Oestereich v. Selective Service System Local Board No. 11 Brief for Petitioner
Public Court Documents
August 1, 1968

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Brief Collection, LDF Court Filings. Defender Association of Philadelphia v. Pennsylvania Brief for Appellants and Opinion of Court, 1969. 9b1b422c-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/11169542-a8db-463f-aa27-6f3dd323be4b/defender-association-of-philadelphia-v-pennsylvania-brief-for-appellants-and-opinion-of-court. Accessed May 14, 2025.
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IN THE Supreme Court of Pennsylvania Eastern D istrict January Term, 1970 No. 223 IN RE AMENDMENTS OF ARTICLES OF INCORPORATION OF DEFENDER ASSOCIATION OF PHILADELPHIA Appeals of Bernard L. Segal and Louis B. Schwartz BRIEF FOR APPELLANTS AND OPINION OF COURT BELOW Appeals from Adjudication of the Court of Common Pleas of Philadelphia County, Trial Division, per McDevitt J., approving certain amendments to the Articles of Incorporation of the Defender Association of Philadelphia, originally docketed as Common Pleas Court No. 5 of Philadelphia County, June Term, 1930, No. 10005. LOUIS B. SCHWARTZ 3400 Chestnut St. Philadelphia, Pa. 19104 BERNARD L. SEGAL Suite 600 One East Penn Square Building & Philadelphia, Pa. 19107 Attorneys fo r Appellants THE LEGAL INTELLIGENCER, 6G NORTH JUNIPER STREET, PHILA., PA. 19107 TABLE OF CONTENTS Page Jurisdictional Statement ............................................ 1 Statement of Questions Involved............................... 2 History of the C a s e ....................................................... 3 Summary of Argument .............................................. 6 Argument ....................................................................... 9 The Central Is s u e ................................................. 9 I. As a Matter of Law, 50% Plus Influence in the Board of Directors is Clearly Domination by City H a ll ........................ 10 II. State and Federal Constitutions Forbid a “Partnership” between Prosecuting Au thorities and Counsel for the Indigent Accused ..................................................... 11 A. The Controlling C a se s ...................... 11 B. A Manifest conflict of interest exists where the Mayor, who will appoint the City’s Members on the Defender Board. Also appoints the Commis sioner of Police and the City solic itor ....................................................... 15 C. The conflict of interest that exists by virtue of the Mayor’s power to appoint the City Solicitor and also the City’s members on the Defender Board is further compounded by the appointment to the Defender Board of the City Solicitor h im self............. 18 D. The Analogy with City Hall “partner ships” in Commercial and Develop ment Enterprises is Wholly Inap propriate .............................................. 19 l TABLE OF CONTENTS— (Continued) Page III. “A Construction Which Is Clearly Con stitutional is to be Preferred to One That Raises Grave Constitutional Questions” 19 IV. When Independence of Counsel or Con flict of Interest is in Question, It is the Possibility, not the Actuality, of Preju dice that is Determinative...................... 21 A. The Applicable T e s t .......................... 21 B. Political Control of Defense of the Poor is Not a Speculative Claim but is Based in Part on the Success of City Hall in Forcing the Resignation of the Acting Chief Defender En tirely for Political M otives............... 27 V. Constitutionally Mandated Defense Services Must Provide the Appearance as Well as the Reality of Independence . 29 VI. Arrangements Which Exert a “Chilling Effect” on the Exercise of Constitutional Rights Must be Condemned on Constitu tional and Public Interest Grounds . . . . 29 VII. “Command Influence”, Which is Barred in Military Prosecutions, Must A Fortiori be Excluded from Prosecution in Civil ian Courts ................................................... 30 VIII. Professional Ethics and the Constitution Would Demand Full Disclosure to Clients of the Compromising “Partner ship” with City Hall, and Intelligent Consent by the Client. It Would be Im practicable to Operate a Defender Or ganization on that B a s is ........................... 32 ii TABLE OF CONTENTS— (Continued) Page IX. The Pennsylvania Non-Profit Corpora tion Law; Charter Amendments Must be “Lawful,” “Beneficial” and “Not In jurious” ..................................................... 34 X. In Defining the Public Interest, the Court Should Accord Great Weight to Recent Authoritative Declarations of Appropriate Standards for Organized Defender Associations ............................. 36 XI. The Scope of Review on Appeal in Equity Cases is Very Broad; it Should Especially be so Here Where the Or ganization of Criminal Justice is at Stake .......................................................... 40 XII. Implications of this Case for Political Control of Private Schools, Public Tele vision, Welfare Payments, and Other State Supported Operations.................... 42 Conclusion ..................................................................... 46 Adjudication ................................................................ 48 TABLE OF CITATIONS Cases: Anders v. California, 386 U.S. 738 (1 9 6 7 )........... 12, 13 Chambers v. Chambers, 406 Pa. 50, 56 (1962) . . . . 41 Commonwealth v. Grucella, 214 Pa. Superior Ct. 716 (1 9 6 9 ).............................................................. 23 Commonwealth v. Stotland, 214 Pa. Superior Ct. 35 (1969) .............................................................. 16 Commonwealth v. Wakeley, 433 Pa. 159 (1969) . . . 23 Commonwealth ex rel. Dermendzin v. Myers, 397 Pa. 607 (1959) ..................................................... 19 Cases: Page Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736, 737 (1 9 6 6 ) .................... 11 Commonwealth ex rel. Lyons v. Day, 177 Pa. Su perior Ct. 392 (1 9 5 5 ) .......................................... 19 Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 (1 9 6 7 ) .............................................. 21 Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1 9 6 2 ) ........................ 22,23 Crooker v. California, 357 U.S. 433 (1 9 5 8 )............. 26 Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) . . 29 Douglas v. California, 372 U.S. 353 (1 9 6 3 )............. 12 Gideon v. Wainwright, 372 U.S. 335 (1963) .................................................... 1 2 ,24 ,26 ,42 Girsh Trust, 410 Pa. 455, 467 (1 9 6 3 ) ........................ 41 Glasser v. United States, 315 U.S. 60 (1 9 4 2 )........... 24 Griffin v. Illinois, 351 U.S. 12 (1 9 5 6 ) ...................... 12 Hamilton v. Alabama, 368 U.S. at page 5 5 ............. 24 Idell v. Falcone, 427 Pa. 472, 474 (1 9 6 7 ) ............... 41 Johnson v. Zerbst, 304 U.S. 458 (1 9 3 8 ).................... 15 McKenna v. Ellis, 280 F.2d 592 (5th Cir. 1961) .24, 25 Middleburg v. Middleburg, 427 Pa. 114, 233 A.2d 899 (1967) ............................................................ 37 Miranda v. Arizona, 384 U.S. 436 (1 9 6 6 )............... 26 N.A.A.C.P. v. Button, 371 U.S. 415 (1 9 6 3 ).............. 29 Nottingham Fire Company Charter, 394 Pa. 631, 632 (1959) ............................................................ 40 O’Callahan v. Parker, 89 S.Ct. 1683 (1 9 6 9 ).............. 32 Rapp v. Van Dusen, 350 F.2d 806, 812 (3d Cir. 1965) 29 St. John C.G.C. Church v. Elko, 436 Pa. 243,254 . . 41 iv TABLE OF CITATIONS— (Continued) Cases: Page Screws v. United States, 325 U.S. 91 (1945) . . . . 20 Seifert v. Dumatic Industries, 413 Pa. 395, 197 A.2d 454 (1964) ................................................... 37 Shapiro v. Thompson, 89 S.Ct. 1322, 1329 (1969) . 45 Sherbert v. Verner, 374 U.S. 398 (1 9 6 3 ).................. 45 Snyder’s Case, 301 Pa. 276, 152 Atl. 33 (1930) . . . . 29 Tremont Township School Dist. v. Western Coal Co., 364 Pa. 591 (1 9 5 0 ) ...................................... 19 Turney v. Ohio, 273 U.S. 510 (1 9 2 7 )............. 13, 14, 25 U.S. v. Berry, CM 414955, June 7, 1968 .................. 30 United States v. McLaughlin, JALS Pamphlet 27-69-1, p. 4 (December 13, 1 9 6 8 ).................... 30 United States ex rel. Ried v. Richmond, 277 F.2d 702 (2d Cir. 1 9 6 0 ) ...........................................25,26 United States v. Rumely, 345 U.S. 41, 45 (1952) . . 20 Statutes: Investment Company Act, 15 U.S.C.A. §80a-2(a) (9) 11 Pennsylvania Non-Profit Corporation Law, 15 Purd. P.S.A. §7707 ............................................ 34 ,35 ,36 Public Broadcasting Act of 1967, P.L. 90-129 47 U.S.C.A. §396(a) (6) ...................................... 44 Public Utility Holding Company Act of 1935, §2, 15 U.S.C.A. §79 ................................................... 11 Statutory Construction Act §52(3), 46 Purd. P.S.A. §552 19 Uniform Code of Military Justice, Article 3 7 ........... 30 Other Authorities: A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Providing De fense Services, §1.4 (1 9 6 7 ).............................27, 37 v TABLE OF CITATIONS—(Continued) Cases: Page A.B.A. Special Committee on Evaluation of Ethical Standards, Code of Professional Responsibility (Preliminary Draft 1 9 6 9 )...............................32, 33 A.B.A. Standing Committee on Ethics and Pro fessional Responsibility, Informal Opinion No. 114 (7/24/69)................................................ 14 TABLE OF CITATIONS— (Continued) Berdahl, British Universities and the State (U. Cal. Press 1 9 5 9 ) .............................................. 42, 43 Carnegie Foundation, Public Television: A Program for Action, Bantam ed. 1967, p. 37 ............. 43, 44 5 Cr. L. Rep. 1030, May 21, 1969 ............................... 12 Dimrock, The Public Defender: A Step Towards a Police State, 42 ABAJ 219 (1 9 5 6 ).................. 40 Hansen, Judicial Functions for the Commander, • 41 Mil. L. Rev. 1 (1 9 6 8 ) ...................................... 30 2 Loss, Securities Regulation (1 9 6 1 )........................ 11 Note, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1 9 6 9 ) ......................... 45 O’Brien, Implementing the Right to Counsel in New Jersey— A Proposed Defender System, 20 Rutgers L. Rev. 789, 818 (1 9 6 6 ) ................... 40 2P.L.E. §442(1957) §339 41 §438 41 §442 41 Silverstein, Defense of the Poor, American Bar Foundation (1965) ............................................... 40 Somer, Who’s “In Control”?, 21 Business Lawyer 559 (1966) ............................................................ 11 Williston, History of the Law of Business Corpo rations Before 1860, 2 Harv. L. Rev. 105, 110 (1888) ..................................................................... 35 Zeiter, Foreword to Title 15, Purdon’s Pa. Statutes, p. 72 ....................................................................... 35 vi Jurisdictional Statement 1 JURISDICTIONAL STATEMENT The jurisdiction of this Court to hear this appeal arises from the Act of June 24, 1895, P. L. 212 §7.4 as amended by the Act of August 14, 1963, P.L. 819, §2, and as amended by the Act of June 30, 1967, P.L. — , No. 42, §1, 17P.S. 191.4. STATEMENT OF QUESTIONS INVOLVED 1. Are poor people’s Constitutional rights to independent defense counsel, free of conflict of in terests, violated by an arrangement which gives the Mayor of Philadelphia and his law enforcement asso ciates more than 50% control of the governing board of the Defender Association? (Answered in the negative by the Court below.) 2. Under the Pennsylvania Non-Profit Corpora tion Law, can an Amendment to the Charter of the Defender Association of Philadelphia be found “law ful,” “beneficial” and “not injurious” when its effect is to convert an independent legal defense into a defense dominated by “City Hall.” (Answered in the affirm ative by the Court below.) 3. To pass on the constitutionality and pro priety of a shift from an independent defense agency to a defense agency dominated by political and law enforcement authorities, must the judicial system wait for piecemeal retroactive attacks on convic tion by habeas corpus and other post-conviction pro ceedings, rather than determine whether the struc ture of the proposed Defender organization involves inherently impermissible conflicts of interest? (Answered in the affirm ative by the Court below.) 4. Did not the Court below manifestly err in failing to require, at the least, that the City’s repre sentation on the Defender Association Board be re stricted to the minimum necessary to safeguard the City’s fiscal interests in view of the uncontradicted testimony, some of it from the City’s own witnesses, that the reorganization gave the City more control than was warranted by any legitimate interest of the City? (Answered in the negative by the Court below.) 