County of Door v. Hayes-Brook

PAY TO OF an ORDER IN the MATTER v. of Wisconsin FEES IN STATE ATTORNEYS DOOR, body OF D. COUNTY James NEWMAN: Supervisors, Board of and Door corporate, Appellants, v. HAYES-BROOK, Respondent.

Penelope

Supreme Court 3, January Argued September 1989. Decided No. 88-1689. 1990. 601.)

(Also reported in 449 N.W.2d For the appellants (in there were briefs court of appeals) by Costello, Dennis D. argument by and oral Costello, Dennis D. corporation counsel. respondent

For (in there was a brief appeals) by Stephen Hurley, P. Hurley, Burish & Milliken, S.C., Madison, argument by and oral Stephen Hurley. P.

CALLOW, G., WILLIAM J. This is an appeal from an order of the Circuit Court for County, Door Judge Dennis C. Luebke. The order commands the Door County Supervisors Board of pay attorney fees and expenses Attorney Hayes-Brook for representa- her tion D. of James Newman. The Door order also holds the County (hereinaf- Supervisors Board of and its members Board) collectively ter referred to County as the con- tempt failing comply previous of court for required order that also payment of these expenses Attorney Hayes-Brook. fees and The order stayed pending appeal. granted joint This court petition bypass appeals. the court of Board raises two issues this court: first, authority whether circuit to com court had the pensate Attorney Hayes-Brook, who was D. provide representation the court to to James New defendant, man, indigent an rates excess of Supreme Rule 81.02 those rates set forth Court (1988); second, circuit violated SCR whether the court hourly compensa when it set the rates of attorney D. receive tion that James Newman's would Attorney Hayes-Brook. We appointment before the proper of this case it was conclude that under the facts Attorney Hayes- compensate court for the circuit rates set forth hourly rates excess of those Brook at proper it was We also conclude compensa hourly rates of for the circuit court to set the receive attorney D. would James Newman's tion that accepted Hayes-Brook Attorney before appointment.2 case, has been governs this rule that 1The (1989)), (SCR 81.02 version of SCR 81.02 The amended

amended. 1, 1989, part, January provides, in as follows: effect which took provide by any Attorneys appointed Compensation. court to rate indigents at the legal compensated . . shall be for . services ... authority. appointing higher per $60 rate set hour or a every specified rate of court shall review the added.) (Emphasis years. two unnecessary Attor- to address holding, it is our 2As a result of 21, 1987, May (Newman), On James D. Newman charges against who at the time had criminal pending him, appeared pro indigency hearing. se at his The indi- gency hearing prompted by a letter from Newman to the circuit court which Newman that he stated had in obtaining help been unsuccessful him counsel against charges. Apparently, defend these Newman had attempting been to obtain him represent counsel months, approximately five but been do had unable to so impeded by because his access his assets was bank- ruptcy At proceedings. indigency hearing, the circuit court directed representation Newman to seek from the State Public Defender's Office. The circuit court also that, public informed Newman the event him, to represent defender's office declined him, would be county expense, accord- ing rates of set forth in the Supreme Court Rules. point,

At that Newman informed the circuit court that, efforts, despite his he had been unable to obtain an attorney at the Supreme rates set forth in the Court Rules. He insisted that no was willing to take seventy-five his less case for than per dollars hour for in- sixty-five per work and dollars hour for out-of- court work. on representations, Based these the circuit eighty authorized per dollars hour for in-court seventy work and per dollars hour for out-of-court work public if the provide defender's office refused representation. public

The that, defender's office determined under guidelines, the relevant Newman eligible rep- was not resentation that office. The circuit court strong had validity reservations about of the guidelines but Hayes-Brook's ney argument County estopped Board is disputing from rates used her to calculate fees. accepted public defender's determination that New- man ineligible was under the guidelines as written. The circuit court authorized Newman to obtain counsel to him, represent expense at the county, of Door according to the terms that had been agreed upon eighty earlier — per dollars hour for in-court seventy per work and dollars hour for work. out-of-court 29, 1987,

In an order dated June the circuit court appointed Attorney Hayes-Brook represent Newman. county order stated that Door obligated would be compensate Attorney Hayes-Brook eighty at the rates of per dollars hour for seventy in-court work and per dollars hour for out-of-court work. The order also stated that county pay Attorney Door would Hayes-Brook on a monthly basis for performed. the services she 4, 1987,

On August the circuit court forwarded the first billing Attorney Hayes-Brook statement of to the County Door Clerk payment by of Courts for Board. Pursuant to the circuit court's appointing order Attorney Hayes-Brook counsel, as Newman's Door county charged eighty was per dollars hour for in-court work seventy per dollars hour for out-of-court work.3 30, 1987, September a letter dated the Door county coordinator informed the clerk/administrative circuit court there were no funds the clerk of Attorney court's budget Hayes-Brook's to cover bill. In addition, county coordinator clerk/administrative sought explanation an from the circuit court regarding authority require county its Door pay for New- man's legal expenses. fees and addition, Hayes-Brook Attorney compensated

3In at a thirty-five per rate of hour for her dollars travel time outside Door county.' 8, 1987,

In a letter dated October the circuit court responded county to the letter of the clerk/administra- tive coordinator as follows: power appoint

Circuit have the inherent to courts indigent irrespective an defendant of the public provisions defender found elsewhere state irrespective and statutes determinations indi- gency agency. It is true that Mr. Newman indigent by public found not was to be defender's It is office. also true that Mr. Newman has no assets which This from to retain counsel. Court does not agree with nonindigency the determination of made public I defender's was going office. not to determination, however, overturn their which would appeal by public have resulted an defender's delayed office and trial for an additional nine months year. to a This Court has determined that New- Mr. indigent purposes proceedings man of these all since his assets are encumbered and whatever exempt properties may he in bankruptcy declare court are not to him. available The circuit authority require court stated its county pay representation Door for Newman's 753.19, Stats., from Contempt State derived sec. Lehman, v. 65, (1987).4 2d 137 Wis. 403 N.W.2d 438 22,1987,

