Petition for Writ of Certiorari — Frankel v. New Jersey

Supreme Court brief1973

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3 IN THE

Supreme Court of the United States

Ocroser TERM, 1972

Docket No. FDaZ2Q

) : In THE MATTER OF THE CONTEMPT OF

) ESTHER S. FRANKEL,

Aw Arrorney aT Law oF THE State oF NEw JERSEY,

Petitioner.

TO THE SUPREME COURT FOR THE

STATE OF NEW JERSEY

) PETITION FOR WRIT OF CERTIORARI

FRANKEL & FRANKEL,

Attorneys for Petitioner,

455 East 42nd Street,

) Paterson, New Jersey 07504.

)

Leorotp FRANKEL,

Of Counsel.

(Adams Press Corp., 11 Commerce Street, Newark, N. J.—Market 3-8611-12

| aon ae SLL GL FE AD sr Aa AUER AEN OD SUERNRRT YinGRIT ELI OA Te 8 ERE MER ala hiatal shea A inti a didi

TABLE OF CONTENTS

PAGE

INTRODUCTORY PARAGRAPH 1

Opinions BeLow 9

JURISDICTIONAL GROUNDS . 2

QUESTIONS PRESENTED ............. 2

A. Federal Questions Presented Which Were

Not Resolved 2

B. The Questions Presented Which Were Incor-

rectly Resolved 3

FepeRAL Questions Raiszp

Revevant Unitrep States CoNnstiruTionaL AMEND-

OS BELEN LAAT OOO RL 4

ieLevant New Jersey Stature anp Ruie INvoLvep: = ¢

N.JS8. 2A:10-1 ........... = aaa

N. J. Court Rule 1:10-1 ...22....

(oncIsE STATEMENT OF THE CASE

A. Personal Background of Petitioner -...............

B. Societal Background .....

C. The Birth of the Public Defender System and

the Demise of the Assignment System under

Rule 1:12-9 7

D. How Court Proceedings Resuscitated the As-

signment System ....... 7

aa HS oO Cl

E. The Arbitrary Assignment of Petitioner and

its Aftermath 8

7 5

li TABLE OF CONTENTS

ArcuMeNtT Ampuiryinc Reasons Retiep Upon For

ALLOWANCE OF Writ oF CERTIORARI

A. Background for Constitutional Powers As-

Se ER ae a one EEOC nen Renee Orn en

B. The Judicial Precedents .................---.--------------+-

CoNCLUSION

APPENDIX:

A—Denial of Certification by the New Jersey,

Supreme Court —...............-.-..—-------------20+----

B—Opinion of Superior Court of New Jersey——

Appellate Division ..................---------:-ee

C—Opinion of Passaic County Court -................-

D—Certification and Order of Municipal Court

of the City of Paterson Adjudging Petitioner

in Contempt of Court .................-.---—---------=---

E—Directive of Administrative Director of

Courts Re: Assignment of Counsel in Mu-

nicipal Courts Dated May 12, 1971 ...........---.

F—Stenographie Transcript of Testimony Taken

in the Municipal Court of the City of Pater-

son

G—Table “G-2”—Statisties Showing Increase in

Crime in the Municipal Courts

H—Editorial, New Jersey Law Journal October

31, 1963—Defense of Indigents, Put the Re-

sponsibilit) Where it Belongs

I—Relevant Part of Public Defender Statute,

State of New Jersey, 2A:158-1 to 17 -..........---

13a

l6a

19a

TABLE OF CONTENTS iii

PAGE

Cases Cited

Argersinger v. Hamilin, —— U.S. —— (1972) 32 L.

ba. 23 oe... 10

Bradshaw v. Ball, 41 L.W. 2190 (9/22/72) ...............-.-.- 9

Brown vy. United States, 356 U.S. 148, 153 (1958)... 13

Cammer vy. United States, 350 U.S. 399 (1956)... 14

ix Parte Hudgings, 249 U.S. 378 (1919)...........-.------ 12, 13

In the Matter of the Contempt of Esther S. Frankel,

117 N.J. Super. 296 2

In Re MeConnell, 370 U.S. 230, 234 (1962).................-- 13

Knox County Council v. State, 217 Ind. 493, 29 N.E.

2d 405 9

Lochner v. New York, 198 U.S. 45 (1905) -_.2 10

Nye v. United States, 313 U.S. 33 (1941)... 13

Rodriguez v. Rosenblatt, 58 N.J. 281 (1971).......-...... 8

Spivak v. Klein, 385 U.S. 511 (1967) 14

State v. Conley, 58 N.J. 281 (1971) 8

State v. Rush, 46 N.J. 399 (1966) 7, 11

United States v. Ryan, 402 U.S. 530 (1971)............-.--- 13

United States v. Sopher, 347 F. 2d at 415 (1965)........ 13

Walker v. Birmingham, 388 U.S. 307 (1967)............... 13

United States Constitution Cited

First Amendment 3, 4,13

a II icicitincccttiensicntiincninmnncmanenien . 14

ee na ee 4,9

iv TABLE OF CONTENTS

So PAGE

Thirteenth Amendment ....... ce 3, 4, 10

Fourteenth Amendment (Due Process and Equal Pro-

tection of the Law) sesceeetdy Oy 10

Federal Statutes Cited ,

18 US.C.:

See, 401( 2) -.--cececececeeceeseeseessenseres 14

See, BO0G a ......---.-cc-cc--ccserseccecceereeeners 11

New Jersey Statutes Cited

NDS. ZA 10-1 2.n.-cecececececssenceseesecsssesesnesssetersnsnsnansnsecesees 3-5, 12, 14

N.J.S. 2A:158A .. 7

New Jersey Rules Cited

Rule 1:10-1 .. 3-D

Bale 1:129 ..........; 7

Texts Cited

7 Am. Jur. 2d Attorneys-at-law, p. 169 9

Introduction to Keonomies, by John Roscoe Turner,

Se 10

Miscellaneous

Kditorial 86 N.J.L.J. 604 7

Table “C2” Statisties Showing Increase in Crime In

the State of New Jersey Handled by the New Jer-

sey Municipal Court -. 11

IN THE

Supreme Court of the United States

Octoser TERM, 1972

Docket No.

Ix tHe Marrer oF THE CONTEMPT OF

ESTHER S. FRANKEL,

Ax Arrornry at Law or THE State or New JERSEY,

Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE

STATE OF NEW JERSEY

Introductory Paragraph ~

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the Supreme Court of

New Jersey (C-50 September Term 1972) entered on Sep-

tember 21, 1972 (1a, infra). which denied petitioner's ap-

plication for certification, with costs.

ov)

‘

AGA

Lie aan

Opinions Below

No opinion of the New Jersey Supreme Court accom-

panied the above denial (la, infra). The opinion of the

Superior Court of New Jersey, Appellate Divison (A-875-

71), the last court to which an appeal could be taken as a

matter of right, was filed June 27, 1972. This opinion has

not yet been reported and will be found at 2a, infra. The

opinion of the Passaic County Court dated November 29,

1971 is reported in 117 N. J. Super. 296, and is found at

da, infra. The decision of the Paterson Municipal Court,

a part of the transcript of proceedings before the Munici-

pal Court of Paterson, is found in 19a, et seq., infra. Its

remarks were not officially reported.

Jurisdictional Grounds

(i) Petitioner has exhausted all appellate and review

procedures in the State Courts, and those Courts have

brushed aside the grave constitutional issues involved, the

last being to deny certification on September 21, 1972.

(ii) These commanding constitutional questions raised

in the State Courts should be settled by this Court.

(iii) There has been no application or order for re-

hearing; and no application for extension of time within

which to file petition for certiorari.

(iv) The jurisdiction of this Court is invoked under

28 U.S.C. See. 1257(3).

Questions Presented

A. The questions presented which were not resolved:

1. Whether re-instituting the arbitrary, rotating assign-

ment system in the Municipal Courts, without providing

for compensation to assigned attorneys denied petitioner

(a) Her First Amendment rights to dissent from what

she believed to be an illegal and unconstitutional order;

(b) Her Thirteenth Amendment rights to be free

from involuntary servitude ;

that denies:

i) Her right to freecom of contract;

ii) Her right to equal protection of the laws;

B. The questions presented which were incorrectly re-

solved:

2. Whether the New Jersey statute N.J.S. 2A :10-1 and

Rule 1:10-1 of New Jersey Rules Governing the Courts,

under which petitioner was illegally convicted of con-

tempt, compounded the injustices of the assignment sys-

tem in violation of her First, Thirteenth and Fourteenth

Amendment rights?

3. Whether the holding of petitioner in contempt

should be reversed:

a) In that it is not predicated upon conduct which

constitutes misbehavior to the court; or

b) Obstructs the administration of justice?

Federal Questions Raised

The federal issues herein involved raise questions of

due process of law and of other constitutional righis,

ali of paramount importance to 12,500 members of the

Bar in the State of New Jersey. Some of these federal

contentions appeared in the Paterson Municipal Court, the

court of first instance, 19a et seq.) where the proceeding

was very brief and summary.

I ete

ea A

The constitutional contentions were all raised in the

briefs of the petitioner at the County Court level ({a,

lla, infra) and again on appeal to the Superior Court of

New Jersey, Appellate Division, (3a, infra). Finally,

they were raised in our brief before the New Jersey Su-

preme Court on Petition for Certification.* None of the

appellate courts reached the constitutional contentions of

petitioner, and indeed, refused to consider petitioner's

constitutional attacks on the revived assignment system,

but affirmed the conviction of alleged contempt on the ba-

sis of the statute, N.J.S. 2A:10-1, and Rule 1:10-1 as set

out in the “Certification and Order Adjudging Contempt

of Court”, (13a, infra) and the opinion of the County

Court, (5a, infra).

Relevant United States Constitutional

Amendments Involved

Amendment I

Congress shall make no law . . . to petition the gov-

ernment for a redress of grievances.

Amendment TI

In all criminal prosecutions the accused shall enjoy

the right . . . to have the assistance of counsel for

his defense.

Amendment XIII

Section 1. Neither slavery or involuntary servitude,

except as a punishment for crime . . . shall exist

within the United States . . .

* Because no opinion accompanied denial of certification, recourse

must be had to petitioner's brief to find that Federal constitutional

questions have been raised.

Amendment XIV

Section 1. ... 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, with-

out due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

Relevant New Jersey Statute and Rule Involved

N.J.S. 2A:10-1

What Constitutes Contempt

“The power of any court of this State to punish

for contempt shall not be construed to extend to

any case except the:

(a) Misbehavior of any person in the actual pres-

ence of the court;

(b) Misbehavior of any officer of the court in his

official transactions; and

ficer, or by any party, juror, witness or any person

whatsoever to any lawful writ, process, judgment,

order or command of the court.

