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Portman v. County of Santa Clara

filed: June 9, 1993.


Appeal from the United States District Court for the Northern District of California. D.C. No. CV-86-20074-WAI. William A. Ingram, Chief Judge, Presiding.

Before: Herbert Y. C. Choy, John T. Noonan, Jr., and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge O'Scannlain.

Author: O'scannlain

O'SCANNLAIN, Circuit Judge:

We consider, among other things, whether a public defender has standing to challenge the constitutionality of a state statutory scheme that makes him an at-will employee on the ground that the scheme interferes with the Sixth Amendment rights of his clients.


Portman was employed as the Chief Public Defender of Santa Clara County from 1968 to 1986. Until the last year of his employment, he had received consistently high performance ratings.

In 1985, the County asked Portman to provide "objective and measurable criteria by which his performance may be Judged." This request, combined with previous requests by the Board to keep costs down, to avoid declaring conflicts due to an excessive workload, and to maintain "early, quick settlements of cases," led Portman to fear that the Board might be planning to grade him on the basis of guilty pleas and number of settlements without trial.

At that time, Portman had been communicating with the Board about the excessive caseload in the public defender's office and had been requesting additional personnel. He stated at a public budget session that the lawyers in the public defender's office faced malpractice and professional disciplinary action for taking too many cases, and he stated that he would have to ask the courts directly for additional personnel if the Board did not grant his requests.

According to Portman, he was reprimanded by the Board for his speech at the budget meeting. Two months later, he was informed that the Board had voted to give him a salary increase of only 1.5 percent, while the district attorney had received an increase of 7.5 percent. Prior to this, the district attorney's and the public defender's raises had been the same. A few months later, Portman filed this suit, seeking declaratory relief, and damages under 42 U.S.C. § 1983.

After filing suit, the relations between Portman and the Board became increasingly strained. The Board continued to deny Portman's request for additional staff, and Portman authorized his staff to request court orders for the needed help. In 1986, the District Attorney was given an increase of 11.3 percent, while Portman was only given an increase of 5 percent.

Portman was terminated on November 7, 1986. He was sent a letter of termination which was critical of his performance. Although he was invited to a meeting to discuss the matter, he declined to attend, requesting instead a public hearing or a meeting in which a court reporter was present. After he was fired, Portman requested and was denied his unused sick leave and medical coverage because he had not been terminated in "good standing."

Portman's third amended complaint stated six causes of action: section 1983 claims based upon the First Amendment, substantive due process and procedural due process; a claim for the denial of access to the courts under 42 U.S.C. § 1985(2); a state law claim for wrongful discharge; and claim for declaratory relief, alleging that the statutory scheme that provides that the Public Defender of Santa Clara County is an at-will employee is unconstitutional under the Sixth Amendment. The complaint named the County and several members of the Board of Supervisors as defendants.

The district court granted summary judgment in favor of the County on the substantive and procedural due process claims, the access to the courts claim, and the declaratory judgment claim and entered final judgment on those claims pursuant to Federal Rule of Civil Procedure 54(b). The district court concluded that Portman lacked standing to challenge the at-will statute on Sixth Amendment ground. The court further concluded that Portman lacked a property interest in his job and thus could not make out the due process claim, and finally concluded that 42 U.S.C. § 1985(2) does not provide a remedy in the circumstances at issue here. The First Amendment and wrongful discharge claims are still pending before the district court.


California Government Code § 27702 provides that if the public defender of a county is to be appointed, he or she is to be appointed by the Board of Supervisors and is to serve at the will of the Board. Santa Clara County Charter § 301 provides that the Public Defender of Santa Clara County is appointed by the Board of Supervisors. Thus, in Santa Clara County, the public defender serves at the will of the Board. Portman argues that the statutory scheme is unconstitutional because it gives the Board of Supervisors the power to direct the manner in which the public defender discharges his or her duties, which in turn interferes with the public defender's ability to provide his or her clients with the effective assistance of counsel. This, he claims, violates the Sixth Amendment. The district court found that Portman lacked standing to assert this claim.*fn1


Portman maintains that he has direct standing to assert the Sixth Amendment claim because he has been injured by the application of the statute. However, it is well-settled that a litigant may invoke only his or her "own legal rights or interests, and cannot rest his [or her] claim to relief on the legal rights or interests of third parties," Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), except in the narrowly defined circumstances discussed in Part B, supra. Thus, in order to have direct standing to claim that the statute violates the Sixth Amendment, Portman must show that the Sixth Amendment confers rights upon him directly. No court, however, has ever held that the Sixth Amendment protects the rights of anyone other than criminal defendants. See Kinoy v. Mitchell, 851 F.2d 591, 594 (2d Cir. 1988), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 581, 109 S. Ct. 1312 (1989); cf. Faretta v. California, 422 U.S. 806, 819, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975) (right to effective assistance of counsel is held by the individual defendant); United States v. Partin, 601 F.2d 1000, 1006 (9th Cir. 1979), cert. denied, 446 U.S. 964, 64 L. Ed. 2d 822, 100 S. Ct. 2939 (1980). Portman does not have direct standing to challenge the constitutionality of the statutory scheme on Sixth Amendment ground.