In letter dated October County Door Corporation Counsel informed the circuit court that he would advise the Board that the appointment of Attorney Hayes-Brook was proper and was within the Lehman,

4In commenting long-standing duty after on provide representation indigent Wisconsin courts to defend obligation county pay representa ants and the for such tion, this court concluded that "when the State Public Defender's may . . imposed Office . on declines act cost 753.19, Lehman, county" under sec. Stats. 137 Wis. 2d at 85. power, county court's inherent and that Door was obli- gated to pay legal the fees and expenses Attorney of However, Hayes-Brook.5 corporation the ques- counsel the authority tioned circuit court’s to set of rates compensation Attorney Hayes-Brook for in excess of the (1988). rates mandated corporation The counsel requested thus the circuit court to consider con- Hayes-Brook's forming Attorney hourly rates of com- pensation to the in rates set forth County passed Board a resolution on October 27, 1987, that authorized for the services detailed the first billing statements. The total com- pensation figure eighty was calculated rates using of dol- per lars hour in-court seventy per work and dollars However, hour for out-of-court work. corporation the that, Hayes-Brook counsel Attorney informed making rates, payment county Door waiving these was not right challenge part appointment its of the order providing excess the SCR 81.02 (1988) rates. Newman,

During representation Attorney her Hayes-Brook billing submitted additional statements to February 15,1988, the circuit court. On the circuit court county pay ordered Door under amount owed billing those additional statements.6 of paying Instead amount, County adopted on Board a resolution February 23,1988, payment that authorized of all fees of State ex rel. Fitas v. Milwaukee recognized in

5This court County, 130, 134, 65 Wis. 2d 221 N.W.2d 902 "[i]t power appoint within inherent the courts to counsel for representation indigents."

6Apparently, point, at this trial over and Newman's was Attorney him, Hayes-Brook longer providing was no services to although appellate she continued as his counsel until found. in SCR the rates set forth Hayes-Brook at

Attorney the court-ordered (1988). The difference between and the amount billing in the statements amount $21,985.00; this amount remains paid is County Board unpaid.

Attorney Hayes-Brook apparently filed a remedial amount attempt to recover the contempt motion an court had ordered. that the circuit owed under the rates 18, 1988, on this motion. hearing was held On March stipu- Board hearing, of the beginning At the extraneous, considered number of issues it lated to a court had the whether circuit making the sole issue in compensation excess authority hourly to set rates of (1988). in set forth SCR 81.02 of the rates County stipulated: Board are the items to which the 7These extraordinary and that the and difficult that Newman's case reasonably appointing in properly counsel circuit court acted Newman; appoint in this case was to counsel that the decision court, upon the needs of the trial not a determination that based so; defendant, by doing the trial would be best served that the power appoint authority counsel and inherent court has in its it deems such action whenever the exercise of discretion public necessary in cases where the defender and can do so act; payment county that the is liable for the of attor declines to appointing ney the court fees and costs incurred as a result of court, county, indigent; appointing that the not counsel for an in because the court is the best fixes the amount of fees appointed attorney; parte position an ex order to observe the that appropriate procedure payment from is an to obtain to the board Hayes-Brook good county; Attorney in faith and that acted duties; performance the hours in of her was not derelict case; expenses there is no were reasonable billed and below the maxi claim that the should be reduced 81.02; presented extraordi mum rate set that this case Hayes- circumstances; integrity Attorney nary and that the challenged, Brook is not continued] [footnote parties After both motion, were heard on the upheld circuit its earlier Attorney decision to set Hayes-Brook's hourly rates of rates excess of (1988). those mandated emphasized circuit court its responsibility constitutional appoint for indigent defendants. The circuit emphasized that, court also unique due to the and com- plicated case, nature of Newman's Newman was unable willing to find counsel to represent him at the rates set forth Exceeding rates set forth in SCR 81.02 was necessary, the circuit concluded, satisfy order to both the court's responsibility indigent defendants and the state's interest in having Newman's case great resolved without delay. 11, 1988, an August order dated the circuit court County

held the Board and all but two of its individual members in contempt failing of court for comply previous payment Attorney order regarding Hayes-Brook's expenses. fees and The order also required compensate Attorney Board Hayes-Brook representation for her of Newman at the previously-ordered eighty per rates dollars hour for in- seventy court time and dollars hour out-of-court per stayed time. The order was pending the outcome of this appeal.

The first issue we address whether the circuit authority court compensate Attorney had the Hayes- Brook, appointed by who was provide circuit court to Newman, defendant, representation indigent an in rates of in excess those rates set forth SCR (1988). County Board argues that the use the word "shall" SCR 81.01 and 81.02 means stipulations These [footnote were substance continued] argument made at oral in this court. mandatory. Accord- rules are of these provisions

that the are Board, rules these because ing to to set Attor- required court mandatory, the circuit at the hourly rates of ney Hayes-Brook's forth rates set SCR relies on both County Board

Although the language of the an examination 81.01 and 81.02 is involved only SCR 81.02 shows that of these two rules in this case: attorneys Compensation

SCR any provi- appointed Notwithstanding court. statutes, statutes in all cases where the of the sion expenses provide payment fix fee for perform attorney the court to an to he duties, appointing designated court certain attorney, been after services of the have incurred, fix shall performed and the disbursements her for the ser- the amount of his or provide repayment of disbursements vices and for specified in supreme sum as the court has such added.) (Emphasis 81.02. (1) Attorneys Compensation. any provide legal

appointed by services for court, capacity, judges in their official sued boards, indigents commissions and com- and for appointed by mittees shall be compensated followingrates: at the

(a) time, per $50 Court hour.

