPOINTING PARTIES SHALL, AT A MINIMUM, CONSIDER PLACE OF RESIDENCE, GENDER, RACE, AND ETHNIC BACKGROUND. NO MEMBER OF THE COMMISSION SHALL BE AT ANY TIME DURING SERVICE ON THE COMMISSION A JUDGE, PROSECUTOR, PUBLIC DEFENDER, OR EMPLOYEE OF A LAW ENFORCEMENT AGENCY.

(4)  THE MEMBERS OF THE COMMISSION SHALL SERVE TERMS OF FOUR YEARS; EXCEPT THAT, OF THE MEMBERS FIRST APPOINTED, TWO OF THE MEMBERS APPOINTED BY THE CHIEF JUSTICE AND THREE OF THE MEMBERS APPOINTED BY THE GOVERNOR SHALL SERVE TERMS OF TWO YEARS. VACANCIES ON THE COMMISSION SHALL BE FILLED BY THE ORIGINAL APPOINTING AUTHORITY FOR THE REMAINDER OF ANY UNEXPIRED TERM.

(5)  MEMBERS OF THE COMMISSION SHALL SERVE WITHOUT COMPENSATION BUT SHALL BE REIMBURSED FOR ACTUAL AND REASONABLE EXPENSES INCURRED IN THE PERFORMANCE OF THEIR DUTIES.

(6)  ANY EXPENSES INCURRED BY THE COMMISSION SHALL BE PAID FROM THE GENERAL OPERATING BUDGET OF THE OFFICE OF ALTERNATE DEFENSE COUNSEL.

21­2­101.7. Alternate defense counsel commission ­ appointment of alternate defense counsel ­ evaluation. (1)  THE COMMISSION SHALL APPOINT A PERSON TO SERVE AS THE ALTERNATE DEFENSE COUNSEL. FORTY­FIVE DAYS PRIOR TO EXPIRATION OF THE ALTERNATE DEFENSE COUNSEL'S TERM, THE COMMISSION SHALL SELECT THREE CANDIDATES FOR THE OFFICE, ONE OF WHOM MAY BE THE PERSON THEN SERVING AS ALTERNATE DEFENSE COUNSEL, AND PUBLISH THE NAMES OF THE CANDIDATES. THE COMMISSION SHALL ALLOW AT LEAST THIRTY DAYS FOR SUBMISSION OF COMMENT BY THE PUBLIC ON THE THREE CANDIDATES. DURING SAID THIRTY DAYS, THE COMMISSION SHALL HOLD AT LEAST ONE PUBLIC HEARING AT WHICH THEY SHALL TAKE TESTIMONY CONCERNING THE THREE CANDIDATES. AT THE CONCLUSION OF THE THIRTY­DAY PERIOD, THE COMMISSION SHALL APPOINT THE ALTERNATE DEFENSE COUNSEL FROM AMONG THE THREE CANDIDATES.

(2) (a)  THE COMMISSION SHALL ANNUALLY REVIEW THE PERFORMANCE OF THE ALTERNATE DEFENSE COUNSEL. SAID REVIEW SHALL ADDRESS, BUT SHALL NOT BE LIMITED TO, THE ALTERNATE DEFENSE COUNSEL'S PERFORMANCE IN:

(I)  DEVELOPING AND MAINTAINING COMPETENT AND COST­EFFECTIVE REPRESENTATION;

(II)  MANAGING THE OFFICE OF THE STATE ALTERNATE DEFENSE COUNSEL; AND

(III)  OPERATING EFFECTIVELY WITHIN THE BUDGET REVIEWED BY THE COMMISSION PURSUANT TO SUBSECTION (3) OF THIS SECTION.

(b)  THE COMMISSION AND THE ALTERNATE DEFENSE COUNSEL SHALL ANNUALLY MEET WITH THE JUDICIARY COMMITTEES OF THE HOUSE OF REPRESENTATIVES AND THE SENATE. THE MEETING SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, DISCUSSION OF THE ALTERNATE DEFENSE COUNSEL'S PERFORMANCE REVIEW DESCRIBED IN PARAGRAPH (a) OF THIS SUBSECTION (2).

(3)  THE COMMISSION SHALL ANNUALLY REVIEW THE BUDGET PREPARED BY THE ALTERNATE DEFENSE COUNSEL FOR THE OFFICE OF THE STATE ALTERNATE DEFENSE COUNSEL AND MAKE RECOMMENDATIONS TO THE JOINT BUDGET COMMITTEE OF THE GENERAL ASSEMBLY.

21­2­107. Annual report. (1)  ON OR BEFORE MARCH 1, 1999, AND ON OR BEFORE EACH MARCH 1 THEREAFTER, THE ALTERNATE DEFENSE COUNSEL SHALL SUBMIT TO THE GOVERNOR, THE JOINT BUDGET COMMITTEE OF THE GENERAL ASSEMBLY, AND THE JUDICIARY COMMITTEES OF THE SENATE AND THE HOUSE OF REPRESENTATIVES AN ANNUAL REPORT INCLUDING:

(a)  THE NUMBER OF CASES HANDLED BY THE OFFICE OF THE STATE ALTERNATE DEFENSE COUNSEL DURING THE PRECEDING FISCAL YEAR CATEGORIZED BY THE LEVEL OF OFFENSES CHARGED;

(b)  THE NUMBER OF CLASS 1 FELONY CASES HANDLED DURING THE PRECEDING FISCAL YEAR BY THE OFFICE OF THE STATE ALTERNATE DEFENSE COUNSEL IN WHICH THE PROSECUTION SOUGHT THE DEATH PENALTY AND THE COSTS INCURRED BY THE OFFICE IN CONNECTION WITH THE DEFENSE OF SAID CASES; AND

(c)  THE EXPENDITURES, TOTALED BY KIND, MADE DURING THE PRECEDING FISCAL YEAR IN CARRYING OUT THE RESPONSIBILITIES OF THE OFFICE OF THE STATE ALTERNATE DEFENSE COUNSEL.

SECTION 6.  Effective date. This act shall take effect January 1, 1999.

SECTION 7. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.