Petitioners Brief — Tower v. Glover

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Office

Supreme Court, U.S.

rity

”

NOV 22

No. 82-1988 808

ALEXAND!

Jn the Supreme Court

of the Gnited States

OCTOBER TERM, i983

® L. STEVAS,

CLERK

BRUCE TOWER, Public Defender

of Douglas County, Oregon, and

GARY BABCOCK, Public Defender

of the State of Oregon,

Petitioners,

BILLY IRL GLOVER,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR PETITIONERS

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Deputy Attorney General

*JAMES E. MOUNTAIN, JR.

Solicitor General

MICHAEL D. REYNOLDS

WILLIAM F. NESSLY, JR.

ROY E. PULVERS

Assistant Attorneys General

100 Justice Building

Salem, Oregon 97310

Telephone: (503) 378-4402

Counsel for Petitioners

*Counsel of Record

LLL ATE SUSAN EST AMSTEL: CPUC ARE DENN SPC SEENON OREN

QUESTION PRESENTED

Whether 42 U.S.C. § 1983 authorizes a convicted

person to assert a claim for damages against the

public defenders who represented him at his crimi-

nal trial and appeal, on a theory that the public

defenders deprived him of his constitutional rights

pursuant to a conspiracy with state judges and

administrative officials.

TABLE OF CONTENTS

Page

tier i

rere 1

a 1

Constitutional Provisions and Statutes Involved......................... 2

one ee 3

rrr re. 7

Pe 12

I. A rule of absolute immunity of public defenders

from Section 1983 damages liability is consistent

with the purpose and legislative history of the

statute and is mandated by applicable common law

eee... 14

A. The legislative history of Section 1983 demonstrates

that Congress did not intend to restrict the

application of common law defenses in actions

brought by persons who claim that they were

wrongfully convicted of crimes as a result of a

violation of their constitutional rights......................... 14

B. A rule of absolute immunity of public defenders

from damages under Section 1983 for actions

taken while representing an indigent defendant

has substantial foundation in common law................. 19

II. Absolute immunity for public defenders is required

to prevent overburdening the judicial system and

to enable the states to fulfill their responsibility

to provide effective assistance of counsel to indigent

or re 25

A. Glover’s claim is emblematic of a wide range

of frivolous Section 1983 suits which will consume

the time and energy of an already overburdened

criminal justice system under a rule of no absolute

SS LL... 26

ili

B.A rule denying absolute immunity will adversely

impact the public defender’s ability to represent

his clients effectively and will in turn negatively

Ree ree ces I ce ene 33

C. A grant of qualified immunity will do nothing

to stem the tide of meritless, burdensome litigation.

A grant of absolute immunity is required................... 40

D. Allowing indigent criminal defendants to sue

their public defenders under Section 1983 creates a

conflict of constitutional dimensions............................ 43

E. A range of state and federal remedies other

than Section 1983 protect an indigent defendant in

the rare case of an actual constitutional deprivation.

These remedies serve the policy underlying enactment

We re re Pe FE OE FI sno cncccenccccesicsensene 44

ree 48

ee EE EEL ENS SIGS TESTE AUG ASR BRED Ur DOUG TR OUE NT App-1

TABLE OF AUTHORITIES

Cases Cited snail

Argersinger v. Hamlin, 407 U.S. 25 (1972) ...00.000-0oooocccoccccceeceee 27

curr v. BEntteo, 300 U.S. G66 (1968) ........................................... 48

Black v. Bayer, 672 F.2d 309 (3d Cir. 1982) ...................... Passim

Bradley v. Fisher, 80 U.S. (13 Wall) 335 (1872)................... 30,39

Erents v. Finkel, 446 U.S. G07 (1980)...............-.........<.000.-0.000... 21

Briscoe v. Lahue, __._ U.S. __.,

com gh NA GC EES ea Passim

Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972),

OP II Ue OFT He CD nacre vceccesescccccccce nse 28,35

Butz v. Economou, 438 U.S. 478 (1978) ......0......ccccccccccceescees 21-22

23,41,46

rv yee Cs eee... 15

City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)....16

Coleman v. Alabama, 399 U.S. 1 (1970) ...........ccccccceccccccecceseeecees 27

Dennis v. Sparks, 449 U.S. 24 (1960) ................ccccccccccccscseeee 14,36

Donigan v. Finn, 95 Mich. App. 28, 290 N.W.2d 80 (1980) ......48

Douglas v. California, 372 U.S. 353 (1963) ..........occccccccccecceeceees 27

Ferri v. Ackerman, 444 U.S. 193 (1979) .0....0.0.ccccccccecceccesee. Passim

Gideon v. Wainwright, 372 U.S. 335 (1963) 000.0000... 17,27

Glover v. Tower, 700 F.2d 556 (9th Cir. 1983)....................... 1.7

13,42

ee v. tees, CS oe...

Haines v. Kerner, 404 U.S. 519 (1972) ...0.........ccccccccceccsccsecceeceeee 41

Harlow v. Fitzgerald, __. U.S. __.,

cpp lh 0p 8 A eae 41,42

Imbler v. Pachtman, 424 U.S. 409 (1976).......0.0000.-oocce Passim

ee error le... 27

een ©. Douay, See Ue. 2e8 (1087)............................. 27

TABLE OF AUTHORITIES — Continued

Cases Cited — Continued Page

Michigan v. Long, ___ U.S. ___, 103 S. Ct. 3469 (1983)........ 27

Miller v. Barilla, 549 F.2d 648 (1977) ...............ccccccscccececceseeees 6,42

Minns v. Paul, 542 F.2d 899 (4th Cir. 1976)...........0...00..... Passim

Monell v. New York City Department of Soc. Serv.,

ee 15

Monroe v. Pape, 365 U.S. 167 (1961) .................cccccscccceescees Passim

Owen v. City of Independence, 445 U.S622 (1980).................. 15

MOINS Ws TU, Ge Fe Or CII onan cocci csicesescccceseccreee ssc, 16

Polk County v. Dodson, 454 U.S. 312 (1981)...............0000... Passim

Poller v. Columbia Broadcasting System, 368 U.S. 464 (1962) 32

Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979) ............... 48

pee ©. Meee, Or Oe (1e7e) 27

moees v. ee, 600 1S S07 (1978)............................-.............. 28

Shaffer v. Cook, 634 F.2d 1259 (10th Cir. 1980), cert.

meee ee ee ee 29

Specht v. Patterson, 386 U.S. 605 (1967) ...........cccccccccccsecccecceeeee 27

Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975) ....48

State v. Glover, 32 Or. App. 177, 573 P.2d 780 (1978)................ 5

State v. Hudson, 154 Conn. 631, 228 A.2d 132 (1967) .............. 16

State ex rel Acocella v. Allen, 288 Or. 175, 604 P.2d 391

ice a 34

Stump v. Sparkman, 435 U.S. 349 (1978) .....0....cccccccccceccccecceeeee 28

Tenney v. Brandhove, 341 U.S. 367 (1961) ................cecccccccssoccceseee

United States v. Senak, 447 F.2d 304 (7th Cir), cert.

I A Te, ese scsecesececcdsseececsceapeeececs 15

United States v. Wade, 388 U.S. 218 (1967) «2.00... ooccccccccccccceceeee 47

Wood v. Strickland, 420 U.S. 308 (1975) .0.........ccccccccccccccceecceeesee 41

Copstitutional Provisions

ae 3

TABLE OF AUTHORITIES — Continued

Constitutional Provisions — Continued Page

oe Se ee 3

. Statutory Provisions

Oe 47

Te vivre, 46

aero. 1

ee 1

ee Passim

Re rv irecceteeescee 46

caves itesetesree 46

ee ee er ee 46

i mee ee, oe Oe 18 2... a. 3

ce TES ee 3

i eee 3

Re Oe ee 3

Other Authorities

Benner, Tokenism and the American Indigent: Some

Prospectiveson Defense Services, 12 Am. Crim. L. Rev.

eee 35

Benner & Neary, The Other Face of Justice 72 (1973)......... 27,34

Casper, Did You Have a Lawyer When You Went to

Court: No, I Had a Public Defender, 1 Yale Rev.

Bi ee, PRN Sh Iannone coors. 27

Cass Damage Suits Against Public Officers

ceo eee, Steere)... 41

Eisenberg, Section 1983: Doctrinal Foundations and

an Empirical Study, 62 Cornell L. Rev. 482, 544 (1982) 31

Lefstein American Bar Association Standing Committee on

Legal Aid and and Indigent Defendants, Criminal

Defense Services for the Poor, 50 (May 1982).......... Passim

Vii

Continued

TABLE OF AUTHORITIES

Other Authorities — Continued Page

Ligda, Defender Workloads: The Numbers Game, 34 NLADA

er Oe

Mounts, Public Defender Programs, Professional Responsibility

and Competent Representation, 1982 Wis. L. Rev. 473 ...16

Note, Liability of Public Defenders Under Section 1983:

Robinson v. Bergstrom, 92 Harv L. Rev. 943 (1979) ...... 36

Note, Work Overload and Defender Burnout, 35 NLADA

Briefcase (1977).............. Ds SOUEREORISe A a BU Nahe Leis nan 33

Turner, When Prisoners Sue: A Study of Prisoner Section 1983

Suits in the Federal Courts, 92 Harv. L. Rev.

IARI EERE SE sacri oheiay aah bce ote as st BLIND UT ern 31

Wice & Suwak, Current Realities of Public Defender Programs:

A National Survey & Analysis, Am. Crim. L. Bull.

i ie METER IR STE Sa AU aA SR Cel eu Be EN areal CPCS SPSL CHA 29

1975 Annual Report of the Director of the Administrative

Citice of the United States Courts ....................c0cccccccccescaee 26

1980 Annual Report of the Director of the Administrative

Office of the United States Courts ...................0000.0..... 26,30

1982 Annual Report of the Director of the Administrative

Crrsce af the United States Courts .............:.....c0cccccsessee: 26

Vill

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the United States Court of Ap-

peals for the Ninth Circuit in this matter is reported

as Glover v. Tower, 700 F.2d 556 (1983). In its

opinion and ensuing judgment, the Court of Appeals

affirmed in part, reversed in part, and remanded the

judgment of the United States District Court for the

District of Oregon, which had dismissed respondent

(then plaintiff) Glover’s civil rights action for failure

to state a claim. The opinion of the Ninth Circuit

Court of Appeals is included at Joint Appendix 41.

The unreported order of the United States District

Court for the District of Oregon is included at Joint

Appendix 36.

