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'An Artificial Legal Controversy'

County blasts public defender lawsuit as political witch hunt as employees file grievances

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The county of Humboldt is asking a judge to dismiss a lawsuit alleging newly hired public defender David Marcus doesn't meet minimum state qualifications for the job, calling the suit "both frivolous and baseless."

"(The suit) asks this court to intervene in a purely political dispute over the appointment of the Humboldt County public defender," the county's filing states, adding that the lawsuit is just "an artificial legal controversy" promulgated by those "fuming about the merits of the political appointment."

Controversy has surrounded Marcus' appointment since the day it was announced, first with members of the local defense bar criticizing the county's hiring process, then with a pair of no-confidence letters from public defender's office employees and the filing of a lawsuit challenging the hire by local attorney Patrik Griego. In his suit, Griego alleges Marcus doesn't meet the minimum standards required under the state government code, which specifies that a person is "not eligible for the office of public defender unless he 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."

Meanwhile, Marcus' hire seems to have plunged the public defender's office into a state of chaos. In addition to the no-confidence letters — which were signed by nearly every employee of the office — the Journal has learned that at least 10 grievances have been filed against Marcus by his employees this month and employees report office morale is dismal.

The Humboldt County Board of Supervisors voted unanimously in closed session Feb. 7 to hire Marcus, who hasn't practiced criminal law since his controversial six-year tenure as Lassen County's chief public defender came to an end in 2011. (Fourth District Supervisor Virginia Bass was absent for the vote but agreed to defer to the will of the board, according to county spokesperson Sean Quincey.) 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, but indicated he only worked 10 hours a week for the firm and reported that he was receiving no monthly salary.

Reached Monday, Griego said that as a part of the discovery process for his case, he subpoenaed records from both the law firm and Marcus. Griego said both responded that they have no records of Marcus being paid by the firm, being under contract with the firm or appearing in a California courtroom in the year preceding his appointment in Humboldt County, nor any records indicating he was listed as an attorney with the firm in any letters, marketing materials or legal pleadings. Further, Griego said Marcus maintained that he does not have any records of hours worked for the firm over that year-long span and the firm could provide no documents indicating that Marcus was listed on its malpractice insurance.

But the county is contending that none of that matters to the heart of the case, as Marcus simply holding an active bar membership for the year preceding his hire in Humboldt is sufficient to meet the state's minimum qualifications. Specifically, the county argues that the government code requires only that the candidate practiced law for the last year and was permitted to practice it within the state's jurisdiction.

Interpreting the statute otherwise, the county argues, 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 ..."

In his amended complaint filed with the court, Griego contends that advocates of the legislation that enacted the government code in question argued that a public defender should have spent the year prior to his or her hire practicing in all criminal courts, including superior courts, police courts and justice courts. The Journal has been unable to find any case law directly interpreting what's required under the statute.

The county's motion for dismissal is scheduled to be heard by a visiting judge on June 30, and Griego said Marcus is scheduled to testify under oath at a deposition on July 3.

Meanwhile, the environment in the public defender's office seems toxic. According to multiple employees, the office had a regularly scheduled staff meeting shortly after the Humboldt County Board of Supervisors issued a statement of support for Marcus after meeting with him in closed session last month. Employees said they were surprised that county Human Resources Director Dan Fulks showed up at the meeting despite not being on the agenda. They said that Fulks, in a scolding tone, told them to stop complaining about their boss and to do their jobs, but said nothing about grievances or conflict resolution processes available to employees.

Marcus, they said, did not address employees' no-confidence letters at the meeting.

Fulks declined to comment about the meeting, saying, "I have no comment on that. Not now. Not today."

The grievances filed this month, which employees sent to the county administrative office in an effort to bypass Fulks, contain a host of allegations, from Marcus failing to keep client appointments (one employee claims Marcus bailed unannounced on an afternoon full of them in order to give the Times-Standard an interview because the board told him he needed to "get some positive press") to his allegedly declaring or attempting to declare conflicts with clients who were readying to request a change of attorney due to ineffective assistance of counsel.

Fulks also declined to comment on whether public defender employees had filed any grievances, though employees say Fulks personally responded to at least some of the grievances filed with the county administrative office, saying employees should have worked to resolve their complaints with their supervisor — in this case, Marcus — before filing them.

Drew Redden, an agent with AFSCME, the union that represents the bulk of county employees, said he'll be sitting down with public defender employees in the coming months.

Employees say Marcus is currently handling the office's conservatorship caseload, meaning he's representing those who are allegedly physically or mentally incapable of caring for themselves.

Numerous Journal attempts to schedule an interview with Marcus have been unsuccessful. On Friday, April 14, he agreed to sit down for an interview the following Monday but then canceled after learning Griego had filed an amended complaint, saying he wanted to review the court filing and speak with his attorney. Several subsequent Journal emails went unreturned until about 4:30 p.m. on Friday, May 5, when Marcus emailed out of the blue to ask if this reporter could meet him at 10 a.m. the following day. I responded that I had a prior commitment but could meet him any other time that week. Marcus did not respond to that or subsequent emails.

Meanwhile, on May 22, the governor's office announced this week that it is tapping Greg Elvine-Kreis — the interim public defender who was a candidate for Marcus' job — to become Humboldt County's next superior court judge. After the announcement of Marcus' hire, Elvine-Kreis sent the board a scathing letter, likening it to asking a "foot doctor to do brain surgery."

Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or thad@northcoastjournal.com. Follow him on Twitter @thadeusgreenson.

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