2 Statement o f Questions Involved History o f the Case HISTORY OF THE CASE 3 Under circumstances more fully described below, the Defender Association of Philadelphia, a Pennsylvania non-profit corporation engaged in de fending indigent persons accused of crimes, filed a petition in the Court of Common Pleas of Philadelphia County seeking to amend its charter and give con trol of 50% of the Defender Association Board to the City. The amendment was to effectuate an agreement between the Association and the City under which the City would advance the constitutionally required funds for defense of the indigent upon condition that City authorities should gain one-half control of the Board of Directors. Objections were filed by appel lants and others who were former members of the Board of the Defender Association and dues-paying members of the Association. Judge John J. McDevitt, 3d, of the Court of Common Pleas of Philadelphia County, held a hearing, and approved the amendment in an adjudication filed August 8, 1969. The present appeal followed. The hearings in the court below established that the Defender Association of Philadelphia has for thirty-five years provided defense services for in digent persons accused of crimes. It acquired a national reputation and was properly character ized in testimony in this case as a “model” in the field. (R. 134-136.) It was controlled by a Board of Direc tors numbering 50, elected by the membership and representing a broad spectrum of public-spirited citizens. Its financing came from the United Fund, membership dues, and occasional contributions. As the demand for services expanded, under the impact of Gideon v. W ainwright, these sources of financing became inadequate. The City of Philadelphia began 4 to supplement its income. Funds also came from the Ford Foundation and from the Poverty Program of the Federal Government. These latter sources of support dwindled by the beginning of 1969. (R. 65-70.) The City saw the necessity of increasing its contri bution to the level of $1,250,000. (R. 76.) City author ities determined, under these circumstances, to assume total control of the Defender operation, and introduced a bill in Council to create a Public De fender, to be appointed by the Mayor. (R. 587.) The Defender Association “fought back”, not to preserve itself or any particular form of organized defense of the indigent, but to protect the principle of inde pendence of defense counsel from prosecution-linked domination. There resulted a “compromise”, embodied in a contract between the City and the Defender Associa tion. The compromise envisioned a “partnership” in control of the defense. City Hall would designate 10 directors. The Defender Association would desig nate 10. These 20 would designate an additional 10. (R. 59.) On its face, this arrangement gives City Hall 50% control of the Defender Association. In prac tice, it would give City Hall total domination, owing to the likelihood that highly-motivated political appointees would attend and vote en bloc at all crit ical points, especially in the selection of the Chief Defender and in establishing personnel policy. Prac tical domination would also be assured by the normal division of opinion among “independent” directors combined with the expectable political and economic links to City Hall of many directors having no overt connection with the political authorities. Testimony in this case established City Hall’s purpose and power to dominate, through the force- out of the then Defender for political reasons, which History o f the Case History o f the Case 5 was made a condition of negotiations between the City and the Defender Association, and through the course of negotiations in which even the minimal safeguards in the contract were extracted from a reluctant City administration. Uncontradicted testimony in this case, including testimony of the petitioners’ own witnesses, estab lished that the degree of control allotted to the City exceeds any legitimate interest the City could have in the premises. (R. 38-65, 145-147, 227-231). Uncon tradicted testimony established that the City’s legiti mate interests could be fully protected by contract stipulations regarding the service to be performed, audits and other purely fiscal supervision, and con tinuance of the policy already firmly established of “goldfish-bowl” operation with a standing invitation to any interested official to attend directors’ meet ings. Uncontradicted testimony established that full information about the Defender operation has al ways been made available, and that no City official had ever claimed otherwise. (R. 341.) The amendments to the Defender Association charter, the subject of the present appeal, were de signed to carry out the contract executed by the Association under the gun of the City’s threat to cut off funds completely. Approval by the membership of the Association was by a close vote of 19-16. The tenuousness of the “independent” position in the pro posed organization is exposed by an analysis of the amended articles: virtually every feature of the or ganization and operation of the “new” Defender Asso ciation, including its contract with -the City, could be altered or abandoned without the concurrence of a single director representing the Association. The only power unequivocally remaining in the Association’s directors is the power to fix the annual dues of members. 6 Summary o f Argument SUMMARY OF THE ARGUMENT The Constitutional right to effective assistance of counsel requires that poor defendants have lawyers about whom there can be no question of undivided loyalty. No client who could afford to retain his own lawyer would think of hiring one who was under the control of, or substantially linked to, the police or the prosecutor; it is a denial of equal protection and due process of law to force such lawyers upon the indigent. The Pennsylvania Non-Profit Corporation Law, 15 P.S. §7707 imposes three independent require ments for amendments to non-profit charters; the amendments must be “lawful,” “beneficial,” and “not injurious to the community.” None of these requirements is met here. The amendment, depriving the poor of independent counsel, is unlawful and unconstitutional, as shown above, because it denies effective assistance of counsel, equal protection, and due process. The reorganization of the Defender Association, far from being a “beneficial” change, is detrimental, inasmuch as it impairs the former inde pendence of the Defender Association. The amend ment is “injurious to the community” for the fore going reasons and also because it undermines confi dence in the system of justice, especially by the poor and minority groups, thus enhancing the probabilities of resort to violence rather than law. The fact that the Defender Association secured City financial support by selling its independence does not make up for this “injury.” The City could not constitutionally deny adequate funds for defense. Its promise to do what it was bound, in any event, to do is no legal consideration for giving up independence of defense counsel. However coerced the Defender Association Summary o f Argument 7 felt itself to be, the Courts are not bound to accept and sanction such an illegal and bad bargain. It is well settled, contrary to the decision below, that the constitutional right to counsel free of con flict of interest is not to be tested by a showing of actual prejudice (i.e., on retrospective review of actual trials), but by appraising the potential for something less than zealous protection of defendant’s rights. Middleburg v. Middleburg, 427 Pa. 114 (1967); Com m onwealth ex rel. Whitling v. Russell, 406 Pa. 45 (1962); Gideon v. W ainwnght, 372 U.S. 335 (1963); Glasser v. U.S., 315 U.S. 60 (1942); McKenna v. Ellis, 280 F.2d 592 (5th Cir. 1961). Cf. P. 63 (opinion of the court below). Moreover, the Non-Profit Corpo ration Law explicitly requires the courts to appraise the future effect of proposed charter amendments. Accordingly, it was fundamental error for the Court below to dismiss as “speculative” all evidence and demonstration by the Objectors that the reorganiza tion was fraught with peril to the independence and zeal of defense counsel, p. 63 (opinion of the court below). The proposed reorganization of the Defender Association is unlawful and injurious for the addi tional reason that it violates the American Bar Asso ciation’s Code of Professional Responsibility and Standards for Providing Defense Services. These inveigh against “diluted” or “divided” loyalty, or “political pressures,” and demand that defense of the indigent be “free from political influence”— totally free, not 50% free. The City’s legitimate fiscal interests can be fully safeguarded without domination of the Defender Board, through audits, standing invitations (as here tofore) to City officials to attend all meetings, in spect books, and the like. If deemed appropriate, two or three City officials might, as in the past, serve on 8 Summary o f Argument the Board of Directors without City domination of the Board. Accordingly, the crucial finding of fact by the court below, No. 19, that “No feasible alternative to the proposed system has been shown,” is absolutely contrary to the evidence, (p. 55). If this Supreme Court reverses and remands with instructions to con fine the City’s representation to the minimum re quired to safeguard the City’s fiscal interests, no problem of feasibility whatsoever will be encountered. Finding No. 19 really translates into a conclusion that “The City won’t pay unless it has its way.” We believe that the rule of law and respect for the judiciary still survive in this Commonwealth; if the Court de fines the Constitutional obligation, the City will pay. ARGUMENT Argument 9 The Central Issue. The central issue posed by this litigation is whether the government, which is constitutionally required to finance defense of the indigent, shall also m anage the defense or exercise large influence over the defense. The issue is not whether it would be beneficial for the Defender Association to have the $1,250,000 which the City has offered. Of course it would be beneficial. Eut no Court has authority or informa tion enabling it to review appropriations. It does not know whether $1,250,000 is too much or too little. It certainly will have no power in the future to say whether amounts annually appropriated by the City are sufficient to make it a good or bad bargain for the Defender Association to sell its independence. The issue is not “public” vs. “private” defenders. The Defender Association has been and certainly will continue to be a “public” defender in the sense that private interest and profit considerations are totally excluded, all operations are fully exposed to public scrutiny, and public accountability in the form of audits and inspections is unquestioned. The issue is how public defense is to be organized in Philadelphia; specifically whether it is “beneficial” to change from a fully independent board, insulating the defense from City Hall and prosecution-linked influences, to a board dominated by these latter powers. There is in this case no attack upon or incon sistency with the “public defender” provisions o f state law. Appellants do not argue that every county must imitate Philadelphia’s distinctive and experi enced “voluntary” defender plan. Public defenders 10 Argument may and should be established outside the metropoli tan areas where no effectively financed defense has existed. This Court’s decision in the present case will affect them (and countless public defender organ izations to be established throughout the country) only insofar as it indicates the necessity and desir ability of some measures to protect defense opera tions from compromising, injurious and unconstitu tional links with governing and prosecuting powers. It is significant in this connection that the present proposals for Philadelphia are unique in subjecting the appointment and operation of the Defender to a Mayor who also appoints the Police Commissioner and the City Solicitor, the latter a prosecutor of certain categories of criminal cases. In other counties, the County Commissioners who designate the public de fender have no such direct links with police and prosecution. Public defenders elsewhere are insulated in various ways, e.g., by boards of trustees. I. As a Matter of Law, 50% Plus Influence in the Board of Directors is Clearly Domination by City Hall. The subtle channels of political control, combined with the vast economic influence exercised by the government through its tax, purchasing, and regula tory powers, present an extraordinary threat to the independence of the Defender Association. The 50% overt influence of the City that is spelled out in the constitution of the Board of Directors is only that part of the iceberg that shows above the water. Below is the more dangerous bulk of the navigation hazard. In the world of business regulation, no one doubts the efficacy of “control” achieved with far less than 50% ownership of a business. Thus 10% ownership of the Argument 11 voting securities of a corporation is presumptively control under the Public Utility Holding Company Act of 1935, §2. 15 USCA §79b(a)(8). The Invest ment Company Act adopts the figure 25%. 15 USCA §80a-2(a)(9). See generally, 2 Loss, Securities Reg ulation (1961) 770 (2d ed. 1961). “It has been generally recognized since long prior to 1933 that practical control of a corporation does not require ownership of 51% of its voting securities— or anything like that amount. We have already noticed in the opening chapter the rarity of control by majority ownership so far as the country’s largest corporations are con cerned, and the frequency of control by manage ment with little or no voting power.” See also Sommer, W ho’s “In Control’’?, 21 Business Lawyer 559 (1966). II. State and Federal Constitutions Forbid a “ Partnership” between Prosecuting Author ities and Counsel for the Indigent Accused. A. The Controlling Cases The Constitutional right to effective assistance of counsel will be violated under the proposed “partnership” between City Hall and independent directors. The Supreme Court of Pennsylvania has stated quite clearly, “It is unchallenged that the Sixth Amendment guarantee of effective assistance requires the service of a lawyer who is not obligated to serve conflicting interests at the same time. Comm, ex rel. Gallagher v. Rundle, 423 Pa. 356, (1966). At the recent National Defender Conference, jointly sponsored by the United States Department of Justice, the American Bar Association, and the 12 Argument National Defender Project of the National Legal Aid and Defender Association, Attorney General John N. Mitchell said: “There is one point in which we all agree— the prosperous, the educated, and the experienced criminal defendant should not have a substantial advantage over the poor, the illiterate, and the novice”, (reported in 5 Cr. L. Rep. 1030, May 21, 1969). It is obvious that no one who could afford an inde pendent attorney would take one who was in “partner ship” with the government that was prosecuting him. Numerous decisions of the Supreme Court of the United States establish that the poor are not to be fobbed off with a second-class defense; they are en titled to equality of defense. This means equality as respects independence as well as equality in other respects, regardless of demonstrated “prejudice” from lack of counsel,1 counsel on appeal regardless of appellate court’s opinion that it would not be “help ful”,2 and provision of a transcript on appeal.3 The strict requirement of undivided loyalty to the client is demonstrated by Anders v. California, 386 U.S. 738 (1967), where the Supreme Court invalidated a conviction because appeal counsel appointed for the indigent defendant was allowed to withdraw after filing a letter to the effect that his client’s appeal had "no merit.” The California courts had refused to ap point another attorney who would present the client’s position as an active advocate. Mr. Justice Clark’s opinion declared that this refusal “lacks that equality that is required by the Fourteenth Amendment.” The 1. Gideon v. Wainwright, 372 U.S. 335 (1963). 2. Douglas v. California, 372 U.S. 353 (1963). 3. Griffin v. Illinois, 351 U.S. 12 (1956). Argument 13 case is especially notable and apt in the present con nection because the Supreme Court rejected argu ments based on reliance upon the professional integ rity of counsel. See dissenting opinion, 386 U.S. at 747: “I cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty. Certainly there was no suggestion in the present case that the petitioner’s counsel was either in competent or unethical.” The high probability that appointed counsel would behave honorably and competently, and that his “no merit” letter could be trusted was treated as an inadequate substitute for uncompromising advocacy such as a fee-paying client would get. The Anders holding is all the more striking when viewed against the background of the duty which the California courts laid upon them selves to review the transcript and independently confirm that only friv olous issues were raised and that counsel’s “no merit” letter was correct. Thus neither the assumed pro fessional reliability of lawyers nor the duty of courts to prevent prejudice arising from lawyers’ neglect saves a conviction where counsel was not manifestly and unequivocally on the side of his client. In Turney v. Ohio, 273 U.S. 510 (1927), dis cussed in further detail below, the Supreme Court invalidated a conviction mainly because the village mayor who tried the case was compensated from “costs” imposed in case of conviction. But the Court also saw another important element of unconstitu tional impropriety in the fact that the village, as distinct from the mayor personally, had a financial stake in the proceedings. The Ohio statutes provided that half the fines in liquor cases would be payable to 14 Argument the villages for expenses of enforcing the liquor law. The Court took cognizance of the fact that the mayor “is charged with the business of looking after the finances of the village” so that he would be indirectly interested in imposing higher fines: With his interest, as mayor, in the financial con dition of the village, and his responsibility therefore, might not a defendant with reason say that he feared he could not get a fair trial . . . from one who would have so strong a motive to help his village by conviction and a heavy fine? (273 U.S. at p. 533). The relevance of this potential financial bias in the present case is clear. Many decisions by a public- defender entail expenses for the community, notably, refusal to plead guilty, demand for jury trial, and zeal ous prosecution of appeals. Conscientious work as defense counsel may expose the need for greater expenditures for prosecution, courtroom facilities, probation service and jails. It defies belief that City representatives on the Board of the Defender Associa tion would ignore budgetary implications of decisions of this sort. And even if, “being men of the highest honor and the greatest self-sacrifice”, they did manage to ignore it, the question remains whether defendants and the community would believe it. R. 412, 543-546; 567. Recent events have highlighted the vital neces sity for the centers of justice to avoid the appearance as well as the substance of evil. See the advisory opinion of the American Bar Association’s Committee on Professional Ethics in the matter of Justice Fortas, 1969.4 4. A.B.A. Standing Committee on Ethics and Profes sional Responsibility, Informal Opinion No. 1114 (7/24/69.). Argument 15 It is not material that the present case concerns defense counsel rather than judge. Johnson v. Zerbst, 304 U.S. 458 (1938), the landmark case establishing that lack of counsel renders a conviction subject to collateral attack, treated absence of counsel as “fail ure to complete the court” resulting in loss of jurisdic tion. And, from a practical point of view, a defendant needs a lawyer whom he can trust absolutely even more than a completely impartial judge. Intimate confidentiality is a feature of the client-attorney relationship; it is not so of the judge-defendant re lationship. The zealous defense lawyer can often manage to avoid subjecting his client to trial before an unsympathetic judge, be watchful against expres sions of bias from the bench, and seek remedies by appeal. B. A Manifest Conflict o f Interest Exists Where the Mayor, W ho Will Appoint the City’s Mem bers o f the Defender Board, Also Appoints the Com m issioner o f Police and the City Solicitor. The intolerable effect of linking Defender ser vices to City Hall is glaringly apparent when it is recognized that the Mayor will appoint the princi pal antagonists in the field of law enforcement and in the defense of indigent persons accused of crime at one and the same time. Under the amendments to the Defender Associa tion charter the Mayor will appoint all of the City’s representatives to the Defender Board, and thereby influence, if not control, the appointment of the Chief Defender. At the same time, however, the Mayor under the Philadelphia Home Rule Charter appoints, through the Managing Director, the Commissioner of Police. Equally disturbing is the fact that the Mayor 16 Argument also appoints the City Solicitor, who is the prosecu tion lawyer for violations of numerous criminal-type ordinances, such as violations of the Mayor’s Procla mation,5 and various anti-gun, knife and weapons ordinances. The amendments approved by the Court below in simplest form allow the Mayor of Philadelphia to appoint the lawyers on both sides of litigation involv ing indigents accused of offenses, as well as the principal enforcement officer, too. The total unacceptability of this arrangement is fully exposed by Police Commissioner Rizzo’s state ment, reported on page 1 of the Philadelphia Bulletin for June 10, 1969. Speaking before City Council’s Committee on Public Safety, he declared his inten tion to stop police payroll deductions for the benefit of the United Fund because the United Fund sup ports the Legal Aid Society. Organizations that “fight the Police Department . . . won’t get a penny,” he stated. On June 16, 1969, the Board of Governors of the Philadelphia Bar Association adopted the following resolution in response to this threat to independent, loyal legal representation of the poor: “WHEREAS, the Philadelphia Commissioner of Police has publicly charged the Legal Aid Society of Philadelphia with harassing the police force and processing complaints against police officers, a charge which investigation indicates to be unfounded in fact, and WHEREAS, the Board of Governors deems such charge an attack upon the freedom of the lawyer to represent his client, 5. See Commonwealth v. Stotland, 214 Pa. Superior Ct. 35 (1969). Argument 17 NOW, THEREFORE, BE IT RESOLVED, That the Philadelphia Bar Association through its elected Board of Governors supports and en courages every lawyer in the exercise of his pro fessional responsibility to represent any client or group of clients in regard to any just cause of action no matter how unpopular; and, FURTHER RESOLVED, That the Philadel phia Bar Association deplores any action or statement by any government official who at tempts to discourage or interfere with the opera tion or activities of a non-profit corporation providing legal services to the community merely because the lawyers employed thereby, acting in good faith and within the confines of ethical con duct, zealously represent their clients in matters deemed embarrassing to, or which involve claims against, a government entity or individuals employed thereby.” The continuing disposition of police, prosecution, and political authorities to exert their influence even upon the judiciary is attested by the events of late August, 1969, as reported in the Philadelphia Bulletin, August 27, p. 42, and August 29, p. 1. Under a head line, “Rizzo Sets Up Meeting with Judge Carroll,” the report describes a meeting in the Mayor’s office, attended by the District Attorney, the Commissioner of Police, and several judges, at which the judges were pressed to change their sentencing policies. This meeting, too, evoked protest from the Philadel phia Bar Association. These events are not in the record below, since they occurred after the hearing in this case, and accordingly cannot serve as direct evi dence for consideration by this Court. They are mentioned here merely to illustrate by concrete 18 Argument example the dangerous potential for interference with the Defender Association, if City Hall presides over the destinies of the Association. This potential for interference was candidly summed up by Richard A. Sprague, First Assistant District Attorney of Philadelphia, and a witness called by the objectors. Sprague testified from the vantage point of 11 years in responsible positions in the Dis trict Attorney’s office, and from nearly three years experience prior to that as an Assistant Defender. He declared: . . I’m aware of the extent to which, say, the Police Department, people from the City Ad ministration, are interested in—from the Prose cutor’s side, we call it the war on crime. And to the extent that the Police, through whatever levels of people in the Administration, could perhaps have a say over policies by those defend ing people we’re warring on, and there in my opinion will be a reaching into that area an intimidation, getting people to back off certain action that they might otherwise take. And I think and I feel that the people employed unfor tunately are not always the most resolute and if they’re aware of the powers over them, they might not take as forthright a stand as they otherwise would if they were completely inde pendent.” (R. 321-322.) C. The Conflict o f Interest that Exists by virtue o f the Mayor’s pow er to appoint the City Solic itor and also the City’s m em bers on the Defender Board is further com pounded by the appoint ment to the Defender Board o f the City Solicitor h im self As if to further underscore the failure of the City to recognize the conflict of interest arising from the Argument 19 Mayor’s influence over the appointment of the Chief Defender through his appointment of members of the Defender Board as well as his own power of appoint ment over the City Solicitor, on January 29, 1970 the City Council confirmed the Mayor’s appointment of Edward Bauer, the incumbent City Solicitor of Philadelphia, to the Board of the Defender Associa tion. D. The Analogy with City Hall “partnerships” in Com m ercial and Development Enterprises is Wholly Inappropriate. Testimony in this case established that the ne gotiators thought in terms of Philadelphia Industrial Development Corp. and other enterprises in which the City and powerful commercial or financial groups jointly embarked on port development or other pro prietary projects. (R. 437-439). It is evident that these collaborations present no Constitutional issues. No fundamental private rights are at stake. Moreover, there is in such partnerships a notable parity of power that is absent in the present case where the City will be the source of virtually all the funds. III. “ A Construction Which Is Clearly Constitu tional is to be Preferred to One That Raises Grave Constitutional Questions.” The quotation is from Com m onwealth ex rel. Lyons v. Day, 177 Pa. Superior Ct. 392 (1955), citing §52(3) of the Statutory Construction Act, 46 P.S. §552. But it is hornbook law. See, for example, Com m onwealth ex rel. Dermendzin v. Myers, 397 Pa. 607 (1959); Tremont Township School Dist. v. Western Coal Co., 364 Pa. 591 (1950). The Supreme Court of 20 Argument the United States follows the rule. In Screws v. United States, 325 U.S. 91 (1945), the Supreme Court gave the Civil Rights Act a narrow specificity not to be found on its face, lest it be unconstitutionally vague, saying: If such a construction [i.e., the broader con struction] is not necessary, it should be avoided. This Court has consistently favored that interpre tation of legislation which supports its constitu tionality. . . . That reason is impelling here so that if at all possible §20 may be allowed to serve its great purpose— the protection of the individual in his civil liberties. In United States v. Rumely, 345 U.S. 41, 45 (1952), the doctrine was summed up as follows: “Accordingly, the phrase “lobbying activities” in the resolution must be given the meaning that may fairly be attributed to it, having special regard for the principle of constitutional adju dication which makes it decisive in the choice of fair alternatives that one construction may raise serious constitutional questions avoided by another. In a long series of decisions we have acted on this principle. In the words of Mr. Chief Justice Taft, “ [i]t is our duty in the interpre tation of federal statutes to reach a conclusion which will avoid serious doubt of their constitu tionality.” Richm ond Co. v. United States, 275 U.S. 331, 346. Again, what Congress has written, we said through Mr. Chief Justice (then Mr. Justice) Stone, “must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity.” Lucas v. Alex ander, 279 U.S. 573, 577. As phrased by Mr. Chief Justice Hughes, “if a serious doubt of constitu- Argument 21 tionality is raised, it is a cardinal principle that this Court will first ascertain whether a con struction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, and cases cited.” So here we ask the Court to interpret the Penn sylvania Non-Profit Corporation Law so as to avoid grave constitutional questions and in favor of in dividual liberty including the right to counsel free of conflict of interests. IV. When Independence of Counsel or Conflict of Interest is in Question, It is the Possibility, not the Actuality, of Prejudice that is Deter minative. A. The Applicable Test. The Court below was clearly in error in adopting the view, which pervades all findings and discussion in the adjudication below, that the obvious conflict of interest in City Hall domination of the defense did not itself vitiate the proposed reorganization. The Court thought that apprehensions on this account were “speculative” and premature; that possible harm to defendants might be averted if, as former Defender Herman I. Pollock testified, the non-City directors “continue to fight to keep the Association indepen dent.” R 592. The Court below was satisfied to await the outcome of this “fight”, and to undertake the dif ficult task of determining whether the vigor of de fense had actually been undermined in particular cases on habeas corpus. But that test of actual harm is the proper rule only when inquiring w hether an independent counsel, fr ee o f conflict o f interest, has done his jo b with rea sonable com petence. That is the teaching of Com mon wealth ex rel. W ashington v. Maroney, 427 Pa. 599 22 Argument (1967), a case which shows how difficult it is to pass on adequacy of counsel by hindsight. An altogether different rule applies in Pennsylvania, as elsewhere, when the issue is conflict of interest. Com monwealth ex rel. Whitling v. Russell, 406 Pa. 45: If, in the representation of more than one de fendant, a conflict of interest arises, the mere existence of such a conflict vitiates the proceed ing, even though no actual harm results. The potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion. As pointed out by Judge Montgomery in his dissenting opinion, the Supe rior Court in Pile v. Thom pson, 62 Pa. Super. 400, well stated: . . . The rule is not intended to be remedial of actual wrong, but preventive of the possibility of it. (ital. in original) * * * One of the most important factors in a criminal trial is the attitude of the defendant’s counsel and often the strength of the defendant’s cause, unfortunately, is judged and gauged by the abil ity demonstrated by defendant’s counsel. We can not say that counsel in the instant case was not effective. But could he not have been more effec tive, and more able to utilize the evidence, if he had not been burdened by the chore of defending two defendants whose positions were inconsistent and at variance? The Whitling decision serves notice that convic tions obtained in disregard of potential conflict of interest of defense counsel may be invalidated later in habeas corpus proceedings, fully vindicating the concerns of District Attorney Specter who testified in this case against the “partnership” concept in the Argument 23 proposed amendments to the charter of the Defender Association. (R. 285-291, 302, 304.) It should be of significance to this Court that the only witnesses with prosecution experience called to testify in the court below were called by the objectors. All these witnesses vigorously opposed the arrange ment approved by the court below because of their belief that it raised substantial questions of conflict of interest. In addition to the testimony of District Attorney Specter, there was testimony from Richard A. Sprague, First Assistant District Attorney who had served as an Assistant Defender for three years (R. 321-323); from Edmund E. DePaul, former Chief of the Criminal Division of the United States Attor ney’s office for the Eastern District of Pennsylvania who had served for 11 years as a Senior Assistant Defender (R. 412-414); and from Martin Vinikoor, a Chief Assistant District Attorney and former Acting Defender and First Assistant Defender (R. 343-345). Com m onwealth v. W akeley, 433 Pa. 159 (1969), is entirely consistent with the Whitling case and with appellants’ position here. There the Court sustained a conviction against defendant’s objection that his lawyer had been assistant district attorney at the time of defendant’s indictment. As the opinion points out, any effect this could possibly have had on the de fense would have been favorable to defendant; the state was the only party that could conceivably have been hurt by such a “switching of sides”. The opinion also recognizes the inevitability and desirability of individual lawyers changing roles from defense to prosecutor and vice versa from time to time. Cf. Com m onwealth v. Grucella, 214 Pa. Superior Ct. 716 (1969). Thus, a defense lawyer’s form er association with the district attorney’s office is not a per se dis 24 Argument qualification. If the defense lawyer has job prospects in the district attorney’s office, more serious question of conflict of interest arises, as shown in McKenna v. Ellis, below, but the situation is still utterly distin guishable from the present and persistent prosecution influence on defense envisioned by the reorganization of the Defender Association here in issue. The very essence of Gideon v. Wainwright, 372 U.S. 335 (1963), was to make the right to counsel absolute rather than, as theretofore, dependent on a showing of harm from lack of counsel. Cf. Mr. Justice Clark’s concurring opinion, 372 U.S. at 347, rejecting any distinction between capital and non-capital cases, and quoting from Hamilton v. A labama, 368 U.S. at p. 55. “When one pleads guilty to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” This is clearly evident in the conflict of interest cases. In Glasser v. United States, 315 U.S. 60 (1942), the Supreme Court re versed a conspiracy conviction on the ground that the trial judge had appointed defendant’s lawyer to repre sent also a co-defendant where there was a potential conflict of interest between the two clients. The re versal was notwithstanding substantial basis for finding that defendant (a former assistant U.S. At torney) and his lawyer had waived objections to the appointment. The Court’s opinion declares (at pages 75-76): “To determine the precise degree of prejudice sustained by Glasser . . . is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (itals. supplied) Argument 25 The Court cited for this proposition Turney v. Ohio, 273 U.S. 510 (1927), where Chief Justice Taft, speak ing for a unanimous bench, reversed Turney’s convic tion of a liquor offense on the ground that he was tried before a village mayor who, under state law, was compensated for conducting such summary trials out of “costs” taxed against convicted defendants. This pecuniary interest in conviction was held to disqualify the mayor, on due process grounds, notwithstanding the argument that men of the highest honor and the greatest self-sacrifice could carry it on with out danger of injustice. Every procedure which would offer a possible temptation to the average man . . . or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law. (273 U.S. at 532) McKenna v. Ellis, 280 F.2d 592 (5th Cir. 1961), reversed a conviction where the trial court had ap pointed two young attorneys to represent defendant, both of them candidates for jobs with the district at torney. The court declared, at page 599: We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. We consider undivided loyalty of appointed counsel to client as essential to due process. United States ex rel. Reid v. Richmond, 277 F.2d 702 (2d Cir., 1960), which sustained the constitu tionality of the old Connecticut public defender sys tem, is utterly distinguishable from the present case, 26 Argument and is in any event rendered obsolete in view of subse quent constitutional developments. The Connecticut Public Defender was not appointed by a prosecution- linked mayor, but by judges. Judges had historically appointed individual counsel to represent indigents, and it was natural to turn to them as the appointing power when a defender organization was to be created. Besides, judges had always recognized, even prior to Gideon v. Wainwright, their responsibility to safeguard an unrepresented—and indeed even a represented— defendant’s rights in a criminal case. The Mayor and the Commissioner of Police of Phila delphia have no such historic or practical responsibil ity. To the contrary, they are properly the commun ity’s agents for the enforcement of law. The obsolescence of the Richm ond decision is evident from several considerations. First, the right to counsel has become more absolute since 1960. The Richmond court cited and relied on Crooker v. California, 357 U.S. 433 (1958), in holding that Reid had no absolute right to counsel at pretrial phases of the prosecution, e.g., when he gave a confession in re sponse to interrogation while in police custody. The Richmond court quoted Crooker’s declaration that de fendant must show “prejudice” from denial of counsel under these circumstances. But Gideon v. Wain wright, 372 U.S. 335 (1963) and Miranda v. Arizona, 384 U.S. 436 (1966), have swept away such notions. In the second place, since 1960 the nation and the legal profession have begun to recognize that there is a difference between appointing individual counsel and appointing a public defender insofar as the role of the judiciary is concerned. When a variety of individual lawyers are appointed by different judges, appointed counsel presumably has a broad clientele, including paying clients perhaps in the civil field as Argument 27 well as the criminal field. He is thus considerably more independent of the appointing judge than is a professional public defender. It is for this reason that the ABA Minimum Standards for Criminal Justice emphasize that the “plan” as well as individual de fender attorneys be “subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice.” 6 Notably, in Con necticut, the 1969 Public Defender legislation aban dons the old system under which local trial judges ap pointed a local defender. Instead, a state-wide chief defender is appointed by a commission that is com posed of the Chief Justice of the State Supreme Court, the Chief Court Administrator of the State, the Chief Judge of the Superior Court, the Chief Judge of the Circuit Court, and two trial court judges designated by the Chief Judge of the Circuit Court. The Com mission also appoints local defenders and assistant defenders upon nomination of the chief defender, and promulgates regulations, guidelines, and standards for administration of the defender system. The Com mission selecting public defenders for Connecticut is, therefore, effectively insulated not only from poli tical patronage and links to prosecution forces, but also from pressures of the trial judges themselves. B. Political Control o f Defense o f the Poor is Not a Speculative Claim but is Based in Part on the Success o f City Hall in Forcing the Resignation o f the Acting C h ief Defender Entirely fo r Political Motives. The court below, in characterizing the concern of the objectors over political control as “specula 6. A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services §1.4 (1967). 28 Argument tive”, chose to entirely overlook the evidence pro duced in the hearings as to the circumstances surrounding the “resignation” of Martin Vinikoor as Acting Chief Defender early in 1969. The evidence established without contradiction that the City refused to discuss with the Defender As sociation additional appropriations so long as Vini koor remained at the head of the Defender staff. There was no complaint by the City that Vinikoor lacked the qualifications for the position. To the con trary, he was eminently well qualified with a back ground that included substantial experience as both an assistant district attorney and as a private criminal defense lawyer, and as a former Secretary of the Criminal Procedural Rules Committee of this Court. However, Vinikoor when in private practice had refused to support the incumbent Mayor of Philadel phia in his campaign for re-election in November, 1967, and had, in fact, sought election to City Council on the ticket of the opposite political party. For this action in 1967 the City set as a condition precedent to any negotiations with the Defender Association for appropriations the resignation of Vinikoor as Act ing Chief Defender. Under that pressure he resigned. Following Vinikoor’s resignation the City con cluded the agreement with the Association resulting in the Charter amendments that are now before this Court. Despite the fact that there was no challenge at all to these facts, which so clearly demonstrate the way the City is prepared to pursue its political objectives even when dealing with the organization handling the defense of the poor, the court below chose erroneously to characterize the objections raised by the appellants as merely “speculative.” Argument 29 V. Constitutionally Mandated Defense Serviees Must Provide the Appearance as Well as the Reality of Independence. An important function of providing defense coun sel is to build confidence in the fairness of the judicial process. It is not merely that the outcome of a particu lar case may be skewed where there is a lawyer on one side and none on the other. It is that underprivileged groups in the community come to view courts and law with cynicism and hatred when the conduct of the courtroom seems one-sided, as where there is no de fense counsel or an “official” defense counsel. All con victions become tainted in their eyes, even though the outcome of many individual cases would be found on close examination to be perfectly just. The importance of avoiding the “appearance of evil” is attested by cases like Rapp v. Van Dusen, 350 F.2d 806, 812 (3d Cir. 1965) (“not only actual im partiality [of a judge], but also the appearance of de tached impartiality”); and Snyder’s Case, 301 Pa. 276, 152 Atl. 33 (1930) (“avoiding even the appearance of evil”). VI. Arrangements Which Exert a '“Chilling Effect” on the Exercise of Constitutional Rights Must he Condemned on Constitutional and Public Interest Grounds. The rule against “chilling effects” has been fre quently invoked. A striking instance is NAACP v. Button, 371 U.S. 415 (1963), where a Virginia regula tion of the conditions of law practice was held uncon stitutional because of the chilling effect on First Amendment rights: “First Amendment freedoms need breathing space to survive.” (at p. 433) And so do Sixth Amendment rights of vigorous defense. Com pare Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (federal injunction against threatened state prosecu- 30 Argument tion allowed notwithstanding general rule against such interference where rights might be vindicated by defense to prosecution, because of “chilling effect on free expression of prosecutions initiated and threatened”). VII. “ Command Influence,” Which is Barred in Military Prosecutions, Must A Fortiori be Excluded from Prosecution in Civilian Courts. Stanford Shmukler, Esq., then Chairman of the Philadelphia Bar Association Committee on Criminal Justice, testified for the objectors in this case. R. 364 et seq. Drawing on his experience in the Judge Advocate Corps, he pointed to the dangers