Nothing contained in this section shall be deemed

to affect the inherent jurisdiction of the superior

court to punish for contempt.”

New Jersey Court Rule R. 1:10-1

Contempt in Presence of Court

“Contempt in the actual presence of a judge may

be adjudged summarily by the judge without notice

ate tees

| T

or order to show cause. The order of contempt

shall recite the facts and contain a certification by

the judge that he saw or heard the conduct consti-

tuting the contempt.”

Concise Statement of the Case

A. Personal Background of Petitioner

The petitioner, Esther 5. Frankel, is a resident of Pas-

saic County, Staite of New Jersey. She has been engaged

in the active practice of law since 1927 when she was ad-

mitted to the New York bar under her maiden name, Es-

ther M. Strum and after her marriage and removal to the

State of New Jersey, since 1952 when she was admitted to

the New Jersey bar after passing the examination for

admission. Her observation and experience at the bar

have taught her that for legal representation of the ae-

eused indigent to be effective, it should not be under an

assignment system whereby uncompensated attorneys,

often inexperienced in criminal matters, are selected by

rotation, but by compensated attorneys who can afford

to devote to the indigent the same time and services that

paying clients receive. Such representation should not be

the subject of assigned counsel's charity, exacted from

him or her, in the form of time or money given, to be

sure, under a sub-liminal fear of offending the judiciary.

B. Societal Background

Since criminal offenses are an assault upon our Society,

it is the burden of that Society to deal with them in all

its phases, including the obligation to pay for the defense

of an indigent accused of a crime. That she shares these

feelings with members of the bar is evident from an edi-

¢ 4

torial which appeared in 86 N. J. L. J. 604, as far back

as October 31, 1963, (26a, infra) “Defense of Indigent-:

Put the Responsibility Where It Belongs”. At that time,

throughout the State of New Jersey, counsel were as-

signed by the State Courts without remuneration for in-

digent defendants accused of indictable crimes, except that

attorneys assigned to murder cases were paid.

C. The Birth of the Public Defender System and the

Demise of Assignment System Under Rule 1:12-9

However, it was not until 1966 when the insistent clamor

of the bar reached such intensity that it was heard in

Trenton, New Jersey, that this problem came to a head.

In the case of State v. Rush. 46 X. J. 399, the New Jersey

Supreme Court, although denying compensation to an at-

torney because the court had not legislative power, none-

theless urged “a thorough policy and practical study and

evaluation of our assigned counsel system in its entirety”,

a system that was then operating for about a dozen years

under its Rule 1:12-9. The New Jersey Legislature made

the recommended study, from which the Public Defender

Act, N.J.S. 2A:158A et seq. (29a infra) emerged in 1967.

Under its “section 1” defense of indigents was confined to

those accused of indictable offenses. Those aceused of

lesser offenses were left to their own resources. Under

its “section 2”, an “indigent defendant” was defined as a

person charged with an indictable offense without the pres-

ent financial ability to secure competent legal representa-

tion.

Thus ended the assignment system vnder Rule 1 712-9.

% ae?

D. How Court Proceedings Resuscitated The Assignment

System

In 1971 the New Jersey Supreme Court rendered two

decisions, Rodrigue: Vv. Rosenblatt and State v. Conley, 58

N. J. 281 both holding that indigents at the municipal

level accused of an offense which carried a penalty of pos-

sible imprisonment, were also entitled to legal representa-

tion. However, no provision was made for such counsel

to be paid. Now the assignment system, repudiated and

thought to be a dead letter for four years was retrieved,

revived and reinstated at the municipal level.

Followed a directive from the Administrative Director

of the Courts dated May 12, 1971 (16a, infra) which

warned municipal judges that neither one of these opin-

ions. the statutes nor the court rules, authorized the muni-

cipal court to compensate such assigned attorneys.

E. The Arbitrary Assignment of Petitioner and its After-

math

On July 6, 1971, petitioner was given an arbitrary as-

signment by a municipal judge of the City of Paterson, to

serve as unpaid counsel for an indigent defendant, a de-

fendant whom she did not know, who didn’t know her,

who had been accused of being a disorderly person, which

charge carried the possibility of imprisonment. In pursu-

ance of her conscientious objections to the whole concept

of the assignment system, she declined acceptance. She

was summarily adjudged guilty of contempt of court and

fined $50 and costs. The appeals and affirmances of con-

vietion followed.

Petitioner now seeks to vindicate the supremacy of the

Federal Constitution which has been abrogated by the

State Courts by being ignored.

Argument Amplifying Reasons Relied Upon

for Allowance of Writ of Certiorari

A. Background for Constitutional Powers Asserted

1. The cases discussing the obligation of an attorney to

render free services by judicial request fall into two cate-

gories. It is significant that the earlier cases hold he has

such an obligation while the later ones maintain he has

not. 7 Am. Jur. 2d, Attorneys-at-law, sec. 207, p. 169,

notes 2 to 9, and pocket parts.

Among the later cases, Kuox County Council v. State,

17 Ind. 493, 29 N.K. 2nd 405, 407, 409, 410 (Sup. Ct. Ind.

1940) stands out. That case holds that the Sixth Amend-

ment to the United States Constitution requires that an

indigent defendant have the assistance of counsel for his

defense: that at common law the gratuitous defense of a

pauper was an honorary duty not enforceable at law.

More recently. Bradshaw vy. Ball, 41 L.W. 2190, Ky.

Ct. App. 9-22-72, not yet officially reported, published in

U. S. Law Week, October 17, 1972, holds that a Kentucky

court’s appointment of counsel to serve without fee in de-

fense of an indigent accused of a crime constitutes a tak-

ing of private property without compensation, and is a

denial of due process of law, in violation of both the

United States and Kentucky Constitutions.

Prompt resolution of these conflicts and the important

constitutional questions inherently involved is clearly

ealled for by both the bar and the public.

2, Recently the United States Supreme Court itself up-

set a conviction where relief for violation of the federal

constitutional right to counsel had been denied in Florida.

The ground for such suit was that counsel for indigent

defendants was furnished in Florida only for non-petty

ee rete et

Oa we OS

Pee ee ee

phate Pind ene ee.

Pe) et i oe

offenses punishable by more than 6 months imprisonment.

In a coneurring opinion, Mr. Chief Justice Burger, quot-

ing from the American Bar Association Report on Stand-

ards Relating to Providing Defense Services said:

“‘that the system for providing counsel and facili-

ties for the defense he as good as the system which

society provides for the prosecution.’ ”

Argersinger v. Hamilin, — U.S. —— (1972), 32 L. Ed.

2d 530, 542, 92 S. Ct.

3 Freedom of contract, a legacy from the economic

philosophy implicit in laissez-faire, urged by Adam Smith

and others, is violated by the assignment system. Four-

teenth Amendment to the Federal Constitution reflects this

“freedom of contract” which is subject to the limitation

only, relating te the “safety, health, morals and general

welfare of the publie”. Lochner vy. New York, 198 U.S. 4.

53 (1905). Nothing in this assignment system qualifies to

take it out of the “freedom of contract” class. The assign-

ment system is a harking back to feudal times when the

lord of the manor could exact a share of the serf’s pro-

duce and military services as a condition for remaining

on the land.* The Thirteenth Amendment bars a return

to that condition by the lawyers involved.

4. In New Jersey, at every stage of the law enforce-

ment system, the police, the court attendants, the prosecu-

tors, the public defenders, judges, jailers, ete.. all without

exception are being paid, without regard to the economic

status of the defendant. The public defender representing

an indigent for indictable offenses is likewise paid. Con-

* Introduction to Economics (1919) br John Roscoe Turner.

p. 15 et seq.

sidering the increase in petty, non-indictable offenses,

(infra) which may result in imprisonment, equity de-

mands that attorneys assigned in Municipal Court cases

for defense of indigents should also be paid. This will

also conform to federal practice where in recognition of

these vital constitutional objections to enforeed, gratui-

tous rendering of services by attorneys, the Federal Crim-

inal Justice Act, amended by Congress in 1964, now pro-

vides for compensation for court-appointed attorneys who

defend accused indigents in the federal courts. 18 U.S.C.

Seetion 3006a.

5. The aforesaid judgment of conviction for alleged con-

tempt obliquely conflicts with State v. Rush, 46 NJ. 99

(1966) which struck down the assignment system at the

trial and appellate levels, for indictable offenses, when it

adjudged that the Legislature must provide for payment

to defense attorneys. By way of dicta, Rush held out the

hope that the changing scene at the municipal level due

to inereased prosecutions for offenses which may result in

imprisonment, could alter the situation and require the

serviecs of paid counsel. A table, “G-2", (25a, infra) indi-

eates a drastie crime inerease in such offenses before the

New Jersey Municipal Courts, from 1965 to 1970.

Criminal Complaints Filed

Increase

Year Number Nos. %

1965-1966 148,882

1970-1971 222.175 72,293 50%

6. One of the statements made in the opinion of the Pas-

saie County Court judge filed November 29, 1971, which

was adopted by the Superior Court of New Jersey, Ap-

pellate Division, (8a, infra) is that as a condition of his

license to practice law, an attorney has a common law

obligation to render gratuitous assistance, Ila, infra. Not

so. The license itself makes no mention of such gratui-

_tous assistance. The fact that the attorney has been li-

censed in consonance with established procedure, is not for

the sake of rendering free serviews to the State, through

representation of its indigents, but to protect the public

against incompetent or dishonest practitioners. No other

licensee of any profession i+ called upon te render gratu-

itous services. The lawyer stands apart in that respect.

It is a tax levied upon him but not upen all other licen-

sees—clearly a denial of due process ami of the equal pro-

tection of the laws.

B. The Judicial Precedents

7. NJ.S.A. 2A:10-1 spells out the limits of the con-

tempt power under which petitioner was convieteL. While

“obstruction” is not found within its ambit, Note 7 of the

annotations refers to cases holding that it is “obstrue-

tion” that constitutes the contempt. “¢ Ibstruction” is the

keystone of the crime of contempt. Remove this keystone

and the arch crumbles. Nowheres was this obstruction

shown to exist in the instant case, not in the transcript of

the testimony in the Municipal Court, (19a, et seq. infra),

nor in the “certification and order adjudging in contempt

of court” (13a, infra).

In Ex parte Hudgings, 249 U. S. 378 (1919), the Su-

preme Court held that obstruction was a necessary ele-

ment of the offense of contempt. “An obstruction to the

performance of judicial duty resulting from an act done

in the presence of the court is, then, the characteristic

upon which the power to punish for contempt must rest.”

Id. at 383. Furthermore, obstruction “must clearly be

shown”, before punishment for contempt is permissible.

