Lead Opinion
OPINION
{1} On рetition for a writ of superintending control, we are called upon to review an order issued by the Twelfth Judicial District Court in the criminal prosecutions against Santiago Carrillo. The district court’s order held that the flat-fee rates paid to indigent defense contract counsel by the Law Office of the Public D efender (LOPD) contravened the right to counsel and nullified the Legislature’s prohibition of the payment of hourly rates to contract counsel. The district court also issued a remedial order directing the LOPD to pay every contract attorney no less than $85 per hour and the State to provide the funding necessary for the LOPD to render such compensation. We hold that the General Appropriations Act of 2015, Chapter 101, Section 4(C) of New Mexico Laws of 2015, does not violate the right to the effective assistance of counsel аs guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution. We do not presume that the flat-fee rates paid to Carrillo’s contract attorney violate his right to counsel. Accordingly, we grant the writ of superintending control, vacate the district court’s orders, and remand to the district court with instructions to proceed with the State’s prosecutions against Carrillo.
I. BACKGROUND
A. The funding of public defender contract attorneys
{2} In all criminal prosecutions, the accused has the right to the effective assistance of counsel. U.S. Const, amend. VI; N.M. Const, art. II, § 14. The Indigent Defense Act, NMSA 1978, Sections 31-16-1 to-10 (1968), and the Public Defender Act, NMSA 1978, Sections 31-15-1 to -12 (1973, as amended through 2014), frame the statutory scheme by which the State ensures that counsel is provided to indigent defendants. These statutes effectuate the constitutional right of counsel for the defense of criminal charges. State v. Rasсon,
{3} Under the Public Defender Act, the district public defender shall represent every person without counsel who is financially unable to obtain counsel and who is charged in any court in the district with any crime that carries a possible sentence of imprisonment. NMSA 1978, § 31-15-10(C) (2001). If the district public defender is unable to represent a person entitled to representation, the district public defender shall notify the chief public defender. § 31-15-10(E). Where the LOPD lacks a district office, or where the chief public defender has been alerted by a district public defender of an inability to represent a person entitled to representation, the chief public defender is required to provide representation by other means. Id.; see also NMSA 1978, § 31-15-7(A)(1)(2014). To that end, the LOPD may contract with private attorneys to serve as counsel. See § 31-15-7(B)(11). In accordance with the Prоcurement Code,NMSA 1978, §§ 13-1-28 to -199 (1984, as amended through 2016), the LOPD issues Requests for Proposals to elicit proposals from private attorneys seeking to provide contract counsel. It then selects which candidates will be offered contracts to provide indigent defense services.
{4} The roles of the legislative and executive branches in funding contract defense counsel are clearly established. The Legislature delegated to the chief public defender the authority to formulate a fee schedule for the compensation of indigent defense contract counsel. § 31-15-7(B)(l 1). The expenses of the LOPD are “paid by warrants of the secretary of finance and administration, supported by vouchers signed by the chief [public defender] or the chiefs authorized representative and in accordance with budgets approvеd by the state budget division of the department of finance and administration.” NMSA 1978, § 31-15-5(B) (2013). Those budgets are funded by appropriation legislation. See, e.g., 2015 N.M. Laws, ch. 101, § 4(C).
{5} Prior to 2014, the chief public defender had established a flat-fee schedule for contract attorneys in all noncapital cases. In 2014, the rates paid to contract counsel in Lincoln County were as follows: $180 per misdemeanor case, $250 per juvenile case, $540 per fourth-degree felony case, $595 per third-degree felony case, $650 per second-degree felony case, and $700 per first-degree felony case, as determined by the highest degree crime charged. The Legislature provides the funding for such payments to contract counsel by appropriation legislation. See, e.g., General Appropriations Actof2016, H.B. 2, § 4, 52nd Leg., 2nd Sess. (N.M. 2016), available at http://www.nmlegis.gov/ Sеssions/16% 20Regular/final/HB 0002.pdf (last viewed May 17, 2016). In the General Appropriations Act of 2014, the Legislature appropriated $10,653,600 to the Public Defender Department for the provision of contractual services. 2014N.M.Laws,ch. 63, § 4(C).
