Opinion
F061395 Super. Ct. No. 09CECG04637
11-28-2011
PROFESSIONAL ASSOCIATION OFCOUNTY EMPLOYEES et al., Plaintiffs and Appellants, v. FRESNO COUNTY BOARD OF SUPERVISORS et al., Defendants and Respondents.
Weinberg, Roger & Rosenfield, Vincent A. Harrington, Jr. and Kerianne R. Steele for Plaintiffs and Appellants. Kevin B. Briggs, County Counsel and Bruce B. Johnson, Jr., Senior Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge.
Weinberg, Roger & Rosenfield, Vincent A. Harrington, Jr. and Kerianne R. Steele for Plaintiffs and Appellants.
Kevin B. Briggs, County Counsel and Bruce B. Johnson, Jr., Senior Deputy County Counsel, for Defendants and Respondents.
BACKGROUND
Respondent Fresno County Board of Supervisors (the "Board"), with less money to spend in fiscal year 2009-2010 than in earlier years, adopted a 2009-2010 budget which allocated less money to various county departments than in previous years. The allocation for the Office of the Fresno County Public Defender (the "Public Defender") was cut by more than $1.3 million dollars from its 2008-2009 allocation, i.e., from $15,170,391 to $13,785,143. Appellants filed a petition for writ of mandate in December 2009, naming as respondents the Board, the County of Fresno, and Kenneth Taniguchi (the Fresno County Public Defender). The petition alleged that several employees of the Public Defender were laid off, including six investigators, six deputy public defenders, and two office assistants. It further alleged that as a result, the Public Defender would declare itself "unavailable" to receive appointment to represent indigent defendants on some future cases when the Public Defender could not handle them due to "understaffing" and increased workload.
Appellants are two attorney employees with the Fresno County Office of the Public Defender, Deborah Girard-Gross and Scott D. Baly, and the union representing the attorney employees of that office. When the petition was filed, the petitioners were the two attorney employees and the union was Service Employees International Union, Local 521 (SEIU). After the trial court rendered its decision in this matter and the decision was appealed by the petitioners, SEIU ceased to be the collective bargaining representative of the deputy public defenders of the County of Fresno, and those employees became represented by an organization known as the Professional Association of county Employees (PACE). Appellants Girard-Gross, Baly and SEIU moved in this court to substitute PACE as an appellant in place of SEIU. (See Cal. Rules of court, rule 8.54.) Respondents consented to the substitution, and this court granted the motion to substitute PACE as an appellant in place of SEIU.
Appellants sought a writ directing the Board to "reconvene for the purpose of revising the existing budget for ... the Public Defender such that it can fulfill its mandatory function" and directing the Public Defender to "continue to furnish public defenders to indigent defendants if the defendants so request or the court so orders." The trial court denied the petition.
Appellants contended in the trial court, as they do here, that: (1) the Board acted in excess of its jurisdiction when it failed to appropriate "sufficient funds" to the Public Defender; (2) the Board violated section 13 of the Charter of the County of Fresno (the "County Charter") when it adopted a "deficient budget" with knowledge that a refusal by the Public Defender to represent an indigent defendant would result in representation of such a defendant by a private attorney at County expense; (3) the County violated section 13 of the County Charter whenever private attorney was appointed to represent an indigent defendant at County expense without approval of such an appointment by a four-fifths vote of the Board; (4) Taniguchi unlawfully failed to perform a ministerial function whenever he refused to supply indigent criminal defendants with representation by a public defender; and (5) to the extent that Taniguchi's decisions to refuse to supply some indigent criminal defendants with representation by a deputy public defender may have been quasi-legislative and not ministerial, those decisions were arbitrary and capricious and thus unlawful. The petition sought issuance of a writ of mandate requiring the Public Defender "to continue to furnish public defenders to indigent defendants if the defendants so request or the court so orders" and requiring the County "to obtain a four-fifths vote of the Board of Supervisors before employing independent contractors to perform the service of defending indigent defendants, a service that is now being performed by County employees."
The superior court found no merit in any of these contentions. We agree and affirm the superior court's order denying the petition.
