Imagine the Ineffective Assitance of Counsel Motions

Southern District of Florida Blog has a very disturbing item about the consequences of the Public Defender elections in Jacksonville.

…the newly elected PD, supported by the Fraternal Order of Police, fired all the top lawyers at the office.

[quoting News4 Jacksonville]

At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.

The firings came on the eighth anniversary of one of the office's most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.

It may seem hard to see what we gain from having defense counsel for the impoverished elected, although it's also easy to see how an appointed official could enact the same sort of abuses. The issues are many, including

  • What ethical rules do or should constrain the newly elected PD? (Is this a bar issue?)
  • What ethical, statutory, or constitutional rules give the employees in the Jacksonville PD's office rights to protest their dismissal?
  • What sort of claims will future clients have for ineffective assistance of counsel if they can show any sort of pattern or practice of avoiding certain types of arguments?

These are all potentially interesting questions, but I'm only going to address the issues on this list that I feel competent to speak about.

The constitutional lawyer in me wonders if the fired lawyers have claims under the Elrod v. Burns, 427 U.S. 347(1976) and Branti v. Finkel, 445 U.S. 507 (1980) line of cases.

As it happens, a very similar though has occurred to a lot of people in connection with the somewhat analagous US Attorney firings. Here's how David C. Weiss summarized the state of the law in his recent Michigan Law Review note, Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U.S. Attorney Removals, 107 Mich. L. Rev. 317 (2008):

Public employees may challenge dismissals by claiming that the firing violated their First Amendment rights to free speech and association; however, that path is unavailable to USAs. The Supreme Court has held that a person cannot be forced to forfeit her First Amendment protections as a condition of public employment, [FN203] but the prohibition on encroachment of speech is not absolute. [FN204] Generally, if an employee fired for her speech can demonstrate that the speech at issue is a matter of “public concern,” [FN205] a court will engage in a balancing test between the interest of the fired employee and the employer-state in serving the public. [FN206] Despite the Court finding significant safeguards for employees in the First Amendment, [FN207] USAs do not enjoy such protection because they are “policymaking” employees. [FN208]

Neither can the USAs bring a due process claim based on a property interest in their positions. Property interests in employment are statutory— not constitutional—entitlements. [FN209] The Supreme Court has broadly interpreted “property” protection, [FN210] but if an employee's status is provisional, untenured, or otherwise lacking a reasonable basis for an entitlement to her employment, an employee does not have a property interest in her employment. [FN211] Government employees who serve as at-will employees do not have a property interest in their continued employment, [FN212] and as presidential appointees …

Whether the fired PDs were “policymaking” under this test, I leave to others who know the PD's office better. I would note, however, that the issue of whether a public employee has a constitutionally cognizable property interest in a job for purposes of triggering a Due Process Clause analysis isn't quite as simple as the quote above makes it sound. In a series of decisions the Supreme Court has made it clear that the test is very unclear: it's not simply what it says in the statute, but rather the whole enchilada of workplace rules and expectations. In one leading case, for example, an employee who served on a series of one-year contracts and was not rehired at the end of a year was held to have a cognizable interest in the job because everyone in the office understood and acted as if those contracts were always and routinely renewed.

Again, I don't know what the facts are here, but there might be a claim if the employment relationship in the Jacksonville PD's office fit that pattern.

As it happens, I have always been a doubter about the wisdom of courts automatically giving state employees outside the civil service system tenure rights akin to the civil service. I think the spoils system actually has something to recommend it that is often too quickly dismissed by judges: it promotes a valuable type of accountability. And by that I don't mean primarily accountability among the employees who (Austrian economists might say) will be living in incentivising fear of job loss, but rather accountability of the elected head of the office who can't hide behind civil service rules to disclaim personal responsibility for what the office does.

Stories like this one out of Jacksonville certainly put that predilection to the test. It is another example of a lesson we've been learning since at least the Nixon administration (but for which the current lot serves as a master class): that when the heads of offices are determined to undermine the mission of their office, it is very hard to stop them.

Update: More at

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One Response to Imagine the Ineffective Assitance of Counsel Motions

  1. Randon says:

    The Party applauds your refusal to entertain the capitalist notion that government employees can ever be flawed. That notion is near ridiculous now, and will be Absolutely ridiculous when the Mighty O takes office. Since the Mighty O runs the government, nothing about the government can be flawed. All government employment shall be for life.

    All Hail the Mighty O!

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