{6} We note that on September 2, 2014, the New Mexico Public Defender Commission and the LOPD submitted a budget request for fiscal year 2016. See New Mexico Public Defender Commission FY16 Budget Request, http://nmcdla.org/docs/ Budget %20Request %20Narrative%20FY2016.pdf (henceforward “NMPDC FY16 Budget Requestion”) (last viewed May 17, 2016). See also Griego v. Oliver,
{7} The Legislature responded to the LOPD’s аnd the Commission’s request of $45,726,000 for contractual services by appropriating $12,840,800 for the same. 2015 N.M. Laws, ch. 101, § 4(C). When making this appropriation the Legislature explicitly provided that “[t]he appropriations to the public defender department shall not be used to pay hourly reimbursement rates to contract attorneys.” Id. (emphasis added). It appears that the Legislature’s condition on the appropriation for contractual services was a reaction to the Commission’s large request for contractual services, which was based on the Commission’s plan to compensate contract attorneys at a rate of $85 per hour. For instance, during the May 21, 2015, State Board of Finance Meeting to consider an Emergency Funding Request by the LOPD, Department of Finance and Administration Secretary Thomas Clifford indicated that the Legislature included language in the 2015 appropriations statute to prohibit hourly rates because the Legislature understood that the Commission’s plan to pay contract counsel $85 per hour was the predominant cause of the Commission’s significant budget request for fiscal year 2016.
{8} On June 29,2015, in the matter of State v. Carrillo, the Twelfth Judicial District Court decided that the Legislature’s requirement that the appropriation designated for contract counsel shall not be used to pay hourly rates violated the right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution. The district court issued an order entitled “Order Declaring Limits for Payment to Contractors in Order for Contractors to Provide Effective Assistance of Counsel,” which in relevant part provided:
The flat fee rates heretofore paid and to be paid to contractors/conflict attorneys by and through the Law Offices of the Public Defender for fiscal years 2016 and preceding fiscal years is not sufficient to comply with Gideon v. Wainwright[],372 U.S. 335 (1963), it is therefore ordered the State properly fund effective assistance of counsel for indigent defendants and is therefore unconstitutional both under the United States Constitution and the New Mexico Constitution;
The Public Defender Department shall pay to each and every contractor no less than $85.00 per hour plus GRT (gross receipts tax) for the attorney and $35.00 an hour plus GRT for staff, with appropriate markers . . . together with costs of copies and postage to be sent to indigent clients and/or other attorneys and experts, the costs of transportation and overnight stay paid based on the New Mexico State Per Diem rates and rules, and the costs of collect calls from the client to the attorney; so the attorney may have at least the bare minimum of monies to provide the effective representation necessary.
The district court’s order in State v. Carrillo precipitated the instant petition, and we now turn to that case.
B. The district court orders that are the subject of review
{9} In the exercise of our power of superintending control, we may take judicial notice of the proceedings in the district court. Rule 11-201 NMRA; see also State v. Anaya,
{10} On January 23, 2014, the State filed a criminal information against Carrillo, charging him with criminal sexual penetration in the third degree, contrary to NMSA 1978, Section 30-9-11(F) (2009). Shortly thereafter, on January 28 and 29, 2014, Gary Mitchell entered an appearance to represent Carrillo as contract counsel against both prosecutions.
{11} On April 23, 2014, Carrillo filed a motion in the first case requesting the district court tо compel the State to provide sufficient funds to his contract counsel so that his attorney could provide effective assistance and to stay proceedings in the matter until the State provided such funding. The district court understood the motion to pertain to both prosecutions and held hearings on Carrillo’s motion on September 23, 2014, and October 1, 2014. The district court issued an interim order on December 4, 2014, making the LOPD a party to the case and requiring the LOPD to compensate Mitchell a minimum of $85 per hour to represent indigent defendants in all cases assigned to him (including Carrillo’s cases), but not to exceed a total compensation per case as set by the markers established by the Commission, on pain of dismissal.
{12} On December 11, 2014, the LOPD filed an emergency motion to reconsider and to stay the execution of the interim order. The LOPD argued that the district court’s interim orderwould affect its operations statewide and that it could not immediately implement the order without compromising representation in other counties. On January 10, 2015, and March 23, 2015, the district court held hearings to consider the LOPD’s motion to reconsider and stay.