(b) time, per Office hour. $35 (c) county in Travel time outside the which located, attorney's principal office is per hour.

$25 added.)

(Emphasis language It is evident from the of rules these that SCR (1988)applies only 81.01 when the "fix statutes a fee and provide payment expenses attorney for of the of an to be appointed by City court." Romasko v. Milwau kee, 108 Wis. 2d 321 N.W.2d 123 this court phrase gavp a broad definition "fix a fee": narrowly fixing doWe not so construe a fee as to particular any mean that the statute or in a were fee is be fixed particular monetary If amount. that meaningless, true, [SCR81.01] wouldbe for no brought statute whichhas been our attention fixes attorney's stipulated an feein a amount. (1988) Id. 41. court This concluded that SCR 81.01 applicable payment attorney ato demand for fees provided when a statute fees a court- appointed paid, though should even the stat- particular ute not fix in a did the fee Id. amount. parties case, cited, In this not have and this requires payment found, has court not a statute that Attorney Hayes-Brook's no fees. Because such statute inapplicable. found, can be SCR 81.01 is Although inapplicable, SCR (1988) applies generally to the situation which a appoints any statutory authority counsel without appointment. specifically, for More (1988) applies requires appoint- where no statute provides legal ment of counsel and where such counsel appointing judges court, for services for in their sued capacity, indigents, boards, official for commis- sions, and committees court. shown, See As has been the circuit Hayes- statutory authority Attorney had no appointment. Rather, Brook's the circuit court made appointment pursuant obligation to its constitutional indigent county expense,

provide counsel, to an County e.g., Carpenter See, v. crime. accused a (*274) (1859). In this Dane, cases such as 9 Wis. 249 respect one, appointment with to the the statutes are silent where properly appointment counsel, is (1988) having as SCR 81.02 as been made under viewed provides long entities services to one of the as counsel Attorney Hayes-Brook course, in rule. that Of detailed provided detailed SCR to one of the entities services (1988) indigent. —an properly Having viewed as that this case is decided only involving we now address SCR 81.02 County argument this rule's Board's mandatory. on SCR Board relies rates are 99.01(14) (1988) support of SCR its construction 99.01(14) (1988), (1988) mandatory. which as "shall" means that an of the word states that the use mandatory mandatory construction unless a action is supreme manifest intent of the undercut would provides court, follows: as guidelines. rules; Construction of SCR 99.01 supreme construing the rules of the Wisconsin court, following guidelines be observed shall produce a result incon- unless the construction would the manifest intent of the court: sistent with (14) Mandatory Actions. The use or Permissive mandatory. The use of of "shall" means an action is permissive. "may" means an action provisions governing according Thus, the con- to the hourly rules, of SCR 81.02 of our own rates struction (1988) mandatory mandatory unless a construction are produce inconsistent with our manifest would a result intent. mandatory

We find that construction of the word "shall" it is used would not produce a result that is inconsistent our with manifest Again, provides, part, intent. "[attorneys appointed by any provide legal court to ser- indigents compensated vices ... following . . . shall be at the Undoubtedly, creating rule, rates . . .." this court have could stated that were courts free to set reasonable or that the rates towere guidelines. spec- Instead, forth, serve as mere ificity, we set compensation court-appointed the rates for coun- compensated sel and stated that such counsel shall be at circumstances, rates. those Under these our use of the (1988) in word "shall" SCR 81.02 shows that we compensation mandatory. intended rule's rates be though compensation hourly Even rates of set (1988) mandatory, forth in SCR 81.02 are we it find that proper was for the circuit court to exceed these mandatory Hayes-Brook's setting Attorney in rates hourly compensation. clear, rates of As the record makes attorney willing complicated no to take Newman's (1988). Yet, case rates set forth in SCR 81.02 obligation circuit court had an to accommodate the con- requirement indigent an stitutional defendant prosecu- afforded assistance of counsel a criminal Carpenter County Dane, 251; tion. v. atWis. Gideon Wainwright, v. 372 U.S. In such 344-45 extraordinary necessary circumstances, it was mandatory (1988) hourly yield rates of requirement the constitutional that Newman have representation. County

The second issue raised Board is (1988) whether the circuit court violated SCR 81.01 hourly compensation when it set the rates Newman's appointment attorney of Attor- receive before would following ney Hayes-Brook. The Board cites the (1988) support argument language of its of SCR 81.01 that this rule was violated: attorney . . . services of the after the

[T]he performed . . fix have been . shall the amount of his compensation ... sum or her such as the specified court has in SCR 81.02. already

We have stated that this case involves SCR (1988), any interpret event, not SCR 81.01. we hourly allowing 81.02 as 81.01 and a court to set the compensation prior appointment; rates to counsel's under SCR 81.01 and 81.02 a court is not permitted to set total amount coun- any sel is to receive before services have been rendered. nothing case, In this the circuit court did to the con- trary. Because Newman had been unable to obtain coun- sel at the rates mandated the cir- merely cuit court set rates of Newman's would receive excess of those Attorney Hayes-Brook accepted mandated rates before appointment. the The circuit court did not set the total compensation Attorney Hayes-Brook amount of before performed any services. proper

We therefore hold that it was for the circuit compensate Attorney Hayes-Brook hourly court to by in rates excess of those rates mandated SCR 81.02 (1988) requirement to accommodate the constitutional indigent that an defendant be afforded the assistance of prosecution. in a criminal We also hold that it proper for the circuit court to set the rates of compensation Newman's would receive before Attorney Hayes-Brook accepted appointment. the In

14 light of this we holding, affirm the circuit court's order County to the pay Attorney Board to Hayes-Brook the total amount of expenses fees and set the court. We grant the ninety days Board from the date of this decision to the purge contempt order.