MANDAMUS GENERALLY
"A writ of mandate will lie to 'compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station' (Code Civ. Proc., § 1085) 'upon the verified petition of the party beneficially interested,' in cases 'where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' (Code Civ. Proc., § 1086.) The writ will issue against a county, city, or other public body or against a public officer. [Citations.] However, the writ will not lie to control discretion conferred upon a public officer or agency. [Citations.] Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation]." (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 490-491, fn. omitted.) "Mandate will not issue to compel action unless it is shown 'the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment.' [Citation.]" (Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 796.)
"Generally, a court is without power to interfere with purely legislative action, in the sense that it may not command or prohibit legislative acts, whether the act contemplated or done be at the state level [citation] or the local level [citation]. The reason for this is a fundamental one - it would violate the basic constitutional concept of the separation of powers among the three coequal branches of government." (Monarch Cablevision, Inc. v. City Council of the City of Pacific Grove (1966) 239 Cal.App.2d 206, 211.) A court will interfere by mandamus with a legislative action only when that action is "'"so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law."'" (Los Angeles City and County Employees Union, Local 99 v. Los Angeles City Board of Education (1974) 12 Cal.3d 851, 856.) "This standard is, of course, highly deferential, as it should be when the court is asked to intervene with respect to the exercise of legislative discretion by an elected governmental body." (United Association of Journeymen, Etc. v. City and County of San Francisco (1995) 32 Cal.App.4th 751, 768.)
"In reviewing the trial court's ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed. [Citation.]" (Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700.)
I.
Like the trial court, we cannot conclude that the Board's adoption of a 2009-2010 budget that reduced by about 10 percent the amount of money allocated to the Public Defender was so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law. (Los Angeles City and County Employees Union, Local 99 v. Los Angeles City Board of Education, supra, 12 Cal.3d at p. 856.)
Article XI, section 3, of the California Constitution provides that "[f]or its own government, a county ... may adopt a charter by majority vote of its electors voting on the question." The County of Fresno adopted its charter in 1933. "County charters adopted pursuant to this section shall supersede any existing charter and all laws inconsistent therewith. The provisions of a charter are the law of the State and have the force and effect of legislative enactments." (Cal. Const., art. XI, §3.) Article XI, section 4 addresses what "[c]ounty charters shall provide for." (Cal. Const., art. XI, § 4; see also, generally, Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1206-1208.) One of these requirements is an elected "governing body of 5 or more members." (Art. XI, § 4, subd. (a).) In the County of Fresno that governing body is "a Board of Supervisors consisting of five members." (Charter of the County of Fresno ("Fresno County Charter" or "Charter"), §4.) A county charter shall provide for "[a]n elected sheriff, an elected district attorney, an elected assessor, other officers, their election or appointment, compensation, terms and removal." (Cal. Const., art. XI, § 4, subd. (c).) There is no requirement that a county charter provide for an elected or appointed public defender, and the Fresno County Charter does not require the election or appointment of a public defender. (See Fresno County Charter, §§ 14 through 32.)
Article XI, section 4, subdivision (h) of the California Constitution provides, however, that "[c]harter counties shall have all the powers that are provided by this Constitution or by statute for counties." A statute, Government Code section 27700, authorizes the board of supervisors of any county to "establish the office of public defender for the county." (Gov. Code, § 27700.) "At the time of establishing the office the board of supervisors shall determine whether the public defender is to be appointed or elected." (Gov. Code, §27702.) "If the public defender of any county is to be appointed, he shall be appointed by the board of supervisors to serve at its will." (Gov. Code, § 27703.) The Office of the Fresno County Public Defender was established by the Board in 1967. It is an appointive office, and thus the public defender in Fresno County serves at the will of the Board. (Gov. Code, § 27703.)