of “com mand influence” in the sphere of military trials, where the necessities of war and discipline might have led to considerable tolerance of command influence, espe cially considering that service men inevitably must yield many of the freedoms that a civilian enjoys. To the credit of the armed services, every effort has been made to achieve independence for the military tribu nals including counsel for the defendant. See Article 37 of the Uniform Code of Military Justice; U.S. v. Berry, CM 414955, June 7, 1968, digested in Judge Advocate Legal Service, Pamphlet 27-68-18, page 4 (“Appearance of Command Influence Raises Re buttable Presumption” of unlawful command influ ence despite finding of lack of prejudice); United States v. McLaughlin, digested in JALS Pamphlet 27- 69-1, p. 4, Dec. 13, (1963) (routine command memo assigning three out of a panel of 12 duly assigned officers, for purposes of allocating trial duties, held unlawful command influence); Hansen, Judicial Functions fo r the Com mander, 41 Mil L. Rev. 1 (1968). Relevant quotations from this last source in clude the following: Argument 31 [p. 20] “The principal objection voiced by witnesses during the committee hearings on the Code concerned the power of the commander to appoint the members of the court-martial. To these witnesses “control is exercised by reason of the fact the participants in the courts— the judges, the prosecutors, and the defense coun sel—are subject to the full command of the offi cers who appointed them, and that their service careers are in his hands. Accordingly, the only way to prevent the court members from being improperly influenced in their judicial activity by the commander, as they saw it, was to dis continue the commander’s power to appoint the court, and remove him from any responsibility in this area of military justice. “This suggestion was not new in the his torical development of the commander’s power and has been consistently resisted by the military establishment as an impracticable provision which would hinder those responsible for the conduct of military operations. This latter view was accepted by Congress and recognition given to the fact that acts which are rights in the civilian community may constitute direct chal lenges to the commander’s authority to success fully accomplish his assigned mission: Take the business of telling off the boss, that is an inalienable right of an Amer ican citizen. If you tell off the sergeant or commissioned officer, that is a military of fense. In civilian life, if you do not like your job, you quit it. If you do not like your job in the Army and quit, that is called desertion in wartime and it carried very serious con sequences. In civilian life if people decide they do not like the working conditions and 32 Argument walk off jointly, that is a strike. In the Army or in the Navy, that kind of action is mutiny, which is one of the most serious offenses. “However, retention of the commander’s position as a convening authority was not a com plete vote of confidence since the remainder of the committee’s efforts were expended in an at tempt to provide additional safeguards against the abuse of his power.” Cf. O'Callahan v. Parker, 395 U.S. 258 (1969), which denied court martial jurisdiction for a crime against a civilian committed by a soldier on leave, pointing to the importance of preserving maximum trial rights of accused: Strides have been made toward making courts- martial less subject to the will of the executive department which appoints, supervises and ulti mately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals. (395 U.S. at p. 263) VIII. Professional Ethics and the Constitution Would Demand Full Disclosure to Clients of the Compromising “ Partnership" with City Hall, and Intelligent Consent hy the Client. It Would he Impracticable to Operate a De fender Organization on that Basis. The least that would be required of a prosecution- linked defender organization, from the point of view of professional ethics and constitutional law, would be full disclosure to each client of the conflict of in terest in City Hall’s partnership in the Defender Asso ciation. This is clear even in civil cases. The American Bar Association Special Committee on Evaluation of Ethical Standards, has just published a “Code of Argument 33 Professional Responsibility” (Preliminary Draft, 1969). Speaking of “potentially differing interests” of multiple clients (Paras. 12 et. seq.), the committee warns against “diluted” or “divided” loyalty, states that “all doubts” should be resolved against repre sentation of potentially conflicting interests, and in sists upon the client’s being given “opportunity to evaluate his need fo r representation free o f any po tential conflict and to obtain other counsel i f he so desires.” The lawyer is required to explain the “im plications” of common representation before securing his client’s consent, and to advise the client of “other circumstances” that might cause the client “to ques tion the undivided loyalty of the lawyer.” “Regardless of the belief of a lawyer that he may properly repre sent multiple clients, he must defer to a client who holds the contrary belief and withdraw from repre sentation of that client.” Speaking of the effect on lawyers’ independence of “desires of third persons” (Paras. 19 et seq.), the Committee says: A lawyer subjected to outside pressures [“often subtle, and a lawyer must be alert to their exis tence”] should make full disclosure of them to his client. The Committee notes the special lia bility to “political” pressures where the lawyer is being paid by someone other than his client. What is so emphasized in civil cases must a fo r tiori be true in criminal defense, where effective as sistance of counsel is a fundamental Constitutional right. It is obviously unwise and impractical to operate a defender organization on the basis of disclosures to and waiver by often ignorant prisoners with no effec tive alternatives. It would take far too much time; the process would degenerate into an ineffectual 34 Argument formality of giving prisoners written explanations and waiver forms; much suspicion would be generated by the very process of seeking to allay it; and numerous convictions would be opened to collateral attack. Such consequences clearly preclude a finding in this case that the proposed amendments of the Association’s articles are and will be “lawful, beneficial, and not injurious.” IX. The Pennsylvania Non-Profit Corporation Law; Charter Amendments Must he “Lawful,” “ Beneficial” and “ Not Injurious.” The issues posed by the Pennsylvania Non-Profit Corporation Law, 15 P. S. §7707, are whether the proposed amendments are “lawful,” “beneficial,” and “not injurious to the community.” 7 This legislation contemplates the broadest inquiry into the public interest. The non-profit corporation has traditionally been regarded in Pennsylvania as the private profit corporation used to be regarded, i.e., as an instrument for carrying out public policy in the best way.8 The 7. Section 7707 is the section applicable to this case. An alternative procedure for amending charters of non-profit corporations was authorized by Act 31, Laws 1969. This Act did not take effect until September 17, 1969, long after the hearing and judgment below. It was prospective in operation, applying to corporations then “proposing to amend,” “elect [ing] to proceed under this section,” and advertising in a manner prescribed by the new section 14. A decision by this Court that reorganization of the Defender Association in the manner proposed would be unconstitutional, unlawful, or injurious would, of course, be effective to preclude any amendment of that character by whatever procedure may be available, since it would plainly lay open to collateral attack all convictions obtained with the participation of prosecution- linked defense counsel. 8. Originally, in Pennsylvania as in England, all corpora tions were regarded as public agencies carrying out particular Argument 35 Court has the power and duty to shape and constrain these public agencies, especially when the question at issue is the relationship which the non-profit cor poration will have with the City of Philadelphia—it self an instrument of government—and especially when the crux of the controversy has to do with the independence of defense lawyers who are officers of the Court. “Beneficial” in 15 P.S. §7707 means that the pro posal must improve matters. The legislature did not take a neutral attitude towards corporations designed to serve public purposes, exempt from taxation, and subject to supervision by state officials. It required a demonstrated need for and benefit from the found ing of a non-profit corporation or any substantial al teration of its structure or purposes. Thus the burden is on the applicants to show that a structure which gives to City Hall at least half the governing power over indigent defense is an improvement over the previous wholly independent Defender Association. The requirement under 15 P.S. §7707 demands that the proposal be “beneficial” and “not injurious to the community.” The plain meaning of this conjunc tion is that there is not to be a balancing of benefits and detriments, but an absence o f injurious elements. governmental purposes thought of as “special government” in distinction from the general government carried out by municipal corporations. Williston, History of the Law of Busi ness Corporations Before 1860, 2 Harv. L. Rev. 105, 110 (1888). Chartering was by the legislature in Pennsylvania until it vested this discretion in the Supreme Court as re spects “non-profit” organizations. The jurisdiction was later vested in the Court of Common Pleas, which to this day ex ercises supervision over this branch of “special government,” while the chartering of private profit corporations has become a routine administrative task substantially divorced from the notion of public responsibility. See Zeiter, Foreword to Title 15, Purdon’s Pa. Statutes, at p. 72. 36 Argument If all that had been intended was a “net benefit ’ cri terion— more benefit than detriment— there would be no need for the words “and not injurious to the community.” Therefore, it is the responsibility of the Court to prune out of an otherwise beneficial arrangement any elements which are "injurious to the community,” such as dominance of defense by prosecution-linked officials, loss of client confidence, risk that convictions will be collaterally attacked, and likely resentment by underprivileged segments of the population promotive of cynicism and public disorder. The requirement that amendments to charters of non-profit corporations be affirmatively beneficial is highlighted by contrast with the provision as to ori ginal organization of such corporations, 15 P.S. §7702. There it is stated only that the purposes must be “lawful and not injurious.” By contrast, the addi tion of the word “beneficial” in §7707 indicates a high er standard for amendments than for original in corporation. And this makes sense since, as in the present case, people who have united in a charitable or other non-profit enterprise may be disunited when it comes to a fundamental alteration of the arrange ment. It should be altogether clear that the revised enterprise is “beneficial” and not too remote from the original plan. In our case the present amendments, adopted by a close vote of 19-16, radically alter the original enterprise, from an independent defender association to one at least half dominated by City Hall. X. The Court Should Accord Great Weight to Recent Authoritative Declarations of Stand ards for Organized Defender Associations, Re quiring Freedom from Political Influence. The Supreme Court of Pennsylvania has often shown its willingness to back up the canons of the Argument 37 American Bar Association with the authority of judicial decision. See Middleburg v. Middleburg, 427 Pa. 114, 233 A.2d 899 (1967) (barring representation of conflicting interests; test is “not the actuality of conflict but the possibility that conflict may arise”); Seifert v. Dumatic Industries, 413 Pa. 395, 197 A.2d 454 (1954). The American Bar Association’s Standards Re lating to “Providing Defense Services,” approved in 1968, state: “1.4 Professional Independence. The plan should be designed to guarantee the integrity of the relationship between lawyer and client. The plan and the lawyers serving under it should be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. One means for assuring this independence, regardless of the type of system adopted, is to place the ultimate authority and responsibility for the operation of the plan in a board of trustees. . . . Note that this requires that “the plan” as well as “the lawyers” be “free from political influence.” “Free from political influence” surely does not contemplate one third or 50% or two thirds political influence. There is not room here for a “partnership” between political authorities and “independents.” Standard 3.1 of the American Bar Association “Providing Defense Services” deals with “Career Serv ice” as follows: “A defender plan should be designed to create a career service. Selection of the chief defender and staff should be made on the basis of merit and should be free from political, racial, 38 Argument religious, ethnic and other considerations ex traneous to professional competence. The tenure of the defender and his staff should be protected similarly.” The committee which drafted these standards was headed by Chief Justice Warren E. Burger, then of the Court of Appeals of the District of Columbia Circuit. Among its members were Judge Hastie of the United States Court of Appeals for the Third Circuit and Herman I. Pollock, Esquire, long-time Chief Counsel of the Philadelphia Defender Association. Not one witness in this case disavowed these standards. The only attempt to reconcile the proposed Defender Association charter amendments with these authoritative standards was an appeal to “practical ity,” meaning a recognition that City Hall insisted on violation of the standards as a condition of advancing the money. (R. 20, 144, 150, 165, 250, 591-592.) The National Defender Project, whose Deputy Director, John J. Cleary, Esquire, testified for the applicants in this case, has published a Handbook on How to Organize a Defender Office (1967). The Hand book reviews the various methods by which defenders are appointed and expresses (p. 31) its preference for a governing board which “provides a screen between the defender and ‘City Hall,’ ” and for minimizing “the influences of partisan politics”: “On balance, since the public defender is es sentially a legal specialist rather than a policy making official, a public defender should be neither elected nor appointed by elected officials. Instead, the defender should be chosen by an independent board or by a combination of of ficials, as in Minnesota where the Judicial Coun sel— a state-level, non-political body— appoints local defenders on the recommendation of local Argument 39 judges. Similarly, Las Vegas candidates are initially screened by an advisory board of judges, bar leaders, and laymen who submit three nomi nees to the county board of commissioners for final selection. “The term of the defender should be for a sub stantial period of time (four to six years) or for an indefinite term with provision for removal for good cause. A public defender statute should provide for civil service status, and the private defender organization should clearly state tenure in the employment contract. Tenure benefits the community, which retains the experienced de fender. Also, the position will attract more candidates when they understand that they can not be summarily discharged.” The Foreword to this Handbook discloses that it based on material prepared by Mr. Cleary. This clearly reveals the Pickwickian sense in which Mr. Cleary testified initially in this proceeding that the proposed “partnership” with City Hall was a “model.” (R. 124.) As became clear on cross-examination, Mr. Cleary regarded this as a model only by contrast with City Hall’s original proposal of a 100% political de fender association. (R. 136-142.) He could not believe otherwise in view of his own unhappy experience as a rejected applicant for a position on Chicago’s poli ticalized defender organization for no other reason than his lack of ward leader support. (R. 204.) The real and substantial purport of Mr. Cleary’s testimony was revealed in his answer to the final question on cross- examination when he said that City Hall’s demand for representation on the Defender Association board exceeded any legitim ate city interest o f which he was aware. (R. 216.) That answer is fully consistent with 40 Argument Mr. Cleary’s considered position in the National De fender Project handbook. Similarly, Dennis N. O’Brien, Assistant Director of the National Defender Project, wrote that a key ad vantage of the private or public-private defender sys tem is the fact that there is “less likelihood of political influence over the defenders.” O’Brien, Implementing the Right to Counsel in New Jersey— A Proposed Defender System, 20 Rutgers L. Rev. 789, 818 (1966). Cf. Dimrock, The Public Defender: A Step Towards a Police State, 42 ABAJ 219 (1956); Ander son, J., speaking of the advantages of judicial appoint ment of defenders as going a “long way toward preserving the adversary positions of counsel and eliminating any fears of a too close connection be tween the state supported prosecution and the state supported defense.” 36 FRD 129, 160 (1964). Silverstein, Defense o f the Poor, American Bar f oundation (1965), a basic and comprehensive review of the field, takes the same position, viz., that the only way a public defender system can achieve the requisite freedom from “undesirable political influ ence” is by “civil service examination, as in Los Angeles County, or by having the court appoint a distinguished committee of private citizens that in turn selects the defenders, as in Massachusetts and Oregon.” (p. 57). XI. The Scope of Review on Appeal in Equity Cases is Very Broad; It Should Especially be so Here Where the Organization of Criminal Jus tice is at Stake. As was said in Nottingham Fire Company Char ter case, 394 Pa. 631, 632 (1959), involving review of the granting of a non-profit charter: “. . . the cer tiorari upon which the action of the court below is now before us is consequently broad.” Argument 41 “In equity, it is the general rule that an appeal brings up the whole case, and that the appellate court passes upon the record as to the facts as well as the law.” 2 Pennsylvania Law Encyclopedia (1957) §339. “While the findings of facts of a chancellor, when supported by competent evidence and affirmed by the court en banc, are conclusive on appeal, this rule does not apply in favor of deductions or inferences which are made by the chancellor from facts which he has found [or] to conclusions of law. The court en banc and the reviewing court may make conclusions not withstanding the chancellor’s determination.” 2 P.L.E. (1957) §442. The general rule was reaffirmed in Chambers v. Cham bers, 406 Pa. 50, 56 (1962): “well settled that a Chancellor’s conclusions, whether of law or ultimate fact, are no more than his reasoning from the underlying facts and are reviewable, especially when the underlying facts themselves are not in esse but are matters of inference and deduction.. . . ” This has been said to be true “even though [the conclusions have been] approved by a court en banc.” See Girsh Trust, 410 Pa. 455, 467 (1963); cf. Idell v. Falcone, 427 Pa. 472, 474 (1967); St. John C.G.C. Church v. Elko, 436 Pa. 243, 254; 2 P.L.E. §438. In the present case there is no real dispute as to any of the facts, but only as to legal conclusions. More over, since what is at stake is the fundamental prin ciple of organization of justice itself in the criminal court, it is especially appropriate that the Supreme Court should decide what legal conclusions should be drawn. 42 Argument XII. Implications of this Case for Political Control of Private Schools, Public Television, Welfare Payments, and Other State Supported Opera tions. American law confronts in the present proceed ings a new moral and constitutional issue. Having only very recently, as a result of Gideon v. Wain- wright, accepted a national obligation to finance the defense of the indigent, we are compelled suddenly to ask hard questions about the character and quality of that defense. Can the “public defender,” which necessarily will be financed by the public treasury, be saved from political domination? Is it to be insulated as far as humanly possible from the prosecuting arm of government? From the police force? From the “estab lishment”? These questions regarding publicly financed defense of the indigent are part of a larger set of issues facing a nation where tax dollars play an ever-larger role in private lives, for example, in the fields of education, public broadcasting, publicly sub sidized arts, and public welfare. As college education becomes more expensive and more widely demanded, the state and the federal government increasingly must foot the bill by subsidizing “private” universities and schools. It is widely recognized that freedom, diversity, and intellectual strength of higher education require insulation of the system from ordinary politi cal controls. In England, the effort to maintain uni versity independence despite public financing went so far as to set up a University Grants Commission as a buffer between the grantee universities and even the normal budgeting and auditing controls. See Berdahl, British Universities and the State (U. Cal. Argument 43 Press 1959). One interesting feature of the British University Grants system has been that in principle grants were made on a five-year basis to avoid politi cal and policy pressures stemming from annual processing of budgets and appropriations. The Commonwealth of Pennsylvania recognizes the same principle when it makes large grants to uni versities, medical schools, and other institutions with out demanding any “representation.” Even where the educational institution is “state-related,” and the state is paying the bulk of the costs, as in the case of Penn State, the University of Pittsburgh, and Temple University, only a small proportion of the boards of trustees are state designees. Should the principle o f state subsidy o f private and parochial schools com e to be recognized in this country, it would be a constitu tional catastrophe to link financial aid with governing power in such instances. In the field of broadcasting, the issue has arisen in connection with proposals to establish a national network of noncommercial television stations fi nanced either by the Treasury or by users of the pub licly-owned communications satellite facilities. A major concern has been how to structure a govern ing board so as to avoid official propaganda interests or art preferences from influencing the programming of the net network. The Carnegie Commission on Educational Television reported in 1967 in favor of creating a new private organization to be known as the “Corporation for Public Television,” and added: “Recognizing areas of special sensitivity, the Commission is persuaded that a nongovernmental institution is necessary to receive and disburse at least a part of those funds. The purpose is not to es cape scrutiny but to minimize the likelihood that such scrutiny will be directed toward the day-to-day oper 44 Argument ations of the sensitive program portions of the Public Television system. What we have sought to design is an institution that will represent Public Television, that in behalf of Public Television will receive and disburse federal, state, and local government funds, as well as private funds, and yet will be free of politi cal interference.” (Public Television: A Program for Action, Bantam ed. 1967, p. 37) It was proposed to have Congress impose a tax on television sets, the proceeds to be held in trust for the Corporation - ‘‘to permit federal funds to flow to Public Television outside the ordinary budgeting and appropriations procedures, and thus insulate the system from direct governmental overseeing of its day-to-day operations and from the danger of political interference with the substance of programming,” (id. at 88) Compare Horman, “The Producers Organize”, Na tion, May 19, 1969, p. 634, reporting the difficulties and fears resulting from Congress’ adoption of an an nual funding program instead. When Congress enacted the Public Broadcast ing Act of 1967, P.L. 90-129, creating a Corporation for Public Broadcasting, it declared (47 U.S.C.A. §396(a)(6)): “that a private corporation should be created to facilitate the development of educational radio and television broadcasting and to afford maxi mum protection to such broadcasting from ex traneous interference and control.” Just as constitutional policies of free speech and free press under the First Amendment demand appropri ate organizational adaptations for public broadcast Argument 45 ing, so the Constitutional policies of effective assist ance of counsel under the Sixth Amendment call for appropriate organizational safeguards. In neither situation does it suffice to say that honorable and courageous officials would not abuse their powers. In the field of welfare legislation, likewise, there is a growing awareness that payments to the poor cannot, consistently with Constitutional guarantees of liberty, be accompanied by official intrusions on privacy or burdensome constraints. Cf. Shapiro v. Thom pson, 89 S. Ct. 1322, 1329 (1969) (invalidating one year residence requirement for welfare recip ients as unreasonable restriction on movement); Sherbert v. Vemer, 374 U.S. 398 (1963) (disqualifica tion of Seventh Day Adventist for unemployment ben efits because of refusal to accept work on Saturday infringes First and Fourteenth Amendments). See generally Note, Another Look At Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1969). This Court is, of course, not called upon to rule on all these questions in the present case. Reference to these broader issues is merely intended to under line the importance of this whole group of issues for freedom in America, and to highlight the unique sig nificance of the intrusion of government and prose cuting officials into defense of the indigent. In a crim inal case the government is not “handing out favors,” it is prosecuting the defendant, proposing to deprive him of life, liberty, or property. If, in so doing, it moves in to disarm or compromise the defense, the most acute case of jeopardizing liberty without due process of law is presented. If the Court approves of governmental control or powerful influence in such a case, it will be signalling in all areas a retreat of freedom before the insistent onslaught of Leviathan government. 46 CONCLUSION Argument Public Defender law is just beginning to be de fined. Now is the time when the whole future of the institution is at stake, when the first decisions must be made as to the direction of development. Rarely has a Court been in the position of this one to in fluence the pattern of Twentieth Century criminal jus tice. It may not seem that much can be done to pre serve the “independence” of defense so long as the money must come from the City or State. Some will say fearfully or cynically that the power of the purse exercised by City Council at annual budget hearings is all that is necessary to subvert the independence of the Defender. But the testimony of former Council man Sawyer in this proceeding answers these doubts: there is a vast difference between episodic inquiries at annual budget hearings and direct super vision and management by City Hall established in the Board of Directors and the all-powerful execu tive committee of the Defender Association. (R. 509- 510, 521-26.) Perhaps, in the future, ways may be found to limit even the influence of annual budgetary review, e.g. by longer-term commitments or by con tracts on a purchase-of-services basis obligating the city to pay so much a case. Perhaps future indigent defendants will be offered an alternative under which a lawyer of their own choosing would be paid the “per case” fee on the basis of which Defender Asso ciation appropriations are calculated. All these possi bilities of growth and development in the direction of greater independence of counsel will be cut off by a decision in the present case that discounts concern about City Hall intrusion into the conduct of the de fense. On the other hand, a decision here that confines City Hall to a fiscal and auditing role will properly Argument 47 protect the City’s legitimate interests and point in the right direction for the future, preserving individual rights even in settings where the City and the State must provide the funding. Accordingly, it is submitted that the decision be low should be reversed and the case remanded with instructions to make findings as to whether any City representation on the Board of Directors of the De fender Association is necessary to protect the City’s legitimate interests, and if so what the minimum rep resentation for that purpose would be. Respectfully submitted, LOUIS B. SCHWARTZ BERNARD L. SEGAL Attorneys fo r Appellants 48 ADJUDICATION Adjudication McDEVITT, J. The proposed amendments of Articles of Incor poration of Defender Association of Philadelphia was referred by the President Judge of the Court of Com mon Pleas to Judge John J. McDevitt, 3rd, for a hear ing and determination. Testimony of proponents and objectors was taken on four days in April and May of this year total ling some 643 pages of transcript. This seemed to of fer a full opportunity for the interested parties to ex press their views and opinions. There was agreement that the limited number of witnesses called would be sufficiently representative of the community and pre sent a cross-section sampling of views and responsi ble opinion in the City of Philadelphia. The Court has been assisted in arriving at a decision by the professional advocacy of counsel for the proponents and objectors. Certainly the same ob servation applies to the witnesses as well as some of whom traveled a considerable distance. On behalf of the Defender Association the fol lowing testified: Joseph N. DuBarry, 4th, Esq. - President Edward J. Blake, Esq., - Philadelphia Court Administrator speaking for President Judge Vincent A. Carroll of the Court of Common pleas as well John J. Cleary, Esq., Deputy Director of the National Defender Project, a grant ac tivity of the National Legal Aid and De fender Association. Herman Pollock, Esq., for many years the Defender and more recently holding the title of Counsel to the Association. Pace Reich, Esq., Assistant City Solicitor Adjudication 49 On behalf of the objectors appeared: Arlen Specter, Esq., District Attorney of Philadelphia Richard Sprague, Esq., his First Assistant Martin Vinikoor, Esq., former Defender Stanford Shmukler, Esq. Jack B. Justice, Esq., Chairman of the Southeastern Pennsylvania of Ameri cans for Democratic Action Edmund E. DePaul, Esq. Norman Dorson, Esq., Professor of Law, New York University Henry W. Sawyer, 3rd, Esq. Stephen A. Sheller, Esq. Alvin E. Echols, Jr., Esq., Executive Direc tor of the North City Congress David Cohen, Esq., City Councilman The Defender Association of Philadelphia was incorporated under the provisions of the Pennsyl vania Non-Profit Corporation Law on April 14, 1934 and has since that time provided legal defense ser vices in Philadelphia to indigent persons accused of crime. For years and until more recent years the As sociation operated without financial assistance from the City of Philadelphia. Decisions of the United States Supreme Court such as Gideon v. Wainwright, 372 U. S. 335 (1963) and In re Gault, 387 U. S. 1 (1967) greatly expanded the obligation to provide counsel for the indigent. The obligation to provide counsel is placed upon the local or state Government. Philadelphia had and has an independent De fender Association which has operated successfully'. It has the overwhelming support of the community as a whole. However, in 1968 the Association found itself unable to provide the legal representation required 50 Adjudication because of lack of sufficient private contributions, grants of aid and appropriations from the City Admin istration. To prevent a total breakdown in law en forcement in Philadelphia and the administration of justice a stop gap appropriation procedure was worked out with the City Administration by President Judge Carroll and representatives of the Defender Association. The Mayor of Philadelphia, James H. J. Tate, publicly advocated a Public Defender Office. An Or dinance was introduced in City Council and a public hearing scheduled. Opposition came from every non political direction in Philadelphia. No hearing was held. Negotiations between City representatives and the Association toward support for the Defender As sociation began to make progress. The Major, however, insisted that because pub lic funds to be appropriated to the Defender Associa tion during the fiscal year 1969-1970 amounted to some $1,160,000 the City should have a substantial number of members on or percentage of the Board of Trustees appointed by the Major. The Association, after full consideration and by a close vote of its membership, agreed to enter into the contract pre pared by the City Solicitor. The proposed amendments to the Articles of In corporation are required in order to effectuate the contract. Relevant provisions of the contract, Exhibit “F”, executed on behalf of the Defender Association of the City of Philadelphia are referred to in the fact findings by the Court. The term of the contract is per petual but either party may terminate this agreement on June 30th of any calendar year provided not less than ninety (90) days written notice of such termina tion is given. A further escape clause is provided by para graph 4 of the contract wherein the City undertakes Adjudication 51 to compensate the Defender Association for the ser vices to be rendered by the contract in an amount to be determined by Council of the City of Philadelphia from time to time by appropriation. In the event the Defender Association shall determine such appropri ation is insufficient it may terminate the agreement upon thirty (30) days written notice. FINDINGS OF FACT 1. The Defender Association was incorporated under the provisions of the Pennsylvania Non-Profit Corporation Law on April 14, 1934 and has since such time provided legal defense services in Philadelphia, Pennsylvania to indigent persons accused of crime. 2. During such time, the Defender Association has been managed by an independent Board of Di rectors of, in recent years, approximately fifty mem bers; and by an Executive Committee and Officers elected from such Board. 3. This Board of Directors has been composed mainly of members of the Philadelphia Bar, supple mented by interested individuals from local and state government and the Philadelphia community at large. 4. For many years, the United Fund was the sole substantial source of funds for the operation of the Defender Association; however, during the past few years, as a result of certain decisions of the Supreme Court of the United States, such as Gideon v. Wain- wright, 372 U. S. 335 (1963), grants from certain char itable foundations, notably the Ford Foundation, as well as the provision by the Office of Economic Op portunity for funds for legal service programs, the budget and services of the Defender Association 52 Adjudication were expanded until by 1967 the combined budget for defender operations, including representation of juveniles, was over $600,000. 5. In 1967, the City of Philadelphia contributed $152,000 to the Defender Association. This sum was paid as part of the City’s Quarter Sessions Court bud get. 6. During 1967 and 1968, the Ford Foundation grant expired and the contract for funds from the Of fice of Economic Opportunity was not renewed. 7. Appropriate efforts were made by the Defend er Association during 1968 to obtain additional funds from the City without success and in the fall of 1968 it became necessary to schedule the reduction and elimination of several Defender services. 8. In November of 1968, a bill was introduced into City Council proposing the Office of Public De fender be appointed by the Major, with the approval of City Council. Representatives of the Defender As sociation met with the City Solicitor and other City representatives in order to express their opposition to the bill and to urge that the Defender Association continue to provide the required services in repre senting indigents accused of crime. 9. As a result of such meetings, an agreement was reached between the City and the Defender Association, the principal provisions being: (a) The Board of Directors of the Defender Association is to be changed to consist of thirty directors, ten directors to be chosen by the Mayor with the approval of City Council, ten di rectors to be chosen by the members of the De fender Association and the final ten directors to Adjudication 53 be chosen by a majority of the directors selected by the Major and a majority of those selected by the Defender Association. (b) The Board of Directors shall appoint the Chief Defender and First Assistant Defender. (c) The Chief Defender shall appoint such other professional and non-professional staff as is necessary. (d) All employees shall be full-time except with the approval of two-thirds of all the mem bers of the Board. (e) The Defender Association agrees to provide counsel to indigents in various areas of representation, including: (1) Juvenile delinquency; (2) Any indictable offense at any stage of the prosecution; (3) Any offense cognizable before the Municipal Court; (4) Post conviction proceedings; (5) Habeas corpus proceedings; (6) Extradition proceedings; (7) Probation and parole proceed ings; and (8) Appeals in appropriate cases The Defender Association will not provide coun sel where such representation would present a con flict of interests. (f) The City is to compensate the Defender Association in an amount determined by appro priation from time to time by City Council. As a result of such agreement, the Public De fender bill was not acted upon. 10. Provisions of the proposed agreement with the City necessitated certain changes in the Defender 54 Adjudication Association’s Articles of Incorporation, primarily with regard to the purpose of the corporation and the structure of its Board of Directors. 11. Amendments to the Articles of Incorporation were prepared and presented to a meeting of the members of the Association on March 28, 1969, at which time they were approved. 12. Certain standards for the operation of de fender systems throughout the country have been adopted by the American Bar Association and in- include, inter alia, that a defender system should pro vide “experienced, competent and zealous counsel, independent and free from political or economic in fluence.” 13. While it is necessary to insulate a defender system from undue political control or interference, there have been established in recent years a number of public defender systems and systems whereby management was placed in a board of directors con taining substantial representation from both the pub lic and private communities. 14. Although the City’s representation on the proposed Board of Trustees is larger than that seen necessary by several of the witnesses, there is no in dication that the proposed system will fail to continue to provide independent defender service. 15. The proposed amendments and contract be tween the Defender Association and the City of Phila delphia appear to provide adequate insulation from undue political influence over the operation of the de fender system. 16. The prompt implementation of a competent, adequate defender system in the criminal and juve nile courts of Philadelphia is vital to the sound ad ministration of justice. Adjudication 55 17. The budget for the Defender Association for the fiscal year 1969-1970, to provide for the areas of representation set forth in the proposed agreement with the City, is in the amount of $1,263,595 of which $1,160,095 is to be paid by the City of Philadelphia. 18. The proposed defender system is supported by the Board of Governors of the Philadelphia Bar Association; the United Fund, which has indicated its continued annual contribution of $50,000; and the Court Administrator of the Philadelphia Courts. 19. No feasible alternative to the proposed sys tem has been shown. 20. The Philadelphia community is protected from attempts to exert undue political influence over the operation of the proposed Defender Association by competent “watchdogs” such as the Philadelphia Bar Association, United Fund, the Philadelphia judi ciary and the Court Administrator, as well as many of the witnesses opposing the proposed amendments and the organizations of which they are members. DISCUSSION The Defender Association has made application for approval of certain amendments of its Articles of Incorporation. The amendments should be approved if the Court: “shall be of the opinion that the amendments are lawful, will be beneficial and not injurious to the community, and do not conflict with the require ments of this act. . . .” 