By the Court. —The order the of circuit court is and, modified, modified as is affirmed.

CHIEF JUSTICE HEFFERNAN I (concurring). concur in the result reached I majority, con- but clude that this (1988) court intended SCR 81.02 to be I directory. disagree with the opinion, other concurring however, that holding the majority's separa- violates tion powers of doctrine.

I disagree majority opinion with the that SCR 81.02 (1988) To mandatory. is hold SCR that is mandatory with conflicts the manifest intent court, is which to leave with considerable discretion trial judge appoints attorney. who The Wisconsin Supreme always Court recognized has that appointing judge in the position is best to determine appropriate given what constitutes in a case.

This court on a previous stated occasion that trial judges may reducing justified compensa- the total tion figure using which would otherwise result from (1988). mandatory rates of Trotalli, Estate 358-59, Matter 123 Wis. 2d (1985). recognizes This situa- N.W.2d arise, here, may judge justified tions where a departing from set the rates forth Therefore, directory.. must be read as disagree majority's

I assertion separation powers doctrine holding violates substantially replaces it statute with a differ- because 15 problem ent court rule. The with this conclusion is that authority it assumes that this court derives its to fix fees appoints in cases where the court an from the legislature, addition, not from the In constitution. ignores legislature this conclusion the fact that the has always attorney's recognized setting judicial fees is a function.1 authority appoint Wisconsin,

In counsel and traditionally judicial set fees has been a func- considered Long legislature any pro- tion. viding indigents before the enacted statute counsel, this court declared that it authority appoint had the inherent such county cases and to hold the appointed attorney. Carpenter liable for the services of the County Dane, v. (*275) (1859). legislature passed 249Wis. When the statute 1860which declared that counties were not pay court-appointed attorneys, fact liable to court declared that statute void because it was inconsis- legislature recognize authority tent for the the court's appointment attorneys and, to order the at the same infringe obligation pay time, on the for those services. (*585) (1861). Smith, Dane v. 13 Wis. 654 Cannon, 401, 402, In State v. 199Wis. 226 N.W. 385 powers this court commented on the broad con upon ferred this court: people by means of the constitution

[W]hen courts, they established became endowed with all judicial powers carry judicial essential out object 757.49, 1I to the characterization that sec. Stats. 1979-80, precursor 81.01, to SCR "authorized" courts to court-appointed establish reasonable rates of fact, attorneys. predecessor, 256.49, sec. 757.49 and its sec. Stats., legislative compen 1975 are declarations that the issue of up judge sation to the discretion of the individual who attorney. delegated functions to them. The courts established by powers constitution have the which are inci- dental to or judicial bodies, which inhere in unless powers expressly those are by limited the constitu- tion. But the attempt constitution makes no to cata- logue powers granted. groundwork upon It is the superstructure which the government by is raised powers the exercise of those which are essential carry out imposed upon the functions depart- each government. ment of powers These are known as incidental, implied, powers, or inherent all of which terms are used to powers describe those which must necessarily by departments used the various government they order may that efficiently per- form imposed upon the functions people. them the Later, in State v. Kenney, 172, 24 Wis. 2d N.W.2d 450 this court court, affirmed that not the legislature, has the ultimate responsibility in setting fees provided for services by a court-appointed attorney. that, The court stated while the state mini- bar mum-fee schedule was evidence of compensa- reasonable tion, courts were not apply bound to those rates set- ting case, In fees. rejected the court argument 256.49, Stats., that sec. required apply the court to full minimum bar rates to services rendered court- court, all, counsel. The after is the ultimate arbiter of what compensation. constitutes reasonable

Other jurisdictions recognize setting compensa- attorneys appointed tion for by the court is a task which falls within the exclusive authority of the judicial State, branch. Smith v. 118 N.H. 394 A.2d 834 Hampshire The New Supreme Court declared a statute which set maximum fees for the court-appointed attorneys unconstitutional. agreed-upon price, the absence of an what consti- performed

tutes reasonable services is, been, historically judicial and has a matter determination, Moreover, it is [citations omitted] peculiarly judicial province within the to ascertain compiensation person reasonable per- when the who forms the acting appointment services is under court as an officer of implicit the court. We view it in the constitutional scheme that the courts of this State authority have the exclusive to determine the reason- court-appointed ableness of coun- question upon sel. The statutes in judi- intrude this in cial function violation of the constitutional separation powers mandate. [Citations omitted.] Smith, 118 N.H. at 769.

I conclude majority that the decision of the does not separation doctrine, violate the powers because this authority court has the fix attorney's fees in cases where appoints By the court adopting counsel. a supreme court rule which sets for court- appointed attorneys, continuing carry court is out its traditional role as the branch of government which appropriate determines what is an compensa- amount of attorney tion for an appointed by, serving and the needs of, the court. ABRAHAMSON,

SHIRLEY S. J. (concurring). A power circuit court's to determine fees for court- appointed counsel is of major courts, concern to circuit attorneys, county state, people boards and the of the who ultimately pay must Unfortunately, the fees. the major- ity opinion interpreting adopted rules this court adds clarity confusion rather than I to this issue. write hope (the that the Judicial Council proponent Chap- Rules, 1979), ter Supreme Court the State Bar of (the proponent Wisconsin of the 1988 amendment Committee, sec. 13.83 81.02) Revision and the Law 1987-88, study question and seek (1), will Stats. fix power courts' of the circuit clarification for amendment this court by petitioning either fees by seeking Court Rules or Supreme 81 of the Chapter change. legislative (1) holdings: opinion sets forth three majority (1988) apply Majority to this case. does not

SCR 81.01 (2) (1988) applies to this case 10. opinion at attorney fees. mandatory schedule for and establishes (3) mandatory Despite the opinion at 13. Majority fix may the circuit court of SCR nature "to accommodate the attorney fees this case higher indigent defendant requirement that an constitutional prosecution." Majority counsel in a criminal be afforded 14. opinion conclude, however, I