{13} On April 15,2015, Carrillo moved to dismiss his criminal complaint because “no indigent person can be prosecuted unless and until the defendant has an attorney who receives sufficient funds from the State to provide effective assistance of counsel.” On June 4, 2015, after he became aware of the Legislature’s condition that the appropriation designated for contract counsel should not be used to pay hourly rates, Carrillo moved the district court to declare that the provision contravened his right to the effective assistance of counsel.
{14} On June 29, 2015, the district court held a hearing on all pending motions. Shortly thereafter, it issued four orders: First, the district court entered an order nullifying the provision of the General Appropriation Act of 2015’s prohibition of the payment of hourly rates to contract counsel as violative of the Federal Constitution and the New Mexico-Constitution. Second, based on its conclusion that the flat-fee rates paid to contract counsel by the LOPD contravene the constitutional guarantee of effective assistance of counsel under Gideon v. Wainwright,
C. The petition for an extraordinary writ
{15} Liane Kerr is an attorney who has contracted with the LOPD to represent indigent defendants for the past 23 years. On July 17, 2015, she filed a petition in this Court for a writ of superintending control or alternative writ to vacate the second order the district court issued on June 29, 2015. The petition alleged that because the LOPD lacked the funds to comply with this order, the LOPD’s attempt to comply would precipitate insolvency and threatеn its ability to honor the contracts of the Petitioner and other contract counsel. The petition named the following real parties in interest: Diana Martwick, the District Attorney for the Twelfth Judicial District; Thomas Clifford, the Secretary ofthe Department of Finance and Administration; the Commission and its members; and Jorge Alvarado, then the Chief Public Defender. We received responses from each of those parties. We also accepted an amicus curiae brief from the Legislative Finance Committee.
II. DISCUSSION
A. Our exercise of superintending control
{16} Article VI, Section 3 of the New Mexico Constitution confers on this Court “superintending control over all inferior courts” and the power to issue “writs necessary or proper for the complete exercise of . . . [our] jurisdiction and to hear and determine the same.” “The power of superintending control is the power to сontrol the course of ordinary litigation in inferior courts.’’ Dist. Court of Second Judicial Dist. v. McKenna,
{17} The district court’s constitutional holding and remedial orders call for thе exercise of this power. The Commission’s budget request for fiscal year 2016 exceeded $45 million to compensate contract counsel at $85 per hour, and the Legislature appropriated over $12 million for contract counsel in the same time period. Merely looking to the discrepancy between the Legislature’s appropriation and the Commission’s estimation of what statewide compensation of contract counsel at $85 per hour would require, it is readily apparent that the LOPD’s attempt to comply fully with the district court’s order would threaten its ability to perform its duties. Further, the district court’s order to stay Carrillo’s prosecutions until the State provides the ordered funding and the LOPD pays the ordered funding to Carrillo’s contract counsel jeopardizes the administration of criminal justice in New Mexico. It is in the public interеst to settle the dispositive issue in this case now. Accordingly, we grant the petition and issue a writ of superintending control.
B. Neither the current flat-fee schedule nor the Legislature’s prohibition of hourly compensation rates for contract counsel violates Carrillo’s right to counsel
{18} The parties raise two issues: First, does the current flat-fee schedule for the compensation of contract counsel, solidified by the Legislature’s requirement that the LOPD not use the appropriation for contract counsel to pay hourly reimbursement rates, violate the right to counsel as guaranteed by the Federal Constitution and the New Mexico Constitution? Second, did the district court’s remedial orders requiring the State to fund compensation to contract counsel at $85 per hour and the LOPD to pay such a rate to Carrillo’s counsel contravene the separation of powers as established by Article III, Section 1 oftheNewMexico Constitution? Because we decide the former issue, we do not reach the latter.
{19} In support of the district court’s order, Carrillo argues that the current flat-fee arrangement for the compensation of contract counsel impinges upon his right to the effective assistance of counsel. The Commission makes a similar argument to support the district court’s order and contends that the current flat-fee scheme violates the right to counsel of any indigent defendant represented by contract counsel. Both Carrillo and the Commission root their arguments in State v. Young,
{20} Ordinarily, to make out a claim of ineffective assistance of counsel, a criminal defendant needs to establish both that their counsel’s assistance was not objeсtively reasonable and that but for the counsel’s errors, the result of the proceeding would have been different. State v. Grogan,
{21} Some circumstances, however, “are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic,
{22} In State v. Young, this Court applied Cronic to presume ineffective assistance of counsel because the attorneys for the defendants in that capital case were “not receiving adequate compensation.”