JURISDICTION

Jurisdiction to review the Court of Appeals

judgment by writ of certiorari in this civil case is

conferred upon this Court by 28 U.S.C. § 1254(1).

The opinion of the United States Court of Appeals

for the Ninth Circuit was dated and filed on March

1, 1983. The judgment sought to be reviewed was

entered on the same date. The petition for a writ of

certiorari was filed on May 31, 1983, within the

90-day period prescribed by 28 U.S.C. § 2101(c), as

computed in accordance with Rules 20 and 281) of

the Court. An order granting the petition for a writ

of certiorari was issued by this Court on October 3,

1983.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Resolution of the issue presented in this case

principally involves the Sixth and Fourteenth

Amendments to the United States Constitution, and

the federal statute authorizing civil actions for

deprivation of rights, 42 U.S.C. § 1983.

United States Constitution, Amendment VI

provides in pertinent part:

“In all criminal prosecutions, the accused shall

enjoy the right * * * to have the Assistance of

Counsel for his defence [sic].”

United States Constitution, Amendment XIV

provides in pertinent part:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State where they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”

42 U.S.C. § 1983 provides in pertinent part:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage. of any

State * * * . subjects, or causes to be subjected,

any citizen of the United States or other person

within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress.”

State statutes establish the offices of the petition-

er public defenders in this case. In Oregon the

Office of County Public Defender is described in

Oregon Revised Statutes [hereinafter Or. Rev. Stat.]

§§ 151.010 - 151.090. The Office of State Public

Defender is delineated in Or. Rev. Stat. §§ 151.210 -

151.290. These laws are set out in the Appendix to

the brief.!

STATEMENT OF THE CASE

1. Summary of Facts

While incarcerated in the Oregon State Peniten-

tiary, respondent Glover filed an action under 42

U.S.C. § 1983 against Douglas County Public

Defender Bruce Tower and Oregon State Public

Defender Gary Babcock. (J.A. 3). Glover's pro se

complaint was made on a form provided by the

United States District Court for the District of

Oregon. (J.A. 2). Glover complains of an alleged

lOr Rev Stat. §§ 151.010 - 151.290 are set out as they appear in

the 1981 compilation of Oregon statutory law. The 1983 Oregon

Legislature made minor amendments to Or. Rev. Stat. § 151.040,

151.230 and 151 280. A misreference to Or. Rev. Stat. § 1.51.010(3) in

Or Rev Stat. § 151.0401) was corrected to refer to Or. Rev. Stat. 8

151.0102) The minor amendments to Or Rev. Stat. § 151.230 and

151 280 are inconsequential and not pertinent to this Court's review

The 1983 amendments have not yet been printed in the official

compilation

“conspiracy by state officials acting under a color of

state authority to deprive [him] of his civil rights

* * *” (J.A. 2-10). The gist of Glover’s complaint is

that his public defenders at trial and on appeal

violated his constitutional rights by engaging in a

far-flung and facially bizarre conspiracy with trial

judges, a judge of the Oregon Court of Appeals, and

named and unnamed state administrative officials to

secure and to sustain his conviction on a felony

charge brought by the State of Oregon. (J.A. 8-9).

Glover alleges that his trial attorney, petitioner

Tower, a county public defender, conspired with

state trial court judges to deprive Glover of his

liberty by refusing to discharge the responsibilities

and obligations of a court-appointed defense counsel.

(J.A. 5). Tower allegedly conspired with state

officials to prevent Glover from presenting a defense

of mental disease or defect in his criminal prosecu-

tion. (J.A. 6). Glover also claims that Tower, by

refusing to withdraw from the case, participated in a

conspiracy to deprive Glover of his right to defend

himself. (J.A. 7).

Glover alleges that petitioner Babcock, the state

public defender, deliberately deprived him of a fair

and adequate state court appeal of his criminal

conviction. (J.A. 8).2 Glover maintains that Babcock

2The Oregon Court of Appeals decision in the matter giving rise

to this controversy is reported as State v. Glover, 32 Or. App. 177, 573

P.2d 780 (1978) (summary affirmance of conviction “from the bench”).

refused to obtain printed portions of the trial record,

prepared an inadequate opening brief, and refused

to correct the brief upon Glover’s request. (J.A. 8).

Glover alleges that pursuant to a conspiracy, public

defender Babcock, like public defender Tower,

knowingly and deliberately deprived him of his basic

civil rights to defend himself against serious crimi-

nal charges. (J.A. 9).

Glover also alleges that members of the judicial

and executive branches of Oregon government

participated in the conspiracy against him. He

claims that “state agents” not only persuaded

petitioner Tower to do nothing to prepare for Glo-

ver’s defense, but that they also persuaded trial

court judges to ignore his requests for redress. (J.A.

6-7).

Glover maintains that the purpose of the conspi-

racy was to prevent him from disclosing dishonest

actions by state officials. (J.A. 8-9). The alleged

mastermind of the conspiracy was a former Oregon

Attorney General who, in his capacity as a court of

appeals judge, placed himself on the panel that

reviewed Glover’s criminal appeal. (J.A. 9). In his

complaint, Glover prays for no compensatory dam-

ages. He seeks $5 million in punitive damages from

public defender Tower and the same amount from

public defender Babcock. (J.A. 5).

2. Procedural History

Pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, petitioner public defenders Tower

and Babcock moved for dismissal of Glover’s com-

plaint on the ground that it failed to state a claim

upon which relief could be granted. (J.A. 11). In the

memorandum supporting their dismissal motion.

Tower and Babcock maintained that Glover’s pur-

ported § 1983 action against them should be dis-

missed because, as public defenders, they were

absolutely immune from liability under § 1983 for

acts performed in representing a defendant in a

criminal prosecution. (J.A. 12). Tower and Babcock

expressly relied upon the opinion of the Ninth

Circuit Court of Appeals in Miller v. Barilla, 549

F.2d 648, 649 (1977), in which the court held “that a

public defender should be accorded absolute immuni-

ty from § 1983 damage claims for acts done in

performance of his judicial functions as a public

defender.” (J.A. 12).

The United States District Court for the District

of Oregon entered an order granting petitioners’

motion to dismiss. (J.A. 36-38). Citing Miller v.

Barilla, the District Court ruled in its unreported

order that “* * * plaintiff has not stated a claim

under 42 U.S.C. § 1983 because public defenders are

absolutely immune from liability for acts done in

the performance of their judicial function.” (J.A.

37). Thereupon, the District Court entered a judg-

ment dismissing Glover’s action. (J.A. 39). Glover

appealed to the United States Court of Appeals for

the Ninth Circuit.

The Ninth Circuit reversed the portion of the

District Court’s order which had ruled that public

defenders Tower and Babcock were immune from

liability under § 1983. The Court of Appeals rea-

soned that its precedent in Miller v. Barilla was no

longer good law in light of this Court’s subsequent

decision in Ferri v. Ackerman, 444 U.S. 193 (1979).

The Ninth Circuit panel concluded “that Miller

cannot survive the rationale of Fer77,” and that

“Ferri and Polk County v. Dodson, [454 U.S. 312

(1981)], are inconsistent in principle with any

immunity, qualified or absolute, of public defenders

charged with conspiring with state officials in

violation of 42 U.S.C. § 1983.” Glover v. Tower, 700

F.2d at 558, 559. (J.A. 44, 45-46).

This Court granted certiorari to review the Ninth

Circuit decision, which is in conflict with the deci-

sion of the Court of Appeals for the Third Circuit on

the issue of public defender immunity from § 1983

liability in Black v. Bayer, 672 F.2d 309 (1982).

SUMMARY OF ARGUMENT

Respondent Glover asserts in his § 1983 com-

plaint that his public defenders, pursuant to a

conspiracy with state judges and administrative

officials, deprived him of his constitutional rights

during his state criminal prosecution. Public defend-

ers who represent indigent criminal defendants like

Glover at trial and on appeal are absolutely immune

from liability for damages under §.1983. A rule of

absolute immunity for public defenders acting under

color of state law by virtue of an alleged conspiracy

with state officials is consistent with the legislative

history of § 1983. In enacting the Ku Klux Klan Act

of 1871, Congress sought to provide an effective

means of redress for blacks subjected to vigilante

terrorism. The Act provided a remedy for victims of

crime when state courts and prosecutors were loathe

to seek and impose criminal punishment. There is

no basis to assume that Congress would have

intended to deprive public defenders who are sued

by convicted clients of defenses rooted in common

law and the policy to protect the unfettered dis-

charge of their functions.

Although public defender offices did not exist

during the nineteenth century, a rule of absolute

immunity for public defenders finds roots in the

common law at the time 42 U.S.C. § 1983 was

enacted. The common law provided immunity from

liability in defamation suits for attorneys involved

in judicial proceedings. One of the policies served by

that immunity was the assurance that counsel could

act without intimidation during the judicial process.

The recognition that judges and prosecutors must

be free to act without intimidation has prompted

this Court to recognize that § 1983 does not author-

ize damage claims against them for acts in the

performance of their respective roles in criminal

proceedings. Many of the considerations that have

prompted recognition of judicial and prosecutorial

immunity, such as to insure that these officials may

act without intimidation, apply to public defenders

whose responsibility is to provide constitutionally

mandated legal assistance to indigent criminal

defendants as part of a legislatively or judicially

established program in or for a_ particular

jurisdiction.

Moreover, many of the judgments which a public

defender must make are functionally comparable to

the judgments made by prosecutors and judges. This

court has recognized that judges and prosecutors

must have absolute immunity from § 1983 suits so

that they will have the freedom necessary to make

impartial judgments. Public defenders must also

have absolute immunity to give them the freedom to

make impartial judgments for the good of their

clients, the judicial process and society.

Absolute immunity for public defenders is re-

quired to prevent overburdening the judicial system

and to enable the states to fulfill their responsibility

to provide effective assistance of counsel to indigent

criminal defendants. Public defender programs have

been created as a response to a tremendous increase

in the demand for proficient defense attorneys to

assist indigent persons charged with crimes. Public

defender programs have been instituted by state

courts and legislatures precisely because community

responsibility for providing defense services must be

discharged with limited government resources. The

court below acknowledged that its refusal to extend

§ 1983 immunity to public defenders would burden

already overburdened public defender programs.

Because these programs have an important bearing

on the effectiveness of the judicial process in provid-

ing counsel to indigent criminal defendants, e€xpo-

sure of public defenders to § 1983 liability will

burden the judicial process.