I concur the mandate. this case and apply directory. rules are that these problematic. majority's holdings The effect of the (1988) and SCR SCR 81.01 By expressly separating interprets Chapter 81 opinion majority 81.02 rules for creating as two Supreme Court Rules of the rule for of court counsel —one fixing the fees (1988) and another rule for by SCR 81.01 governed cases (1988). by SCR 81.02 governed cases say that a opinion mean to majority Does the court-appointed fees power court's to determine (1988) SCR 81.01 and is different under mean that SCR 81.01 (1988)? opinion majority Does the indicates, is, directory? Or does (1988) precedent over- being is opinion precedent mean that majority (1988) must fixed under SCR and that fees turned (1988)? of SCR 81.02 mandatory fee schedule follow the Moreover, majority's interpretation under (1988), may SCR 81.02 the circuit court ever reduce the hourly fees in fix compensa- order to a total reasonable tion? think majority One would not when the insists (1988) mandatory. that SCR 81.02 is Nevertheless the opinion hints majority power the court retains the (1988) under compensa- SCR 81.02 to review the total tion reached the fee multiplying the reasonable necessary. number of hours it and reduce where Unfortu- nately the majority's treatment of these basic issues is questions sure to raise when the bench and bar must every day adhere to these rules the courtrooms of the state.

I address each of majority's holdings separately. parties, court, the circuit and I conclude that (1988) (1988) both SCR 81.01 and 81.02 applicable are majority opinion this case. The holds that SCR 81.01 (1988) inapplicable (1988) applies and that SCR 81.01 fee; only when a statute fixes a no statute fixes a fee in this case.

The majority opinion's attempt to sever SCR 81.01 (1988) (1988) and 81.02 is not justified. The language of (1988) SCR 81.01 and 81.02 makes clear that provisions these two set forth one rule to guide courts fixing fees for all court appointed counsel.

Supreme (1988) explicitly Court Rule 81.01 refers to incorporates and the rate schedule states "shall fix circuit court the amount of [attorney's] for the services provide repayment in such sum disbursements supreme as the specified court has in SCR 81.02 ." (Emphasis supplied.) (1988) Thus SCR 81.01 81.02 and

20 intertwined; As (1988) they separated. cannot be are City Milwaukee, Romasko v. in 108 Wis. 2d court said (1988) (1982), 32, 41, 321 SCR "makes N.W.2d 123 81.01 in applicable schedule SCR 81.02." the assertion, supports this case Contrary majority's (1988) (1988) together 81.01 and 81.02 and reading SCR By counsel. not applying both all (1988) case, majority in this applying in Romasko. opinion opinion undercuts our Moreover, history 81 drafting Chapter con- (1988) (1988) and are that SCR 81.01 81.02 to be firms drafting notes to both together. read Memorandum (1988), conjunction that SCR 81.02 rules demonstrate cases, apply regard- with 81.02 was to to all SCR pp. a fee. discussion a statute fixed See less of whether 27-28 infra. in which majority holds that cases SCR (1988) applies, mandatory. fee is schedule

81.02 may not fix fees at appointing Thus (1988) schedule higher or lower amounts than 81.02 on use of provides. holding It rests this the rule's conclusory and its word "shall" SCR interpreting statement inconsistent mandatory "produce does not result intent of the court." the manifest (14) (1988).1 cases, rule, general in the is that the word

1The oft-stated legislative mandatory appears it in a presumed when "shall" cases, rule, is that A second also oft-stated enactment. carry directory necessary if out the is construed as word "shall" See, e.g., v. Milwaukee Karow legislature. of the clear intent Comm., 585, 570, Civil Serv. 2d 263 N.W.2d 82 Wis. (1988) I that interpreting conclude SCR 81.02 as mandatory produces with a result inconsistent the mani- supreme fest intent of the court.2 The manifest intent of court, below, I the as shall is these demonstrate that directory. rules are

Moreover, majority's holding the 81.02 that SCR (1988) mandatory necessarily is means that SCR 81.01 (1988), which also uses the word "shall" and refers to incorporates (1988) schedule, and SCR 81.02's fee is also mandatory. The the internal reference between two rules any interpretation means one rule dictates the that interpretation place reader must on the second rule. (1988) Supreme (1988) Court Rules 81.01 and 81.02 are mandatory either both directory; or both one rule cannot mandatory be directory. and other precisely result, is mandatory

It gloss on necessarily 81.01 which follows from the (1978); Soderbeck, 331, 340, Cross v. 94 Wis. 2d 288 779 N.W.2d (1980); 642, Hervey, and v. State 113 2dWis. 335 N.W.2d applicable

These two rules are interpretation to the of the Supreme They Court Rules. are embodied provides which Supreme the word "shall" as used mandatory" Rules Court means "the action is unless this con- produce struction "would a result inconsistent with manifest supreme intent court." legislature

