County to Sue for Defending Capital Cases : Government: Supervisors authorize action against state for funds spent to hire investigators and witnesses in death penalty cases. L.A. County is already suing.

Seeking to recoup losses that now total $1.5 million, the Orange County Board of Supervisors voted Tuesday to sue the state over Sacramento’s refusal in recent years to pay some legal costs for poor people facing the death penalty.

“Litigation is something we don’t enter into lightly. It’s a very serious issue,” Supervisor Roger R. Stanton said. But local taxpayers should not have to continue “carrying the load” for an expense that was the state’s burden until three years ago, he said.

Still undetermined is whether Orange County will initiate its own lawsuit or join in one already filed by Los Angeles County last year over the same issue, officials said.

“We want to talk some more with L.A.,” said Orange County Counsel Terry C. Andrus. “There are still some strategy decisions to be worked out.”

The state penal code provides for public funding of the costs of hiring investigators and expert witnesses for indigent defendants in capital cases, to ensure that their constitutional rights are met. At issue now, however, is whether the county or the state should pick up the tab for those expenses.

In 1977, the state began reimbursing counties for millions of dollars in defense preparation costs for suspects who might be sentenced to the gas chamber. But the payments stopped in 1990, as Gov. George Deukmejian and the state Legislature simply refused to approve the $13 million in funding for the program.

State attorneys now maintain that the state has no legal obligation to pay the bill. Counties have grudgingly paid the legal expenses since mid-1990.

Orange County has paid about half a million dollars annually in legal costs for a total of 17 capital cases. The price tag is expected to reach $1.5 million by June, officials say.

Los Angeles County, with the state’s biggest capital caseload, spent about $1.9 million in 1991. The expenses paid out for individual cases are held secret under state law.

Although the law provides for assistance to “indigent” defendants, Orange County Superior Court Administrator Alan Slater said there are no set guidelines for determining who is eligible to receive aid. Rather, judges decide in closed sessions whether to authorize legal expenses requested by capital defendants, he said.

But because of the tremendous costs associated with mounting a prolonged defense in a death-penalty case, Slater said, “basically there hasn’t been a situation (in Orange County) where the capital defendant isn’t indigent. None of them have the money.”

Andrus argued that the state’s position amounts to a violation of the state Constitution, because the state government is obligated to fund any programs that it orders local agencies to take on. That includes legal expenses for indigents in capital cases, he said.

But Deputy Atty. Gen. Susan P. Underwood, who represents the state in the Los Angeles Superior Court lawsuit, said “the Legislature, in its infinite wisdom, can choose to fund things or not fund things. . . . It’s that simple.”

County officials point to the issue as yet another example of the state dumping many of its financial responsibilities on them in times of fiscal crisis. Local governments have been hit with tremendous cuts in funding in the last several years, and Orange County is now faced with a budget shortfall projected at $93 million for the fiscal year that begins in June.

Los Angeles County first brought the issue to the Commission on State Mandates in 1991, where it lost. It filed suit late last year in Los Angeles Superior Court, seeking to force the state to reimburse its legal costs. Stephen R. Morris, principal deputy county counsel in Los Angeles, said officials there have seen great interest in the case from counties statewide.

“We’re convinced that every county, in one way or another, is going to have similar concerns about this issue, so, of course, we welcome Orange County’s cooperation,” he said. Officials in Marin County have tried a more extreme approach to the problem.

The Northern California county owes the state about $100,000 from reimbursements for a capital case in the 1980s, Underwood said. But Marin County refused to give the money back, saying it would use the funds for a new capital case defense instead. That dispute is still pending in court.