This is an action for superintending control. Plaintiff is a private attorney appointed as appellate counsel for an indigent defendant, David Cook, who had been convicted in Presque Isle County. At the completion of his postconviction representation of Cook, plaintiff submitted to defendant, the chief judge of the Twenty-sixth Judicial Circuit Court of which Presque Isle County is a part, a bill for his fees and expenses in the amount of $312.65. Defendant refused to order the county to pay plaintiff any part of the bill. In this action, plaintiff and the
There is a constitutional right to appointed appellate counsel for indigent defendants in certain postconviction proceedings, including an appeal as of right. See Douglas v California,
The Appellate Defender Act,
MCL 775.16; MSA 28.1253 provides:
When a person charged with having committed a felony appears before a magistrate without counsel, and who has not waived examination on the charge upon which the person appears, the person shall be advised of his or her right to have counsel appointed for the examination. If the person states that he or she is unable to procure counsel, the magistrate shall notify the chief judge of the circuit court in the judicial district in which the offense is alleged to have occurred, or the chief judge of the recorder’s court of the city of Detroit if the offense is alleged to have occurred in the city of Detroit. Upon proper showing, the chief judge shall appoint or direct the magistrate to appoint an attorney to conduct the accused’s examination and to conduct the accused’s defense. The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certifícate of the chief judge that • the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed. [Emphasis added.]
Previous panels of this Court have assumed,
It may be inferred from the Appellate Defender Act that the state is not responsible for roster attorneys’ compensation. As noted above, the act mandates a mixed system of indigent appellate representation, containing both roster attorney and sado components, but authorizes state funding only for the compensation of sado attorneys. The clear implication of this legislative decision is that the funding for the remaining component of the mixed system — the roster attorneys — was expected to come from some source other than the state.
The question then becomes whether § 16 of the portion of the Code of Criminal Procedure relating to fees, MCL 775.16; MSA 28.1253, constitutes a legislative mandate that counties compensate assigned appellate counsel. Section 16 provides:_
*25 When a person charged with having committing a felony appears before a magistrate without counsel, . . . the person shall be advised of his or her right to have counsel appointed for the examination. . . . Upon proper showing, the chief judge shall appoint or direct the magistrate to appoint an attorney ... to conduct the accused’s defense. The attorney appointed by the court shall be entitled to receive from the county treasurer . . . reasonable compensation for the services performed. [Emphasis added.]
The following section, § 17, MCL 775.17; MSA 28.1254, provides:
An attorney shall not, in such case, be compelled to follow a case into another county or into the supreme court, but if he does so, may recover an enlarged compensation to be fixed by the court.
The plain language of § 16 suggests that counties are responsible for compensating appointed trial counsel, but not appointed appellate counsel. An indigent defendant taking an appeal as of right no longer stands as "a person charged” or an "accused”; he or she stands convicted and sentenced. The plain language of § 17 clearly governs appointed appellate counsel, but limits compensation to the attorney "in such case,” apparently referring to the trial attorney appointed under § 16. In this case, plaintiff was not appointed trial counsel for David Cook. Under the plain language of these sections, he is therefore not entitled to compensation from the county for his postconviction representation of Cook.
We do not know if this was the result the
Our research has found that, in at least two jurisdictions with statutes similar to § 16’s authorization of compensation to an attorney appointed "to conduct the accused’s defense,” courts have interpreted the word "defense” to include the taking of an appeal. State v Hudson, 55 RI 141; 179 A 130;
The services performed by assigned counsel on behalf of a client in an appellate court do not, by*27 the sole factor of a transfer of jurisdiction to a higher court, become any less defensive than the services discharged in the lower court. In a criminal action we assume the attorney assigned to represent a defendant is at all stages of the trial proceedings and appellate proceedings representing and defending his client. Whether we use the terms "defending in the trial court” or "prosecuting an appeal,” it would appear, under the common and usual meaning of the word "defend,” that assigned counsel in the appellate department of the superior court is "defending” his client within the provisions of section 987a.
While the composition of section 987a may be awkward, it is our opinion that it cannot be taken to be so restrictive in meaning as to exclude counsel assigned to represent an indigent defendant before the appellate department of the superior court. [245 Cal App 2d 783.]
We find this reasoning compelling. In an appropriate case, we would adopt the Marks approach and hold that a broad reading of § 16 implies that counties should compensate assigned roster attorneys for their appellate services.
This is an action for superintending control, however. The relief plaintiff seeks may be had only where the lower court has failed to perform a clear legal duty. See People v Flint Municipal Judge,
Complaint dismissed.
Notes
A third alternative is that the roster attorneys receive compensation from neither the state nor the counties. Our Supreme Court has stated that nonpayment of appointed counsel violates the constitutional rights of neither the appointed attorney nor the indigent defendant he or she represents. In the Matter of the Attorney Fees of Sheldon M Meizlish,
The Commission’s establishment of maacs to compile and maintain the roster, as well as the promulgation of minimum standards for indigent criminal appellate defense services, was approved by the Supreme Court in 1981 with the caveat that "the operation of the system and enforcement of the standards pursuant to the system requires that the Legislature appropriate funds necessary to implement the system.” Administrative Order No. 1981-7, 412 Mich Ixv (1981), affirmed in part and modified in part by Administrative Order No. 1985-3,
This interpretation of the Appellate Defender Act is borne out by the historical context in which the act was passed. In each of the six years prior to the passage of the Appellate Defender Act, in the year the act was passed, and in the year subsequent to the act’s passage, the Legislature appropriated grant monies “for [partial] reimbursement to counties for attorney fees actually paid for defense of indigent citizens on criminal appeal.” See
Defendant argues that § 17 was superseded by the Appellate Defender Act. We reject this argument. We find nothing in the Appellate Defender Act to rebut the presumption against repeal by
See n 3. Appropriations for such grant monies ceased in 1980.
Plaintiff observes that, by issuing Administrative Order No. 1989-3, requiring trial courts to appoint roster attorneys as appellate counsel, our Supreme Court must have expected that roster attorneys be compensated by either the counties or the state. The observation is well-taken but inapposite. Administrative Order No. 1989-3 imposed upon the trial courts a clear legal duty to appoint roster attorneys. It
In addition to Bacon, see Anno: Construction of state statutes providing for compensation of attorney for services under appointment by court in defending indigent accused, 18 ALR3d 1074.
Indeed, what little clarity there may be on the question of compensation of assigned roster attorneys may be dispelled by referring to MCL 600.9947; MSA 27A.9947, obligating the state to assume financial responsibility for its court system, or the Headlee Amendment, Const 1963, art 9, §§ 25 and 29. In regard to the latter, we note that the effective date of the Appellate Defender Act (and its mandate for the creation of the roster attorney system) postdates the effective date of the Headlee Amendment.