2To determine whether intends the word mandatory "shall" be construed as this court examines such history provision, factors as of the the evil to be remedied and general object sought accomplished, and the conse quences resulting interpretations. Rosen, from alternative State v. 200, 207, (1976); 72 Wis. 2d 240 N.W.2d 168 Karow v. Milwaukee Comm., supra, Civil Serv. 82 Wis. 2d 572. These helpful factors are to determine whether a construction of SCR 81.01 81.02 mandatory produce and as would a result inconsistent supreme the manifest intent of the court. (1988) mandatory, that SCR is

majority holding with the manifest intent of the inconsistent Interpreting court. (1988) mandatory history drafting contradicts rules, judicial usurpation serious these raises issues of power and of con- legislative creating confrontation of legislature magnitude stitutional between the and Trotalli, Estate court, Matter of and contradicts of 358-59, (1985). 340, 123 Wis. 366 N.W.2d 879 2d history. Drafting attorney The has legislature fixed 1862, 117 court-appointed fees of counsel since at least adoption Chapter Supreme of 81 of years before the the 757.49, sec. in 1957 adopted Court Rules.3 Sec. as 256.49 statutory provisions uni- attorney make all fee the form, fix provided appointing that the court "shall... compensation the ser- attorney's] amount of for the [the proper, ... and which vices as the court shall deem charged by such if compensation customarily shall be Our comparable for services."4 attorneys in this state 80, county's liability for fees 3 1862 Wis. Laws ch. fixed the indigent to the amount criminals defend compensation therefore" appointing certifies as "reasonable court per day for in no fifteen dollars which sum shall case exceed "and proceeding." day actually occupied in such trial or each judicial legislative of and 4SCR is the culmination compensation guidelines for court- for to establish efforts 256.49, Stats. genesis is sec. appointed of SCR 81.01 counsel. 757.49, Sec. sec. Stats. 1979-80. later renumbered alia, court-appointed compensation attor provided, for inter by appointing in the customa neys court amount shall set comparable services. rily charged by attorneys this state by attorneys appointed Compensation Sec. 256.49. of statutes, Notwithstanding any provision all court. other payment provide fix a cases the statutes fee and where perform expenses attorney the court to be of an shall, attorney duties, appointing designated certain court declared sec. 757.49 "authorized appointing fix court to a fee which would be fair and reasonably necessary reasonable for the services under Conway County, the circumstances." v. Sauk 19 Wis. 2d 599, 603, 120 N.W.2d 671

Section appointing 757.49 allows the to fix fees; has, directory. reasonable it is Our court over the years, repeatedly interpreted applied and sec. 757.49 to determine the fees of court appointed attorneys con- strued the "requiring application statute as not the full minimum rates of the State Bar of Wisconsin." Kenney, 172, 180, State v. 24 Wis. 2d 128 N.W.2d 450 performed the services of after have been and the dis- incurred, bursements fix the amount of his for the provide repayment services and for the disbursements such sum proper, as the court shall deem and which shall be customarily charged attorneys compara- such ifas in this state for ble services. request Section 256.49 in Philip was enacted 1957 at the of Haberman, Executive the Director of State Bar of Wisconsin. Apparently objective proponents the of the of sec. 256.49 and the legislature adopting replace in conglomera- sec. 256.49 towas the provisions statutory tion governing compensation of to court- appointed authorizing appointing one statute the compensation fix court to that would be fair and reasonable under the circumstances. 256.49,

Prior to the enactment of sec. there were numerous relating compensation statutes court-appointed of counsel. Some statutes authorized the trial court to order com- reasonable pensation See, 48.25(6), e.g., for counsel. sec. Stats. 1955. Other statutes authorized the trial court to order reasonable compensation but set maximum fees which were not to be See, e.g., 12.25, exceeded. sec. Stats. 1955.

The by legislature maximum fees set the became outdated. replaced Sec. provisions these varied with a standard for services, the determination of legal namely, the value the cus- tomary charge by attorneys comparable in Wisconsin for services.

24 (1964).5 757.49, "repealed" the court sec. supreme 1979 1979-80, SCR 81.01 that the replacing

Stats. it with provision." "equivalent court as an characterized precursor supreme adopted The court SCR counsel, compensating 81.02 in 1978 as rule for without sec. any discussion the relation between it and 757.49. This was revised and numbered SCR 81.02 rule customary applying determining 5In cases sec. 757.49 and services, charge comparable mini this court referred for promulgated by mum schedule the State Bar of Wisconsin fee customary charges The evidence of reasonable and for services. concluded, however, certainty pay court that because of the county lawyers' obligation justice see ment and the courts, fee should is done in our criminal the rates schedule cus be reduced about one third to reach reasonable and See, attorneys. e.g., tomary charges court-appointed paid 599, 604-606, Conway County, 120 v. Sauk 19 Wis. 2d N.W.2d (1963); 172, 180, 128 Kenney, v. 24 2d N.W.2d 450 671 State Wis. 132, 138-39, (1964); DeKeyser, v. 29 2d 138 N.W.2d State Wis. 602, 609-610, (1965); Sidney, 225 State v. 66 2d N.W.2d Wis. 19,1978, May response petition to the of the Board of 6On (BAPR), Responsibility supreme Attorneys Professional adopted a rule that would become foundation of petition sought to increase the for coun 81.02. The appointed by represent disci this court to BAPR sel explanation adopted an pline cases. Without speci apparently regulating broader rule BAPR). (not attorneys attorneys limited to relation fied apparently not examined. between rule and sec. 757.49 was Supreme in the of the Clerk of the See the file on this rule office Madison, Court, Capitol, The Wis. rule stated: State Court, by Supreme provide legal [A]ttomeys appointed Court, capacity, Supreme judges sued their official services for the by boards, indigents, and commissions and committees In adopting 81.01, supreme SCR court revised sec. 757.49 replacing the "in words such sum as the proper, shall deem and which shall customarily be such charged by as is attorneys in this comparable state for services" with the words "in such sum Supreme as the specified Court has in SCR 81.02." drafting notes state that SCR 81.01 was derived from sec. 757.49 "and was redrafted to be reconciled with The goal 81.02." was to have SCR 81.01 and 81.02 apply to regardless all cases of whether a statute fixed a fee. See 1979, Judicial Council Committee Note — Annotated, 81, West's Wisconsin Statutes ch. p. 332 (Special 1989), Pamphlet p. 811. See also Memo from Feustel, Bruce Legislative Senior Attorney, LRB-Rule 91/4, 2/9/79, in the drafting material on SCR ch. 81 at Council, Madison, the Office the Judicial Wis. Supreme compensated following Court are entitled to be at the rates: (a) per $50 Court hour time — (b) per $35 Office hour time — (c) per $25 Travel hour. time — (the 81.01) Both sec. 256.49 forerunner to SCR and the 1978 (the Supreme 81.02) Court Rule forerunner to SCR were revised petition in 1979 on of the Judicial Council.