Allowing indigent criminal defendants to sue their

public defenders under § 1983 will overburden the

judicial process in two ways. It will overburden the

federal judiciary because it will result in a flood of

frivolous lawsuits by disgruntled indigent defen-

dants, many of which will be brought pro se. Allow-

ing indigent criminal defendants to sue their public

defenders will overburden the state criminal justice

systems because the public defenders’ time, atten-

tion and limited resources will be diverted from

effective defense of their clients. Ineffective repre-

sentation of indigent criminal defendants will result

in slower judicial resolution of criminal cases both at

trial and on appeal.

Qualified immunity for public defenders will not

prevent a flood of meritless litigation and will do

nothing to alleviate the burden such litigation will

create for the judiciary and public defenders. It is

the litigation itself more than the threat that a

public defender ultimately may be found liable

under § 1983 which causes the greater damage

because the litigation forces the reallocation of

scarce, fixed resources. The absence of absolute

immunity will inhibit the ability of public defenders

effectively to represent their clients and to contrib-

ute to the state judicial process.

Allowing indigent criminal defendants to sue

their public defenders under § 1983 creates a conflict

of constitutional dimension. Indigent criminal

defendants have the right to effective assistance of

counsel in state criminal prosecutions under the

Sixth and Fourteenth Amendments. The exposure of

public defenders to § 1983 lawsuits with the atten-

dant diversion of their attention, time and resources

necessarily will impede their ability to provide

quality defense services to their indigent clients, and

will frustrate states’ efforts to comply with the

commands of the Sixth and Fourteenth Amendments

through public defender programs.

Finally, recognition of a rule of absolute immuni-

ty for public defenders from liability for damages

under § 1983 would not leave the represented

criminal defendant without a remedy for a public

defender’s negligent or wrongful acts or omissions.

The defendant has access to myriad state and

federal post-conviction remedies to correct ineffec-

tive assistance of defense counsel. Public defender

misconduct may be remedied by resort to state tort

actions, federal criminal proceedings, or state bar

disciplinary proceedings. Existence of other means

to correct and prevent constitutional abuse by public

defenders undermines any argument that a federal §

1983 tort action for damages is the only way to

insure that clients will Not suffer constitutional

violations at the hands of their public defenders.

In short, statutory history and pertinent policies

support recognition of absolute immunity for the

public defenders sued under § 1983 in this case.

ARGUMENT

In this suit for damages under 42 U.S.C. § 1983,

the Court of Appeals for the Ninth Circuit errone-

ously held that petitioner public defenders were

neither absolutely nor qualifiedly immune from

liability to a former client who alleged that petition-

ers had conspired with state officials to deprive him

of his constitutional rights while representing him

in a criminal prosecution. The court reached this

conclusion “with some reluctance” because it was

aware that its decision might place a burden “on

already burdened public defender’s offices.” Glover v.

Tower, 700 F.2d at 559. Nevertheless, the court felt

compelled by this Court’s decisions in Ferri uv.

Ackerman, 444 U.S. 193 (1979) and Polk County v.

Dodson, 454 U.S. 312 (1981) to reverse the District

Court’s dismissal of the pro se complaint filed by the

then-incarcerated plaintiff, respondent Glover.

The Court of Appeals analysis is fundamentally

flawed. The decision in Ferri v. Ackerman did not

deal with the scope of a federal cause of action

under 42 U.S.C. § 1983. Ferri held that the Criminal

Justice Act of 1964 did not establish a federal

immunity for federal court-appointed counsel that

would preempt the maintenance of a state malprac-

tice action. In Polk County v. Dodson, 454 U.S. at

317 n. 4, this Court did not reach the question

whether a public defender is entitled to the same

absolute immunity from damages under § 1983 as

judges and prosecutors; the Court held that a public

3Glover's complaint is indicative of how a disgruntled client could

hale a state public defender into federal court under the purported

auspices of § 1983 to litigate issues of ineffective assistance of

counsel. Although Glover couched his complaint in the metaphor of

conspiracy, he essentially alleged that his trial counsel, county public

defender Tower, failed adequately to investigate and present evidence

of the defense of mental disease or defect. (J.A. 6). Glover also

alleged that Tower deprived him of his right to represent himself by

refusing to withdraw from the case. (J.A. 7). Glover’s appellate

counsel, state public defender Babcock, allegedly failed to obtain the

entire trial court record, prepared an inadequate appellate brief, and

ye to correct the brief when Glover reques him to revise it.

(J.A. 8).

defender does not act under color of state law for the

purposes of § 1983 when performing the traditional

functions of counsel to a criminal defendant. 454

U.S. at 325.

In the present case, however, the conspiracy

allegations of the complaint cast the color of state

law over the actions of the public defenders. Dennis

v. Sparks, 449 U.S. 24, 28-29 (1980). Thus, this case

squarely presents the issue which this Court re-

served in Polk County. The Court of Appeals failed

to analyze the public defenders’ claim of immunity

in light of the pertinent statutory history, the

common law history of relevant immunities, and the

policies underlying those immunities. The Court of

Appeals failed to look beyond the role public defend-

ers principally perform in representing their clients

and refused to recognize that public defenders also

play another special role in the administration of

justice. Due consideration of these factors compels

the conclusion that § 1983 does not authorize the

damages suit brought by Glover.

I. A rule of absolute immunity of public defend-

ers from Section 1983 damages liability is

consistent with the purpose and _ legislative

history of the statute and is mandated by appli-

cable common law principles.

A. The legislative history of Section 1983 demon-

strates that Congress did not intend to restrict the

application of common law defenses in actions

brought by persons who claim that they were wrong-

fully convicted of crimes as a result of a violation of

their constitutional rights.

The question of immunity under § 1983 is essen-

tially a matter of statutory construction. See Owen

v. City of Independence, 445 U.S. 622, 635 (1980). In

enacting the law, Congress intended to create a

species of tort liability in favor of persons deprived

of rights secured by the Constitution and federal

laws. Monroe v. Pape, 365 U.S. 167, 180, 183 (1961),

overruled on other grounds, Monell v. New York City

Dept. of Soc. Serv., 436 U.S. 658 (1978); Carey v.

Piphus, 435 U.S. 247, 253 (1978). The terms of the

enactment do not suggest qualifications on the

maintenance of the right of action it establishes.

Imbler v. Pachtman, 424 U.S. 409, 417 (1976).

However, this Court’s decision in Tenney ov.

Brandhove, 341 U.S. 367 (1951), “established that §

1983 is to be read in harmony with the general

principles of tort immunities and defenses rather

than in derogation of them.” /mbler v. Pachtman,

424 U.S. at 418. Therefore, in the absence of con-

gressional guidance, § 1983 must be read in the

context of established common law tort principles

and policies. The extent to which a public defender

acting under color of state law is amenable to a §

1983 damage action depends upon a _ principled

examination of the immunities traditionally afford-

ed similarly situated individuals and the present-day

significance of the public interests which those

principles of immunity promote. See Jmbler, 424

US. at 421.

The historical context of the enactment of § 1 of

the Ku Klux Klan Act of 1871, 17 Stat. 13, is the

touchstone for the Court’s inquiry into the field of

common-law tort defenses and the public interests

which they reflect.

“It is by now well settled that the tort liability

created by § 1983 cannot be understood in a

historical vacuum. One important assumption

underlying the Court’s decisions in this area is

that members of the 42d Congress were familiar

with common-law principles, including defenses

previously recognized in ordinary tort litigation,

and that they likely intended these common-law

principles to obtain, absent specific provisions to

the contrary.” City of Newport v. Fact Concerts,

Inc., 453 U.S. 247, 258 (1981).

Although public defenders such as petitioners did

not exist in 1871,4 the legislative background of the

{The initial public defender program in the United States was not

established until 1914. Mounts, Public Defender Programs, Profession-

al Responsibility and Competent Representation, 1982 Wis. L. Rev.

473, 476. The State of Connecticut instituted the first state public

defender system in 1917. See State v. Hudson, 154 Conn. 631, 635, 228

A.2d 132 (1967). Ninety years after the enactment of 42 USC. §

1983, and two years before the Court established an indigent felony

defendant's right to counsel, Gideon vu. Wainwright, 372 U.S. 335

(1963), public defender offices served only three percent of the

counties in the United States. Mounts, supra, 1982 Wis. L. Rev. at

476. By 1973, however, public defender programs were in operation in

28 percent of the nation’s counties and served two-thirds of the

population. /d at 481 n. 10; Benner & Neary, The Other Face of

Justice 72 (1973).

Civil Rights Act of 1871 provides insights that

permit an educated analysis of the probable response

of the 42nd Congress to the question of a public

defender’s immunity from damages in an action

brought by a convicted client pursuant to the stat-

ute. See Whitman, Constitutional Torts, 79 Mich. L.

Rev. 5, 64 (1980). These perspectives suggest that

Congress would have intended to extend immunity

to public defenders.

The overriding impetus for the enactment of 42

U.S.C. § 1983 was the unpunished exercise of

vigilante terrorism against the newly freed blacks

and their sympathizers in the post-Civil War South.

See Briscoe v. Lahue, __ U.S. __ , 103 S. Ct. 1108.

1116-1117 (1983). The Civil Rights Act of 1871 had

three major purposes. One was to provide a federal

remedy where state law was inadequate to the task.

Another broader goal was to provide a remedy when

state court enforcement was available in theory but

denied as a result of the disinclination of state

officials to exercise their authority to prevent or

punish the wrongdoing of the Klan. Monroe v. Pape,

365 U.S. at 173-175.5 Thus, the historical objective

of the enactment was not to pave an avenue of

redress for individuals who were convicted in state

5The third aim, not relevant here, was to override certain state

laws. See Monroe v. Pape, 365 US. at 173.

courts by wrongful means, but rather to provide an

alternative remedy when the state courts and

prosecutors were loathe to seek and to impose

criminal punishment.

The plaintiff in this case seeks $10 million in

punitive damages based on a claim that he stands

convicted of a crime as the result of a conspiracy to

deprive him of an adequate defense at his state trial

and on appeal. An analogy to plaintiff's charges of

conspiracy exists in the claim of an individual that

he or she was convicted on the basis of perjured

testimony pursuant to collusion between a _ state

agent, such as a prosecutor, and a witness. This

Court previously stated, however, that the history of

the Act:

“* * * does not * * * tend to show that Congress

intended to abrogate witness immunity in civil

actions under § 1, which applied to wrongs

committed ‘under color of law.’ The bill’s propo-

nents were exclusively concerned with perjury

resulting in unjust acquittals—perjury likely to

be committed by private parties acting in further-

ance of a conspiracy—and not with perjury

committed ‘under color of law’ that might lead to

unjust convictions. In hundreds of pages of

debate there is no reference to the type of alleged

constitutional deprivation at issue in this case:

perjury by a government official \eading to an

unjust conviction.” Briscoe v. Lahue, 103 S. Ct. at

1118. (Emphasis in original.)

The legislative history contains no significant

indication that Congress specifically designed § 1983

ere

as a remedial device to secure money damages for

unjust convictions. There is no basis therefore to

assume that Congress would have intended to

deprive public defenders who are sued by convicted

clients of defenses which find their roots in case law

and in the policy of protecting the unrestricted

discharge of their functions.

B. A rule of absolute immunity of public defend-

ers from damages under Section 1983 for actions

taken while representing an indigent defendant has

substantial foundation in common law.

Although public defenders offices did not exist in

1871, a rule of public defender immunity would

have its roots in a common law privilege applicable

to counsel for a party in legal proceedings. If

lawyers had practiced as public defenders during the

nineteenth century, they would have been accorded

absolute immunity at common law from suits for

defamatory remarks made by them or their witness-

es during judicial proceedings if the remarks were

relevant to the matter. J/mbler v. Pachtman, 424

U.S. at 426 n. 23; 424 U.S. at 439 (White, J., concur-

ring in judgment). This privilege was extended to

all counsel in a case and extended to lawyers’

statements in pleadings and briefs. 424 U.S. at 426

n. 23. The substantial policy underlying this immu-

nity was the protection of the judicial process in

accurately resolving factual disputes in criminal and

civil cases. The specific protective purpose of the

immunity from defamation suits was to avoid the

risk that counsel would engage in self-censorship

during the proceeding due to fear of subsequent

defamation suits. 424 U.S. at 439-440 (White, J.,

concurring in judgment). At common law, a defend-

er would have shared this absolute immunity from

defamation suits with his or her prosecutorial

counterpart. With regard to prosecutors, this com-

mon law immunity and immunity from suit for

malicious prosecution have been extended to form

the basis for the rule that prosecutors are absolutely

immune from § 1983 liability for all prosecutorial

conduct that is “intimately associated with the

judicial phase of the criminal process.” 424 U.S. at

430. Public defenders should have the same protec-

tion from intimidation in performing their role in

the judicial process.

In /mbler v. Pachtman, this Court held that a

prosecutor is immune from § 1983 liability for his or

her acts in initiating and presenting the state’s case.

424 U.S. at 431. The Court determined that a rule

of prosecutorial immunity would serve the policies

that formed the basis for the common law immunity

of judges. Harassment by unfounded litigation

would cause distraction from official duties and

inhibition of the required independence of judgment.

424 U.S. at 422-423, 424. Substantially equivalent

concerns prompted the recognition of a rule of

absolute immunity from defamation liability for

counsel in judicial proceedings.

Petitioners acknowledge that in Branti v. Finkel.

445 U.S. 507, 519 (1980), this Court restated the

principle of Ferri v. Ackerman, 444 U.S. 193, 204

(1979), that the primary responsibility of criminal

defense counsel is to serve the interests of the client.

The Court in Branti contrasted this responsibility of

a public defender with the “broader public responsi-

bilities of an official such as a prosecutor.” Branti v.

Finkel, 445 U.S. at 519 n. 7. Petitioners also ac-

knowledge that in holding that public defenders

generally do not act under color of state law for the

purposes of § 1983, this Court drew the same distinc-

tion. In Folk County v. Dodson, the Court quoted

from Ferri v. Ackerman, and concluded that the

responsibility of a public defender to advance the

undivided interests of his client was essentially a

private function. Polk County v. Dodson, 454 U.S.

312, 318-319 & n. 8.

Notwithstanding this Court’s statements about

the respective roles of public defenders and judicial

officers, public defenders are entitled to quasi-

judicial immunity. The judgments which public

defenders .re required to make are functionally

comparable to those made by judges and prosecutors.

This Court stated in Butz v. Economou, 438 US.

478, 511-512 (1978), quoting Imbler v. Pachtman,

424 U.S. at 423 n. 20:

“Judges have absolute immunity not because

of their particular location within the Govern-

ment but because of the special nature of their

responsibilities. This point is underscored by the

fact that prosecutors—themselves members of the

Executive Branch—are also absolutely immune.

‘It is the functional comparability of their judg-

ments to those of the judge that has resulted in

both grand jurors and prosecutors being referred

to as “quasi-judicial” officers, and their immuni-

ties being termed “quasi-judicial” as_ well.’”

(Emphasis added).

The prosecutor must determine, on the basis of

the information available to him in each case,

whether to charge an accused, which of alternative

charges can be proved and should be punished, the

extent of his office’s resources which must be

invested in order to successfully prosecute the case,

and whether the probable result is worth the cost.

“* * * Frequently acting under serious const-

raints of time and even information, a prosecutor

inevitably makes many decisions that could

engender colorable claims of _ constitutional

deprivation. Defending these decisions, often

years after they were made, could impose unique

and intolerable burdens upon a prosecutor respon-

sible annually for hundreds of indictments and

trials.” /mbler v. Pachtman, 424 U.S. at 425-426.

In preparing and presenting the defense case for

trial or appeal, the public defender carries out his or

her primary function to render effective assistance

of counsel to the defendant by reviewing informa-

tion, investigating factual questions, researching

legal issues, and making legal judgments. The

public defender, however, has other responsibilities

of a “special nature.” See Butz v. Economou, 438

U.S. at 512. In addition to making judgments

limited to the circumstances of his client’s case, the

defender, like the prosecutor, must make many

institutional decisions under constraints of scarce

resources, time, and information that, in the words

of /mbler, “* * * could engender colorable claims of

constitutional deprivation.” 424 U.S. at 425. The

defender’s decision whether, and how thoroughly, to

undertake independent investigation of a case will

influence the quality of the particular client’s

representation. The defender, however, must also

consider the fact that committing finite investigato-

ry resources to that client’s case will necessarily

reduce the means available to meet the needs of

other clients who have an equal right to effective

representation. The public defender, like the prose-

cutor, must exercise discretion in establishing case

priorities; allocating resources to each case according

to the seriousness of the offense; assessing the

likelihood of success; and determining whether the

case presents circumstances that will require addi-

tional hearings or other procedures. Therefore, the

public defender, who must appear and defend a

substantial percentage of “the hundreds of indict-

ments and trials” for which the prosecutor has an

equal responsibility, /mbler v. Pachtman, 424 U.S. at

425-426, performs equivalent judgmental functions.

In discharging the responsibility to provide the

bulk of indigent defense services in a particular

locale or jurisdiction, “[p]ublic defenders are typical-

ly required to cope with extremely heavy caseloads

* * *.” Black v. Bayer, 672 F.2d 309, 319 (3d Cir.

1982). The existence of the responsibility for heavy

caseloads requires public defenders “* * * to decline

to press the frivolous, to assign priorities between

indigent criminal defendants, and to make strategic

decisions with regard to a single litigant as to how

best his interests may be advanced.” Black v. Bayer,

672 F.2d at 319, quoting Minns v. Paul, 542 F.2d

899, 901 (4th Cir. 1976), cert. denied, 429 U.S. 1102

(1977). The judgments which a public defender is

required to make distinguish the defender from

private retained counsel, see Minns v. Paul, 542 F.2d

at 901-902, and are substantially equivalent to

exercises of judicial and prosecutorial discretion.

These judgments are sufficiently “judicial” in nature

to satisfy the functional comparability test for

according absolute immunity under § 1983.

II. Absolute immunity for public defenders is

required to prevent overburdening the judicial

system and to enable the states to fulfill their

responsibility to provide effective assistance of

counsel to indigent criminal defendants.

In deciding that prosecutors are absolutely

immune from § 1983 liability, this Court in Jmbdler

v. Pachtman not only looked to applicable common

law immunity but also extended and shaped the

contours of that immunity to serve the underlying

policies in the context of present-day practice.

Similar considerations compel recognition of public

defender immunity from § 1983 liability.

Federal court consideration of broad-gauged

claims like Glover’s will seriously burden federal

courts and public defenders with the costly task of

proceeding through summary judgment on large

numbers of inevitably meritless claims. Scarce, fixed

resources of the public defender will be diverted to

such claims at the direct expense of the quality of

individual indigent defense. A further result of a

rule—including a grant of qualified immunity—that

allows these cases to proceed beyond summary

dismissal on the basis of absolute immunity would

constrain seriously the professional discretion of the

public defender in handling both an overall caseload

and individual cases. This Court has highly valued

full and free exercise of professional discretion. The

interests of the public, the judiciary, the public

defender, and the body of indigent criminal defen-

dants will all be well served by a rule of absolute

immunity.

A. Glover’s claim is emblematic of a wide range

of frivolous Section 1983 suits which will consume

the time and energy of an already overburdened

criminal justice system under a rule of no absolute

immunity.

In Polk County, Justice Powell candidly acknowl-

edged “the recent burgeoning of post-conviction

remedies [that] has undoubtedly subjected the legal

system to unprecedented strains * * *.” 454 U.S. at

324. In 1980 alone, state prisoners brought 12,397

civil rights actions against public officials in the

federal courts. This was a 10.7 percent increase over

the previous year and represented a staggering 511

percent increase over the 2,030 filings only ten years

before.6 State prisoners filed 24,975 civil petitions

in federal courts in 1982. 1982 Annual Report of the

Director of the Administrative Office of the United

States Courts 102. The most significant increase in

state prisoner civil litigation was in prisoner civil

rights petitions, up 7.0 percent in just one year.

Ibid.

According to a major study, 65 percent of all

felony charges and 47 percent of all misdemeanor

charges are brought against indigent defendants.

61980 Annual Report of Administrative Office of the United

States Courts 231-232; 1975 Annual Report of the Director of the

Administrative Office of the United States Courts 207-209.

Benner & Neary, supra, note 3, at Table 117. Last

year, over 12 million state criminal cases were

charged. See Michigan v. Long, __ U.S. _— , 103

S. Ct. 3469, 3477 fn. 8 (1983). The right to appoint-

ed counsel at government expense now extends to a

broad range of circumstances, all of which would be

subject to § 1983 claims for public defender conspi-

racies unless immunity is extended.7

Indigent criminal defendants commonly perceive

the public defender to be an arm of the legal system

which is prosecuting them. £E.g., Casper, Did You

Have a Lawyer When You Went to Court: No, | Had

a Public Defender, 1 Yale Rev. L. & Soc. Action 4, 6

(1970). Indigent criminal defendants often believe

they were afforded second class representation. See,

e.g., Lefstein for the American Bar Association

Standing Committee on Legal Aid and Indigent

Defendants, Criminal Defense Services for the Poor,

50 (May 1982).

7Indigents are presently entitled to representation in felonies,

Gideon v. Wainwright, 372 U.S. 335 (1963), and in misdemeanor cases,

compare Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to appointed

counsel in misdemeanor cases involving a loss of liberty) with Scott v.

Illinois, 440 U.S. 367 (1979) (no right to appointed counsel in

misdemeanor case where only a fine is imposed). There is also a right

to counsel in juvenile proceedings that result in confinement, /n re

Gault, 387 U.S. 1 (1967); in first appeals of right, compare Douglas v.

California, 372 U.S. 353 (1963) (right to appointed counsel on first

appeal of right) with Ross v. Moffitt, 417 U.S. 600 (1974) (appointed

counsel not constitutionally required other than on appeals of right);

at post indictment lineups, U.S. v. Wade, 388 U.S. 218 (1967); at

preliminary examinations, Coleman v. Alabama, 399 U.S. 1 (1970);

probation or parole revocation proceedings, Mempa v. Rhay, 389 U.S.

128 (1967); and in civil commitments, Specht v. Patterson, 386 U.S.

605 (1967).

The convicted defendant is intimately familiar

with the facts of his case and the strategy of the

legal defense formulated and presented by his

counsel. The absolute immunities of other partici-

pants in the process by which a defendant is

convicted—the judges who presided over the ac-

cused’s trial and appeal, Stump v. Sparkman, 435

U.S. 349 (1978), the prosecutor who brought and

tried the case, /mbler v. Pachtman, and the witness-

es who testified against the accused, Briscoe v.

Lahue—leave the public defender as the sole target

of the defendant’s frustration with his conviction.

See Brown v. Joseph, 463 F.2d 1046, 1049 (3d Cir.

1972), cert. denied, 412 U.S. 950 (1973).

This Court has already determined that the

majority of claims against a public defender cannot

be cast as suits for civil damages under 42 U.S.C. §

1983. Polk County v. Dodson. Yet this Court and

other federal courts have aptly noted that the

resentment of convicted criminals often blossoms

into § 1983 litigation. E.g., Jmbler v. Pachtman, 424

U.S. at 425; Minns v. Paul, 542 F.2d at 902. With-

out a rule of absolute immunity, the only vent for

this frustration, in terms of federal litigation, would

be the assertion of meritless conspiracy claims

against the public defender.

Conspiracy claims are easy to allege. The vast

bulk of litigants inevitably would attempt to circum-

vent Folk County v. Dodson by recharacterizing an

ineffective assistance of counsel claim as a conspira-

cy. Glover’s claims themselves—e.g., that Tower

failed to investigate and present a defense of mental

disease or defect, (J.A. 6) or that Babcock would not

amend his brief, (J.A. 8) are indicative of the types

of public defender actions which may be reconstitut-

ed as a conspiracy claim in a § 1983 action.8

Public defenders operate under severe pressures

on their time and resources. Plea negotiations may

be based on information obtained from the prosecu-

tor without an opportunity for independent defense

investigation. Wice & Suwak, Current Realities of

Public Defender Programs: A National Survey &

Analysis, Am. Crim. L. Bull. 161, 176 (1974);

Lefstein ABA Committee Study, supra, p. 27, at

46. Observers of the process note their belief that:

“* * * because of the importance of obtaining

relevant information and thereby performing

effectively, the public defender must foster a

cooperative relationship with the district attor-

ney’s office.” Wice & Suwak, id., at 176.

8Failure to make a motion to suppress could readily be recharac-

terized as a tacit or covert agreement between the prosecutor and the

public defender to expose the jury to inadmissible evidence. Failure to

call all witnesses a plaintiff claims would have helped his case could

be pleaded as a conspiracy between the public defender and the

prosecutor to promote the plaintiff's conviction. Claimed inadequate

assistance with a petition for habeas corpus could be recharacterized

as a conspiracy between the public defender and the prison authorities

to keep a plair‘iff in jail. A conspiracy claim could be based on an

allegation by the convicted defendant that he saw his attorney speak

with a state judge in the courthouse before hearings. See ‘Shaffer v

Cook, 634 F.2d 1259, 1260 (10th Cir. 1980), cert. denied 451 U.S. 984

(1981).

The leap from cooperative to conspiratorial is not

great for a disappointed convict.

Innovative and experimental attempts by public

defenders to make the criminal justice system more

responsive will be curtailed if public defenders are

exposed to conspiracy claims. Experiments in

expediting trials or appeals, for example, may be

implemented to aid defendants; yet the overtones of

conspiracy to a prospective § 1983 litigant would be

music to a litigious ear.

The foregoing recitation of possible conspiracy

claims plainly is not exhaustive. Indeed it is limited

only by the inventiveness of prisoners who already

file over 12,000 civil rights claims in federal courts

annually. See 1980 Annual Report of Administrative

Office of U.S. Courts, supra p. 26 , at 231-232.

As this Court has noted with respect to judges,

witnesses, and prosecutors, the intense feelings and

significant interests at stake in a criminal trial are

likely to produce a losing party who will “accept

anything but the soundness of the decision as

explanation” of the outcome. Bradley v. Fisher, 80

U.S. (13 Wall.) 335, 348 (1872). Claims such as

Glover’s will involve extensive efforts by the courts

and the parties, amounting sometimes to a retrial of

the core of the original prosecution. This predictable

scenario defeats the judicial interest in the finality

of judgments. See Jmbler v. Pachtman, 424 US. at

423-427. This Court has repeatedly found, and

recognized as important, that “this category of §

1983 litigation might well impose significant bur-

dens on the judicial system and on law enforcement

resources * * *.” Briscoe v. Lahue, 103 S.Ct. at

1120; see also Imbler v. Pachtman, 424 U.S. at 425.

The overwhelming majority of § 1983 claims like

Glover’s will be meritless. The Fourth Circuit has

written in a case involving public defender liability

that:

“The experience of the federal courts in federal

habeas corpus and § 1983 litigation demonstrates

that indigents more frequently attempt to litigate

claims which are patently without merit than do

non-indigent parties.” Minns v. Paul, 542 F.2d at

902. 9

In addition to the expectation of a bulk of meritless

claims, the federal courts must be prepared to

extend to those claims the special solicitude which

must be accorded pro se pleadings. Haines v. Kerner,

404 U.S. 519, 520-521 (1972).

Countenancing claims such as Glovers will

require federal courts to engage in full summary

judgment procedures. Folk County v. Dodson, 454

U.S. at 336 (Blackmun, J., dissenting); Black v.

® Accord, Eisenberg, Section 1983: Doctrinal Foundations and an

Empirical Study, 62 Corn. L. Rev. 482, 544 (1982). At least one

commentator has suggested that the flood of baseless civil rights

filings may hamper overworked federal courts in their endeavors to

identify and preserve those cases which may have substantial merit.

See Turner, When Prisoners Sue: A Study of Prisoner Section 1983

Suits in the Federal Courts, 92 Harv. L. Rev. 610, 611 (1979).

Bayer, 672 F.2d at 316. Formal summary judgment

procedure, see Fed. R. Civ. P. 56, may require the

public defender to develop evidence and often

undertake demanding discovery. In fact, the public

defender will be compelled to establish the defense

he would have to present at trial. Public defenders

may be required under Rule 56 to present the

federal district court with a frequently voluminous

record and transcript of the state prosecution. Court

and counsel would have to examine this record. In

most jurisdictions, the expenses must be met by

public resources; in some, the resources must be

provided by the already sparse appropriations

available to the judicial branch of government.

Even this scenario, however, is an unreasonably

conservative assessment of the burdens on the courts

and the public defender. After Polk County v.

Dodson, a disgruntled client must make additional

or reconstituted allegations which require factual

controversion by the public defender. Moreover,

cases may degenerate into swearing matches or an

examination of motive and mental state in which

the granting of summary judgment is inappropriate.

See Poller v. Columbia Broadcasting System, 368

U.S. 464, 468, 473 (1962). The burden on the federal

courts required to consider fairly a quantity of

meritless claims is plainly an important factor which

argues for a grant of immunity.

B. A rule denying absolute immunity will ad-

versely impact the public defender’s ability to repre-

sent his clients effectively and will in turn negatively

impact the state judicial system.

Federal court consideration of claims like Glo-

ver’s will divert the public defender’s scarce re-

sources away from effective criminal defense. If the

public defender is not able to represent his client

effectively because scarce resources have been

diverted, the judicial system will suffer. Our discus-

sion has emphasized the burden on the resources of

the judicial system which suits such as respondent’s

will impose. The difficulties of an underfunded

delivery system for indigent defense 19 also inhibit

the provision of effective indigent defense.

Overwhelming caseloads present the most serious

problem to underfunded public defenders. Public

defender offices handle caseloads well in excess of

generally accepted maximum caseload limits. See

e.g., Note, Work Overload and Defi der Burnout, 35

NLADA Briefcase, 5, 7 (1977) caseloads often

exceed recommended guidelines by 50 percent or

Funding for indigent defense is approaching crisis. Eg,

Lefstein ABA Committee Study, supra, p. 27 , at 57. Only one and

one-half percent of all funds for the state criminal justice

systems—police, corrections, courts, prosecution, and _ indigent

defense—go to indigent defense. In fiscal year 1978 funds were

apportioned: Police 53.2 percent; corrections 24.7 percent; judiciary

13.1 percent; prosecution 5.9 percent. Bureau of Justice Statistics,

U.S. Department of Justice, 1980 Source Book of Criminal Justice

Statistics 11 (1981)

more). Voluminous literature on techniques of

caseload management attests to the universal

perception of the problem. E.g., Ligda, Defender

Workloads: The Numbers Game, 34 NLADA Brief-

case 23-35 (1976). In Oregon in 1979 the state

Public Defender Committee informed certain courts

that the state appellate defender’s office could no

longer handle every appeal because its lawyers were

seriously overburdened. See State ex rel. Acocella v.

Allen, 288 Or. 175, 604 P.2d 391 (1979). The public

defenders were handling 11.8 appeals per lawyer per

month, 288 Or. at 177, n. 1, nearly six times the

caseload recommended by the National Advisory

Commission on Criminal Justice Standards and

Goals, Standard 13.12 (maximuriigp?'25 appeals per

year suggested).

General case or trial preparation is hindered by

the press of caseload and lack of funds. E\g., Lef-

stein ABA Committee Study, supra, p. 27 at 35, 46.