Nye v. United States, 313 U. S. 33 (1941) extrapolated

this definition by holding that “long delay and large ex-

pense” would constitute obstruction. Id. at 52. In re Mc-

Connell, 370 U. S. 230 (1962), enlarged the holding in

Hudgings by adding that the obstruction must be actual,

not abstract or imagined (370 U.S. at 234-36). Moreover,

obstruction must be clearly shown by the record Jd. at

234. The near unanimity of the requirement of obstruc-

tion is further shown in United States v. Sopher, 347 F.

2d at 415, 418 (7th Cir. 1965) which held: “On the record

before us it is not clearly shown that appellant’s conduct

although unjustifiable, actually obstructed the district

judge in the performance of judicial duty.” Obstruction

and judicial sensibility must not be confused. Brown v.

United States, 356 U. S. 148, 153 (1958).

Walker v. Birmingham, 388 U. S. 307 (1967), the only

case cited by the Appellate Division of the New Jersey

Superior Court in its opinion, (4a infra) has not the au-

thority claimed for it, for holding petitioner in contempt.

In Walker, petitioner’s contempt proceedings were upheld

because of the availability of review of the court’s order

at an earlier stage. Here there was no earlier stage and

the instant petitioner has exhausted all available review.

See, Note, 4, U. S. v. Ryan, 402 U. S. 530 (1971).

8. The New Jersey State courts failed to resolve the

constitutional issue contained in the First Amendment to

the United States Constitution, and to the petitioner’s un-

fettered right to dissent from a judicial poliey—a First

Amendment right—which also contains the uncontroverted

showing of injury to the indigent, from forced representa-

tion by unwilling counsel. Speaking, on a professional

level, these injuries outweigh every other consideration,

including the holding for contempt for not obeying a com-

mand of the court prejudicial to both counsel and the in-

digent.

Ale, haa nb wm

If Spivak, in Spivak v. Klein, 385 U. S. 511 (1967) an

alleged ambulance chaser, subpoenaed to produce docu-

ments and give testimony at a judicial inquiry into ambu-

lance chasing, could resist the court and refuse on the

constitutional ground of the Fifth Amendment (Self-in-

crimination) to produce his records, it would seem that

petitioner has at least a like right to dissent on First

Amendment grounds, to an assigminent system fraught

with injustice to the accused and with servitude to his

assigned attorney.

9. The summary adjudication of guilt of conten ot of

court, so sweepingly decided by the courts below, di not

consider the statute N.J.S. 2A:10-1(c¢) in its appl cation

to the petitioner.

Subdivision “(c)” of N.J.S. 2A :10-1 “by any court offi-

cer” has never been interpreted by any court in the State

of New Jersey. In a comparable federal statute, 1s

U.S.C. See. 401 (2), this Court held in Cammer v. United

States, 350 U. S. 399 (1956) that an attorney is not “a

court officer” within the meaning of the latter section.

10. The directive from the Administrative Director of

the Courts, Appendix IF (16a infra) requires that Muni-

cipal Court Judge in advance of assignment of counsel

should determine whether conviction will result in impris-

onment and whether defendant is indigent. There is no

provision that the Court should determine that assigned

counsel is versed in criminal matters.

Moreover, while directive sets out specifically that a

prosecution attorney he available to represent the state or

the municipality, and where none is available that the

governing body be immediately advised of such need, there

is no indication that the services of such prosecuting at-

torneys should be rendered gratis, as was required of de-

fense attorneys.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this petition for certiorari be granted.

Respectfully submitted,

LEoroLpD FRANKEL,

Leopold Frankel,

Attorney for Petitioner,

455 East 42nd Street,

Paterson, New Jersey 07504

a—

APPENDIX A

Denial of Certification by the New Jersey Supreme Court

SUPREME COURT OF NEW JERSEY

C-50 SepremBper Term 1972

EstHer S. FRANKEL,

Plaintiff-Petitioner,

vs.

Strate oF New JERSEY,

Defendant-Respondent.

On PETITION For CERTIORARI

To APPELLATE Division, Superior Court:

A petition for certification having been submitted to this

Court, and the Court having considered the same,

It is hereupon Ordered that the petition for certification

is denied, with costs.

Wirness the Honorable Joseph Weintraub, Chief Justice,

at Trenton on the 21st day of September, 1972.

Frorence R. Peskor

Acting Clerk of the Supreme Court

FIep

Sep 21 1972

Fiorence R. Peskor

Acting Clerk

fla]

APPENDIX B

: Opinion of Superior Court of New Jersey—

SUPERIOR COURT OF NEW JERSEY

Appreciate Division

A-873-71

Strate or New Jersey,

Plaintiff-Respondent,

Ix THE Marrer or THE CoNTEMPT

Estner S. Fraxxer, An Attorney at Law of the

State of New Jersey,

Defendant-Appellant.

Argued June 12, 1972—Decided June 27, 1972.

Before Jupces SuLLIVAN, Leoxarp and Carton.

On appeal from Passaic County Court, Criminal Divi-

sion, whose opinion is reported in 117 N. J. Super.

296 (1971).

Mr. Leopold Frankel argued the cause for appellant

(Messrs. Frankel & Frankel, attorneys).

eee a

Appendiz B

Mr. John A. Brogan, Deputy Attorney General, argued

the cause for plaintiff-respondent (Mr. George F.

Kugler, Jr., Attorney General of New Jersey, at-

torney).

Per CvriaM

Appellant Esther S. Frankel, an Attorney at Law of

the State of New Jersey, was found guilty of contempt

for wilfully refusing an assignment to represent an in-

digent defendant in a disorderly persons case in the Pat-

erson Municipal Court.

On a trial de nore on the record in the County Court.

the finding of contempt was sustained and further appeal

is made to this court.

The issue is a narrow one. Appellant acknowledges that

she was assigned to represent an indigent defendant in

a municipal court proceeding and that she wilfully re-

fused to accept the assignment. Her hasie contention is

that the present system of requiring attorneys to accept

assignments to represent indigent defendants in municipal

court cases without compensation is unlawful, immoral and

unconstitutional. She argues that her refusal to accept

the assignment was not shown to have obstructed justice,

nor did it evidence an intent to do so.

We have reviewed the full record and are in accord with

the legal conclusions set forth in the comprehensive opin-

ion of the County Court and, except as hereinafter noted,

adopt them as our own. The opinion is reported at 117

N. J. Super. 296. On the undispned facts, we find that

appellant’s refusal to accept the assignment in question

constituted a contempt of court in violation of N.J.S.A.

Appendiz B

94:10-1. We hold that the assignment and the system on

which it was based was lawful and proper, and appellant

was under a duty to accept it. Moreover, her challenge

of the assignment should not have been by defying the

court. Walker v. City of Birmingham, 388 U. S. 307

(1967). The proper procedure would have been either to

seek leave to appeal from the order of assignment, or ac-

cept the same and apply for compensation thereafter.

In deciding this appeal we find it unnecessary to pass

upon the trial court's dictum at p. 302 that “Any right to

compensation is purely statutory.”

We find appellant guilty of the contempt charged and

fine her $50 and costs, payable to the Clerk of the Paterson

Municipal Court.

A True Cory

Mortmrer G. Newman

Clerk

APPENDIX C

Opinion of Passaic County Court

Passaic Covuxty Covert

Law Division

———

Strate or New Jersty

Jaxer Corey

Ix tHe Matrer or THe Contempt

Estuer S. Fraxxer, an Attorney at Law of the

State of New Jersey

——S

Argued—November 19, 1971.

Decided—November 29, 1971.

Mr. Leopold Frankel argued the cause for appellant,

Esther S. Frankel.

Mr. Sherman T. Brewer, Jr., Deputy Attorney General,

argued the cause for the respondent (Mr. George F.

Kugler, Jr., Attorney General of New Jersey, attor-

ney: Mr. Elias Abelson, Assistant Attorney General.

of counsel: Mr. Sherman T. Brewer, Jr., Deputy At-

torney General. on the brief.

Appendiz C

Durry, J.C.C. ;

This matter is before the court on the appeal of Esther

S. Frankel, an Attorney at Law of the State of New Jer-

sey, from an adjudieation of contempt of court pursuant

to N.J.S.A. 2A:10-1(¢) and R. 1:10-1 entered on July 6,

1971, in the Municipal Court of the City of Paterson. The

appellant was fined $50.00, payment of which was stayed

by the Municipal Court pending the outeome of an appeal.

On July 6. 1971, one Janet Corey was charged with a

violation of N.J.S.A. 2A:170-4. Upon interrogation of

Janet Cory the court was unable to elicit any information

from her and thereupon assigned the appellant as counsel.

At this point the appellant refused to accept the assign-

ment and expressly waived the opportunity for a 24 hour

cooling-off period to reconsider her position as directed

in In re Logan, Jr., 52 N. J. 475 (1968). Thereupon, the

appellant was adjudged guilty of contempt of court and

fined $50.00.

Sueeinctly stated the issue on this de novo appeal on

the transcript is “whether the refusal of an attorney to

accept appointment as counsel for an indigent aceused, de-

fendant or appellant, . . . constitutes contempt of court”

Annotation, “Attorney’s Refusal To Accept Appointment

To Defend Indigent. Or To Proceed In Such Defense, As

Contempt.” 36 A. L. R. 3d 1221 (1971).

On May 10, 1971, in the cases of Rodriquez v. Rosen-

blatt and State v. Conley, 58 N. J. 281 ( 1971) the Supreme

Court decided at page 295 that,

“Tndeed, whenever the particular nature of the

charge is such that imprisonment in fact or other

consequence of magnitude is actually threatened or

Appendix C

is a likelihood on conviction, the indigent defend-

ant should have counsel assigned to him unless he

chooses to proceed pro se with his plea of guilty

or his defense at trial. In those rare instances

where there is a plea or a trial proceeds without

any tender or assignment of counsel and actual im-

prisonment or other consequence of magnitude looms

appropriate to the municipal judge despite the pred-

ieations to the contrary, the defendant should be

given the option of starting anew with suitable safe-

guards including where necessary [sic] trial hefore

a substituted municipal judge.”

On the basis of the above decision, on May 12, 1971, an

administrative order was issued to all assignment and

municipal court judges concerning assignment of counsel

without compensation in municipal court for indigent de-

fendants when the nature of the charge falls within the

guidelines of the Rodriguez and Conley cases.

In short. the order called for establishment of a list of

attorneys for each municipal court from which counsel]

could be assigned by the judges as necessity dietated. Un-

til the list was prepared judges could assign counsel on an

ad hoc basis. Furthermore, the order observed that no

provision presently exists in the opinion, court rules, or

statutes to authorize compensation for assigned counsel.

N.J.S.A. 2A:10-1 direets that, “The power of any court

of this state to punish for contempt shall not be construed

to extend to any case except the . . . (e) Disobedience or

resistance by any court officer, or by any party, juror, wit-

ness or any person whatsoever to any lawful writ, pro-

cess, judgment, order or command of the court.”

rae

emake bah lilt iene”

Appendiz C

The appellant alleges that the conviction for contempt

was inappropriate because the refusal to accept the as-

signment did not result in an obstruction of justice.

In the case of Powell vy. Alabama, 97 U.S. 45 (1932),

a ease involving the right to counsel, the court said at

page 73, “Attorneys are officers of the court, and are

bound to render service when required by such an appoint-

ment.”

The act herein alleged to constitute contempt was the

deliberate refusal of Esther Frankel to accept a defense

appointment as directed by a lawful court order. “A con-

tempt of court has been defined as a disobedience to the

court by acting in opposition to its authority, justice and

dignity. Generally speaking, he whose conduct tends to

bring the authority and administration of the law into dis-

repute or disregard, interferes with or prejudices parties

during litigation, or otherwise tends to impede, embarrass,

or obstruct the court in the discharge of its duties is guilty

of contempt.” In re Bozorth 38 N.J. Super. 184, 188 (Ch.

Div. 1955). Likewise, any willful violation of a court order

may itself be contempt. State v. Cary 49 N.J. 343 (1967).

Unquestionably, Esther Frankel deliberately refused to

accept assignment albeit with good motive thereby dis-

rupting the court procedure. The refusal by the appellant

obstructed justice in such a way that the court was pro-

hibited from disposing of State v. Janet Corey with ex-

pedienes and fairness to all concerned. One must estimate

the frustration of the Supreme Court’s will as enunciated

in Rodriguez and Conley if all attorneys could deliberate-

ly refuse an assignment.

Doubt of the validity of an order is no justification for

noncompliance unless the court issuing it was in fact with-

Appendia C

out jurisdiction. Salmom v. Salmom 88 N.J. Super. 291 (A.

PD. 1965). Resistance in the face of a court order to act

as counsel without compensation was not the means to test

the validity of the order. “If the person to whom a court

order is directed wishes to test its validity hefore comply-

ing with it, the appellate courts are open to him. Other-

wise. le must obey it. No other rule is compatible either

with the dignity of the courts or the effective prosecution

of their business.” Roselle vy. Moonachic 48 N.J. Super. 17,

25 (App. Div. 1957). Rather than refuse assignment and

obstruct justice the appellant could after representing the

indigent raise the issue of compensation by an application

to the court as was done in State v. Rush 46 N.J. 399

(1966) and State in Interest of Anthony Antini, Jr. 53

N.J. 488 (1969).

Notwithstanding the desire of the appellant to formnu-

late a “test ease” her motivation does not excuse a delib-

erate contempt of court. In the case of In re Carton 48

XJ. 9 (1966) an attorney was held in contempt for re-

fusal to obey a court direction to sign a pretrial order.

The court said at page 25, “Good motive does not excuse

a willful disobedience, but it may be considered in deeid-

in¢ whether a public purpose would be served by a prose-

eution for contempt.” See also Jn re: William Brown, Jr.

50 N.J. 435 (1967).

Next, the appellant alleges that the assignment of coun-

sel in municipal court without compensation violates the

constitutional rights of an attorney. In particular the ap-

pellant asserts the violation of her First Amendment right

to dissent, her Thirteenth Amendment freedom from in-

voluntary servitude and her Fifth and Fourteenth Amend-

ment prohibitions against taking of property without due

process of law or adequate compensation.

lUa

Appendix C

In Gideou v. Wainwright 372 U.S. 335 (1963) the United

States Supreme Court found that the Federal Constitu-

tion requires the State to furnish counsel to an indigent

accused of crime. “The majority of the courts faced with

the issue have held that in the absence of statutes, an at-

torney appointed by the court to represent an indigent ac-

cused has no right to compensation by the public, and such

denial does not violate any provision of the Federal Con-

stitution.” Annotation, “Right of Attorney Appointed By

Court For Indigent Accused To And Court’s Power To

Award Compensation By Public. In absence of Statute or

Court Rule” 21 A.L.R. 3d 819, 821 (1968).

Since Gideon the constitutional right to counsel has

been extended to indigent juveniles when the possibility

of commitment exists. Jn re Gault 387 U.S. 1 (1967).

Whether or not a constitutional right to counsel in petty

offenses exists has never been decided by the United States

Supreme Court or the New Jersey Supreme Court. See

In re Garofone 42 N.J. 244 (1964).

In New Jersey prior to State v. Rush, supra, attorneys

only received compensation in murder cases. N.J.S.A. 2A:

163-1. Basing its decision on N.J.S.A. 2A :158-7 the Court

in Rush held that the bar would no longer absorb the full

cost of defense of the indigent and directed that reason-

able compensation be paid by each county to assigned at-

torneys. Later, in 1969, the Supreme Court extended com-

pensation to attorneys for indigent juveniles reasoning

that since Jn re Gault, supra, the obligation to furnish

counsel to the indigent juvenile in danger of commitment

has become a constitutional and publie one to be covered

by the Public Defender, State in Interest of Anthony An-

tini, Jr., supra.

lla

Appendia C

In the ease of Rodriguez v. Rosenblatt and State vy, Con-

ley, supra, the Court found, not as a constitutional right,

“but as a matter of simple justice, no indigent defendant

should be subjected to a conviction entailing imprison-

ment in fact or other consequences of magnitude without

first having had due and fair opportunity to have counsel

assigned without cost.” 58 N.J. at page 299.

The identical issues are raised herein alleging a viola-

tion of the constitutional rights of a lawyer were an-

swered in the negative in U.S. v. Dillon 346 F.2d 633 (9th

Cir. 1965) and Dolan vy. U. S. 351 F.2d 671 (5th Cir. 1965).

Any right to compensation is purely statutory and a

systein of compensation for appointed counsel, in the light

of the developing law of the rights of indigents, is a mat-

ter for legislative not judicial treatment. U. S. v. Dillon,

supra. At present in New Jersey no statute or court rule

exists which ean be cited as authority for directing com-

pensation to attorneys assigned in municipal court. Thus,

the attorney must render gratuitous assistance pursuant

to his common law obligation and tradition as an oflicer

of the court and as a condition of his license to practice

law. State v. Morton, 34 X.J. 522 (1961), State v. Clifton

947 La. 495 172 So. 2d 657 (1965), Warmer vy. Common-

wealth 400 S.W.2d 209 (Ky. 1966), cert. denied 385 U.S.

858 (1966), Jackson v. State 415 P.2d 488 (Alaska, 1966),

Weiner v. Fulton County 113 Ga. App. 343 148 S.F.2d 148

(1966), Ruckenbrod vy. Mullins 102 Ut. 548, 133 P.2d 325

(1943), Annotation, “Construction of State Statutes Pro-

viding For Compensation Of Attorney For Services Under

Appointment By Court In Defending Indigent Accused”

18 A.L.R. 3d 1074 (1968).

12a

Appendix C

As in the case of State v. Rush, supra, the duty of gra-

tuitous service in municipal court may become too bur-

densome for the bar to endure without compensation. In

the last paragraph of its opinion the Supreme Court in

State in Interest of Anthony Antini, Jr., supra, at page

495, stated, “With regard to assignments in cases of non-

indictable offenses in the local criminal courts, there is no

demonstration that presently their burden upon the bar is

unreasonable or is likely to become so in the near future.

If it should, this court is available to act.” Whether or

not the public treasury should not be compelled to com-

pensate attorneys for service in non-indictable offenses

cannot now be ascertained and the sources of such pay-

ment should be left to the legislative fact-finding process.

See the considerations voiced by the court in Warner vy.

Commonwealth, supra, at page 211.

After a careful reading of the transcript and considera-

tion of the oral argument and the briefs submitted by

both parties, the court finds there was probable cause for

the charge and that appellant’s conduct on July 6, 1971,

constituted a contempt of court in violation of N.J.S.A.

94 :10-1 and R. 1:10-1. Therefore, this court is constrained

to affirm the judgment of the Municipal Court, City of

Paterson, in the above matter.

l3a

APPENDIX D

Certification and Order of Municipal Court of the City of

Paterson Adjudging Petitioner in Contempt of Court

Municipat Court or THE City or PATERSON

Docket No. C-4141

Folio No. 104

Tue State

vs.

Janer Corey,

Defendant

In the matter of the Contempt of Esther 5.

Frankel, an Attorney at Law of the State

of New Jersey

—_

It appearing that on July 6, 1971 the defendant, Janet

Corey of Forest Avenue, Yarmouth, Maine was charged

with a violation of N.J.S. 24:170-4 and it further appear-

ing that the said Janet Corey was homeless and indigent

on her Arraignment and that Msther S. Frankel, an At-

torney at Law of the State of New Jersey, was assigned

as Counsel for the above indigent defendant pursuant to

the decisions in such cases made and provided, and fur-

ther pursuant to the instructions contained in a letter

ait

l4a

Appendix D

so attain Sida Rect ake at

“Assignment of Counsel in Municipal Courts” dated May

12, 1971 issued by Edward B. MeConnell, Administrative

Director of the Courts, which directives were prescribed

within the doctrine as set forth in Rodriguez v. Rosen-

blatt and State v. Conley, decided May 10, 1971 by the

New Jersey Supreme Court and that the said Esther 8.

Frankel did willfully and deliberately refuse to accept

said assignment saying “I am not accepting the assign-

ment...’ “I refuse” and that the said Esther S. Frankel

further stated that she is against “compulsory assign-

ments” and further all public agencies receive compensa-

tion for their services including the Courts, the police and

prosecutors, and it further appearing that the said Esther

S. Frankel was given ample opportunity to he heard why

an Order adjudging her in Contempt should not be en-

tered and that the said Esther S. Frankel indicated that

she did not need an opportunity to reconsider her posi-

tion but that in fact she again refused to aecept the as-

signment saying “I am doing it as a matter of principle”

and the Court finding nothing in said explanation either

in extenuation or mitigation why an Order adjudging her

Guilty of Contempt should not be entered;

pa Peete ATA

Iv 1s on THs 6th day of July, 1971 Orverep that Esther

S. Frankel be adjudged Guilty of Contempt within the

purview of N.J.S. 2A :10-1(e) and Rule 1:10-1.

Tr 1s FURTHER ORDERED that the said Esther S. Frankel

pay to the Clerk of this Court the sum of $50.00 fine.

Iv 1s FURTHER ORDERED, upon the request of the said

Esther S. Frankel, that the payment of said fine he-stayed

pending prompt appeal of this Order by the said Esther

S. Frankel to the Passaic County Court or higher court.

A Stenographie Transcript of these proceedings was

made.

lia

Appendix D

Attached hereto and made a part hereof is the Letter of

the said Edward B. MeConnell, Administrative Director

of the Courts.

Ervan F. KusHner

Presiding Judge

CERTIFICATE

I certify that by this Order that I saw and heard the

above recited conduct constituting the within Contempt

and that the said Contempt was committed in the actual

presence of this Court and this Judge.

Ervan F. KusHner

Presiding Judge

Apwusistaative Orrick OF THE Covers

Strate or New Jensty

Epwarp B. McCoxxeu.

Apuurxistrative Dimector

Srate Horse Axxex

Trextox

New Jensrey

08625

13-70

May 12, 1971

Mexwornaxprm To: Au. AssiexMeNt Jrrces axD

Mexicrrat. Cover Jrpcrs

Re: Assignment of Counsel in Municipal Court«

1. Attached is a copy of the New Jersey Supreme

Court's opinion in Rodrigue: v. Rosenblatt and State v.

Conley, decided May 10, 1971. As a result of this decision

it is now mandatory that “whenever the particular nature

of the charge is such that imprisonment in fact or other

consequence of magnitude is actually threatened or is a

likelihood on conviction, the indigent defenlant should

have counsel assigned to him unless he chooses to proceed

pro se with his plea of guilty or his defense at trial.”

Note also that (a) “the substantial loss of driving privi-

leges” is considered to be a consequence requiring the as-

signment of counsel: (hb) that counsel is to be assicne:|

lia

Appendiua E

without cost to the indigent defendant: and («) if a trial

without counsel and it sub<equently appears that

counsel should have been assigned. “the defendant should

be given the option of starting ancw with suitable safe-

guards including, where necessary. trial before a substi-

tuted municipal judge.”

9. It is imperative that this decision be implemented im-

mediately. To this end each Assignment Judge. in con-

junction with the Municipal Court judges in his county

or counties, should establish a li<t or panel of attorney=

for each Municipal Court from which list the Municipal

Court judges shall then make assignments of counsel ax

required by this decision. Until such lists or panels are

prepared, it will be essential for cach Municipal Court

judge to assign counsel on an ad hoc basis. Director Carl

F. Bianchi, State Office of Legal Services, is requesting

legal service offices throughout the State to continue tem-

porarily to represent indigent defendants in the Municipal

Courts until such lists and panels can be prepared, which

certainly should be no later than the end of May. There-

after representation by legal service offices in such cases

cannot be expected, since they are not authorized to pro-

vide legal services where such services are otherwise re-

quired by law (i.e. this decision) to be furnished. As such

lists or panels are established, please send a copy thereof

to this office.

3. Each Municipal Court judge should immediately es-

tablish an appropriate screening procedure to ascertain in

advance of trial: (a) whether the charge made in the com-

plaint is likely to result, in the event of conviction, in

imprisonment or other consequence of magnitude: and

ewww perme §

| :

Appendiz E

(b) whether the defendant is indigent. In determining

indigency the court should consider the fee ordinarily

4. Since this decision will result in an inerease in the

number of Municipal Court cases in which the defendant

is represented by counsel, it becomes even more important

that a prosecuting attorney be available to represent the

State or the municipality, as

5. Municipal Court judges encountering any special

in implementing this decision are requested to

notify their Assignment Judge and the Administrative

Office.

Epwarp B. McCowwett

Administrative Director of the Courts

19a

APPENDIX F

Stenographic Transcript of Testimony Taken in the

Municipal Court of the City of Paterson

Mesicrrat. Cover or tHe Crry or Patersox

Docxer No. 4141, Foro No. 104

Is tae Marrer or Coxremrt or Covrt

Esruer S. Fraxxer, An Attorney at Law of the

Srate or New Jexsty

Sresocrarnic Traxscairrt or Testmoxy

Before:

+ Exvax F. Kvsuxer, Presiding Judge

Municipal Court of the City of Paterson

Paterson, New Jersey.

July 6, 1971

Appearances:

Esruen S. Fraxxer

Clerk: Janet Corey? You have been charged with, on

the Sth day of July, 1971, in the City of Paterson, that

| . a

; Appendix F

you did wander abroad and lodge unlawfully in a public

or private place to which property of Mr. Kay of 280 FE.

Nth Street, City, sleeping on the lawn, and you did not

give a good account of yourself.

Court: Well, now, she can’t be held with that, she

doesn’t have to. But, where do you come from, young

lady?

Janet Corey: Well...

Court: Well, where do you live?

Janet Corey: No where.

Court: No where? No address?

Janet Corey: No.

Court: Then she comes within the Common Law rule.

Ilow do you plead to this charge?

Janet Corey: Nothing.

Court: Tl assign Esther S. Frankel, 455 East 42nd

Street, off the list. Miss Frankel, step forward. Miss

Frankel, under the recent Supreme Court rule you are on

the alphabetical list here. We will assign you to this case.

When would it be convenient for you to be ready? Tt is

obvious the girl needs a little bit of feminine conversation.

Miss Frankel: Your Honor, with all due respect to the

Court and to the rules, I am not accepting the assignment.

Court: You refuse?

Miss Frankel: I refuse to accept the assignment. I

have helped people, but T think it should be on a volun-

tary basis and T don’t think that these assignments should

be made on a peremptory manner.

Court: You understand that T have no control over it?

That is the result of a Supreme Court decision?

Miss Frankel: T understand, your Honor. The United

States Supreme Court has ruled that everybody is entitled

to an attorney.

2la

Appendix F

Court: Right.

Miss Frankel: And T am in whole-hearted agreement

with that ruling. But I don't think that the prosecuting

office, the police, the Courts, the defense counsel under the

public defender system are all paid and that any attorney

should be assigned on a compulsory, arbitrary basis.

Court: You understand that you are about to make

a test ease of this, Miss Frankel.

Miss Frankel: T do, your Honor.

Court: You understand further that Justice Jacobs, in

a unanimous opinion T think in State vs. DeDonis, said

that every member of the Rar must take their turn with-

out fee in these disorderly persons offenses. I ask you

now—do you refuse to accept my order? Yes or no.

Miss Frankel: The answer is yes, your Honor.

Court: T will give you until tomorrow morning to re-

consider your position, and you will appear here tomorrow

morning at 9:00 o’clock. IT must tell you now, if you dis-

obey the order of the New Jersey Supreme Court, of which

I am the agent, I will tell you now I shall hold you in

Contempt of Court and punish you accordingly. Beeause

you have been a member of the Bar for a long period of

time, I want to give you 24 hours to reconsider your posi-

tion.

Miss Frankel: Your Honor...

Court: You show the Docket entry under the case of

Janet Corey, that in addition (Esther Frankel) on a pro-

ceeding to hold her in Contempt of Court. T want to give

you plenty of time to think about it.

Miss Frankel: Your Honor, I appreciate your consid-

eration...

Court: I know it.

Miss Frankel: . . . and I want you to do...

22a

Appendix F

Court: You’re doing it as a matter of principle.

Miss Frankel: Exactly.

Court: I appreciate that, Mrs. Frankel, but you are or-

dered to do it.

Miss Frankel: Very well, your Honor.

Court: And if you want the 24-hour period of time, I

shall give it to you.

Miss Frankel: Your Honor, I have given much thought

to this. If your Honor wants to devote the 24 hour pe-

riod it’s quite all right with me. I am taking this stand

on principle, and I think it should be tested in the Courts.

Court: Very well. It is the sentence and judgment of

the Court—you now waive, I understand, any waiting pe-

riod within the Supreme Court case of State vs. Haines, is

that correct?

Miss Frankel: That's correct, your Honor.

Court: And you concede that I have advised you of

your rights fully and properly.

Miss Frankel: You certainly have, your Honor.

Court: I fine you $50.00 fine for Contempt of Court.

the sentence to be stayed until the culmination of your du-

ties here this morning.

Miss Frankel: Your Honor, may I ask for a stay of

execution to enable me to appeal this?

Court: No. The stay shall not be granted. You are in

contempt and will pay the fine this morning. You may sit

down, Miss Frankel.

Court: Miss Frankel, step forward please. I under-

stand you are ready to pay the fine in which you were

judged in contempt. Now, let me ask you this question.

‘Assume that I suspend the payment of the fine, can you

tell me if you will forthwith take an appeal?

Miss Frankel: Promptly.

23a

Appendix F

Court: All right. Now here’s—I would suggest you do

this way. I'll serve upon you a judgment of conviction,

probably tomorrow morning, and then | want you prompt-

ly to take an appeal. Now let me give you further guid-

ance, if I might. You have known me many years. I

would suggest that once you file your notice of appeal,

you, for immediate certification . . .

Miss Frankel: You mean to the Supreme Court?

Court: I would suggest either to the Appellate Divi-

sion or the Supreme Court. I want you to make a test

ease out of it.

Miss Frankel: Very good.

Court: Make a note of that. And further, I want you

to rely on two cases—or at least to go in on two cases.

I think it’s Rodriguez vs. Rodriguez or Rodriguez vs. Ro-

senbloom, and I think it’s State vs. Conley. I want you

also to research and (sounds like) shepherdize State vs.

liaines. You know that case.

Miss Frankel: Yes.

Court: Now, you have conceded . . . I dont’ want to fall

into the error of the State vs. Haines case where the

Judge did not give the lawyer sufficient time to reconsider

their position. Now, you've conceded you've been given

sufficient time.

Miss Frankel: IT have been given it, and I appreciate

your Honor’s consideration, and I can only state that you

have given me every courtesy and consideration (indis-

cernible).

Court: Well, you've said that about me for fifteen years,

Esther.

Miss Frankel: At least.

Court: At least. All right. Now, the next thing is I

want you to get your Appeal papers going very, very

promptly.

2 wen

24a

Appendix G

Miss Frankel: I shall.

Court: 1 want you further—I think, because it’s very

important Miss Frankel—l want you to find out whether

or not that the Passaic County Bar Association should not

be a party to the action, and as to whether or not the New

Jersey State Bar Association should not be a party to the

action. Have you got that?

Miss Frankel: Yes.

Court: All right. Now, therefore on Index Counter

reading No. 014 of Tape No. 204, I now direct as follows

that you are fined $50 fine for Contempt of Court, $25

cost, and I suspend the sentence and the cost until the

final adjudication of the case. Is that clear?

Miss Frankel: Yes. It’s perfectly clear.

Court: And then, at the final determination, you will

surrender yourself to the jurisdiction of this Court, if

necessary.

Miss Frankel: Very well.

Court: Good morning.

Miss Frankel: But I'll get a copy of the Contempt.