{23} Young guides our review. In Young, we expressly noted that the holding was cinched to its facts. Id. ¶ 27. Young did not hold that a flat-fee arrangement necessarily abridges the right to the effective assistance of counsel in capital cases. See id. In fact, we expressly refused “to condemn a flat fee structure or cap in all capital cases.” Id. ¶ 18. When we expressly refused to presume that a flat fee entails ineffective assistance in all capital cases, we necessarily implied that we would not presume that a flat fee entails ineffective assistance in all criminal cases.
{24} We find no basis to depart from Young now. We cannot assume that any contract attorney in New Mexico who represents an indigent defendant under the current flat-fee arrangement necessarily will be unable “to subject the prosecution’s case to meaningful adversarial testing.” Cronic,
{25} Carrillo argues that flat-fee contracts are problematic because they “are rife with financial incentives for lawyers to do as little work on cases as possible.” But this argument also fails to justify the presumption of ineffective assistance. The first term in the professional service contract that the LOPD offers to contractors requires a contracting attorney to provide legal services in accordance with the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution. We assume that attorneys represent their clients honorably, consistent with both their professional duties and the terms under which they contract with the LOPD to provide indigent defense. See People v. Doolin,
{26} We also note that our refusal to depart from Young does not etch into stone the fees currently paid to indigent defense contract counsel. The Legislature delegated to the chief public defender the authority to formulate a fee schedule for the compensation of contract counsel. In Chapter 101, Section 4(C) of New Mexico Laws of 2015, the Legislature appropriated funds for contract counsel on the condition that the appropriation not be used to pay fees based on hourly rates. We note that the Legislature recently carried that condition forward in the General Appropriations Act of 2016. H.B. 2, § 4, 52nd Leg., 2nd Sess. (N.M. 2016), available at http://www.nmlegis.gov/Sessions/16%20Reg ular/final/HB0002.pdf (last viewed May 17, 2016) (“Appropriations to the public defender department shall not be used to pay hourly rates to contract attorneys.”).
{27} “We have consistently maintained that the Legislature has the power to affix reasonable provisions, conditions or limitations upon appropriations and upon the expenditure of the funds appropriated.” See State ex rel. Coll v. Carruthers,
{28} While we note the Legislature’s broad power to appropriate funds and to affix limitations on those appropriations, see Carruthers,
C. We do not reach the separation-of-powers issue
{29} The district court’s remedial order that the State fond compensation to contract counsel at $85 per hour and that the LOPD pay such a rate to Carrillo’s counsel threatens to intrude into the prerogatives of the coordinate branches of government. Whether the district court’s remedial order violates the separation of powers, however, is a more complicated question and involves the subsidiary issue of whether the district court had the inherent power to issue an order to compel funding. Cf. State ex rel. Quintana v. Schnedar,
{30} We do not address whether the district court’s remedial order contravenes the separation of powers because it is unnecessary to the disposition of this case. See Allen v. LeMaster,
CONCLUSION
{31} For the foregoing reasons, we grant the petition for a writ of superintending control and vacate the following orders of the district court: the December 2, 2014, Interim Order; the June 29, 2015, Order Declaring the Prohibition Against Hourly Rates to Contractors Unconstitutional; the Junе 29, 2015, Order Declaring Limits for Payment to Contractors in Order for Contractors to Provide Effective Assistance of Counsel; and the June 30, 2015, Order Granting Stay of Proceedings and Releasing Defendant from Custody. We do not vacate the June 20, 2015, Release Order, and we remand to the district court with instructions to modify the release order if appropriate and proceed with the State’s prosecutions against Carrillo.
{32} IT IS SO ORDERED.
WE CONCUR:
Concurrence Opinion
(specially concurring).
{33} The instant appeal highlights a chronic problem that plagues the criminal justice system in New Mexico. The district court characterized the “major issue” in this case as “the failure by the State of New Mexico ... to provide sufficient funds to pay for effective assistance of counsel for indigent defendants in criminal cases.” Thus, the district court’s orders were in direct response to a perceived crisis, fueled by a shortage in human and finanсial resources available to the LOPD for its work in Lincoln County. And because it is ultimately the duty of the courts to ensure the protection of constitutional rights, the district court took action. Although I agree with the holding and legal analysis laid out in the majority opinion explaining why those orders must be vacated, I write separately to discuss other facets of this important case which I believe are deserving of attention.