The Judicial Council Supreme recommended that the 1978 regarding Court Rule fees be amended and numbered SCR 81.02. interpreted Supreme The council the 1978 Court Rule governing only compensation paid attorneys appointed by court and recommended that the rule be amended to apply paid attorneys appointed also appeals and trial courts record. The recommendation adopted as SCR 81.02. See Judicial Council Committee Procedure, in West's Wisconsin Court Rules and Notes— (1988), p. ch. 81 drafting history 811. The of SCR 81.02 demon- strates that SCR 81.01 together and 81.02 are to be read and as directory. supreme

The court characterized SCR 81.01 as "an equivalent provision" to sec. 757.49. See order court 11, 1979, in December West's Wisconsin Statutes dated 1989), 1-2. See also (Special Pamphlet pp. Annotated 757.49, Annot., p. sec. West's Wis. Stats. 379

By equivalent SCR 81.01 as the characterizing 757.49, sec. court manifested its intent that SCR directory. 81.01 is to be adopted chap- issue. When the

Constitutional court ter 81 it it had to make recognized 757.49, "equivalent" rules to sec. Stats. because analogous legislature's no to the power court has enacted statute. repeal legislatively a authority recognizing I know of no Wisconsin repeal a stat- power repeal a statute or court's Supreme Court Rule. reformulating ute it as a it does not have recognized The court has it holds the statute repeal statute even when power to of constitu- which the issue unconstitutional in a case this court's argued. is Even after tionality briefed and unconstitutionality, the statute remains declaration of If the court later as a statute. on the statute book previously a statute mind holds that changes its really after constitutional unconstitutional declared all, legislature effect if the in full force and statute is Field, v. 118 State it. See repealed not or amended has (1984) (the court 269, 274, 347 N.W.2d 365 Wis. 2d 1974; it then a statute unconstitutional declared 1984; legisla- the statute constitutional declared statute between repealed the not or ture had amended to have 1984; the statute the court declared 1974 and 1984). through in full force and effect from been repeal a stat- power to have the does not rely The court cannot rule. reformulating it as a ute 751.12, 1987-88,7 authority repeal on sec. Stats. contrary provision sec. and a 757.49 enact a as rule. First, supreme sec. for the providing court's practice promulgating regulating pleading, pro- rules and expressly provides relating plead- cedure that statutes to ing, practice procedure "may and be or sus- modified pended" by supreme adopted court rules under sec. 751.12. permit supreme But sec. does not repeal court to a a rule. statute Second, permitted supreme even if sec. 751.12 statute, court adopt repeals a rule that a 751.12, 1987-88, 7Sec. Stats. reads as follows: pleading practice. 751.12 Rules of and The state shall, by promulgated by time, regulate court rules it from time to pleading, practice procedure judicial courts, proceedings and in all purpose simplifying promoting speedy for the the same and of litigation upon determination of its merits. The rules shall not abridge, enlarge modify rights any litigant. or substantive The adopted by effective for January dates all rules the court shall be 1 or July days 1. A rule shall not become effective until 60 its after adoption. printed by printer paid All such rules shall be the state and treasury, out the state and the court shall direct the rules to be proper. relating pleading, distributed as it All prac- deems statutes procedure may suspended by tice promul- and be modified or rules gated modifying under suspending this section. No rule or such stat- may adopted public utes be until hearing the court has held a public hearings reference given by to the rule. Notice of shall be publication notice, expense of a class under ch. of the publication paid treasury. to be out of the state Notice shall also be given publication in an Wisconsin, official of the state bar of published days days notice not more than 60 nor less than 30 hearing. before the date of The state bar of Wisconsin shall not charge treasury publication the state Proposed of this notice. rules, including rules, changes, any, existing if shall be set forth full abridge in the right notice. This section shall not of the legislature enact, modify repeal relating or statutes or rules pleading, practice procedure. judicial or The council shall act in an advisory capacity performing to assist the court in its duties under this section. pursuant adopted by rules not 81.02 were and expressly that SCR 81.01 stated The court to sec. 751.12. adopted Supreme This Court Rules. were and 81.02 important recognizes exist differences adopted 751.12 and under sec. rules between Supreme December order dated See court Court Rules. (Spe- Statutes Annotated 11,1979, in Wisconsin West's (3); 1989), p. 751.12, Pamphlet 1; sec. cial Stats. 1987-88. majority's interpretation a conflict creates

The Supreme Rules. Court statute and the between the legislatively repealed opinion majority in effect has permitting fees fix reasonable courts to enacted statute replaced signif- court-appointed it with a for icantly Supreme a Rule that mandates Court different interpreted opinion majority SCR Had the fee schedule. (1988) directory, (1988) Ias as and SCR 81.02 81.01 urge, the court rules are be that the would the effect statutory would enactment and the as sec. 757.49 same sig- opinion majority a thus raises not be affected. usurpation judicial question of constitutional nificant legislative powers of consti- confrontation and creates a legislature magnitude and this the between tutional chapter raising interpretation these con- 81 An court. contrary my opinion, questions to the is, in stitutional court think the I do not this court. intent of manifest chapter constitutional these 81 to create intended SCR issues. interpretation of SCR the Furthermore

