'Undermined' 

Local attorney Patrik Griego is arguing that he should be allowed to proceed with his case alleging Humboldt County's public defender doesn't meet minimum state qualifications for the job.

"By appointing an ineligible individual to serve as public defender, the (Humboldt County Board of Supervisors) undermined the public's trust in our justice system," Griego wrote in an opposition filed Friday to the county's request to have the suit dismissed. "The board is not above the law. It does not have the discretion to disregard eligibility laws for a trusted public position."

In its motion to have the suit dismissed filed last month, the county called Griego's suit "frivolous and baseless," and argued that he was asking the court to intervene in a "purely political dispute."

David Marcus' appointment to the position vacated by the retirement of Kevin Robinson has been plagued by controversy since it was announced in February. First, members of the local defense bar criticized the county's hiring process, which featured an advisory panel that didn't include a defense attorney but featured the county's district attorney, undersheriff and chief probation officer — positions normally considered adversarial to the public defender. Then, almost all employees of the public defender's office combined to sign a pair of no-confidence letters that alleged Marcus is unqualified and incompetent. Then, there's Griego's lawsuit.

The stakes for Marcus' hire and the lawsuit challenging it are high, as the role of the public defender's office is huge in the local justice system. In 2014 — the last year for which we have complete numbers — the office's attorneys were appointed in 89 percent of felony case filings and 77 percent of misdemeanor cases, and it's estimated that more than half of Humboldt County's population qualifies to be represented by the office should they find themselves on the wrong side of a criminal charge.

At the time of his hire, Marcus was working primarily as an insurance adjuster in Florida and hadn't practiced criminal law in California since his controversial six-year tenure as Lassen County's chief public defender came to an end in 2011, shortly after the civil grand jury there accused him of failing to show up for work most of the time and improperly using his office's professional development education funds. But Humboldt County has touted Marcus' experience representing California's indigent, noting that, in addition to his years in Lassen, Marcus spent 13 years as a deputy public defender in San Bernardino. Marcus also holds a master's degree in public administration.

The heart of Griego's lawsuit centers on the California government code section that sets out the minimum qualifications for a public defender, saying a candidate is not eligible for the post unless he or she "has been a practicing attorney in all the courts of the state for at least the year preceding the date of his election or appointment." This is notably different than the minimum qualifications laid out in Humboldt County's government code, which simply requires a candidate to be licensed to practice in California for the year prior to being appointed.

In court, the county is arguing the statutes are synonymous. Interpreting the issue otherwise, the county argued, would "necessarily mean that an attorney is only eligible for the office of public defender if the attorney had made a physical appearance in literally all California courts, including every superior court in all 58 counties, every division of the six districts of the appellate court, as well as the California Supreme Court. This is an impossible requirement to meet."

Griego thinks otherwise, arguing that the statute simply requires a qualified candidate to have spent the prior year practicing law in California civil and criminal courts. To buttress his point, Griego cites the legislative history of the state statute, noting that in the lead-up to its creation, advocacy groups were debating whether public defenders should appear in civil as well as criminal courts. Further, he notes, the statutes that outline the duties of a public defender included criminal and civil representation in the "superior, municipal and justice courts" until 2002, when the municipal courts were unified with superior courts.

On his resume submitted to the county, Marcus represented that he worked for the Walnut Creek law firm of Cella, Lange and Cella from 2012 until earlier this year, doing transactional real estate and property loss consulting as a contract attorney. But he indicated he only worked 10 hours a week and reported that he was receiving no monthly salary.

If a judge determines the state statute does require more of a public defender hire than simply having been licensed, Marcus' recent work history seems poised to be put under a microscope. In his filing, Griego argues that Marcus' history does not meet the threshold of having practiced in California over the past year.

"In truth, Marcus did not practice law as a contract attorney in California, much less in the courts of California," he wrote. "A records subpoena to Marcus and the law firm for whom Marcus claimed to be a contract attorney showed that Marcus had no contract with that law firm, submitted no hours to that law firm, never appeared on any pleadings, never appeared in court, was not listed on malpractice insurance, and was never paid for any legal work that entire year."

The county's motion to have the case dismissed is slated to be heard by a visiting judge on June 29 and, if the suit is allowed to proceed, Marcus is scheduled to testify under oath at a deposition on July 3.

In its motion to have the case dismissed, the county also challenged the plaintiffs' standing to bring the suit, which was filed on behalf of a few named Humboldt County citizens and taxpayers, and unnamed employees and clients of the public defender's office. Griego argues in his motion that this amounts to a public interest lawsuit — a check on whether a government agency is following the law in the appointment of an important public employee — so all have adequate standing to bring the suit.

While the county has alleged that the suit is just a byproduct of "those fuming about the merits of a political appointment" and dismissed it as an "artificial legal controversy" drummed up because the board bypassed a favored candidate for someone else, Griego contends in his filing that it is really about ensuring Humboldt County's indigent have adequate legal representation — the kind the state Legislature envisioned when it created the statewide public defender system.

"The Humboldt County Board of Supervisors' appointment of a person who had not stepped into a California courtroom or practiced criminal law in at least five years is contrary to the language and purpose of this statute," he argued. "It places our indigent citizens in the unfortunate position of being guinea pigs for an attorney who needs to come up to speed."

Thadeus Greenson is the news editor at the Journal. Reach him at 442-1400, extension 321, or t[email protected]. Follow him on Twitter @thadeusgreenson.

Timeline

December, 2016

Humboldt County Public Defender Kevin Robinson retires.

Feb. 8, 2017

The Humboldt County Board of Supervisors announce the hire of David Marcus as Humboldt's next public defender.

Feb. 14, 2017

Several members of the local defense bar address the Board of Supervisors, urging them to scrap Marcus' hire and begin the process anew.

Feb. 28, 2017

Local attorney Patrik Griego sends a letter to the supervisors asking them to prove Marcus meets minimum state qualifications to be a public defender, threatening that he will file a lawsuit if they fail to do so.

March 7, 2017

The Board of Supervisors meets in closed session to discuss Marcus, issues a statement supporting him.

March 10, 2017

Griego files the lawsuit alleging the county violated state law in hiring Marcus because the public defender is statutorily unqualified.

March 24, 2017

All nine deputy public defenders send a letter to the supervisors alleging Marcus is incompetent and unqualified.

April 10, 2017

Eight non attorney staff members send the supervisors a letter alleging that Marcus is unqualified, lacks the legal knowledge required for the position and has "crippled" the office.

April 12, 2017

After learning of the employees' letter, Marcus allegedly verbally assaults an employee, prompting her to report the incident to police, who document the incident but don't see any reason to believe Marcus committed any crime.

May 15, 2017

The county of Humboldt files a motion to dismiss Griego's lawsuit, calling it "frivolous and baseless," and a "purely political dispute."

June 16, 2017

Griego responds, saying the suit is in the public interest and the board is not "above the law."

June 29, 2017

The motion to dismiss is scheduled to be heard by a visiting judge.

July 3, 2017

If the case is allowed to proceed, Marcus is scheduled to be deposed under oath.