Lack of resources for functional or private office

Space, and inadequate secretarial and paralegal

assistance affect the qualify of representation. /d. at

11, 12. The unavailability of investigators has a

direct and major impact on the number of cases an

attorney can handle. Benner & Neary, supra, note 3,

at 29. Lack of resources for social workers can mean

that alternative dispositions are not fully explored.

See generally, Lefstein ABA Committee Study,

supra, p. 27 at 37.

Public defenders must be able to recruit and

retain able public defenders. Minns v. Paul, 541

F.2d at 901; Brown v. Joseph, 463 F.2d 1046, 1049

(3d Cir. 1972). Low salaries of public defenders

contribute to a pattern whereby able lawyers leave

the public defender’s office after two to three years.

Benner & Neary, supra, note 3 at Table 20; Benner,

Tokenism and the American Indigent: Some Pros-

pectives on Defense Services, 12 Am. Crim. L. Rev.

667, 683 (1975). Exposure to personal liability or

re-direction of systemic or personal resources to

insurance or defense of claims will only aggravate a

critical problem. Working conditions, caseload and

lack of support staff already discourage attorneys

from pursuing or continuing a career in public

defender services. Lefstein ABA Committee Study,

supra, p. 27 at 36.

Not only will exposure of public defenders to

potential liability under § 1983 direct scarce re-

sources away from effective defense but such ex-

pense will also constrict public defenders’ ability to

exercise their professional discretion.

“Judicial immunity arose because it was in the

public interest to have judges who were at liberty

to exercise their independent judgment about the

merits of a case without fear of being mulcted for

damages should an unsatisfied litigant be able to

convince another tribunal that the judge acted

not only mistakenly but with malice and corrup-

tion.” Dennis v. Sparks, 449 U.S. at 30.

The same policy of ensuring free exercise of indepen-

dent judgment should apply with equal force to the

integral actors who shape and present a case for the

court to consider.

As discussed earlier, the Fourth Circuit Court of

Appeals aptly stated the particular need for public

defenders to retain:

“the unfettered discretion, in the light of their

training and experience, to decline to press the

frivolous, to assign priorities between indigent

litigants, and to make strategic decisions with

regard to a single litigant as to how best his

interests may be advanced.” Minns v. Paul, 542

F.2d at 901.

Public defender discretion is circumscribed by

heavy caseloads and state allocation of resources.

_ E.g., Polk County, 454 U.S. at 332 (Blackmun, J.,

dissenting); Note, Liability of Public Defenders

Under Section 1983: Robinson v. Bergstrom, 92

Harv. L. Rev. 943, 947 (1979). Limited access to

funds for important constituent elements of defense

preparation, such as investigatorial services, hinders

public defenders in case preparation. Public defend-

ers should not be held liable in suits growing out of

discretionary decisions based on institutional re-

source constraints.

If, as has been demonstrated above, public

defenders are hindered by exposure to § 1983

liability in their ability to effectively represent the

indigent accused, the state criminal justice system

will suffer. The negative impact on the judicial

system caused by ineffective representation of

criminal defendants was noted in a recent national

study of defense services for the poor:

“Overall, there is abundant evidence in this

report that defense services for the poor are

inadequately funded. As a result, millions of

persons in the United States who have a constitu-

tional right to counsel are denied effective legal

representation. Sometimes defendants are inde-

quately represented; other times, particularly in

misdemeanor cases, no lawyer is provided or a

constitutionally defective waiver of counsel is

accepted by the court. Defendants suffer quite

directly, and the criminal justice system functions

inefficiently, unaided by well trained and dedicat-

ed defense lawyers. There also are intangible

costs, as our nation’s goal of equal treatment for

the accused, whether wealthy or poor, remains

unattained.” Lefstein ABA Committee Study,

supra, p. 27 at 2. (Emphasis added).

The need tovavert burdens on the judicial process

prompted this Court to hold, in Briscoe v. Lahue,

that § 1983 does not authorize a convicted state

defendant to assert a claim for damages against a

police officer for giving perjured testimony at the

defendant’s criminal trial. In that case, the Court

acknowledged that the traditional reasons for

witness immunity were less applicable to police

officer witnesses. Nevertheless, the Court deter-

mined that “other considerations of public policy

support absolute immunity more emphatically for

such persons than for ordinary witnesses.” 103 S. Ct.

at 1119.

The Court concluded that unless absolute immu-

nity was extended to police officer witnesses their

contributions to the judicial process and effective

performance of their other public duties might be

compromised. /bid. After noting the probability that

§ 1983 lawsuits against police officer witnesses

would be frequent, the Court said:

“This category of § 1983 litigation might well

impose significant burdens on the judicial system

and on law enforcement resources. As this Court

noted when it recognized absolute immunity for

prosecutors in /mbler, if the defendant official

‘can be made to answer in court each time [a

disgruntled defendant] charged him with wrong-

doing, his energy and attention would be diverted

from pressing duties of enforcing the criminal

law.’ 424 U.S. at 425.” Briscoe v. Lahue, 103 S.

Ct. at 1120.

The Court’s analysis in Briscoe bears directly on

the resolution of the issue in this case. Unless the

Ninth Circuit’s refusal of § 1983 absolute immunity

is reversed, a tangible burden will be placed on this

already over-burdened public legal resource. As in

the case of the police witnesses in Briscoe, the

contributions of public defenders Babcock and Tower

to the Oregon judicial process and their effective

performance of their other public duties will be

undermined. The Oregon judicial process conse-

quently will be hampered in its attempts to carry

out the constitutional mandate that indigent crimi-

nal defendants be provided with a lawyer to assist

them in their defense. Moreover, because § 1983

lawsuits against public defenders, like lawsuits

against prosecutors, can be expected with some

frequency, cf. Bradley v. Fisher, 80 U.S. at 348,

considerable amounts of judicial time and public

defender energy will be diverted by frivolous litiga-

tion such as the § 1983 suit in this case.

The public defender unlike the appointed private

criminal defense attorney performs an institutional

role far beyond ad hoc advocacy for a particular

accused. The volume of cases, the institutional

relationship with prosecutors and courts, and the

ability to view needs for systemic changes in the

criminal justice process all affect the public defender

with a unique capacity broadly to advocate the

public interest through establishment of case and

issue priorities. This institutional role permits the

public defender to pursue legal strategies which

benefit the class of indigent defendants far beyond

the capacity of members of the private defense bar

to whom this Court has not accorded immunity from

suit. Experimentation in the states with better

means of establishing public defender services will

be halted if an immunity which recognizes this

institutional law reform role is not conferred.

Because the imposition of potential § 1983

liability on already over-burdened public defender

programs would impinge on the judicial process,

absolute immunity for public defenders is required.

The principles set forth in Pierson v. Ray, 386 US.

547 (1967) to protect judges and in Jméler v.

Pachtman to protect prosecutors also apply to public

defenders, who perform a somewhat different

function in the judicial process but whose participa-

tion in bringing the litigation to a just—or possibly

unjust—conclusion is equally indispensable. Cf.

Briscoe v. Lahue, 103 S. Ct. at 1121. In other words,

to afford petitioners Tower and Babcock anything

less than absolute immunity from § 1983 damage

liability in a case such as this, will disserve state

and federal judicial processes.

C. A grant of qualified immunity will do nothing

to stem the tide of meritless, burdensome litigation.

A grant of absolute immunity is required.

A rule of absolute immunity should be recognized

for Tower and Babcock in this case.!! The interposi-

tion of qualified immunity fails utterly to discourage

the institution of vexatious actions.

'"Tower, the county public defender, and Babcock, the state

(appellate) public defender, are full-time providers of indigent

services. Their compensation and resources are fixed by the govern-

ment. oa gee to this brief. The primary evil of suits as Glover’s

is the fo reallocation of critically scarce, fixed resources, away

from indigent defense. The problem becomes manifest when an

organization exists for the purpose of providing indigent defense and

the volume of its work is such that its exposure to suit is great and

the prospect and effect of reallocation of resources is real.

“* * * Although it is difficult to make much of

these figures, the filings against police officers

and prison officials are consistent with the notion

that the qualified immunity defense does not

discourage harassing litigation. The percentage

of these suits [alleging constitutional violations]

that are dismissed is quite high; nonetheless, the

number that proceed to trial is significant, while

the instances of liability judgments against

defendants are negligible. It is possible that

many meritorious claims are being dismissed for

inartful pleading and that other meritorious

claims are being denied after trial for failure to

clear a too-high burden of persuasion. It is at

least equally plausible, however, that because of

frustration, lack of other means for relief of

related grievances, pique, or simply antipathy for

the defendant, many nonmeritorious claims are

being brought, consuming considerable Judicial

resources, entailing sizeable defense costs, yielding

few damage awards, but perhaps discouraging

some desirable official conduct.” Cass, Damage

Suits Against Public Officers, 129 Pa. L. Rev.

1110, 1159 (1981). (Emphasis added).

A rule of qualified immunity!2 imposes substan-

The Court has granted state and federal executive officers only a

ualified good faith immunity. An official, upon showing that his

challe actions were not undertaken with an intent to cause injury

and did not result in a constitutional violation of which he was or

reasonably should have been aware, was deemed immune from

damages. Wood v. Strickland, 420 U.S 308 (1975). The Court

afforded qualified immunity on the assumption that “[i]nsubstantial

lawsuits can be quickly terminated by federal courts alert to the

ibilities of artful pleading.” Butz v. Economou, 438 US. at 507.

xperience, however, did not bear out this assumption and the Court,

emphasizing the litigation costs of attempting, often unsuccessfully,

pretrial determinations of an official's state of mind, abandoned the

subjective prong of the Wood test for an objective inquiry as to

whether the official's conduct violated established rights of which a

reasonable person would have known. Harlow v. Fitzgerald, 102 S. Ct.

at 2737-2739. The same concerns which prompted the Court in

Harlow to limit the scope of the qualified immunity inquiry require

the grant of absolute immunity from § 1983 damage actions to public

defenders.

tial and unavoidable costs on the parties and the

judicial system. Such an immunity merely recog-

nizes the existence of an affirmative defense which

must be pleaded by the defendant. Gomez v. Toledo,

446 US. 635, 640 (1980). Therefore, the recognition

of a qualified immunity locks the courts and the

public defender into the time and expense of the

summary judgment process. The efficiency with

which insubstantial lawsuits may be eliminated is a

significant factor in the formulation of a rule of

immunity. Harlow v. Fitegerald, __ U.S. __ , 102

S. Ct. 2727 (1982). The Third Circuit, in Black v.

Bayer, determined that the costs and chilling effects

of proceeding even to summary judgment weighed in

favor of granting absolute damage immunity to

public defenders. See also Miller v. Barilla, 549 F.2d

648, 649-650 (9th Cir. 1977), overruled, Glover v.

Tower, 700 F.2d 556, 558-559 (9th Cir. 1983).

Qualified immunity may shield the public defend-

er from ultimate liability in some cases, but it will

not protect the public defender or the courts from

the greater damage incurred by the forced realloca-

tion of scarce, fixed resources to cope with a spate of

meritless claims. The mass of indigent defendants

requiring quality legal representation and adequate

court consideration will ultimately suffer. A rule of

absolute immunity is required to protect the inter-

ests of the court, the public defender, the public, and

the body of indigent defendants.

D. Allowing indigent criminal defendants to sue

their public defenders under Section 1983 creates a

conflict of constitutional dimensions.

The judicial process must insure that an indigent

criminal defendant’s Sixth and Fourteenth Amend-

ment right to effective assistance of counsel is

protected in a state criminal prosecution. “There can

be no fair trial unless the accused receives the

services of an effective and independent advocate.”

Polk County, 454 U.S. at 322. Public defender

programs have been established as a measure for

insuring that indigent criminal defendants are

afforded effective legal assistance.. State and local

governments spent over $435 million in fiscal year

1980-1981 on indigent defense. 13

Section 1983 suits based on alleged conspiracies

in a system of indigent defense and designed to

circumvent Polk County, present an ironic counter-

point to the historical roots of § 1983. The Ku Klux

Klan Act of 1871, intended to ensure that federal

constitutional rights were not violated by state

officials without any accountability. Yet now a vast

system of state mechanisms put in place to ensure

vindication of federal constitutional rights is itself

'SLefstein ABA Committee Study, supra, p. 27 at 10. The sum is

based on figures from either fiscal years 1980 or 1981, depending on

availability of data in each jurisdiction.

subject to masses of frivolous suits under § 1983.

Inevitably this unimagined counterthrust reallocates

the public defender’s scarce resources and weakens

its ability to protect the constitutional rights of

those entrusted to its care.

Indeed, a conflict of constitutional dimension is

created if disgruntled indigent defendants are

authorized by § 1983 to bring federal actions for

money damages against the public defenders who

represent them. The exposure of a public defender to

such lawsuits with the attendant diversion of the

defender’s attention, time and funding necessarily

will interfere with and may well prevent the speedy

and efficient performance of the defender’s function.

Black v. Bayer, 672 F.2d at 3109. Thus, one client’s

§ 1983 lawsuit against his public defender threatens

to compromise the constitutional rights of the

defender’s other clients to effective assistance of

counsel. Congress simply could not have intended

that such constitutional anomalies occur, particular-

ly when, as discussed below, other remedies are

available to indigent defendants and the public to

remedy and sanction negligent or wrongful conduct

by public defenders.

E. A range of state and federal remedies other

than Section 1983 protect an indigent defendant in

the rare case of an actual constitutional deprivation.

These remedies serve the policy underlying the

enactment of the Civil Rights Act of 1871.

The costs to the body of indigent defendants of a

grant of absolute immunity to the public defender

are plainly low, if they exist at all. Empirical data

discussed above has highlighted the predictably

high rate of frivolous claims. Further, the cost of an

immunity to be borne by the rare plaintiff with a

well-founded conspiracy claim is offset by the

availability of other potent means of redress.

In his complaint for damages under § 1983,

Glover stated: “* * * your plaintiff’s only redress is

through civil action via Title 42 U.S. C. 1983.” (J.A.

9). A key purpose of the Civil Rights Act of 1871

was to establish an avenue between wrongs commit-

ted under color of state law and the federal courts,

Monroe v. Pape, 365 U.S. at 173-175. The Civil

Rights Act of 1871 established the federal remedy to

provide at least one salient remedy for deprivation

of federally secured rights if state law or state law

enforcement were inadequate to the task. /did. If, in

fact, § 1983 were Glover’s only remedy, a strong

historical as well as policy reason would exist for

hesitating to recognize an immunity that would

effectively cut off his access to § 1983. The fact that

Glover’s claim is far from true undercuts any

historical justification for countenancing his suit

and demonstrates that the policies which led to the

establishment of § 1983 are being well and thor-

oughly served by other available state and federal

remedies.

In the facially unlikely event that a public

defender were to conspire with a public official to

deprive an indigent defendant of his constitutional

rights as alleged here, state legal systems provide

extensive correctives to cure the violation. Polk

County v. Dodson, 454 U.S. at 325 n 18. Glover had

the right to direct appellate review of his conviction

in the Oregon Court of Appeals. Or. Rev. Stat. §

138.040. The need to provide private damage actions

to control unconstitutional conduct at a lower court

level is reduced when the judicial process provides

for correction of error on appeal. Butz v. Economou,

438 U.S. at 512; see also Pierson v. Ray, 386 US.

547, 554 (1967). Glover had the prerogative to seek

discretionary review of the court of appeals decision

in the Oregon Supreme Court. Or. Rev. Stat. §

2.520. Glover also could, and still can, invoke state

post-conviction relief proceedings, Or. Rev. Stat. §§

138.510 et seq.

Glover also had a federal habeas corpus remedy,

28 U.S.C. § 2254, to obtain review of his claim that

he was victimized by his trial and appellate public

defenders. See Polk County v. Dodson, 454 US. at

325 n. 18. A federal criminal statute, 18 U.S.C. §

242,14 protects the societal interest in punishing and

deterring unlawful or unethical conduct by the

public defender. The statute has been applied to

provide a remedy against a public defender who

abuses his office and wilfully deprives a client of his

constitutional rights.15 As the court in J/mdler v.

Pachtman pointed out regarding prosecutors, a grant

of immunity “does not leave the public powerless to

deter misconduct or to punish that which occurs.”

424 U.S. at 429. State bar disciplinary proceedings

could also be instituted. See, 424 U.S. at 429. “These

checks undermine the argument that the imposition

of civil liability is the only way to insure that

[public lawyers] are mindful of the constitutional

rights of persons accused of crime.” 424 U.S. at 429.

Even if it were the case that the type of relief

rather than the nature of the wrong to be remedied

were an important concern of Congress in enacting

the Ku Klux Klan Act, see Monroe v. Pape, 365 U.S.

at 183, but see Whitman, supra, p. 16 , at 21,

Glover may have had a civil action for monetary

damages in state tort law for malpractice which

“18 USC. § 242 provides in pertinent part:

“Whoever, under color of any, statute, ordinance, regulation or

custom, willfully subjects any inhabitant of any State, Territory,

or District to the deprivation of any rights, privileges or immuni-

ties secured or protected by the Constitution or laws of the United

States * * * [is guilty of an offense.”

'® United States v. Senak, 447 F.2d 304 (7th Cir), cert. denied, 414

U.S. 856 (1973) (indictment of a county public defender charged with

exacting fees from an indigent client and from friends and relatives of

other indigent clients by threatening inadequate legal representation

states an offense under 18 USC. § 242)

alleviates the concern. !®

Thus, in the improbable event that petitioner

public defenders did conspire with state officials to

deprive Glover of his constitutional rights, he would

have avenues for redress even if his public defenders

were absolutely immune from § 1983 damages

liability. This factor reinforces the conclusion that

public defenders should be granted absolute immuni-

ty from § 1983 damages liability. Black v. Bayer,

672 F.2d at 320; see Barr v. Matteo, 360 U.S. 564,

576 (1959).

CONCLUSION

The manifest public good of a grant of immunity

from § 1983 liability for public defenders engaged in

important efforts to vindicate federal constitutional

rights far outweighs the effect of foreclosing one

avenue of relief to claimants. The decision of the

Court of Appeals, holding that public defenders have

no immunity from a § 1983 suit, should be reversed.

This case should be remanded with instructions that

the Court of Appeals vacate its judgment and

No Oregon appellate case has discussed the liability of a public

defender for damages in a malpractice action brought by a former

client. Other states’ courts have held that public defenders may be

liable to their clients for malpractice . Reese v. Danforth, 486

Pa. 479, 406 A.2d 735 (1979); Spring v. ntino, 168 Conn. 563,

362 A.2d 871 (1975); Donigan v. Finn, 95 Mich. App. 28, 290 N.W.2d

80 (1980).

reinstate the District Court’s order and judgment

dismissing Glover’s complaint.

Respectfully submitted,

DAVE FROHNMA YER

Attorney General of Oregon

WILLIAM F. GARY

Deputy Attorney General

JAMES E. MOUNTAIN, JR.

Solicitor General

MICHAEL D. REYNOLDS

WILLIAM F. NESSLY, JR.

ROY E. PULVERS

Assistant Attorneys General

Counsel for Petitioners

App-1

PUBLIC DEFENDERS; COUNSEL FOR INDIGENTS

151.060

COUNTY PUBLIC DEFENDER

151.010 Public defender services by

county; termination. (1) The board of county

commissioners of any county may provide

county public defender services by:

(a) Contract with an attorney or group of

attorneys; or

(b) Creation of an office of county public

defender and appointment of a county public

defender as provided in ORS 151.010 to

151.090

(2) The board of county commissioners

may at any time terminate the office of the

county public defender

(3) As used in ORS 151.010 to 151.090,

“board of county commissioners” includes

county court. [1971 ¢ 432 §1, 1973 ¢ 836 §311)

151.020 Status of county public de-

fender and staff as county employes. The

county public defender, his deputies and in-

vestigators, and other employes of the county

public defender shall not be subject to civil

service laws or be classified as county em-

ployes for purposes of the county retirement

plan, unless the board of county commission-

ers specifically determines by order that they

shall participate ‘in the retirement plan. (1971

¢ 432 §2)

151.030 Private practice by defender

or deputy prohibited in certain cases. Any

county public defender and any deputy county

public defender receiving a salary in excess of

$13,000 per year shall not engage in a private

practice of law (1971 c 432 §3)

151.040 Term; qualification; employ-

ment by prosecution prohibited. (1) The

term of office of the county public defender is

four years, subject to the provisions of ORS

151.010 (3), and subject to removal from office

for cause by the board of county commission-

ers.

(2) The county public defender shall be an

active member of the Oregon State Bar in

good standing.

(3) The county public defender shal! take

an oath of office to support the Constitution of

the United States and the Constitution of the

State of Oregon.