Trotalli. necessity (1988) mandatory, 81.01 and as 81.02 (1988) produces mandatory, result inconsistent as supreme demonstrated court intent of the manifest Trotalli, Wis. 2d 123 Estate in In Matter of (1985). Trotalli, we held In 358-59, N.W.2d 879 reducing may justified com- be court the circuit pensation appointed guardian of an ad litem to a sum produced by multiplying less than that the reasonable spent hourly number of hours on the case fee set (1988). forth SCR 81.02 When the court held that the court-appointed may total for a permitted reduced, in effect it the circuit court to reduce hourly rate. The Trotalli case teaches that SCR (1988) (1988) give and the circuit court dis- fixing cretion fees for court counsel. reading mandating addition, hourly compensation unduly an rate of interferes with appointing power responsibility court's inherent and appoint integrity judicial counsel to assure the process. provide The circuit court concluded that to effi- justice timely satisfy cient and fair in a manner to appoint case, of this necessities it should counsel at rates higher than those set Because the vary circumstances from case to case and the circuit power responsibility repre- court has the sentation, to secure Contempt Lehman, in State v. 137 Wis. 2d obviously 65, 403 N.W.2d 438 directory, leaving intended SCR 81.02 be regarding the decision rate needed to secure counsel for appointing the case to the discretion of the court. Finally, mandatory, if SCR 81.02 as the majority opinion holds, it follows that the circuit cannot reduce the total after the circuit beginning court determines at the of the case what the hourly fee is and determines each month that num- the ber of hours submitted the in his or her monthly majority recognizes bill is reasonable. The the difficulty reasoning: prohibiting with this chain fixing court from reasonable fees at the end a case is ordinarily inconsistent with the rule in our stated attor- ney compensation cases that the end of the case a the reasonableness of power the to determine court has totality under the circumstances. fee total 81.01 opinion states that "under and majority The permitted to set the total amount of is not 81.02 a court any to receive before services counsel is opinion Why at 14. Majority rendered." have been opinion speak about SCR 81.01 majority should the opinion has concluded that SCR majority when the (1988) majority to this Is the apply 81.01 does not case? power court has the same suggesting that circuit (1988) possesses under 81.02 that it SCR under SCR case namely power at the end of the 81.01 reasonableness of the total evaluate the If so, SCR paid court-appointed counsel? then mandatory, majority The majority as the holds. not inconsistency explain not this internal does opinion. interpret- I forth

For the reasons set conclude (1988) mandatory produces a result ing of the inconsistent with the manifest intent court.

hHh-1H-l opinion's if I agree majority were to Even (1988), and and 81.02 interpretation not, majority's hold- justify I do the record does not fix in excess of the could fees ing the circuit court case fee schedule mandatory SCR 81.02 right constitutional to ensure defendant's order to remand the case The court have counsel. would appropriate evidence make circuit court take findings. opinion reasons that the circuit majority the constitutional

properly acted to "accommodate requirement indigent that an defendant be afforded prosecution." Majority opinion counsel in a criminal at 14. The no record offers evidence or court determination indigent that the defendant was or unable to find counsel at the rates set forth in SCR 81.02 contrary, To the the defendant was found not indi- gent by public the state defender's office. When the cir- attempted investigate cuit court to the defendant's alleged indigency, any defendant failed disclose public financial information and refused to authorize the defender's officeto release his financial statements. Indi- gency question proof is a of fact and the burden of indigency Buelow, is on the defendant. State v. 122 Wis. (Ct. 1984). App. 465, 2d 364 N.W.2d 255 The defendant did not meet his burden this case. county expressly challenges

The the claim that the defendant was unable to obtain counsel at the rates set (1988). Nothing justi- forth on the record fies the circuit court's decision to set a rate excess of fee schedule SCR 81.02 in order to entice counsel only to take the case. The evidence in the record that supports the contention that the could defendant not unsupported obtain counsel is his statement. The circuit attempt verify court made no the defendant's asser- help procure tion or him counsel. majority opinion states that circuit court appointment pursuant

made the of counsel to its "con obligation provide county counsel, stitutional at expense, indigent Majority to an accused a crime." opinion According order, however, 14. its thé cir appoint satisfy cuit court did not counsel to the constitu rights tional of the defendant. The circuit court expressly power appoint relied on its inherent proper justice, specifically for the administration of cit ing Contempt Lehman, v. in State 137 Wis. 2d appointing counsel. in its order N.W.2d 438 stand-by Lehman, counsel circuit court indigent and who counsel for. an defendant waived represent This court concluded that wanted himself. power appoint in Leh- court's counsel the circuit any right of the man case not tied to constitutional based, be, a as it should on determi- defendant but "was Court, Trial and not the nation that the needs of the by doing 2d so." Wis. defendant wouldbe best served 77. at supports county's stipulation in the

The record appoint "the case at bar that decision upon that the needs of case was based a determination defendant, court, served the trial not the would best doing Stipulation, majority op. note 7. so." finding of a or Given this record and the absence finding indigency or evidence of inability or of evidence set forth in SCR to find counsel at rates support major- 81.02,1 ity's that no for the conclude there is appointed counsel at that the circuit court assertion higher in order to accommodate the defendant's rates right to counsel. constitutional Each the circuit court this case deter- month by Attorney hours mined the number of submitted that Hayes-Brook monthly reasonable, in her bill was County disputed The has not this determination. Board authority only argues no that the circuit court had board higher set fix than those rates has raised a Board legitimate its concern on behalf of and reasonable citizens. interpretation only of SCR 81.01

I that the conclude (1988) comports language and 81.02 history, drafting law and this rules, the case powers js the circuit court constitutional court's authorized to set reasonable fees each case and that the fee guide- schedule in SCR 81.02 is a line for reasonable fees.

For the herein, reasons set forth I concur in the join opinion. mandate of the I court but do not in the

Case Details

Case Name: County of Door v. Hayes-Brook

Court Name: Wisconsin Supreme Court

Date Published: Jan 3, 1990

Citation: 449 N.W.2d 601

Docket Number: 88-1689

Court Abbreviation: Wis.