Article XI, section 4, subdivision (f) of the California Constitution requires county charters to provide for "[t]he fixing and regulation by governing bodies, by ordinance, of the appointment and number of assistants, deputies, clerks, attaches, and other persons to be employed, and for the prescribing and regulating by such bodies of the powers, duties, qualifications, and compensation of such persons, the times at which, and terms for which they shall be appointed, and the manner of their appointment and removal." Section 12 of the Fresno County Charter exercises this power by providing: "It shall be the duty of the Board of Supervisors ... (a) To appoint or provide for the appointment of all county officers, assistants, deputies, clerks, attaches, and employees whose appointment or election is not otherwise provided by this Charter.... (b) To provide, by ordinance, or resolution for the compensation of elective and appointive officers, assistants, deputies, clerks, attaches, and employees unless such compensation is otherwise fixed by this Charter ..." and "(c) To provide by ordinance or resolution for the number of assistants, deputies, clerks, attaches, and other persons to be employed from time to time in the several offices and institutions of the County...." Section 12(b) of the Fresno County Charter also provides that "[t]he Board of Supervisors may allow such additional deputies or assistants as may be necessary and proper, to elective and appointive officers during their term of office Government Code section 29088 requires a county board of supervisors to adopt the county budget. "[T]he board shall by resolution adopt the budget as finally determined." (Gov. Code, § 29088.)
These principles were applied in County of Butte v. Superior Court (1985) 176 Cal.App.3d 693, which flatly rejected a contention by the Butte County Sheriff that the Butte County Board of Supervisors could not lawfully adopt a budget eliminating 23 positions from the sheriffs department. There, like here, Butte County was facing a serious financial situation and critical shortage of funds, forcing the Butte County Board of Supervisors to undertake severe budget measures. This led the Butte County Board of Supervisors to adopt an amendment to the County Ordinance, in conjunction with the adoption of their 1985-1986 budget, which eliminated 23 current Sheriff's Department previously "authorized positions for each employment category within the sheriff's department." (Id., at p. 696.)
"We begin with the fundamental proposition.. .that the adoption of a budget is a legislative function, and that under the 'separation of powers' principle which is fundamental to our form of government a court is generally without power to interfere in the budgetary process. [Citations.] The power and obligation to enact a county's budget is vested by law in the board of supervisors. (Gov. Code, § 29088.) Furthermore, the board of supervisors is responsible for fixing the number of employees of each county office, their compensation, and other conditions of employment. (Cal. Const. art. XI, §4, subd. (f), Gov. Code, § 25300.) The Charter of Butte County, pursuant to these constitutional and statutory expressions of general state law, requires that the Board shall annually 'determine the number of deputies, assistants, clerks and stenographers . for each and every officer.' (Butte County Charter, art. III, § 3.) The charter also states that the number of salaries of 'such deputies, assistants, clerks, stenographers, and other necessary employees may be increased or decreased by the Board of supervisors at such time as may be to the best interests of the county ....' (Id., at art. IV, § 7.) In sum, '[t]he fixing of the number of employees, the salaries and employee benefits is an integral part of the statutory procedure for the adoption of the county budget, the fixing of the tax rate, and the levy of taxes.' [Citation.] This integrated process of determining the budget of a county and adjusting the number of employees in each county office to conform to the overall spending plan is a legislative function which 'may not be controlled by the courts.' [Citation.]
"Given these well defined and irrefutable principles, it is patent that the Butte County Board of Supervisors was acting within the scope of its constitutional role in undertaking to reduce the size of the Sheriff's staff. While the Sheriff, no doubt along with most heads of governmental offices, would understandably prefer to determine for himself the funding and personnel to be allocated to the agency for which he is responsible, that authority is vested in the Board. The chaos that would result if each agency of government were allowed to dictate to the legislative body the amount of money that should be appropriated to that agency, or its staffing and salary levels, is readily apparent. The budgetary process entails a complex balancing of public needs in many and varied areas with the finite financial resources available for distribution among those demands. It involves interdependent political, social and economic judgments which cannot be left to individual officers acting in isolation; rather, it is, and indeed must be, the responsibility of the legislative body to weigh those needs and set priorities for the utilization of the limited revenues available." (County of Butte v. Superior Court, supra, 176 Cal.App.3d at p. 698, 699).
Appellants attempt to distinguish County of Butte from the matter presently before us, but we see no meaningful distinction. Appellants rely on Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228 (Hicks) and Scott v. Common Council of the City of San Bernardino (1996) 44 Cal.App.4th 684 (Scott).
