*1 9 public and protecting public from church driving influence);
members State, (Okla.Crim.
Lewellyn v. 538 592 P.2d
App.1979) (compelling pro state interest in
hibiting marijuana gener distribution of Mullins, public); People Cal.App.3d
al v.
61, Cal.Rptr. (1975) (marijuana us
age not practice essential to the Univer Light); Life
sal Church of v. Christ State
Soto,
794,
(1975)
21 Or.App.
(compelling state in health interest
safety
general
denied,
public), cert.
U.S. Crawford,
(1976); People 69 Misc.2d (1972); Bullard,
267 N.C. S.E.2d cert.
denied, U.S. (1967); Big
L.Ed.2d 789 Sheep, State
Mont.
A state interest suffi
cient override exercise Olsen’sfree clause
argument is in this demonstrated case. The refusing
trial court did not err in to submit requested instructions.
We reverse under the issue discussed I
Division and remand.
REVERSED AND REMANDED. Eugene McNABB, Plaintiff,
Allen
Judge OSMUNDSON, Robert and The District Court Johnson
County, Defendants.
No. 64621. Iowa.
Jan. *2 support of his per week toward the
$30 payments He no daughter. minor made Attorney County caused and the Johnson contempt, for the mother him cited to be support payments having assigned Department of Social Services. Iowa generally The Code. See § finally us after a As case reaches this actions, for petitions series of district remand, certiorari, a retained stays, a and jurisdiction by appears it McNabb, pro se plaintiff after a brief one-half pearance comprising two and sentenced pages printed transcript, was county jail, days two days to 232 in the unpaid of child each installments provided could support. order McNabb purge contempt by payment himself $50, payments of which weekly $480 and apply on the current installment was to $30 delinquent amounts. and to the $20 jail, his spent eight days in After McNabb counsel, citing present volunteer 1154,1156 (8th Anderson, 553 F.2d court to 1977), persuaded Cir. defendant hearing pending suspend sentence sentence, motion to reconsider the refusal to counsel. hearing which McNabb subsequent
A his represented by volunteer counsel twenty- McNabb is about developed that old, property, no and suffers years three has epilepsy. from He takes medication symptoms epilepsy, his effort control drinking problem that exacer- but has a He has nev- bates incidents seizures. Zimmerman, Mears, H. Zimmer- Richard job pay would more than er held a Mears, City, plaintiff. Iowa man & job over never held wage, minimum has Gen., Miller, R. Atty. J. and John Thomas months, living has with his three been Martin, Gen., for Atty. Asst. defendants. unemploy- parents. some of his At least to his history may be attributable ment has The total McNabb epilepsy. $100, which he from his paid is borrowed REYNOLDSON, Chief Justice. jailed being this action. parents after granted in this case to de- certiorari in the district The final financial statement jail indigent facing a termine whether an reflected that McNabb was then file contempt in a of court sentence earning weekly, had employed $35 $40 has a under the United States Consti- months, past in the twelve earned $1341 provided ex- tution vehicle, no had property owned no motor pense. totaling account, and owed debts bank McNabb was obligated Plaintiff under an Trial court found McNabb was $316.40. indigent, appoint counsel. but refused to October dissolution decree to
H posture Fenton, Thus the when most ten years. the case Cf. Wilson v. granted (Iowa 1981) certiorari was that McNabb (punitive had N.W.2d fine been found in 665.4(2) sen- under section can be levied retro- days imprisonment, tenced spectively separate which contempt); acts of days Court, had been served balance Clark District suspended pending hearing. future Trial (1963) *3 court had consistently (same). refused potential justifies This sentence public expense although counsel at finding position our that the nebulous distinctions indigent. Upon McNabb application of contempts between civil and criminal are of county attorney district court had consequence jurisdiction. is- no in this Knox sued still requiring Court, another order Municipal McNabb 185 N.W.2d appear (Iowa 1971). jail and show cause he why clang should The doors with the contempt not be held in of court. finality indigent same behind an who is in contempt held and incarcerated for non- proceeding In this McNabb raises three payment support of child under section (1) indigent issues: Is an faced with the indigent as they 598.23 do behind an who is possibility contempt of incarceration for incarcerated for violation of a criminal stat- paying support child entitled court- Darbyshire, ute. In Lutz v. appointed counsel under the United States (Iowa 1980), we wrote: (2) contempt Constitution? Should a order Contempt proceedings commonly are and incarcerating sentence an who treated as criminal in even nature when (3) without counsel be vacated? In a they generate from civil ... Ex- cases. contempt proceeding 598.23, under section contempt power ercise of the is a delicate Code, The legally permissible is it to incar- requiring arbitrary one care to avoid or an indigent cerate ability has no oppressive conclusions. payment purge make contempt? the course of proceeding, this also McNabb
moved for allowance of his proceeding was criminal in this court. We ordered this motion plaintiff’s personal sub- nature. liberty The mitted with the case. was at stake.
I. Did Wilson, McNabb Have a Constitutional 312 N.W.2d at See Right Contempt to Counsel Action? McNabb contends the sixth amendment process and the due clause of the fourteenth 665.4, Code,
Section The delineates amendment to the United Constitu- punishments for contempt “where not he, require provid- indigent, tion that an be specifically provided.” otherwise In the un ed counsel when confronted with the loss of derlying support proceeding punishment liberty. his is specifically provided in section Code, portion providing the relevant protections that believe shel this are ter defendant to be found in the any against party whom . . . [i]f process due clause the fourteenth amend final decree has been shall entered will- ment, although sixth amendment decisions
fully
same,
disobey
or secrete his
may
influence our
property,
may.be
punished
he
cited and
determination. The case before us involves
by the
contempt
court for
be
commit-
indirect,
constructive,
alleged
an
or
con
county jail
ted to
period
for a
of time
tempt.
contempt
An indirect
act com
thirty days
exceed
each
of-
presence
mitted
court’s
outside a
that ob
fense.
prevents
or
structs
administration of
apparent
Lutz,
It
the full application
justice.
A
IS is a process penalty ed in the ment due clause the four- different kind from imprison- Argersinger, 407 or the mere threat of teenth amendment. U.S. fines 2010-11, 33-34, at at at sound eminently 92 S.Ct. L.Ed.2d ment —is and warrants imprisonment adoption of actual as the defining line the constitutional concepts be cross-fertilization appointment of . . . counsel. We there- proc tween the sixth and due amendment fore hold that the Sixth Fourteenth rights involving ess to counsel in cases Amendments to the United Consti- States possibility imprisonment or actual require only tution that no crim- apparent subsequent federal circuit court inal term of defendant be sentenced to a courts, considering decisions. in Several has af- unless State contempts, Arger- stances of civil relied on him forded assistance singer ruling that an faced with pointed counsel in his defense. prospect imprisonment must be af Scott, at forded counsel. United States added). (emphasis 59 L.Ed.2d Anderson, (8th F.2d n.2 Cir. 1977); Bella, (2d Di In re 518 F.2d States Constitution Thus United 1975); Kilgo, Cir. re 484 F.2d interpreted by does (4th 1973). Cir. The Ninth Circuit in a require appointment of in a Argersing decision four after filed months nonfelony criminal where the defend case er, Rung Kang, Sun imprison possibility ant faces the (9th 1972), F.2d Cir. reached the a fine. The line is drawn at actual ment or *5 Argersing same result without reference appears imprisonment. Because that Court Later, however, Bradshaw, er. in Henkel v. no a sixth make distinction between 1386, 1389(9th 1973), 483 F.2d the Cir. same right right to amendment to counsel and a circuit recognized Argersinger only that counsel under the in fourteenth amendment prohibited imprisonment an unrepresent of of, actual, involving cases the threat or indigent facing ed contempt a imprisonment indigent enti otherwise nonpayment action for support, of child freedom, tled to unconditional we believe stating, judge, cogni “The state trial now Argersinger apply in case. and Scott zant Argersinger, assuredly most will ju that the We mindful federal know lawyer appointed that if a not is supreme .exposition the law diciary is representation, Henkel’s be Henkel cannot Constitution, which is of the confined even if found have been con See, e.g., the supreme the law of land. temptuous.” Summers, Michigan 692, 452 101 U.S. State in similar court decisions were dis- 2587, (1981) (Michigan 340 69 L.Ed.2d S.Ct. array teaching Argersinger. over consti Supreme Court reversed on federal Tetro, Compare, e.g., Tetro v. 86 Wash.2d Aaron, grounds); Cooper v. 358 tutional 252, with, 254-55, 17, (1975), 544 P.2d 19 1, 18, 78 3 L.Ed.2d U.S. S.Ct. Sword, 380-81, e.g., 367, Sword v. 399 Mich. 5, (1958). no We therefore make 88, own attempt independent to arrive at our Illinois, 367, Finally, in Scott U.S. Consti interpretation of the United States 368, 1158, 1159, 383, 99 S.Ct. 59 L.Ed.2d 385 tution, federal as but follow the decisions (1979), Supreme sought “re- Court peti Nor we understand them. does this among solve a conflict state and lower fed- indigent’s tion raise the of this eral regarding courts proper application rights unique language under the of our in Argersinger.” decision had Scott I, Constitution, “In section article been shoplifting convicted of and fined $50 in prosecutions, and in cases all criminal proceeding. a criminal Five members of an volving liberty . . . individual the Court reasoned that right shall have a ... to have accused is not premise that the central Because this believe assistance counsel.” [W]e required prosecution, we are Argersinger imprison- a not actual criminal —that appointed counsel to criminal relating provisions examine our involving personal liberty. loss not misdemean- cases simple counsel in
pointment of Lassiter, at at 452 U.S. S.Ct. cases, 42(3), Iowa Rules of in rule found at 68 L.Ed.2d (“In where the cases Criminal Procedure imprison- possibility faces defendant hold, Supreme the above Court We under ment, appoint counsel the court shall decisions, to counsel entitled McNabb pro- with in accordance defendant hearing resulted in the first 2(3).”). under R.Cr.P. cedures established incarceration, to counsel and will entitled hearing if it will result any subsequent States Constitution If under the United liberty. physical the loss of his for an indi- counsel nonfelony prosecution criminal gent in a require holding necessarily will when actual only attaches judge prosecuting counsel con- trial result, Argersinger and plain from will what proceeding engage tempt Scott, would not then the Court “predictive Argersinger termed a in a higher set standard determine of each case to evaluation” an indi- prosecution in which criminal significant likelihood whether is a there actually will be incarcerated. gent if the found a criminal ground judge jail see no draw or her to a valid will sentence him The fourteenth at 92 S.Ct. Argersinger, vis-a-vis civil distinction. term. U.S. so, require more of our 32 L.Ed.2d 541. If amendment does not alleged If contem- requires appointed. must be civil law than the sixth amendment “jaw-boned,” appoint- ner is law. criminal the United ment is not Gagnon v. relies on Defendant States Constitution.1 Scarpelli, 411 U.S. Jail II. McNabb’s Sentence Should Depart- (1973), and Lassiter v. L.Ed.2d Vacated? Services, ment of Social par- L.Ed.2d holding in division I dictates the Our “balancing” ticularly analysis this issue. Counsel resolution of *6 case, McNabb was contending latter in concedes that if district court represented unconstitutionally, jailed being appointed could be denied counsel Wilson, hearing. We think must be vacated. See by counsel at his first his sentence Gagnon inapposite. 529. these decisions are The 312 N.W.2d at was Court held that counsel not Inability Viable Pay Is a De- III. required probation in revocation hear- all Contempt fense in a 598.23 Proceed- Section ings, probationer of had but course been ing? previously and did not come be- sentenced to his hearing fore the revocation entitled argues impermissible it is McNabb short, he unconditional freedom. had has no abili to incarcerate resulting already granted, the trial been contempt. ty payment purge make conviction, protec- Court, in his the constitutional Nystrom He relies District counsel, trial, proof jury (1953), tions of and the 58 N.W.2d beyond “[sjection a doubt Lassi- reasonable standard. that where this court observed 665.5, certainly ter whether counsel contem addressed Iowa Code provided remedy must be for termination plates actions punish involving purpose, not of parental rights, contempt of a situation not for the Court, default, compelling pay deprivation physical liberty. ing past The but of of Scott, part of the dis referring language careful- ment.” was Argersinger and payment full issue whether ly pointed it has to extend cussion of the out that refused punish- action. 1. We the issue of what other reserve contempt permissible ments are in a 598.23 § precluded incarceration,
of of upon arrears incarceration 598.23 sentence based 665.5, contempt under sections 598.15 and The paying past Code a willful in- 1950. This payment court held that full support provided in stallments of child a receipt after of an order to show cause but decree, convincing valid shown clear contempt hearing before the barred evidence, incar jail-door may despite stand of- ceration. also McNabb cites Harkins payment present fer even inability of or Harkins, 127 N.W.2d contemner, through indigency, Nys where this court relied on Therefore, payment. argu- make McNabb’s declaring trom purpose while goes reject ment too far and we it. contempt 598.15, action under section The Right IV. to Court-Appointed McNabb’s coercive, Code punitive. Counsel in this Certiorari Action. However, Ogden v. Iowa District application made McNabb to this Court, (Iowa 1981), N.W.2d for appointed after certiorari pointed 598.22, Code, out that section The finally granted. response The filed effectively had Nystrom. overruled attorney general the assistant de for the provision relevant of the statute declares: impor fendant district conceded the Prompt payment sums ap tance involved and that issue paid sections 598.11 598.21 pointment appellate at the level “is there shall be the essence of such orders necessary adequate pre fore to ensure an judgments may pursu- and the court act sentation of the merits to otherwise regardless ant to section 598.23 of wheth- ensure fairness.” Our order fundamental er paid the amounts default prior provided: contempt hearing.2 similarity Because the issues pertinent language of section presented, plaintiff’s it ordered I, quoted primarily punitive division appointment motion for court of counsel coercive, and only indirectly particularly case, any be submitted with the certiorari light viewed above-quoted portion ruling appointment allowing thereon Any section 598.22. language to the retroactively to be effective com- contrary in is now Harkins overruled. See proceeding. mencement of the certiorari Welsher, In Marriage re ordinarily It is of course true that (Iowa 1979). attorney fees cannot be allowed in the ab parent Thus delinquent who has child authority. sence or contractual support payments under a valid decree Wilson, provi Even would in contempt if he or she initiating to the sions for allowance gambled away a sizable inheritance that party nonpayment in a action for could past-due have been used *7 original apply of child do not in an subject impris installments and be to would certiorari action this court. Lane v. Ox 598.23, despite being onment under section 245, (Iowa 1974). berger, 224 N.W.2d 247-48 indigent brought when before court. The language employed opinions representing address But here counsel was ing coercive-type imprisonment, liberty indigent that con- unconditional interest of an carry keys prison counsel, temners jail “the of their in sentenced to without vindicat- pockets,” their own v. ing rights. Shillitani basic constitutional Certiorari 364, States, 368, 1531, 384 U.S. 86 S.Ct. was the review available. § 1534, 622, (1966), indigent’s 16 L.Ed.2d 626 has no The An to counsel at Code. application in indigent the case of an con- the district would be limited value temner serving punitive permitted sentence for if he she to were counsel past violation of a court A decree. section review and correct district court errors. paragraph part 2. This became of the Iowa § Code 1266, 23. Session, G.A., See 1970. 1970 63rd ch.
16
enactment,”
legislative
and a “fun-
further
may
appoint
mandate
The constitution
right,” foundationed
obli
rule of
with the concomitant
damental
ment of counsel
“
private
pay
constitutional mandate
‘that
fisc to
gation
part
on the
just
here,
without
when,
property
not be taken
shall
fees in the first instance
”
Lassiter,
at
U.S.
compensation.’
Id.
478. See
initiating party.
state is the
See
Const,
Const,
V;
I,
Iowa
art.
18
27-29,
§
amend.
2160,
101
452 U.S. at
S.Ct. at
68
(“Private property shall
taken for
650;
not be
Streater,
L.Ed.2d at
Little v.
just
compensation
public use without
1, —,
101
68 L.
”).
presented
issue
The same
....
