Can a charter county design its own indigent defense plan instead of using one of the County Law options?

Subject

Charter county cannot create indigent defense plan inconsistent with County Law

Plain-English summary

Sullivan County, a charter county, asked whether it could use its home-rule authority under County Law § 2(b) or general home rule to set up an indigent defense plan that did not match any of the four options in County Law § 722. The county attorney's reasoning: § 722 did not contain an express "contrary intent" provision, and § 2(b) of the County Law says no part of the County Law applies to a charter county that has enacted an inconsistent charter or local law unless the section expresses a contrary intent.

The AG conceded the textual argument: § 722 does not flag itself as restricting charter counties. But the AG concluded that this is not enough, because courts have also held that even without an express contrary intent in the County Law, a charter county cannot enact a charter law or local law inconsistent with state law on matters of state concern. The home-rule protections apply only to matters of local concern; when the Legislature acts on a matter of state concern, charter counties have to fall in line.

Indigent defense is a matter of state concern. The AG worked through the legislative history of Article 18-B of the County Law (added by Laws of 1965, ch. 878), which was enacted in the wake of People v Witenski (15 NY2d 392) and Gideon v Wainwright (372 US 335) to provide a uniform scheme for representing indigent defendants. The bill jacket showed strong state-level motivation: the constitutional right to counsel could not, in fairness, be carried by uncompensated assigned counsel, and the state needed a systematic approach. The legislation was introduced by the Attorney General himself and supported by the State Bar Association.

Section 722 gives counties four options: a public defender, a private legal aid bureau or society, counsel under a bar association plan, or a combination. The county must pick one (or a combination). It cannot invent a fifth option.

If Sullivan County wanted a different model, it would need state legislative action.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why isn't indigent defense a matter of local concern?

The AG points to the federal and state constitutional origins of the right to counsel (Gideon, Witenski). When a matter rests on a constitutional right that the state must guarantee statewide, the state has a strong interest in uniformity. A patchwork of county-by-county schemes could produce unequal access to counsel, which is the very problem Article 18-B was designed to solve.

What's the relationship between County Law § 2(b) and the "state concern" doctrine?

§ 2(b) is a general home-rule rule: a section of the County Law does not apply to a charter county that has enacted an inconsistent local law, unless the section flags a contrary intent. The state-concern doctrine is an overlay: even when § 2(b) would let a charter county vary the County Law, the variance fails if the subject is a matter of state concern. The AG cites Carey v Oswego County and related cases for this overlay.

Can a charter county still pick which of the four options it wants?

Yes. The four options in § 722 (public defender, private legal aid society, bar association plan, or combination) are the menu. A charter county has the same choice among them as a non-charter county. It just cannot leave the menu and invent a different model.

What does the bill jacket history tell us?

The 1965 bill jacket showed that the legislation was introduced by the Attorney General in response to Witenski and Gideon. The State Bar Association supported it, noting that uncompensated assigned counsel could not handle the volume of indigent representation fairly. The Legislature wanted a comprehensive scheme. That history reinforces the conclusion that the Legislature occupied the field, and counties cannot displace its scheme.

How does this opinion compare to 1995-11 on the county administrator?

The two opinions trace the same home-rule machinery to different outcomes. The county administrator question (1995-11) was about administrative structure, a classic local-concern subject, and home rule was permissive. The indigent defense question (this opinion) was about a state-concern subject, and home rule did not displace the state plan. Together, the two opinions sketch the local-versus-state-concern boundary in county home rule.

Statutory framework

County Law Article 18-B (sections 722 through 722-f) establishes the statutory scheme for representation of indigent defendants. Section 722 lists four options:

1. A public defender,
2. A private legal aid bureau or society,
3. Counsel furnished under a plan of a bar association in the county,
4. A combination of the above.

County Law § 2(b) is the general home-rule provision: no section of the County Law applies to a charter county that has enacted an inconsistent charter or local law unless the section includes a contrary intent. The "contrary intent" rule is a statutory home-rule default, but the state-concern doctrine creates an additional constitutional-level constraint.

People v Witenski (15 NY2d 392) and Gideon v Wainwright (372 US 335) are the foundational right-to-counsel cases that prompted the 1965 legislation.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-16_pw.pdf

Original opinion text

COUNTY LAW, ART 18-B, §§ 2(b), 722; L 1965, CH 878.
A charter county may not set up a plan for the
representation of indigent defendants which is inconsistent with
the options provided by section 722(1-4) of the County Law. In
order to establish such a plan for Sullivan County, an act of the
State Legislature would be required.