Court: Oh sure. And then what you've got to do fur-

ther is you have to send us a check for $35 to order a

transcript of the proceedings, and that can be done in a

few days.

Miss Frankel: Yes, your Honor. Thank you.

APPENDIX G

Table “G-2”—Statistics Showing Increase in Crime

in the Municipal Courts

[Puotostats]

(( yppos:te) So

.15a

TALE G-2

(Forre:ty Tobie 1) -

PROCEECINGS IN THE MUNICIPAL courts”

Treffic Cazes (Moa-Po:king), Perking Ces2s, cad Criminal Ceses

SepterSer 1, 1945 12 Auzust 31, 1955

Os) Te FAILURE

so / 8s &=2 10 APPEAR

oa te ~ ei CASES

Fc > asts “CLOSED (3)

tel < fuss AFTER FCL-

Sse] 3F exess LC#.UP PER

i <> “= hg RULE $123

2e2] se S225 = Jc

e => <= aoe = =

a> > TO as Py 2s

S32] Ss sez se [S25

coils so e<<> es J/z=<o

hs BCRCLGH

WIACENT 4 PERNETIO

TaaF 23 232 26 $68 423 | 14,403 1 4 3 > J

psRK 38 5 30 1 is 265 1

calr 24 i: 7 js" 6 23 29 |s 920 1 1 3

merar 53 346 6 52 $93 453 15 15,568 2 i i°* 6 6

PSbTrCPNE OC2LGH

Petter Carct

68 44e bY él 144 283 is 72322 3 1 1 9 36 4

Ss 3c? 7? 196 1i2 is 1,104 9 6 2

25 1c 82 17 14 4&4 |s 12444 2 10

102 10 a3srji-22 82 340 439 is 9,910 3 3 1 9 $5 8 2

FALLS FCeNSHR?

PA CANIELS

$4 1355 3 32 902 376 3$ 33,709 2 41! 2 32 28

13 676 2 $75 a4 is 1,952 1 4

52 3 e5 29 35 19 js 970 1 1 Ss

159 3 2154 32 6% 1477 439 |s 36.641 3 1 41 e 36 2e

PALECCA}@CRCLEH a

AT &A PE2.ETT °

TR AF 30 1t2 16 48 53} 1,696 1 3 2

4 106 4 94 256 392 2 1

16 1c2 17 6 6t 17 js 9a2 2

sc 318 17 24 203 72 js 3,070 1 2 3 a i

Cllr

Ay A LEIKS

322 1334 9 1238 290 669 js 24,821 31 6 2 7 il 271 3

27 38574 241 32796 172 |s 63,648 73 897} SSL

8&2 272 14397 1 316 25° 791 8. 20,368 37} 141] 56 & 95

12t1 272 41407 |] 325 627 33056 | 1632 |5 103,837 68] 147] 53 2t], 2179 | L168] 554

Sta City

RLES J ALFANC ;

472 19326 t | 1337 4544 | 4623 5 142, 7S7 275 5 106 77 286 16

325 102473 1925 66754 [11455 Js 207,916 13i 1338] 913

572 273 7973} 953 4, 1918 4513 js B1,eC7S 737} &26 $5} 760

136S 27a |125772] 954 | 5159 71400 20601 18 430,839 [1143] &25 Lol [2175] Li79 16

p LAKES) 8CRCUbH

P F CCUFZTERTY

72 335 23 140 189 js 7,371 3 6 2

paek ? 241 4 200 28 |s . 784 2 6 2 ?

crir 48 133; 20 34 3 75 |s 2.760 1 1 3 1 3 ;

TCTSL 1z6 70S 2c 6: 343 283 |5 10,915 4 1 3 7 $s 8 2

RESPECT SARK} ECRCLEH

WIACENT & PERNSTT ‘ e

Taare 25 L746 13 93 42 js 1.790

pa2K 43 197 4 174 8B 656 1

CRir <1 25 6 6 146 5 239 2 2 4

55 267 66 |S 22876 i 2 2 4

289 224 ° 9,859 3 40 3 4 i

26 t Bi

62 ss 2,813 2 4 3 7

377 314 |S 12,753 Ss 6 3 49 10 4 1

BRE ae Sener pees ee aera opp * — = . v4

COPY PRINTED CLOSE TO EDGE

TAQLE G-2

(Forre:ty Tcbte I)

PROCEECINGS IN THE MUNICIPAL CouaTs

Troffic Ceses (Ns-Posin gy, Porting Ceses, c- 43 Crimincl Ceses

Seaterber 1, 1755 to ALsust 31, 1984

-= cs

sit Pm Ss & = [w Evo be

SS = = Sek ar e>< =~

= $= be 2 >x0 $29 .6¢-S “i 2

= oz _ = <se2 o-e e~rx< «{/ o

> a oe yn wor ox ae Y SJo

Ss jcs Ss or £5 Pert} S=cs ~ 2

5$3/ $5 [a5 [232] S378 $

Pan . <= ~S “>> «a / <

zr=/ os 68S | Sec [E20 sive v=

vox] «& s. | 23a 5/-S25 éss9 oS

we wo — rele Peng P4 oct ce

<> Qu = «oy Jt rw ~e Y= So

~~ 2 ; pe} we > [2Twe <a Ss 39

ee a Ss3s /=525/ s2z2 RF

> F JRE <=> ae

WARRE TY (C pacludeJ)

PCHATCEANS TuP

PER A A HSRPS

TRAF 49 326 16 199 63% 4,079

eaRK 37]. $ ao] 14]s 923

CRir 12 19 2 2 s i468 435 1 6

TCtSr 61 386 2 23 2468 9615 52428 1 6

BASHISETICA OCRCUGR

GECREE FLE*ZANG

trae 1c2 e685 39 m1 34215 ut,277 2 1

Pack m% 1066 ito $32 a7ris 1.626

Calr 38 $6 s 24 avis 1,176 1 2

Totar 2te 1e465 s ims 703 e72is8 14,079 2 2 2

BeITE TCeN SHIP ”

FRECERICHe Gi SUNCHR IP

Taare st 392 4 226 150 7,141 1 2

PARK

crir 6 13 22 t 1 6 455

TCeAL $s? 13 416 1 15 232 72596 { 2

F bearer] CCUATYICIST-ICT COUT

i: PARTTN BRY KILCSER, PRESTDING Zi

“3 TRAF 27 479 22 233 7,724 2 3

% PEAK 4 6 St <

= crir 22 127 28 32 39 2-511 1 3 5

3 Tcear 49 610 28 54 278 10,235 3 6 Ss

5 BARREN] CCUNTY TOTAL

é TRAF 721 6120 5 303 3144] 2250]5 105,705 42 12 1

‘4 PaaK 90 3990 195 2970 $ 7,856

4 cRiv 328 3e 1ces; 119 207 93 th 17,597 10 69, 73

3 TCOUSL] 1139 32 112554 124 7c5 6207 $ 131,163 52 Ell 74

[Em JERSEY STBTE TCTAL ;

$ TRAF 43,995 615962 615 35,52) 35512328 fo7c $ 96851797 | 37% 689 183 eat eR 1755e

¥ PaRK 4551 456 4766 125) 3¥o5 4235229 817828 490632750 L170 65 15 * ict 6gets Bee

: Crir 39517 | a 3452s __ 6707] TESST $ 2,231,52% 6719323445649 ar eat

4 TCTAL] 64,373 [14995 pusiepenzpour sales’ emit $16,196,953 [L2954 sia se aoe aa 25.796, 4G5EC

Source: Monthly Municipal Court Reports

(1) Inclutes prozesfirss in the County District Courts, for casea erising in runict

in which thers are no municipal ccarts. Also inciutes proceecings in Palis:.zes

Interstate Park Felice Court.

(2) "where tte cffensze cherged msy constitute a maish>cract21 or dorestic dis ute, t

not violats any statute or ordinance, @ notice may iss. ne

“eharged, requesting tacir appearance in order to dsternine whetaer or not a conpletint

should issus.” Not epplicecle in traffic case3.

Fule €:1C-3, es anenced.

PE SAN RR CT SES

-~ApYV DDINTED CLOSE TO EDGE

3. su G-2

en cece = 2hte tod en Cas

Test cCsiz0 0°. -7S% J Peet g Css, co Gi Ceres

Septe-ter A, 15°95 9 Aerees 32, is7o

Sf #3 [SEss'F25.' F352

7 a {s= -* we 2a

22 422; 1038 4,09) 2; 3 a

$i, Sy 938 AeSi2 '

3 2} sa 's 1,375 2} 3i 2 2

.) $32 mT 7,725 ei; 4) 2 aye

ors | rans) ass «82%459) 29) f g22, 225 | 2254) ev: ;

acs | s2ue' 29¢'S 4508-8 1} a! >| 495, a8

472 | e2s's 29.595] 83] 62, 29 $| 110

a2a2 a 12358 884,427] «42) SS] 25] 299) 399) b7Ts) O82

“? 252) athe 7,427 ai «4 us a2

16 rss) 35 2.78 1 ;

35 32) 28 wot 3} ? :

sa $32) 244,52 BR S78 a} P1 TL se, 80] 8a ;

a2 209! 373.5 Bietts 2; 3 23] 27 |

3 ssa a's 202% a

35 ee 4,072 2 ? 2 15

3 272) 3c3 3 35-234 a; 6) 2] 23) 43

e2 | atcr) 363 8 = $4039? 2 as! «63 |) ost 63?

us $35) 3a 8 22-3 2} zl 2

is | ec 6 4,377 2 1 ° 4 19

7? | 2CSt; 453.3 68eS32 al a: ae] 22; 35] 03) 3S

27 325, 2165 7,052 atk 1} 2

12 ies $6 733 : >) oe |

12 isi} oe 1.52 1 a} 2

T3att 77 30 Te: 17 $i 20] 353.5 e,@51 1 13 6 3 5

Passtic city '

Cretsise Gireets >

rane 132 2127! as) 152 355, $978" 37e8c3) 89) 7 at) 62) 38

aan 2a 1 ssz7z] | 254 | e3z27, 72 8 8900510 217; 2755, 77

car | fs 26) 372.3) 77+, $53 cae $9 326585] 27) BET HAES e| 254

forax | ess] 2s. S a M42 | 2372 | 43598. sa 215.953 | se] izease | se] 432) 4793) 77

FATES" tT ’

gauss * eush 2 2-0 «+ UST BES | E

2 at es | ts) 762 | a27s2' 2402'S BPBesss] acs} 8 21s) 4, 4st] 6?

pate | NG 7507 Lasse | S327) e225 3 tT? 23 | es |2303' 5

cate $ san} 40) Pos- 2955 5 2922 | 3275 8 3,072 | eT] 482] 49) BCe, C20

tors Sie] 46 | 83-# 27 Fc LMEtd | StTst 5072 SF ONTeGIT] OSE, 449, 46 ! g2c, s2e 27e+, 72 |

: ite 14,42? 17 ta !

| 1s > 2-482 s | 64 |

| ;

r32 ate |_| a | “| Z | “| "3

COPY PRINTED CLOSE TO EDGE

A lt ee -

TABLE G-?