Hicks did not involve a budgetary decision at all. In Hicks, the Board of Supervisors of Orange County decided to "'[e]stablish a pool of investigators for the entire county by consolidating the investigative staff of the District Attorney, the Sheriff-Coroner and the Public Defender into one unit.'" (Hicks, supra, 69 Cal.App.3d at p. 243.) The court ruled that this was an unlawful attempt by the board to control the district attorney's investigative functions. "The trial court properly found that this action was not a budgetary action, and was correct in concluding that the appellant board proceeded in excess of its jurisdiction in attempting to transfer the control of the district attorney's investigative functions from the district attorney to the sheriff." (Id. at p. 244.)
In Scott, supra, the charter of the City of San Bernardino required the city attorney to investigate alleged violations of the state Political Reform Act (Gov. Code, § 91001.5) and "to prosecute, criminally and civilly, violations of city ordinances which are drug or vice related, as well as other misdemeanors or infractions as provided by state law." (Scott, supra, 44 Cal.App.4th at pp. 687.) The city council (the "Common Council") adopted a budget which "eliminated the only two investigator positions in the city attorney's office." (Scott, supra, 44 Cal.App.4th at p. 686.) Although there is a suggestion in the opinion that this budgetary move might have been motivated by a desire of the Common Council to retaliate for an investigation by the city attorney's office into allegations of Political Reform Act violations by some members of the Common Council itself, and by a desire to prevent any such future investigations, the court expressly refused to consider, as irrelevant, any alleged motives of the legislators. (Scott, supra, 44 Cal.App.4th at p. 695, fn. 6.) The court simply concluded that the Common Council could not violate the city's own charter by completely eliminating the city attorney's power to investigate alleged violations of law. "'[I]t is well settled that a charter city may not act in conflict with its charter. [Citations.] Any act that is violative of or not in compliance with the charter is void.' [Citations.] '[T]he city council cannot relieve a charter officer of the city from the duties devolving upon him by the charter (Scott, supra, 44 Cal.App.4th at p. 695.) "[W]e conclude that the Common Council cannot use the budgetary process to eliminate functions otherwise specified in the City Charter." (Scott, supra, 44 Cal.App.4th at pp. 696-697, fn. omitted.) In the matter presently before us, the Office of Public Defender is not mandated by the Fresno County Charter at all. Thus Scott does not help appellants.
Even if we were to accept appellants' premise that the Public Defender is a mandatory government function, and we do not, Scott would still not help appellants because the undisputed evidence before the trial court was that the Fresno County Public Defender continued to function and continued to defend indigents accused of crime. The city attorney in Scott could not conduct investigations without any investigators, but the Public Defender could and did provide defense to defendants in criminal cases. Appellants contended that six of the 64 attorney positions were eliminated. Respondents say it was three. The trial court made no factual finding on this issue, but none was required because at least 58 attorneys were still defending indigent defendants.
The evidence presented to the trial court was that on some occasions, including 59 times from January through March of 2010, Public Defender Taniguchi utilized a procedure authorized by Ligda v. Superior Court (1970) 5 Cal.App.3d 811, to declare his unavailability to take on the defense of a defendant due to what, in Mr. Taniguchi's professional judgment, was an inability to provide an adequate defense due to workload considerations. "When a public defender reels under a staggering workload," the public defender "should proceed to place the situation before the judge, who upon a satisfactory showing can relieve him, and order the employment of private counsel (Pen. Code, § 987a) at public expense." (Ligda, supra, 5 Cal.App.3d at pp. 827-828.) The County then authorized Mr. Taniguchi to hire 12 extra-help, full-time attorneys to finish up the fiscal year. "[S]tate, county and local governments ... are constantly required to allocate scarce funds among competing government needs. The budget process is obviously an allocation process, and it is obviously a legislative process. However, in making allocation decisions, the legislative body cannot act in excess of its authority by first eliminating mandatory government functions, such as the investigative function of the city attorney in this case." (Scott, supra, 44 Cal.App.4th at p. 697, fn. omitted.) Even if the services provided by a public defender were deemed a "mandatory government function," they were not "eliminated" here. There was no abuse of the Board's discretion.
II.
In 1976 the Fresno County Charter was amended to add section 13, which states:
"SECTION 13. Notwithstanding Section 44 of this Charter or other provisions of law, the County may employ independent contractors to perform any County service. However, if the service is then being performed by County employees, contract approval shall require four
affirmative votes of the Board of Supervisors. (Added by Amendment November 2, 1976.)"