(4) The county public defender and his

deputies shall not be employed in any capacity

by the district attorney or other public prose-

151.050 Defender’s staff; duties; office

expenses paid by county. (1) Subject to

limitations otherwise prescribed by law, when

it is necessary to enable the public defender to

perform his duties, the county public defender

may, with the approval of the board of county

commissioners:

(a) Employ one or more attorneys as depu-

ties to exercise such powers, authority and

duties of the public defender as he may assign

to them;

(b) Employ other individuals, including

expert investigators, expert witnesses and

interpreters;

clerical staff; and

(d) Do all those acts necessary and proper

for the faithful performance of his duties

(2) The county shall pay all necessary and

proper expenses of the office of county public

defender, including wages and salaries, in

accordance with the county budget laws. This

in no way restricts the county from contract-

ing with or entering into agreements with

other counties or subdivisions of the state, or

with the State of Oregon, or with the United

States Government or its agencies for pay-

ment of these e by agreement or con-

tract as provided in ORS 151.090 [1971 ¢ 432

$5)

151.060 Appointment to _ represent

indigents by circuit and district courts;

authority for appointment by federal and

municipal courts. (1) The circuit or district

court of the county for which he is county

public defender shall have the power to ap-

point the county public defender in any pro-

ceeding in which, under ORS 135.050 or other-

wise, the court has the power to appoint coun-

sel to represent an indigent. A federal or

municipal court may appoint the county pub-

lic defender for a proceeding before it pur-

suant to an agreement under ORS 151.090

(2) The county public defender may act as

an attorney for an indigent at any stage of

any criminal or other proceeding before any

state or federal court or magistrate before

which the county public defender or his desig-

nated deputy is admitted to practice.

(3) The county public defender may act

only in any county for which he is county

public defender or in a county in which occurs

any stage, including judicial review, of a

proceeding begun in a county for which he is

public Getender

1517

App-2

151.070

PROCEDURE IN CRIMINAL MATTERS GENERALLY

(4) Nothing in ORS 151.010 to 151.090

shall limit the power of any court to appoint

counsel to represent an indigent as otherwise

provided by law. [1971 ¢ 432 §6)

151.070 Gifts and grants. Any county

having a public defender may accept gifts,

grants, donations, requests or devises to aid

and promote the work of the county public

defender, and the county public defender may

cooperate with nonprofit organizations and

government agencies that render legal aid

within the county to persons without means to

retain an attorney. [1971 c 432 §7)

151.080 Register of proceedings. The

office of public defender shall maintain a

dum of each proceeding in which the county

public defender serves in his official capacity,

and the right to custody of the register shall

pass to the county public defender's successor

{1971 ¢ 432 §8)

151.080 Interagency agreements re-

lating to services of defender. The provi-

sions of ORS 190.003 to 190.110 shall apply to

the powers granted counties by ORS 151.010

to 151.090. The county commissioners of a

county with a public defender may also enter

into a contract or agreement with the United

States Government or any agency of the Unit-

ed States Government for provision of services

by the county public defender, and the county

may accept payment from the United States

Government or agency for such services pur-

suant to such an agreement or contract. (1971

¢ 432 §9)

STATE CONTRACT FOR

COUNSEL TO INDIGENTS

151.150 State Court Administrator

may contract for provision of counsel to

indigent persons. (1) The State Court Ad-

ministrator, on behalf of the state, may con-

tract with an attorney or group of attorneys

for the provision by the attorney or group of

attorneys of services as counsel for indigents

in proceedings in which a court or magistrate

has the power to appoint counsel to represent

an indigent and the state is required to pay

compensation for that representation. The

State Court Administrator, on behalf of the

state, and the governing body of a county

having a county public defender as

in ORS 151.010 to 151.090, on behalf of the

cunts; , nary cantons: ‘tor ‘hte provniton wy “bie

county public defender of services as counsel

for indigents in those proceedings. The ex-

pense of services provided under a contract

shall be paid by the state from funds available

for the purpose

(2) A court or magistrate may appoint an

attorney or a county public defender under a

contract with the state as provided in subsec-

tion (1) of this section to represent an indigent

in any proceeding in which the court or magis-

trate has the power to appoint counsel to

represent an indigent and the state is required

to pay compensation for that representation.

(3) This section does not apply to proceed-

ings in which the Public Defender established

by ORS 151.280 is authorized, able and ap-

pointed to provide services as counsel for

indigents. (1981 ss ¢3 $117)

Note: 151 150 becomes operative January 1, 1963

See section 5, chapter 3, Oregon Laws 1981 (special

session)

STATE PUBLIC DEFENDER

151.210 Definitions for ORS 151.220 to

151.280. As used in ORS 151.220 to 151.280,

unless the context requires otherwise:

(1) “Committee” means the Public Defend-

er Committee appointed under ORS 151.270.

(2) “Defender” means the Public Defender

appointed under ORS 151.280 [Formerly

138 710)

151.220 Public Defender; term; quali-

fications; deputies. (1) The defender’s term

is four years, and he may be reappointed. The

office of defender becomes vacant upon the

conditions prescribed in ORS 236.010, upon

the committee’s finding of any of the causes

enumerated in ORS 241.425 (1) to (3), or upon

the defender’s failure to comply with subsec-

tion (2) of this section.

(2) The defender shal! be an active mem-

ber of the Oregon State Bar.

(3) To qualify for office the individual

appointed defender shal! file with the Secre-

tary of State his signed oath of office to the

effect that he will support the Constitution of

the United States and the Constitution of

Oregon, and that he will faithfully and hon-

estly dernean himself in his office.

(4) The defender and his deputies shall be

members of the exempt service established by

ORS 240.200. One secretary for the defender

‘aia! ibe a meriber ot the unclassified service

1818

App-3

PUBLIC DEFENDERS; COUNSEL FOR INDIGENTS

151.270

(5) The defender, and any of his deputies

who receive a salary of $10,000 per year or

more, shall not engage in the private practice

of law

(6) The defender and his deputies shall not

be employed in any capacity by a district

attorney or other public prosecutor. (Formerly

138 740)

151.230 Salary and expenses. (1) The

defender shall receive such annual salary as is

provided by law. The defender shall receive

the minimum salary unless such salary is or

has been altered by the Public Defender Com-

mittee in the manner prescribed in ORS

292.855 (1975 Replacement Part).

(2) The defender shall be paid by the state

in the same manner as other state officers are

paid. Such salary shall be the full compensa-

tion to the defender for all his services, except

for the allowance of his expense as a state

officer. [Formerly 138 750]

151.240 Administrative powers of

defender. (1) When it is necessary to enable

the defender to perform his duties, the defend-

er may:

(a) Employ deputies with the power and

authority of the defender

(b) Employ other individuals, including

expert investigators, witnesses and interpret-

ers.

or other services.

(d) Consult with and, in appropriate cases,

join in the defense, any attorney who had

previously represented the individual in a

case which resulted in a conviction under

consideration in the proceeding where the

defender represents the individual. Any com-

pensation paid such attorney for services

rendered under this paragraph shall be paid

solely as provided by ORS 138.490.

(e) Make or assist in making any study,

survey or report upon the need for, use of and

availability of legal aid to indigent persons in

the State of Oregon, and accept payment

therefor.

(2) Subject to the express approva) of the

committee, the defender may accept gifts,

grants or services from, or contract with non-

profit organizations, educational institutions

and other state or federal agencies; in render-

ing legal aid to persons without means to

retain an attorney and in. studving,, wirveving

and reporting on the need, use and availabili-

ty of such aid in the State of Oregon

(3) Payment for materials and services

procured under this section shall be made in

the same manner as other state expenses are

paid. (Formerly 138 760)

151.250 When defender may render

services. (1) In accordance with subsections

(2) to (4) of this section and the determina-

tions of the committee under ORS 151.280 (2)

or (7), the defender may act as attorney at any

stage of a proceeding before any court, includ-

ing the Supreme Court, for an individual who

is committed to the legal and physical custody

of the Corrections Division pursuant to ORS

137.124, and the proceeding is other than:

(a) A habeas corpus proceeding;

(b) A proceeding for which counsel is ap-

pointed under ORS 135.045, 135.050, 419.498

or 426.100; or

criminal or civil.

(2) The defender may act only at the re-

quest of the individual described in subsection

(1) of this section, or, if no such request is

made, at the request of the court or magis-

trate

(3) The individual on whose behalf the

defender is requested to act shall submit to

the defender, in the form prescribed by the

committee, an affidavit of his financial cir-

cumstances.

(4) At the request of the defender or an

individual who seeks the defender’s aid, the

court or magistrate before whom a proceeding

is pending or to whom an application for relief

has been made, shall finally determine wheth-

er the individual is eligible under this section

for the defender’s aid. (Formerly 138770, 1973

c 694 §19)

151.260 Register of proceedings. The

defender shall keep a register in which he

shall make a note of each proceeding in which

he serves in his official capacity. The right to

custody of the register passes to the defender’s

successor in office, and the defender shall

deliver the register to his successor in office.

{Formerly 138 780)

151.270 Public Defender Committee;

appointment; expenses; term. (1) The Su-

preme Court shall appoint a Public Defender

Committee of not fewer than five individuals,

who, in the opinion of the court, are qualified

by, training or. exnenance to. nerform.the. func:

1519

App-4

151.280

PROCEDURE IN CRIMINAL MATTERS GENERALLY

tions of the committee. A majority of the

committee is a quorum for the transaction of

business

(2) Each member is entitled to compensa-

tion and expenses as provided in ORS 292.495

(3) Each member's term is four years and

he may be reappointed. [Formerly 138 720)

151.280 Duties of committee. The

committee shall:

(1) Appoint a Public Defender;

(2) Determine policies and procedures for

the performance of the defender's functions:

(3) Determine standards of eligibility for

the defender and his deputies;

(4) Approve the original estimate sheet in

connection with the budget for the defender’s

office and generally be responsible for super-

vision of the expenditures made for the de-

fender's office;

(5) Prescribe a form of oath of financial

circumstances for use under ORS 151.250 (3);

(6) Prescribe a formula of apportionment

of expenses under ORS 137.205 (1969 Replace-

ment Part); and

(7) Where the defender is unable to per-

form fully his authorized functions, determine

the nature and extent of the services he shall

render. (Formerly 138 730)

151.290 Public Defender’s Account.

There hereby is established in the General

Fund of the State Treasury an account to be

known as the Public Defender’s Account. All

moneys received by the Public Defender shall

be paid into the State Treasury and credited to

the Public Defender’s Account. All moneys in

the Public Defender’s Account hereby are

appropriated continuously for and, subject to

approval by the Public Defender Committee,

shall be used by the Public Defender in carry-

ing out the purposes of ORS 138.480 to

138.500, 138.590 and 151.210 to 151.290.

{Formerly 138 790)

CHAPTER 152

(Reserved for expansion]

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