PROCETONSS IN ThE MetIean Courts™

Veottic C-ses (Ne~Port - 3), Pak 5 Coors, end Crim -2l Cones

Septe=der 1, 1969 to August 31, 1970

BSSKINSION OS2l5uSH

PRECERICS paic*cat sf

Tasr 38 ver? ord 2e7 6 13.915 3 te 2 % 7

pare 12 17 116 163 de\5 2.5°5 2

“1 - ? ied) 26 63 s/s 2,925 2; +8 12

ota 1és ? 2?ces 23 au 187¢ “i156 19,435 si i 1e ™“ 15 ye

erwite 7 oasSe i?

SCSEPh CG Hjue TC

taer “eo 452 2° ace leris 7.s1c 2 1c 15 ac

wear 5

Cale i> 2" 2 1 aiis 655 2

Tchae se 400 2 2 211 192)\58 e,1¢s ‘ 1 as ac

wetacy CUNT OLST<ICch Ccuat

Paativn. Fey NTLOSES PRESTLING

Taaer 36 420 i a2} ~— less e.cm i 1 1c 12

Pate 1 5 15

calr 35 tet; 43 23 20! asis 2.317 1 ey ‘

Toter 7 se2 “as ™u 16s 232)5 10,44 ‘ |e) 2s s 7 12

ee<Rtn FCuntT Tote

taser eee err e 413 Sted) 2365/8 148,2¢2 33 a7? a2 i%3 26 137, 3%

Peta ”? ys28 187 2931) tels 6,242 | 2 ae

celr $23 2> ame xe, “7 ru e235 33,239 ae s se? & 37

Tote. | i426 23 14056 die es? e255 s2zee 5 3e8,es2 se te, 9 197, 63 isc 372

« ePCty STATE COTAL

Tear = ab 408 723.34? @? aexgye] 622925 297579] S12tt22N asta | Sed] 2 | e257, t8Ss | 22S? 33.273

>| pan S424 20037233 ses" — eos | S @2c5.557 wn 3) 139 Rims) Gas eG

S] tore. = jssrco pm 3023729 | 42559 159.433 womsy) seme £72.3°2.153 91673 [12.078 [6.37: en be am ere:

' Source: Sonthly Munictzal Cours Feports ‘

a (1) Includes proceecings in the County District Courts, for cases arisirs in runiciprlitic:

‘ in which there ere mo runicirpal courts. Also incletes proceedings in Palitsctes interstate

Park Police Cour*.

(2) “If the Cffernse cherged rity eeastitute eae reltgn>orhced er ecmestic dispute, Sut ~sy ro:

wiclate @ statute or ors.rarce, @ notice ray issue to the person or persons charges,

> requestirg their appeeracce Sefore tae court tn or¢er toe Cetermine sh2ther er nc: @

complaint shoslt issve, Sule 7:3-2. Sot epplicebie in traffic cases.

(3) Apprepriate follo+-u> procefure is provided fer by Rule 7:6-3.

| .

APPENDIX H

Editorial, New Jersey Law Journal October 31, 1963—

Defense of Indigents, Put the Responsibility

Where it Belongs

DEFENSE OF INDIGENTS

Pur THe Responsipiutiry Wuere Ir BeLoncs

The defense of indigent persons charged with crime has

become an emergent problem on the contemporary legal

scene.

Despite years of agitation by the bar for a publie de-

fender system, our legislature has done nothing about it,

and the entire burden of protecting the civil rights of in-

digent defendants has been thrust upon the lawyers of

this State.

The gravity of the situation may be gleaned from the

fact that from September 1, 1962, to September 1, 1963, in

Essex County alone, there were 1168 assignments of coun-

sel to represent indigents under indictment, besides 15 as-

signments in habeas corpus proceedings and 30 assign-

ments to handle appeals. (This in addition to 29 assign-

ments in homicide cases.)

And now that the courts require legal representation at

the police court level, the number of assignments may be

expected to reach into the thousands. According to the

recent annual report of the Administrative Director of

Courts, during the court year 1961-1962 the municipal

courts of this State referred 18,015 matters either to a

Grand Jury or to the Juvenile and Domestic Relations

Courts. They also disposed of 91,140 non-traffie cases.

During that same year the judges revoked or suspended

27a

Appendix H

11,741 drivers’ licenses, and committed 23,269 defendants

to jail.

The bar of this State is justly proud of the conscien-

tious and diligent service of its members assigned to rep-

resent indigents; but to expect the lawyers of this State

to bear this appalling responsibility pro bono publico is,

in effect, to expropriate the profession and reduce lawyers

to vassals of the state, without compensation, and without

even reimbursement for their expenses. No other pro-

fession has ever been called upon to make quite such a

sacrifice.

The recent plan adopted by the Essex County Bar As-

sociation to meet this situation may hold promise for the

future, but it is now in embryonic form and for the pres-

ent can only be regarded as a temporary emergency meas-

ure. This is neither the time nor the place to discuss its

merits or demerits. The danger of any temporary plan

is that it may divert the attention of the public from the

problem and tend to lull the public into false security that

all is well, with the result that a permanent solution may

be unduly delayed and the problem become more serious

than ever.

The time has come for plain talk and affirmative action.

The responsibility belongs to the State and should be put

at its doorstep.

Our rules of criminal procedure provide for the assist-

ance of counsel before magistrates courts, RR. 3-2-3. And

in Gideon v. Wainwright, 372 U.S. 335, decided this year,

the United States Supreme Court held that a state must

furnish counsel to every indigent defendant charged witlr

a felony offense. While that court had ruled differently

in 1942 in Betts v. Brady, 316 U. S. 455, it is believed

28a

Appendix H

that the failure of the states to meet this problem—the re-

sults of which were evident in numerous cases coming be-

fore the Supreme Court—iniluenced a change in the court's

position.

Since it is the duty of our courts to see to it that the

constitutional liberties of the people are protected, they

too have the duty, and we think, they have the inherent

and constitutional power, to solve this problem.

In John S. Westervelt Sons v. Regency, Inc., 3 N. J. 472

(1950) our State Supreme Court held that under the con-

stitutional grant of power to make rules of practice and

procedure, it had a right of control in the field of counsel

fees. Under this power the court originally promulgated

Rule 3:54-7 which as amended is now R.R. 4:55-7. There

is therefore no reason why the Supreme Court cannot by

general rule or by an amendment of R.R. 4:55-7 provide

for counsel fees in criminal cases, to be paid for by the

state or the county. Any rules adopted on the subject

should also set up proper standards and procedures for

determining who are “indigents.” In the past, the court

has been hesitant—quite understandably—to amend its

rules in this respect, in the expectation that the Legisla-

ture would do something about it. See discussions in

State v. Steenback, 34 N. J. 103: State v. Horton, 34 N. J.

515, 526: State v. Donaldson, 36 N. J. 45 (1961). But

the time for hesitation is past. The failure of the Legis-

lature to act has resulted and will continue to result in

the failure of adequate means of defense to many indigent

defendants.

The situation is too serious to permit any further tem-

porizing. We suggest that the Supreme Court amend the

rules of court to permit counsel fees in such cases, or that

it at least call a judicial conference to consider this ur-

gent problem.

29a

APPENDIX 1

Relevant Part of Public Defender Statute,

State of New Jersey, 2A:158-1 to 17

2A:158A-1. Dec iaration or State Pouicy

It is hereby declared to be the policy of this State to

provide for the realization of the constitutional guaran-

tees of counsel in criminal cases for indigent defendants

by means of the system and program established and au-

thorized by this act to the end that no innocent person

shall be convicted, and that the guilty, when convicted,

shall be convicted only after a fair trial according to the

due process of the law.

L. 1967, e. 43, § 1, eff. July 1, 1967.

Historical Note: Sections 24 and 25 of L. 1967, ¢. 43,

provided:

“There is appropriated to the Office of the Public

Defender for the purposes of this act such sums

as shall be included in any general or special ap-

propriation act.

“This act shall take effect July 1, 1967.”

Title of Aet: An Act concerning the representation of in-

digent defendants in criminal cases, creating the Office

of the Public Defender, prescribing its functions, pow-

ers and duties, and providing for an appropriation. L.

1967, e. 43.

2A:158A-2. “Ixpicent DEFENDANT” DEFINED

As used herein “indigent defendant” means a person

who is formally charged with the commission of an in-

Petra) Oe ree Care

30a

Appendix I

dictable offense, and who does not have the present finan-

cial ability to secure competent legal representation and

to provide all other necessary expenses of representation.

L. 1967, e. 43, § 2, eff. July 1, 1967.

9A:158A-3. EsTaBLISHMENT

There is hereby established in the Executive Branch of

the State Government the Office of the Public Defender.

For the purpose of complying with the provisions of Ar-

ticle V, Section IV, paragraph 1 of the New Jersey Con-

stitution, the Office of the Public Defender is hereby allo-

cated within the Department of Institutions and Agen-

cies, but notwithstanding said allocation, the office shall

be independent of any supervision or control by the de-

partment or by any board or officer thereof.

L 1967, ¢. 43, ¢ 3, eff. July 1, 1967.

9A :158A-4. Pusiic Derenper; ArrorntTMENT; TERM, Sat-

ARY; VACANCY

The head of the office shall be the Public Defender,

who shall be an attorney-at-law of this State and experi-

enced in the practice of law in this State. He shall be ap-

pointed by the Governor with the advice and consent of

the Senate for a term of 5 years and until the appoint-

ment and qualification of his successor. He shall devote

his entire time to the duties of his office and shall receive

such salary as shall be provided by law. Any vacancy

oceurring in the office of the Public Defender shall be

filled in the same manner as the original appointment, but

for the unexpired term only.

3la

Appendix I

L. 1967, ¢. 45, § 4, eff. July 1, 1967.

Historical Note: Section 23 of L. 1967, ¢. 43, provided:

“Any appointments authorized by this act may

be made prior to the effective date hereof.”

9A:158A-5. Duties or Pusiic DEFENDER

It shall be the duty of the Public Defender to provide

for the legal representation of any indigent defendant

who is formally charged with the commission of an indict-

able offense.

All necessary services and facilities of representation

(including investigation and other preparation) shall be

provided in every case.

Representation as herein provided for shall include any

direct appeal from conviction and such post-conviction

proceedings as would warrant the assignment of counsel

pursuant to the court rules.