{34} In its landmark 1963 opinion in Gideon v. Wainwright,
{35} Prior to these enactments, it was the responsibility of the courts to appoint counsel upon a finding that a defendant could not afford to hire an attorney. See, e.g., State v. Anaya,
{36} Over time, the Department has had to fulfill its duties with extremely limited resources as it strives to provide the highest quality representation possible. The Department recently underwent a significant change in its structure in 2012, when the voters of New Mexico approved a state constitutional amendment to establish a “public defender commission” to oversee the “public defender department ... as an independent state agency” and “provide guidance tо the chief public defender in the administration of the department and representation of indigent persons.” N.M. Const, art. VI, § 39 (internal quotation marks omitted). Prior to the amendment, the Department was “administratively attached” to the executive branch, and the governor had the power to appoint the chief public defender. See § 31-15-4(A), (C) (1985); compare § 31-15-5(A) (1978) with § 31-15-5(A) (2013). Now the Department is overseen and the chief public defender is appointed by the independent commission. Section 31-15-4(A) (2013). Yet, the State’s obligation to pay the costs of indigent defense through the funding of the Department remains unchanged. See Section 31-15-5(13) (remaining essentially unchanged after 2013 amendments).
{37} The instant constitutional challenge to the Department’s fee schedule for providing payment to contract defense counsel throughout Lincoln County was presented in thе context of one defendant’s case. Defense counsel argued that while the lack of resources provided to him by the Department has made it difficult to render effective representation, he would nonetheless be able to provide constitutionally effective assistance to his client in this case. Defense counsel relies upon Cronic and Young to support his constitutional claim, but as set forth in the majority opinion, those cases each address a situation in which circumstances surrounding a case impacted the defense attorneys’ ability to provide effective representation in that particular case, not the type of systemic or structural problem that the district court attempted to address below. Accordingly, the record before us does not present a sufficient basis for declaring thеre has been a denial of the right to effective assistance of counsel based on the wages paid to contract criminal defense attorneys in Lincoln County.
{38} Other jurisdictions have been called upon to address structural problems like underfunding or low attorney compensation which amounted to a systematic deprivation of the right to counsel. In such cases,
the focus is not on a post-hoc historical review of a criminal trial, but is instead based on the structure through which indigent defense is provided by the state. A structural challenge involves a realistic assessment of whether the state has provided an adequate framework for ensuring that the right to counsel is realized in cases involving indigent defense.
Simmons v. State Pub. Def.,
{39} In the absence of a constitutional violation, it is imperative in the administration of justice that we respect the independence of the Department and the Commission and refrain from interfering with their internal management decisions. See ABA Ten Principles of a Public Defense Delivery System 2, (February 2002), http://www.americanbar.org/content/ dam/aba/administrative/legal_aid_indigent_ defendants/ls_sclaid_def_tenprinciplesbookl et.authcheckdam.pdf (last viewed May 27, 2016) (emphasizing the importance ofhaving a public defense function that is “independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel”). It is the role of the chief public defender and Commission to determine how best to allocate resources for the functions of the Department as a whole. These administrators are legally responsible for deciding how to use the available funding in a manner most beneficial to the overall needs of the Department. The judiciary will only intervene when presented with a case that demonstrates that the Department’s operations violate the constitution, either because of unlawful managerial decisions or a lack of resources necessary for providing the effective representation required under our Constitution and statutes.
{40} Keeping New Mexicans safe is the ultimate goal of our criminal justice system, but we cannot expect this noble goal to be achieved without adequately funding all the public partners responsible for the fair administration of justice, including law enforcement agencies, district attorney’s offices, the public defender department, independent crime laboratories, and the judiciary. Failure to fund the criminal justice system will undermine the intended effect of laws enacted to ensure public safety. While the record in the instant case did not demonstrate a constitutional violation, it is a reminder that a system that effectively ensures public safety and protects constitutional rights comes at substantial fiscal cost. Accordingly, I respectfully concur.