Appellants contend that "Section 13 of the Fresno County Charter was implicated when the Board slashed funding for the Public Defender's Office." They argue that the Board knew that its cutting of the Public Defender's budget would result in private attorneys being assigned to represent indigent defendants, that the Public Defender's 2009-2010 budget was not passed by a four-fifths vote, and that therefore the Board's funding of the Public Defender at a level which ultimately led to some instances of unavailability of the public defenders to serve some indigent defendants was a violation of Section 13 of the County Charter. We find no merit to this argument.
Setting aside the fact that the trial court made no finding that the Board knew that its cutting of the Public Defender's budget would in fact ultimately result in the appointment of private attorneys to represent indigent criminal defendants, the Board in fact did approve the county's 2009-2010 budget by a four-fifths vote on June 24, 2009. Thus, even if the approval of the budget had to be by a four-fifths vote to satisfy Charter Section 13 (a contention with which, as we shall explain, we do not agree), that was done here.
Appellants then contend that on August 25, 2009, when the Board passed a Salary Resolution Amendment which apparently determined the manner in which the reduced amount of funding for the Public Defender would be allocated within the office, and officially eliminated six attorney positions within that office, this constituted a violation of Charter Section 13 because the Salary Resolution Amendment passed by only a 3-to-2 vote. Ignoring the fact that the Board presumably could not have approved a Salary Resolution Amendment authorizing the same number of attorney positions as in 2008-2009 after the Board had already approved a much smaller Public Defender budget for 2009-2010, appellants' Charter Section 13 argument appears to us to suffer from a much more basic flaw - there was no "independent contractor" who contracted with the county, and there was no "contract" to which the Board could give "contract approval." "„[T]here must be at least two parties to a contract, a promisor and a promisee ....' (Rest.2d Contracts, § 9.)" (Schaefer v. Williams (1993) 15 Cal.App.4th 1243, 1246.) When the Board approved the County budget and then approved the Salary Resolution, the Board promised nothing to anyone and created no contract.
Appellants then contend that when private attorneys were later appointed by the court, each appointment created a contract between the County and the appointed private attorney, and these purported contracts were not approved by a four-fifths vote of the Board and therefore violated Charter Section 13. This argument also fails because the court's appointment of a private attorney to represent a defendant does not require (and here did not have) the county's consent to the appointment. In order for there to be a contract, there must be consent by the contracting parties to the contract. (Weddington Productions v. Flick (1998) 60 Cal.App.4th 793, 811; see also 1Witkin, Cal. Law (10th ed. 2005) Contracts, § 3.) Penal Code section 987.2, subdivision (a) states:
"In any case in which a person, including a person who is a minor, desires but is unable to employ counsel, and in which counsel is assigned in the superior court to represent the person in a criminal trial, proceeding, or appeal, the following assigned counsel shall receive a reasonable sum for compensation and for necessary expenses, the amount of which shall be determined by the court, to be paid out of the general fund of the county:
[¶] ... [¶]
"(3) In a case in which the court finds that, because of a conflict of interest or other reasons, the public defender has properly refused." (Pen. Code, § 987.2, subd. (a)(3).)
This statute is clear that an appointed attorney's compensation is "determined by the court." (Pen. Code, § 987.2.) The appointed attorney's compensation is not determined by the county paying that compensation. Case law has also recognized this.
"The rights and duties involved in representing indigent criminal defendants do not arise from contract. The attorney's duty to assist the indigent is statutory. (Bus. & Prof. Code, § 6068, subd. (h).) The
indigent's right to counsel is constitutional. (Gideon v. Wainwright (1963) 372 U.S. 335 []; In re Williams (1969) 1 Cal.3d 168, 174 [].) The county's duty to compensate the attorney and the attorney's right to be compensated are statutory. (§ 987.2, subd. (a).)" (Arnelle v. City and County of San Francisco (1983) 141 Cal.App.3d 693, 696-697.)
Appellants argue that because the county is obligated to pay, and because the court obtained agreement from the attorneys it appointed that the attorneys would work for $80 per hour, there was a contract between the attorneys and the County, with the appointing judge acting as an agent for the County. This too is incorrect. The trial court made a factual finding that "the Board was not consulted as to the rate to be paid or whether an appointment was to be made in any particular case." This finding is supported by substantial evidence, and in fact is undisputed by appellants. The fact that the County is obligated by law to pay the compensation ordered by the court does not make the County a party to a "contract" to which the County never consented.