March 2, 1995

Stephen L. Oppenheim, Esq.
County Attorney
County of Sullivan
P. O. Box 5012
Monticello, NY 12701

Informal Opinion
No. 95-16

Dear Mr. Oppenheim:
You have asked whether a charter county, in exercising the
powers granted by section 2(b) of the County Law or in exercising
other home rule powers, may set up a plan for the representation
of indigent defendants which is different from the options
granted by County Law § 722.
Section 2(b) of the County Law provides that no section of
the County Law applies to any charter county that has enacted or
in the future enacts an inconsistent charter law or local law
unless the section of the County Law includes a "contrary intent"
to restrict action by the charter county. The obvious purpose of
this provision is to grant to a charter county the flexibility to
establish the structure of its government and the manner in which
county government is to function in order to meet local needs.
If charter governments were invariably required to be consistent
with every provision of the County Law, there could never be an
alternative form of county government or effective home rule for
counties. See, Heimbach v Mills, 67 AD2d 731, 732 (2d Dept
1979). Compare, Davis Const. Corp. v County of Suffolk, 95 AD2d
819, 820 (2d Dept 1983), where a contrary intent in a provision
of the County Law invalidated a local law enacted by a county.
As you have pointed out, section 722 of the County Law does
not include a contrary intent within is provisions. Section 722
requires the governing body of each county to place in operation
throughout the county a plan for providing counsel to indigent
persons charged with crimes and to others who are entitled to
counsel under provisions of the family Court Act and the

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Surrogate Court Procedure Act. Generally, the plan may provide
for representation by a public defender, a private legal aid
bureau or society, counsel furnished in accordance with a plan of
a bar association in the county, or through representation
according to a plan containing a combination of any of the above.
County Law § 722(1), (2), (3), (4).
This legislation, establishing a comprehensive scheme for
representation of indigent defendants, was introduced in the
Legislature at the request of the Attorney General. Bill Jacket,
L 1965, Ch 878, July 1, 1965 Letter from the Temporary Commission
on the Revision of the Penal Law the Criminal Code the Counsel to
the Governor. The legislation was introduced in view of
decisional law, which requires the courts to instruct a defendant
upon his first appearance that if he cannot afford a counsel the
court will assign one (citing, People v Witenski, 15 NY2d 392
[1965] and Gideon v Wainwright, 372 US 335 [1963]). Bill Jacket,
supra, July 1, 1965 Memorandum from the Attorney General to the
Governor. Under prior law, the various counties had the option
of establishing public defender services but many elected not to
do so. Ibid. This resulted in the anomalous situation that a
person charged with a serious crime in New York City had
available to him the services of the Legal Aid Society, partially
supported by public funds, whereas the same person charged with
the same crime in other places in the State was dependent upon
uncompensated assigned counsel. Bill Jacket, supra, Memorandum
Regarding Senate 2911 by the New York State Bar Association,
Committee on State Legislation. The Bar Association noted that
the increased burden of representing all
indigent persons cannot, in fairness, be met
by the uncompensated work of individually
assigned lawyers. Lawyers who are assigned
to represent indigents should be compensated
sufficiently to permit them to devote the
time, care and patience to the preparation
and disposition of the case which are
necessary to meaningful exercise of the right
to counsel.
Ibid. Also, the assignment of counsel under an organized plan
will prevent abuses such as patronage in the assignment of
compensated counsel. Ibid.
Even without a contrary intent n a provision of the County
Law, the courts have found that where the provision deals with a
matter of Sate concern, a charter county is prohibited from
enacting a charter law or local law inconsistent with the State

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law's provisions. Carey v Oswego County Legislature, 91 AD2d 62
(3d Dept), affd, 59 NY2d 847 (1983); Cuomo v Chemung County
Legislature, 122 Misc 2d 42 (Sup Ct Chemung Co 1983). As to
matters of State concern, the Legislature is unrestricted by home
rule protections. Alder v Degan, 251 NY 467 (1929). Local laws
must be consistent with special, as well as general State laws in
this area. See, ibid. In our view, section 722 of the County
Law, in establishing a plan for the provision of counsel to
indigent persons, is a matter of Sate concern. The reasons for
the passage of this legislation, as stated in the Bill Jacket,
support this finding. Early in the articulation of the
constitutional right to assigned counsel for indigent defendants,
it was anticipated that the private bar could not carry the
burden of uncompensated representation for the large numbers of
persons involved. Matter of Smiley, 36 NY2d 433 (1975).
Consequently, Article 18-B of the County Law was enacted to
provide systematic representation of defendants by assigned
counsel and for their compensation. Ibid. Thus, neither
section 2(b) nor other home rule powers may be used to set up a
different plan.
We conclude that a charter county may not set up a plan for
the representation of indigent defendants which is inconsistent
with the options provided by section 722(1)-(4) of the County
Law. In order to establish such a plan for Sullivan County, an
act of the State Legislature would be required.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions