Landrum v. GoeringLandrum v. Goering
- Reporters:
- ,
- Before:
- Luckert
Original action in mandamus. Writ of mandamus granted in part. Opinion filed July 21, 2017.
Sarah G. Swain, of The Swain Law Office, of Lawrence, argued the cause and was on the petition, and Cooper Overstreet, of the same firm, was with her on the briefs for petitioner.
Stephen Phillips, assistant attorney general, and Derek Schmidt, attorney general, were on the response for respondent Hon. Jeffrey Goering.
Boyd K. Isherwood, assistant district attorney, was on the response for respondent State of Kansas.
Daniel E. Lawrence, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause, and Stephen E. Robison, of the same firm, was with him on the response and briefs for intervenor/respondent State Board of Indigents’ Defense Services.
The opinion of the court was delivered by
LUCKERT, J.: This original action in mandamus raises the question of whether a partially indigent defendant who has retained counsel may pursue funding for certain services through the State Board of Indigents’ Defense Services (Board or BIDS). The parties readily acknowledge that
FACTS AND PROCEDURAL BACKGROUND
The State charged Shane Landrum with first-degree murder, and he has been in state custody since his arrest in December 2014. Landrum is represented by privately retained counsel—that is, by an attorney who is neither a public defender nor court appointed. It is unclear who retained Landrum‘s counsel or how her fees are funded.
Landrum, through his retained counsel, moved to be declared partially indigent in early 2015. Landrum filed a financial affidavit in support of his motion, although he provided minimal information and completed only the case number, his name, his signature, and the date. He drew a line through the remaining questions regarding his financial situation. He listed no dependents or spouse, although his statement of facts in this mandamus proceeding indicates he has a wife and child. He also did not account for any resources used for paying attorney fees. On May 8, 2015, the then-presiding criminal judge of the Eighteenth Judicial District declared Landrum partially indigent.
Subsequently, Landrum requested a copy of the transcript for a preliminary hearing. The district court granted the request, ordering Landrum to pay 25% of the cost. Landrum also requested funding for investigative services, which the court approved.
Landrum filed a Petition for Writ of Mandamus, naming Judge Goering and the State of Kansas as Respondents. Judge Goering responded and asked not to appear in the action “as an advocate for either side or to address the substantive merits of Petitioner‘s mandamus action.” The State, through the Sedgwick County District Attorney‘s office, advocated for the Board to be added as a party and disclaimed any other interest in the matter: “In short, in what manner a criminal defendant‘s defense is funded does not appear to be a matter within the bailiwick of the instant Respondent.”
The Board moved to intervene, and this court granted the motion, accepted briefs from Landrum and the Board, and heard oral arguments.
ANALYSIS
Before we reach the issue of statutory interpretation central to the resolution of this case, we consider whether we should exercise our original jurisdiction and whether Landrum has standing.
Original Jurisdiction and Our Discretion
Article 3, § 3 of the Kansas Constitution confers on this court original jurisdiction in proceedings in mandamus.
We have stated one of our discretionary considerations via court rule, indicating that where “adequate relief appears to be available in a district court” this court “ordinarily will not exercise original jurisdiction.” Supreme Court Rule 9.01(b) (2017 Kan. S. Ct. R. 59). Consequently, a mandamus petitioner must state a reason why the action is brought in this court rather than the district court. Kansas Supreme Court Rule 9.01(b); Ambrosier v. Brownback, 304 Kan. 907, 909, 375 P.3d 1007 (2016). Landrum complied with this requirement by arguing the futility of seeking reconsideration by the district court. As he points out, Judge Goering indicated his ruling was final, and Judge Goering explicitly mentioned he expected Landrum would “take some effort to have it reviewed by a higher court.” Judge Goering acknowledged, “[I]f the Supreme Court says that I‘m wrong in the way that I‘m reading these [regulations], then that means that he gets experts—or at least gets to ask for experts and it may mean that he gets a transcript.”
Through caselaw, we have listed other considerations relevant to the exercise of discretionary jurisdiction over a mandamus action, including judicial economy, the need for speedy adjudication of an issue, and avoidance of needless appeals. Ambrosier, 304 Kan. at 909. Each of these considerations also favors the exercise of jurisdiction here. Under the district court‘s ruling, Landrum may have to proceed to trial without the expert or other services he believes are necessary to his defense. Because Landrum asserts these defense services are guaranteed to him under Kansas law and the United States Constitution, he will inevitably raise this issue on appeal if he is convicted. Moreover,
Another consideration favors the exercise of our discretionary jurisdiction. Mandamus offers a proper remedy when the essential purpose is to obtain an authoritative interpretation of law for the guidance of public officials in their administration of public business, notwithstanding the fact that there also exists an adequate remedy at law. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 52, 687 P.2d 622 (1984). Hence, the exercise of original jurisdiction is appropriate when the mandamus petition “presents an issue of great public importance and concern” and the exercise of jurisdiction will “settle the question.” 236 Kan. at 52. The contested issue in this case—whether the Board‘s funds may be accessed through
Landrum seeks more than an interpretation of the statute, however. He seeks a writ compelling the district court to order the Board to pay for the defense services he requests. As we have noted, mandamus may be appropriate to compel some person or body to perform a “clearly defined duty.” Becker, 264 Kan. at 807. But “‘[m]andamus may not be invoked to control discretion.‘” Kansas Bar Ass‘n v. Judges of the Third Judicial Dist., 270 Kan. 489, 491, 14 P.3d 1154 (2000) (quoting Link, Inc. v. City of Hays, 268 Kan. 372, 375, 997 P.2d 697 [2000]). As we will discuss in more detail, some of Landrum‘s requests for relief entail an exercise of discretion. Nevertheless, to the extent he seeks an interpretation of
Landrum has standing.
With that preliminary issue resolved, we consider whether Landrum has standing. Generally, a private citizen may seek to compel the performance of a public duty only where he or she can show “‘an injury or interest specific and peculiar to himself, and not one that he shares with the community in general.‘” Kansas Bar Ass‘n, 270 Kan. at 491 (quoting Stephens v. Van Arsdale, 227 Kan. 676, 683, 608 P.2d 972 [1980]). Landrum meets this requirement: Landrum faces the prospect of proceeding to trial on charges, including first-degree murder, without the benefit of investigative, expert, or other services to which he may be entitled under Kansas law and the United States Constitution.
With these preliminary questions resolved, we consider whether
Determining the ultimate question of whether
The Plain Language of K.S.A. 22-4508
“An attorney other than a public defender who acts as counsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in the defendant‘s case may request them in an ex parte application addressed to the district court where the action is pending. Upon finding, after appropriate inquiry in the ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the district court shall authorize counsel to obtain the services on behalf of the defendant. The district court may, in the interests of justice, and upon a finding that timely procurement of necessary services could not await prior authorization, ratify such services after they have been obtained. Within the standards and guidelines adopted by the state board of indigents’ defense services, the district court shall determine reasonable compensation for the services and approve payment to the organization or person who rendered them upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source. Payment shall be made in the manner provided in
K.S.A. 22-4507 , and amendments thereto.”
The parties’ arguments focus on the meaning of the first seven words in the statute: “An attorney other than a public defender.” Landrum argues the plain language of the statute applies to any attorney other than a public defender and applies to his situation, i.e., where a defendant has retained counsel but does not have the financial ability to pay for investigative, expert, or other services. The Board argues instead that the language refers to only those attorneys who are not public defenders but are part of the Board‘s system of contract appointed counsel.
The plain language of the statute does not go as far as the Board suggests, and we would have to add words in order to reach the Board‘s desired reading, such as: “An attorney other than a public defender or retained counsel.” This we cannot do. See In re Marriage of Brown, 295 Kan. at 969. As per the words used in
Moreover, except in cases involving a public defender,
We, therefore, conclude that the plain and unambiguous language of
We acknowledge the district court reached the opposite conclusion in reliance on Morrow, 18 Kan. App. 2d 236. The Board asks us to adopt Morrow‘s reasoning. We decline to do so because we do not find the Court of Appeals decision persuasive for several reasons.
First, Morrow deals with a different statutory provision (
Second, the 1993 decision in Morrow does not follow the rubric employed by this court when faced with determining legislative intent—that is, using the language of a statute as a guide and looking to other sources to aid in discerning legislative intent only when the statutory language is ambiguous. See In re Marriage of Brown, 295 Kan. at 969. The Morrow court skipped this critical step of the analysis and did not analyze the words in the statute. Instead, apparently utilizing the doctrine of operative construction, the court jumped to an analysis of the Board‘s regulations and considered what those regulations might instruct regarding the application of the statute. Morrow, 18 Kan. App. 2d at 241-43. Since Morrow, we have “unequivocally declare[d] . . . that the doctrine of operative construction . . . has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal.” Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (citing Ft. Hays St. Univ. v. University Ch., Am. Ass‘n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 [2010]). Under current Kansas law, a Kansas court should engage in an “unlimited review on the determinative question of statutory interpretation without deference” to the Board‘s interpretation as manifested in the regulations. Ft. Hays St. Univ., 290 Kan. at 457. The Morrow court did not do so. Not only does this point reduce the persuasiveness of the Morrow decision, it explains why we do not rely on the Board‘s regulations in making our independent review of
Our own unlimited review of
The Board, in addition to relying on Morrow, makes an extensive in pari materia argument. Based on provisions of other related statutes, the Board urges us to reach the same conclusion as did the Morrow court: A defendant either has appointed counsel and receives the benefit of the Board‘s payments or has retained counsel and is not entitled to any payments from the Board. Simply put, “a defendant cannot pick what he wants to pay for and what he wants the State to pay for.” Morrow, 18 Kan. App. 2d at 241.
Typically, “[a]s with any rule of construction, courts generally turn to an in pari materia analysis to resolve a statutory ambiguity and to ascertain legislative intent.” 2B Singer & Singer, Statutes and Statutory Construction § 51:3, P. 233 (7th ed. 2012); see 2B Singer & Singer, Statutes and Statutory Construction § 51:1 (discussing principle that all portions of a statute are construed together and noting the principle has limitations when other statutes are construed together because “courts do not resort to other statutes if the statute being construed is clear and unambiguous“). The Board attempts to raise ambiguity by construing
Moreover, the Board‘s arguments reveal the danger of trying to discern legislative intent from means other than the plain language of a particular statute. By looking to other, related statutes as a source of additional restrictions on the ability to access the Board‘s resources, the Board has constructed a plausible scenario supporting the conclusion that the legislature intended to make the Board‘s resources available only when a defendant had appointed counsel. The Board supports that scenario with strong policy arguments about the potential for abuse and its strained financial resources. But the Board‘s reading of various provisions of the Act ignores differences in wording between other statutes and
For example, the legislature recognized that “[a] defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel . . . .”
The legislature also devised two different tests for determining financial eligibility. The statute at issue in this case,
These latter statutes focus on inability to employ counsel, not an inability to afford those services necessary to an adequate defense. In other words, the legislature chose to
The legislature also recognized the two prongs of having effective counsel and having necessary investigative and expert services for defendants as essential to the Board‘s mission. See
Thus, the Board‘s statutory construction arguments do not automatically lead us to its championed position. We could pick and choose which provisions from other parts of the Act support the Board‘s view and which support Landrum‘s. Choosing one path or another puts a court in the role of making policy decisions. But that is not our role. See Spencer Gifts, 304 Kan. at 765 (“The legislature may have had a variety of policy reasons for choosing the language it enacted and for creating distinct statutory protections . . . . Such ‘questions of public policy are for legislative and not judicial determination.‘“). This brings us back to a point we made earlier that deserves repetition: “Reliance on the plain and unambiguous language of a statute is ‘the best and only safe rule for determining the intent of the creators of a written law.‘” Spencer Gifts, 304 Kan. at 761 (quoting Merryfield, 301 Kan. at 399).
Consequently, we reject the Board‘s arguments and conclude that, under the plain and unambiguous language of
Nevertheless, the writ will not extend to the point Landrum requests: We will not dictate the outcome of the ex parte proceeding before the district court. Any orders entered depend on Judge Goering‘s (or another judge‘s) discretion regarding whether Landrum could financially obtain necessary investigative, expert, or other services, and the previous orders entered in this case do not limit the district court‘s discretion going forward.
If, however, the district court finds that Landrum is unable to afford necessary defense services, the district court has a duty under
For all the reasons discussed above, we grant the petition for writ of mandamus in part and direct the district court to hold an ex parte hearing on petitioner‘s request or requests for investigative, expert, or other services under