Representation for indigent defendants (a) may be pro-

vided in any Federal court in any matter arising out of

or relating to an action pending or recently pending in a

court of criminal jurisdiction of this State and (b) may be

provided in any Federal court in this State where indi-

gent defendants are charged with the commission of a

Federal criminal offense and where the representation is

under a plan adopted pursuant to the Criminal Justice

Act of 1964 (18 U.S.C. 3006A).?

'18 U.S.C.A. § 3006A.

3dZa ae

Appendix I

1. 1967, ¢. 43, § 5, eff. July 1, 1967.

Cross Referencc : Assignment of Counsel for indigent ;

persons, see Rules 3:4-2; 3:27. Appeals, see Rule 2:7-2.

Post-conviction relief, see Rule 3:22-6.

9A:158A-6. Deputy AND ASSISTANT Pusiic DEFENDERS;

APPOINTMENT; SALARY

The Public Defender shall appoint deputy publie de-

fenders and assistant deputy public defenders in such num-

ber as he shall require to assist him in the performance

of the duties of his office. Deputies and assistant deputies

shall be attorneys-at-law of this State, shall serve at the

pleasure of the Public Defender and shall receive such sal-

aries as he shall from time to time designate.

L. 1967, ce. 43, § 6, eff. July 1, 1967.

Historical Note: Section 23 of L. 1967, e. 43, provided:

“Any appointments authorized by this act may be

made prior to the effective date hereof.”

9A -158A-7. Powers oF Puntic DEFENDER

The Publie Defender shall:

(a) Appoint such investigators, stenographie and eleri-

eal assistants and other personnel as may be required for

the conduct of the office, subject to the provisions of Title

11. Civil Service, of the Revised Statutes,’ and other ap-

plicable statutes;

(b) Establish and maintain suitable headquarters for

the office and such regional quarters ithin the State as he

shall deem necessary for the proper functioning of the

office

1 Section 11:1-1 et seq.

30a

Appendix I

shall be available to serve as counsel on a case basis as

needed ;

(d) Engage counsel from said trial pools on a ease basis

as may be necessary for the proper performance of the

duties of the office and compensate them for their services;

(e) Accept the services of volunteer workers or con-

sultants at no compensation or at nominal or token eom-

pensation and reimburse them for their proper and neces-

sary expenses;

(f) Consult and cooperate with professional bodies and

groups concerning and concerned with the causes of ¢rim-

inal conduct, the development of effective means for re-

dueing and discouraging the commission of crime, the re-

habilitation and correction of persons charged and e¢on-

vieted of crime, the administration of criminal justice and

the administration and conduct of the Office of the Publie

Defender;

(g) Keep and maintain proper financial records and ree-

ords in respect to particular cases handled and develop

records for use in the ealeulation of direct and indirect

costs of all or any aspect of the operation of the office:

(h) On the basis of available data or estimates to pre-

pare schedules of rates from time to time of amounts to

he paid for services rendered other than by the staff. tak-

ing into account the nature of the serviees, the time in-

volved, trouble and risk, the skill and experience required,

and other pertinent factors;

(i) Tfave general responsibility for the operation of the

office :

34a

Appendix I

(j) Formulate and adopt rules and regulations as are

necessary to effectuate the purposes of this act and for the

efficient conduct of the work and general administration of

the office, its professional staff and other employees ;

(k) Be the request officer of the office within the mean-

ing of such term as defined in chapter 112 of the laws of

1944?

(1) Have the authority to make all necessary arrange-

ments to coordinate services to the office with any Federal

program to provide counsel to the indigent, and to arrange

for the receipt by the office, wherever possible, of sims

allowable under such Federal program, whether by direct

allowance, by assignment or transfer, or otherwise.

L. 1967, ¢. 43, § 7, eff. July 1, 1967. Amended by L. 1970,

ec. 308, § 1, eff. Dee. 16, 1970.

Historical Note: The 1970 amendment deleted a provision

in subsection (b) which would not allow an office or re-

gional quarters to be located in any municipal or county

building or office.

Section 23 of L. 1967, ¢. 43, provided:

“Any appointments authorized by this act may be

made prior to the effective date hereof.”

9A:158A-8. Lawyers To REPRESENT DEFENDANTS oN CASE

Basis; SELECTION

In selecting deputy public defenders and assistant dep-

uty public defenders or lawyers to be available to repre-

2 Sections 52:27B-1 to 52:27B-85.

30a

Appendix I

sent defendants on a case basis, the Public Defender shall

make his selections on a basis calculated to provide the

respective defendants with competent counsel in the light

of the nature, complexity and other characteristies of the

eases, the services to be performed, the status of the mat-

ters, and other relevant factors.

L. 1967, ¢e. 45, § 8, eff. July 1, 1967.

2A:158A-9. Case Workioap: Divisiox: EmployMENT oF

CouNSEL

To achieve a proper balance hetween the services to be

provided pursuant to this act and the efficiency of the op-

eration as a whole, as well as to stimulate the continued

development of professional experience and interest in the

administration of criminal justice, the Publie Defender

shall divide the case workload of the office between the

professional staff and the trial pool or pools. Tn any case

where the matter involved requires some special experi-

ence or skill not available on the professional staff, the

Public Defender shall engage counsel on a ease basis. and

shall assign a suitable member of the staff to the extent

feasible to assist counsel so engaged. Counsel shall also

be engaged on a ease hasis whenever needed to meet ease

load demands, or to provide independent counsel to mul-

tiple defendants whose interests may be in conflict.

L. 1967, ¢. 43, § 9, eff. July 1, 1967.’

2A:158A-10. Contracts Avriorizinc Private or Prec

OrGanizaTions To Execvre Fuxctioxs or

Prueuic DEFENDER

The Public Defender is authorized to enter into eon-

tracts from time to time with private or publie organiza-

Appendix I

tions that are equipped to provide legal services for in.

digent defendants or to execute any lawful functions of

the office of the Public Defender, as occasion may require.

Every such contract shall require that the level and qual-

ity of the work shall be at least equal to that of the efiie

of the Publie Defender, and that all services renders!

thereunder shall be under the control and supervision of

the Public Defender.

L. 1967, ¢. 43, § 10, eff. July 1, 1967.

®\-158A-11. Deries or Starr Mewners axp Orners Fv-

cacep ox Case Basis

The primary duty of all members of staff and of others

engaged on a case basis shall be to the individual defend.

ant, with like effect and to the same purpose as though

privately engaged by him and without regard to the use

of public funds to provide the service. This shall not

preclude the designation or assignment of different. indi-

viduals to perform various parts of the service from time

to time, the duty in such eases to be the same as woul!

exist in the case of a privately engaged law firm.

L. 1967, ¢. 43, § 11, eff. July 1, 1967.

2A-158A-12. Arvorsev-curst Privicece

AN communications between the individual defendant

amd any person in or engared by the Office of the Public

lefender whether on a case basis or by contract shall be

fully protected by the attorney-client privilege to the same

evtent and degree as thouch counsel has been privately

engaged. This shall in no way preclude the use by the

Se ae a

Sia

Appendiz I

oftice of material in its files, otherwise privileged, for the

preperation and disclosure of stativtieal, ease study and

other sociological data, provided always that in any such

use there shall be no disclosure of identity or of means

for discovery of identity of particular defendants.

1.1967, ¢. 43, § 12, eff. July 1, 1967.

Cross Reference: Lawyer-client privilege, see ¢ 2A :4A-

ZA:IS8A-15. Straxparns axy Leven of Peepomwaxce of Ar-

Torxeys Provunxc Lecat Seaveces,

In providing legal serviees to defendants pursuant to

this act, the Office of the Public Defender and every at-

torney actually engaced in the performance of the <ame,

whether as a member of the staff or engaged on a case

basis or otherwise, shall adhere at all times to the stand.

ards and level of performance eetallixshed from time to

time by the Supreme Court of New Jersey in the exeen-

tien of its -luty to supervise the practice of law: and the

office shall furnish to such court meterials and data as

may be requisite to the measurement of the adequacy of

the performance hereunder.

L.1967, ¢. 43, § 13, eff. July 1, 1967.

ZADISA-L. Evscisnuty por Services: Dereewixariox

Eligibility for the services of the Office of the Public

Defender shall be determined on the hasis of the need of

the defendant. Need shall be measured according to the

financial ability of the defendant to engage and compen-

ete I tee ee See

— oe

3na

Appendiz I

sate competent private counsel and to provide all other

necessary expenses of representation. Such ability shall

be recognize! to be a variable depending on the nature,

extent and liquidity of assets and on the disposable net

income of the defendant on the one hand, and on the na-

ture of the charge. the effort and skill required to gather

pertinent information, render advice, conduct trial or ren-

der other legal services, and probable expenses to be in-

curred, on the other hand. In the event that a determina-

tion of eligibility cannot be made before the time when

the first services are to be rendered, or if an initial deter-

mination is found to be erroneous, the office shall under-

take the same provisionally, and if it shall subsequently

determine that the defendant is ineligible it shall so in-

form the defendant, and the defendant shall thereupon be

obliged to engage his own counsel and to reimburse the

office for the cost of the services rendered to that time.

L.1967, e. 43, § 14, eff. July 1, 1967

Cross References: Minors, eligibility for services, see §

2A :158A-25. Waiver of court fees for person represented

by the publie defender, see Rule 1:13-2.

Library References: Criminal Law (Key) 641.6(3). CJS.

Criminal Law § 979(3).

Nores or Dectstoxs

1. In general

If trial court orders psychiatric examination of witness

in eriminal prosecution in order to «letermine competency,

witness is entitled to benefit of single counsel so that he is

not faced with denger of losing rights at a critical stage

zal]

re.

see FS

$55

Pre.

1S.

39a

Appendiz I

in the criminal process... State v. Faleetano, 107 X. J.

Super. 375, 258 A.21 SO (19). clarified in other respects

107 NJ. Super. 383, 258 A.2d 305.

SA158A-15. Fixaxciat. starrs of perexpaxt: rxvestiea-

TION

The Office of the Publie Defender shall make such in-

vestigation of the financial statux of each defendant at

such time or times ax the cirewnstances shall warrant and

in connection therewith shall have the authority to require

a defendant to execute and deliver such written requests

or authorizations as may be requisite under applicable

law to provide the office with access to records of public

or private sources, otherwise confidential, as may be of aid

to it in evaluating eligibility. The office ix authorized to

obtain information from any public record office of the

State or of any subdivision or agency thereof on request

and without payment of the fees ordinarily required by

law.

L.1967, e. 43, § 15, eff. July 1, 1967.

Library References: Criminal Law (Key) (41.46(3). CIS.

Criminal Law § 979(3).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.