Appellants' reliance on Gilbert v. Superior Court (1985) 169 Cal.App.3d 148 is unavailing. In Gilbert the court appointed an attorney to represent a defendant. "The court, by its appointment orders, offered petitioner the opportunity to represent [the defendant] at a rate of $75 per hour and $750 per day of trial. Petitioner accepted the offer by performing the requested services. The contract was breached by the court when it failed to perform its obligation to pay petitioner according to the offered rate of compensation." (Gilbert, supra, 169 Cal.App.3d at p. 156.) "[A]fter trial the court reduced his total compensation from approximately $78,000 to under $40,000. The final compensation was based upon a county bar association fee schedule for its criminal defense panel, rather than upon the original fees set by the court. We conclude that the court erred in reducing petitioner's fees after he had performed his services." (Gilbert, supra, 169 Cal.App.3d at p. 151.) The contract in Gilbert was between the appointing court and the attorney appointed by the court. The Gilbert opinion found the county (Alameda County) obligated to pay the amount agreed to by the appointing court and the appointed attorney because the county was, by operation of law, obligated to pay the attorney the amount the appointing court had agreed to pay the attorney. "The California Supreme Court has forcefully stated that when a court orders services in the support of persons charged with crimes, the expenses incurred are 'county charges' and must be paid by the county auditor. (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 324-325 [].) Thus, there would seem to be no question that the court may make an 'offer' to an attorney which binds the county." (Gilbert, supra, 169 Cal.App.3d at pp. 156-157.) The Gilbert court further relied on Penal Code section 987.2, subdivision (b), which states that "[t]he sum provided for in subdivision (a) may be determined by contract between the court and one or more responsible attorneys Nothing in Penal Code section 987.2 makes a county a party to a contract to which the county has not consented, and which is a contract between the appointed attorney and the appointing court. There being no contract between the County and the appointed attorneys, there was no contract for the Board to approve by a four-fifths vote (or to approve by any vote margin, or to reject), and thus no violation of section 13 of the County Charter.
III.
Appellants contend that Taniguchi has a clear, present and ministerial duty to provide a defense to indigent defendants and thus cannot refuse to provide a defense. The authority appellants cite for this proposition, Ligda v. Superior Court, supra, states just the opposite. (Ligda, supra, 5 Cal.App.3d at pp. 825-826.)
"Under the Penal Code, a public defender may not be assigned to represent an indigent defendant in a case in which he or she has a conflict of interest (Pen. Code, § 987.2, subds. (a)(3), (d), (e)), and a conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various indigent defendants he or she is representing. (In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender (Fla. 1990) 561 So.2d 1130, 1135.) As we said in a different but related context in Ligda v. Superior Court, supra. 5 Cal.App.3d 811 at pages 827-828[]: 'When a public defender reels under a staggering workload, he ... should
proceed to place the situation before the judge, who upon a satisfactory showing can relieve him, and order the employment of private counsel [citation] at public expense. Such relief, of necessity, involves the constitutional injunction to afford a speedy trial to a defendant. Boards of supervisors face the choice of either funding the costs of assignment of private counsel and often, increasing the costs of feeding, housing and controlling a prisoner during postponement of trials; or making provision of funds, facilities and personnel for a public defender's office adequate for the demands placed upon it.' (See also Pen. Code, § 987.2, subd. (a) [reasonable compensation of assigned counsel to be paid out of county general fund].)" (In re Edward S. (2009) 173 Cal.App.4th 387, 414, fn. omitted.)
Appellants further contend that Taniguchi is arbitrarily and capriciously performing a quasi-legislative function by failing to adequately staff his office. As we explained in part "I" of this opinion, however, the Board determines the number of employees the Public Defender will have. Mr. Taniguchi does not make this decision.
DISPOSITION
The superior court's order denying the petition for writ of mandate is affirmed. Costs on appeal are awarded to respondents.
Franson, J.
WE CONCUR:
Levy, Acting P.J.
Cornell, J.