Vetoed Hire an Attorney Act

[greymc]

CONGRESS OF THE
COMMONWEALTH OF REDMONT
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A BILL TO

AMEND THE CONSTITUTION




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The people of the Commonwealth of Redmont, through their elected Representatives in the Congress and the force of law ordained to that Congress by the people through the constitution, do hereby enact the following provisions into law:


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PART I — PRELIMINARIES

1. Short Title and Enactment

(1) This Act may be cited as the ‘Hire an Attorney Act’

(2) This Act shall be enacted immediately upon assent.

(3) This Act has been authored by Deputy Speaker of the House Grey Minecraft with input from Representative Sophie Frostshade.

(4) This Act has been sponsored by Deputy Speaker of the House Grey Minecraft.

(5) This Act has been cosponsored by Representative Sophie Frostshade.

(6) This Act amends the Constitution.

2. Reasons and Intent

(1) The job of a public defender is to defend someone from criminal offenses when they cannot hire an attorney, including purposes of inactivity.

(2) This should not extend to civil cases, and with the suggestion of the current chief justice, this act will limit public defenders to only be for criminal cases.

(3) Combined with the recent BAR change to add suggested pro bono (free counsel) work to the legal code of conduct and the Pay the Attorney Act, which gives the Defense’s counsel legal fees instead of the Defendant, private lawyers are encouraged to take civil lawsuits for free.

(4) This is definitely a quick fix. We might later on want to pass a law to give PDs work to do, and make them take civil cases where the Defendant does respond but does not have a lawyer.

PART II — AMENDMENTS

3. Amendments to the Constitution

(1) Part V, Section §35(9) of the Constitution shall be amended as follows:

(9) Any citizen, criminal or otherwise will have the right to a speedy and fair trial presided over by an impartial Judicial Officer, and to be informed of the nature and cause of the accusation, and to be confronted with the evidence against them, and, in a criminal case, to have the assistance of legally qualified counsel for their defense.

 

[xXTheoryXx]

Veto

PRESIDENTIAL VETO​

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This Act amends Part V, Section §35(9) of the Constitution to insert the words "in a criminal case" before the right to the assistance of legally qualified counsel, with the stated purpose of confining the Public Defender program to criminal matters.

I withhold assent for four reasons.

First, the text does not accomplish what the Act says it accomplishes. Section 2(2) states that this Act "will limit public defenders to only be for criminal cases." It does not. Section 14 of the Constitution directs that "The Judicial arm of Government shall also establish and maintain a Public Defender program to provide the assistance of legal counsel," without qualification, and this Act leaves that sentence untouched. The constitutional mandate on the Judiciary remains exactly as broad as it was. What the Act actually does is remove the citizen's entitlement while leaving the Judiciary's obligation in place. If the intention is to scope the program, Section 14 is the provision to amend, and a bill that says so on its face is the bill I would sign.

Second, the line drawn at "criminal case" is under-inclusive for proceedings in which the state moves against a person. The District Court holds original jurisdiction over arrests, wrongful seizure, and public official misconduct under Section 16(1)(a) through (c). Impeachment trials are conducted by the Senate under Section 48 and may result in removal from office and a bar from elected, judicial, and executive office for up to two months. None of these are criminal prosecutions. Under this amendment none of them would carry a right to counsel. A citizen contesting their own wrongful arrest would stand outside the protection of Section 35(9), which I do not accept is what the House intended.

Third, the amendment leaves a live conflict with Sections 18(3)(b) and 20(3)(b), under which the Federal Court and the Supreme Court "may require legal representation for parties appearing before the Court." Once the right to counsel is confined to criminal matters, a court retains the power to compel a civil party to be represented while that party holds no right to counsel and no claim on a Public Defender. Compelled representation without guaranteed access to representation is not a state this Constitution should be amended into. Section 51 permits those provisions to be corrected in the same bill, since they are constitutional text, and I would welcome a redraft that does so.

Fourth, the substitute the Act relies upon does not reach the people the Act removes from coverage. Section 2(3) rests on pro bono work that the BAR merely suggests rather than requires, together with fee recovery under the Pay the Attorney Act. Fee recovery rewards counsel who successfully defends a contested matter. The class this Act is aimed at, described in Section 2(1) as defendants covered "including purposes of inactivity," are defendants who never respond and whose cases resolve by default. There is no contested win in a default and therefore no fee. The incentive on which this Act depends cannot, by its own structure, reach the population it is stripping of coverage.

I record the following for Congress and for the Office of Congressional Affairs.

Section 2(4) states that "This is definitely a quick fix," and names the intended successor reform, being to make Public Defenders take civil cases where the defendant responds but has no lawyer. I take the drafter at his word, and that is precisely my difficulty. The Constitution is the most expensive instrument in Redmont to change. Section 36 requires a supermajority in both chambers, Presidential assent or an override, and a public referendum carried by supermajority over forty eight hours. Committing an acknowledged interim measure to that instrument means the intended successor reform must run the entire process a second time. Work of this character belongs in statute wherever statute can carry it.

It is at least arguable that no constitutional amendment is required at all. The chapeau of Section 35 subjects the guaranteed rights to "such reasonable limits prescribed by law that are justified in a free and democratic society." A statute confining Public Defender assignment in uncontested civil matters is a candidate for such a limit, and I would rather Congress test that route, which is reversible by ordinary legislation, before permanently narrowing a Charter right.

On drafting, the Act reproduces Section 35(9) with the spelling "defense" where the Constitution has "defence." In an amendment that operates by replacing quoted text, that is an unintended alteration and should be corrected before the provision is engrossed.

Should Congress return this Act amending Section 14 rather than Section 35(9), or preserving the right where the state is the moving party and where a court has required representation under Sections 18(3)(b) or 20(3)(b), it will have my assent.

My thanks to Deputy Speaker of the House _GreyMC for authoring and sponsoring this Act, and to Representative Sophie Frostshade for her input and co-sponsorship. The problem they have identified is real, and the burden presently falling on the Public Defender program deserves a remedy. My objection is to this instrument, not to their purpose.

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This bill has been vetoed and is hereby returned to the Congress.

Theory Fontaine
30th President of the Commonwealth of Redmont​