15 P.S. 7707 It is the Defender Association’s position that the proposed amendments provide an appropriate ac 56 Adjudication commodation between legitimate governmental in terests in the substantial amount of funds required to be spent for an adequate defender service in Phila delphia and the professional independence vital to the operation of a sound defender system. Herman Pollock, longtime Defender, described this position in his testimony: “We arrived at this not because it’s the best sys- stem. I don’t think it is at all. I would like to have the government give $1,200,000.00 to the De fender organization as it now is, . . . “But this is a world, sir, in which I think we can not deal in absolutes and we have to be realistic. And I think that this is a plan with which a decent lawyer can live with as Defender. “Now, if you are going to get somebody there who isn’t decent, if you are going to get a corrupt City government, if you are going to get a cor rupt judiciary, this thing is in danger, but if you don’t start with the belief that there is corruption all around us, I think that this is a viable, opera tive instrument. “THE COURT: Well, I expect you have to start off with a highly capable Chief Defender, do you not, under the new set-up? “That is correct. “The COURT: Because of the absolute author ity he has with respect to selection and opera tion of the actual defense of cases, investigation, defense of cases. “That is right. And I have said to my own Board, with due respect, that whether or not this organ ization continues as an independent organiza tion is not going to depend on the City; it’s going Adjudication 57 to depend on our own Board that’s there now. If they will continue to fight to keep the Associa tion independent, it will be independent, but if they’re going to compromise all over the place then it may be our effectiveness may be dim inished. No doubt about that. If they can muster the necessary community support, in my opinion, should the occasion arise when it is needed to protect the independ ence of the Defender and the staff, I think there will be no trouble in Philadelphia of doing it.” John J. Cleary, Esq., Deputy Director of the Na tional Defender Project, a grant activity of the Na tional Legal Aid and Defender Association, testified as to the operation of various forms of defender sys tems throughout the United States. In his opinion any type of defender or system, be it public, private or mixed can provide independent, competent service. The obvious reservation is that the system must be free of political control and interference and ade quately financed. He is familiar with the past opera tion of the Defender Association and its contract with the City of Philadelphia. In his opinion Philadelphia has had an outstanding defender system. The agree ment involved in this controversy has been reviewed by his group and approved as being consistent with the recognized standards and a model balancing of public-private interest. Cleary described it as an “in dependent system” for handling legal representation of the indigent. Edward J. Blake, Esq., the Court Administrator, appeared officially to state his endorsement of the proposed amendments which have the effect of con tinuing the services to the community of the Defender Association. Speaking for President Judge Vincent 58 Adjudication A. Carroll as well, he testified that the amendments would be beneficial to the administration of criminal justice in the City of Philadelphia where 60-65 per cent of defendants in criminal cases are indigent. He looks upon the proposed changes in the organization of the Association as not effecting its independence. On the contrary it not only maintains its independ ence but for the first time will be adequately financed and in a position to give full and complete attention to the legal requirements of indigent defendants in cluding juveniles. Joseph DuBarry, President of the Association, recited the problems of the Defender Association during the last several years in attempting to handle the burgeoning case load thrust upon the organiza tion, and negotiations with the City to obtain ade quate financing. By late 1968 the financial situation was critical. In his opinion the contract with the City of Philadelphia does not seriously impair the inde pendence of the organization. Upon approval of the proposed amendments the Association will have the necessary finances. The contract representative of the City was Pace Reich, Esq., Deputy to the City Solicitor. Clearly the City would not negotiate the several questions raised by the objectors such as the extent of City represen tation and tenure of the Chief Defender. On the other hand, assurance was offered that the only interest of the City administration was to see to the expenditure of the substantial sums of money to be appropriated to the Association. Within the past week counsel for the objectors and earlier counsel for the American Civil Liberties Union, Greater Philadelphia Branch, furnished the Court excellent briefs contra the amendments to the Charter. We appreciate the highly competent and Adjudication 59 dedicated advocacy of Bernard L. Segal, Esq. and Louis B. Schwartz, Esq. who advanced the position of the objectors throughout the four day hearing. Both are former members of the Association and vig orously opposed the approval of the contract with the City. The objectors state that from the negotiations with the City there resulted a “compromise,” em bodied in a contract between the City and the De fender Association. The compromise envisioned a “partnership” in control of the defense. City Hall would designate 10 directors. The Defender Associa tion would designate 10. These 20 would designate an additional 10. On its face, this arrangement gives City Hall 50 percent control of the Defender Associa tion. In practice, it would give City Hall total domina tion, owing to the likelihood that highly-motivated political appointees would attend and vote en bloc at all critical points, especially in the selection of the Chief Defender and in establishing personnel policy. Practical domination would also be assured by the normal division of opinion among “Independent” di rectors combined with the expectable political and economic links to City Hall of many directors having no overt connection with the political authorities. Testimony in this case established City Hall’s purpose and power to dominate, through the force- out of the then Defender for political reasons, which has made a condition of negotiations between the City and the Defender Association, and through the course of negotiations in which even the minimal safeguards in the contract were extracted from a re luctant city administration. Uncontradicted testimony in this case, including testimony of the petitioners’ own witnesses, estab lished that the degree of control allotted to the city 60 Adjudication exceeds any legitimate interest the City could have in the premises. Uncontradicted testimony estab lished that the City’s legitimate interests could be fully protected by contract stipulations regarding the service to be performed, audits and other purely fis cal supervision, and continuance of the policy al ready firmly established of “goldfish-bowl” opera tion with a standing invitation to any interested offi cial to attend directors’ meetings. Uncontradicted testimony established that full information about the Defender operation has always been made available, and that no City official had ever claimed otherwise. The amendments to the Defender Association Charter, here offered for the approval of the Court, are designed to carry out the contract executed by the Association under the gun of the City’s threat to cut off funds completely. Approval by the member ship of the Association was by a close vote of 19-16. The tenuousness of the “independent” position in the proposed organization is exposed by an analysis of the amended articles: virtually every feature of the organization and operation of the “new” Defender Association, including its contract with the City, could be altered or abandoned without the concur rence of a single director representing the Associa tion. The only power unequivocally remaining in the Association’s directors is the power to fix the annual dues of members. They view the contract issue as being whether the government, which is constitutionally required to finance the defense of the indigent, shall also man age the defense or exercise large influence over the defense, and state that it is significant in this connec tion that the present proposals for Philadelphia are unique in subjecting the appointment and operation of the defender to a Mayor who also appoints the Adjudication 61 Police Commissioner and prosecutor (the City Solic itor). In other counties the County Commissioners who designate the public defender have no such di rect links with police and prosecution. One might add that if the District Attorney should happen to be sub ject to control by the Mayor the Chief Administrator would have the potential right of control over both the prosecution and the defense. Of course, anything can or may happen in this City but the Court believes charges of this type are purely speculative and with out any apparent foundation in fact. Of course, there may not be a “Partnership” be tween prosecuting authorities and counsel for the in digent accused. The Defender Association must pro vide independent and effective counsel. One can ap preciate the concern of the objectors that a conflict of interests situation or situations can develop from such a “Partnership” should it exist but this Court be lieves it does not. Clearly a portion of the active and interested ele ment of the community have strong opinions with re spect to the question before the court. But does the division involve the goals of the defender system in Philadelphia - it does not. Both sides firmly advocate an operation that meets all the accepted standards for independent and equal representation of those persons entitled to counsel by the constitution and court decisions. The opposition is based upon belief or perhaps no more than speculation that a long time politically oriented Mayor will dominate and control policies, procedures, and hiring in the Defender As sociation. For this Court to find that he will or will not would be speculative as well. The Court has carefully listened to the testimony of the objectors, most of whom are professional friends or acquaintances. We don’t question their sin 62 Adjudication cerity. One might pick out for special mention the tes timony of several but all followed the same ideologi cal line. All were concerned not with the continuation of the same standards of representation by the De fender Association but motivated by a conviction that the City Administration intended to control and change the character of our nationally recognized defender group. Considering alone the testimony of Mr. Cleary for the proponents and Professor Dorson for the ob jectors, both of whom are most familiar with de fender systems and not from this City, one concludes that success, failure, or inadequacy in representation of the indigent defendant depends largely upon inde pendence of operation. That may be considered an oversimplication of the question. The point is that no matter who appoints the Directors, Trustees, or Pub lic Defender, that in itself does not assure a commu nity that it will have a first class defender office. The success or failure of the Defender Association will depend almost completely upon the selection of thirty members of the Board of Directors, the choice of a Chief Defender and his selection of assistants. This Court believes that the Chief Defender and his assist ants should have the protection of “tenure” in office as advocated by the present members of the Associa tion. Anything less will be a clear indication that the defender organization is suspect. The Association must offer lawyers career service opportunity. The Court has reviewed carefully the learned and dynamic brief presentation of the objectors and finds itself in complete agreement with the philos ophy and guidelines presented. However, we cannot accept the argument that the revised Charter would create a corporate monster outside the contempla tion of the Non-profit Corporation Law which is Adjudication 63 clearly unlawful, not beneficial and would be injur ious to the community. Again we say this is pure speculation on the part of the objectors and contrary to the belief of a majority of the members of the Asso ciation, the Court Administrator, and the President Judge of the Court of Common Pleas and the Na tional Defender Project. The objectors argue that the question of prejudi cial organization of the Defender Corporation is not prematurely raised. It is not. Of course, in a sense, time will tell and individual defendants can question the adequacy of defense counsel including conflict of interests for years in the future. This Court is not tempted to by-pass what counsel refer to as the novel and difficult central issue in this case by saying that the issue is raised “prematurely.” To do so would have a disruptive and devastating effect upon the constitutional administration of justice in our com munity. We agree that an amended Charter should not be approved that involved a compromising “Partner ship” with City Hall which would by the application of professional ethics and the Constitution require the intelligent consent by a client before undertaking to represent him. Of course, it would be impractica ble to operate a defender organization on that basis. We do not believe and do not find or “predict” that such a need will arise. At this point in their argument able counsel for the objectors tend to overreach too enthusiastically and argue beyond any reasonable examination and interpretation of the record pre pared at the hearing on this application. We do not decide the problem before the Court on the basis that the contract with the City requiring an amendment of Articles of Incorporation represent the better choice of two evils. Actually in our opin- 64 Adjudication ion the Defender Association service to the commu nity will be more beneficial than in the past. Believ ing that the Board of Directors will be "independent" the Association will now be adequately financed and in a position to meet the increasing demand for legal representation as required by the Constitution and court decisions. The community will have the ser vices of an established and respected organization backed up by the Courts of Philadelphia County and an intelligent and aggressive organized Bar. Com munity organizations and the objectors have support ed the Association in the past and will continue to do so if it continues to be an outstanding independent organization. A new dimension appears in the new organizational picture as well. For the first time the Association will be in a position to offer prospective members of the defender staff a competitive and ade quate salary or rate of compensation and hopefully a career. The testimony offered at the hearings and argu ments advanced by counsel require one to stop and think. One must reason carefully in evaluating the merits of the conflicting positions. The final judg ment of this Court is that the application should be approved. The burden of persuasion by a preponder ance of the evidence has been met by the Applicant Defender Association of Philadelphia. The Court orders each party to pay their own costs. Adjudication 65 CONCLUSIONS OF LAW 1. This Court has jurisdiction over the parties to and subject matter of this action. 2. Applicant has complied with the requirements of the Non-Profit Corporation Law (15 P. S. 7001 et seq.) concerning the approval of proposed amend ments of articles of incorporation. 3. The proposed amendments are lawful. 4. The proposed amendments are beneficial and not injurious to the community. The Court has simultaneously with the filing of this Adjudication filed a Decree approving the Amended Articles of Incorporation of the Defender Association of Philadelphia. BY THE COURT: McDEVITT, J. Date filed: August 8. 1969.