Portman argues that even if the statutory scheme does not violate his own constitutional rights, it violates the rights of his clients. Although the general rule is that a litigant may assert only his or her own rights, the court has recognized an exception to the prohibition against third party standing where certain criteria are met. Portman argues that he meets the criteria and thus has third party standing to assert the Sixth Amendment rights of his clients.

Before we consider whether Portman has the legal authority to assert the Sixth Amendment rights of his clients, however, we must decide whether his clients' claims under the Sixth Amendment are ripe for review. If we conclude that their claims are not ripe, we need not consider whether Portman has third party standing to assert their rights.

"The ripeness doctrine seeks to separate matters that are premature for review because the injury is speculative and may never occur from those cases that are appropriate for federal court action." Chemerinsky, Federal Jurisdiction 99 (1989) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977)). The "basic rationale" of the ripeness requirement is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Laboratories, 387 U.S. at 149. The ripeness inquiry contains both a constitutional and a prudential component. The constitutional component focuses on whether there is sufficient injury, and thus is closely tied to the standing requirement, see Nichol, Ripeness and the Constitution, 54 U. Chi. L. Rev. 153 (1987); the prudential component, on the other hand, focuses on whether there is an adequate record upon which to base effective review. Abbott Laboratories, 387 U.S. at 149. "Because of the 'great gravity and delicacy of [the courts'] function in passing upon the validity of [a legislative enactment]' the need is manifest for a 'full-bodied record' in such adjudication." Martin Tractor Co. v. Federal Election Comm'n, 200 U.S. App. D.C. 322, 627 F.2d 375, 380 (D.C. Cir.), cert. denied, 449 U.S. 954, 66 L. Ed. 2d 218, 101 S. Ct. 360 (1980).

Here, Portman argues that the at-will statute interferes with his clients' rights to the effective assistance of counsel. However, Portman fails to point to even a single client who has received substandard representation as a result of this statute or whose future representation is threatened in any way. In fact, Portman fails to establish that he was personally representing any clients at the time he was fired, or that if he had not been fired, he would be representing clients.*fn2 Instead, his entire argument about the effect of the at-will statute rests upon hypothetical situations and hypothetical clients.

Because his claim that the statutory scheme violates his clients' Sixth Amendment rights is not grounded in concrete factual situations, it would be almost impossible to determine whether the statutory scheme would at some point infringe upon the constitutional rights of some client. Determining whether the statute is unconstitutional would require us to speculate about possible behavior by the Board of Supervisors, possible reactions by the public defender, and the possible effects the reactions would have on various defendants in many different types of criminal trials. We would then have to decide in the abstract whether those effects could be considered the "ineffective assistance of counsel," recognizing that budget constraints affect almost every criminal defendant. Finally, we would have to decide whether the scenarios created are probable enough to warrant striking down the entire statute, or whether a more limited remedy would be appropriate. That sort of speculation and conjecture is precisely what the prudential component of the ripeness doctrine is meant to prevent. Portman's alleged clients' Sixth Amendment claims are not ripe.

Because Portman's argument focuses on the unconstitutional effects the neutral statute is likely to have, his case is fundamentally different from other third party standing cases where ripeness was not an issue. For example, in Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976), the Court allowed vendors to assert the equal protection rights of their male customers in challenging a statute that allowed the vendors to sell low alcohol beer to women between the ages of eighteen and twenty-one, but prohibited them from selling beer to men under the age of twenty-one. In that case, like this one, it appears that the vendors did not identify specific clients who had been affected by the law, or who were likely to be affected in the future. However, in that case, the possible constitutional infirmity was clear on the face of the statute: a court could determine whether the statute deprived male customers of equal protection even though a detailed factual record had not been developed. Thus, the prudential concerns of the ripeness doctrine were not implicated.

Even if we were to construe Portman's request to have the entire statute declared unconstitutional as a narrow "as applied" challenge focusing on the specific actions of the Board in this particular instance, we would still have to speculate about how the County's actions would affect the quality of legal representation. Although less so, the claim would still be too abstract for effective review. Cf. Wounded Knee Legal Defense/Offense Comm. v. FBI, 507 F.2d 1281 (8th Cir. 1974) (a committee that provided legal assistance to indigent Indians in criminal trials had standing to challenge intimidating and harassing activities by the FBI that allegedly interfered with the committee's ability to provide their clients with the effective assistance of counsel).

In short, we conclude that the Sixth Amendment claims of Portman's alleged clients are not ripe, and therefore Portman cannot assert them. In reaching this Conclusion, we do not mean to imply that pressure by the Board could never give rise to a violation of an indigent defendant's Sixth Amendment right to counsel. As the Supreme Court stated in Polk County v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981):

This Court's decision in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), established the right of state criminal defendants to the "'guiding hand of counsel at every step in the proceedings against [them].'" Implicit in the concept of a "guiding hand" is the assumption that counsel will be free of state control. There can be no ...

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