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Appointed appellate counsel have opened another front in their push to get paid during a budget impasse, filing an amicus curiae in a state Supreme Court case that will decide whether any state workers get paychecks during a crisis. The California Appellate Defense Counsel filed the brief at the unusual prompting of Chief Justice Ronald George, who suggested the move in a speech in October. George said that although he generally encourages amici, he made this specific suggestion because of the “very difficult situation” of appellate attorneys. They, unlike regular state workers, don’t receive paychecks during the now regularly occurring crises. The case, White v. Davis, S108099, is the consolidation of two suits filed by activists in Los Angeles County in connection with state budget impasses in 1997 and 1998. The activists want to block the state from paying out any money during an impasse. They won an injunction at the trial level and prevailed on most of their points at the Second District Court of Appeal, said Richard Fine, a Beverly Hills attorney who represents the activist Howard Jarvis Taxpayers Association. According to the appellate ruling, no state employees would get paid except judges, workers who qualify under the federal Fair Labor Standards Act and workers whose salaries are paid through an appropriation lasting more than a year or that involves federal money, Fine said. In its brief, CADC uses the Sixth and Fourteenth amendments to argue that not paying the attorneys jeopardizes criminal defendants’ rights to effective assistance of counsel. Besides the high court brief, appellate attorneys are working on two other fronts to try to change their pay plan. The Judicial Council is exploring the matter and may sponsor legislation. And the CADC itself is chatting up politicians to try to convince somebody to introduce legislation that would guarantee the attorneys receive paychecks during an impasse. “We have been in contact with a number of legislators, including Assemblywoman Loni Hancock and Sen. John Burton, and we believe [Friday] we will have unbacked bills sent to the Legislative Counsel by the Senate and Assembly,” said Candace Hale, a Bay Area appellate lawyer who serves as CADC legislative coordinator. Friday was the deadline for proposals to be submitted to the Legislative Counsel. Hale said CADC has yet to find a sponsor in either house. The reaction from legislators to the effort has been lukewarm, said Marcia Taylor, managing attorney with the Administrative Office of the Courts’ appellate and trial court services. Legislators are concerned that other independent contractors will line up to get their pay schemes exempted during an impasse, too, Taylor said. “I’m sure that any vendor who doesn’t get paid will be unhappy if someone else does get paid,” said CADC President David Lampkin, an appellate attorney in Camarillo. “But I feel we’re entitled to make our claims because of our special status.” The appellate attorneys cannot easily leave a case once they are appointed by the court to represent an indigent defendant. Appellate attorneys admit their push could be difficult this year because so much attention is focused on the budget. Unlike trial lawyers, for example, appellate attorneys have not contributed millions of campaign dollars and do not have a reputation of being a vocal contingent in state politics. Because of fighting over cuts, the budget is likely to be delayed again this year, which would mean another round of postponed checks. Unless the CADC and AOC convince legislators to act quickly, even if reform were passed it wouldn’t come online until Jan. 1, 2004. The appellate attorneys believe pay is one of the reasons the pool of qualified attorneys has shrunk in recent years from 1,500 to 1,000. Last year, appointed appellate lawyers didn’t get paid for more than a month and racked up $2 million to $3 million in back pay by the time the budget was signed in September, according to the AOC.

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