627,
(1981); Scott,
Ed.2d
440 U.S. at
County, 224
1161-62,
Ferguson v. Pottawattamie
jailed indigent in district court. This re- The writ is sustained. The district court quirement in an appellate continues ruling judgment sentencing McNabb to rulings. review trial court’s imprisonment shall vacated the dis- California, Douglas 353, 355-58, v. decision, court. trict Pursuant to our above L.Ed.2d 813-15 long as as McNabb is he cannot be (1963); Bennett, Roberts v. 258 Iowa imprisoned pro- as a result of future (1966); 141 N.W.2d Weaver ceedings rep- unless counsel is Herrick, 796, 803, 140 N.W.2d resent him. WRIT SUSTAINED. application Counsel’s appointment court, case, this presents submitted with the except All Justices concur UHLENHOPP an issue we cannot avoid. To hold that McGIVERIN, JJ., part concur compensation paid must be when a statute in part. and dissent requires appointed, counsel to be but cannot UHLENHOPP, (concurring Justice be paid when the constitution mandates dissenting part). part, an appointment, incongruous. would be I concur in sustension of writ and in necessity Nor do we see any penalize opinion all of majority of the court MeNabb’s counsel because in this instance except part relating charging he undertook McNabb’s defense below I part with fees. think that request County Johnson Bar As- legislative the opinion involves a func filing petition sociation. After be- now My tion. are views stated in Webster application fore us he filed appointment, County Supervisors Flattery, Board of including transcript payment of costs. As 1978) (Iowa (Uhlen 268 N.W.2d implied reserving ruling, our order we hopp, J., concurring specially), English application should consider his as though we Missildine, (Iowa 311 N.W.2d 294 - 96 ruling were at the commencement of this 1981) J., concurring (Uhlenhopp, specially). proceeding. viewing issue, So it now is obvious that counsel should have been year Each the Iowa District has a pointed commands, as large the constitution number of cases of various lawyer logical appointee. kinds. In some cases incarceration is not There remains the fixing performs necessary; the contemner compensation. decisions, prior proceeding, in ab- the threat of the or after a implementing court, sence of statutes constitu- following levy lecture or rights, pre- tional many have hesitated to aof fine. But in cases incarceration scribe minimal aggravated standards followed. because of the con- See, e.g., Forst v. City, tempt get Sioux or order results. Numerous (Iowa 1973). Here, fortunately, indigent, especially we have of these contemners are an analogous guideline employ, in the domestic relations cases. 815.7,
section The Code. problem whether contemners present attorney, McNabb’s entitled to counsel in the incarceration City, They clearly Richard H. Zimmerman of Iowa cases. are entitled to counsel. is, pro- counsel for McNabb in problem going this certiorari who is to stand the ceeding, retroactively expense effective to his first contemners? of counsel supreme appearance attempting Traditionally represented bar has these challenge individuals, largely pro district court’s bono. In some ruling. public legal Pees shall be fixed places private organiza- district aid however, using statutory guidelines Now, of sec- tions have-done so. tion statute, The Code. See also Hulse v. payment the court holds that is to *9 county. attorney sought his fee from the funds. These cases public from
be made
numerous,
might
language
will be entitled to
which
court used
are
815.7
posi-
fees under section
minority
espousing
full undiscounted
the
construed as
cites,
aggregate
in the
however,
matter,
which the
tion.
fact
large amount of
talking
are
about a
appointment of
a statute authorized
money.
public
court stated:
counsel. This
Flattery,
the
pointed
As I
out in
elected
duly appointed. He acted
Hall was
Mr.
levying
of
taxes
legislators have
burden
by authority
The court
of
court.
saying how
corresponding
of
and the
express
to
man-
in obedience
acted
present
To
time
spent.
the revenue
Here,
is a
of
statute.
we think
date
a
legislature
not enacted
statute
has
obligation, fixing a lia-
statutory
case of
con-
authorizing counsel fees
bility
proper county
on
for the
I
hold that
the burden of
temners.
would
attorney.
ren-
The service
services of
individuals
remains
representing
those
part of
voluntary
not
on the
dered was
been,
bar,
always
has
on the
unless
where it
attorney, but it was
the court or the
leg-
Assembly enacts
and until the General
The court was bound
obedience to law.
I do
find
providing otherwise.
islation
requirement
with
comply
autho-
anything in the Constitution which
statute;
attorney, as an officer
and the
rep-
appropriate public funds for
rizes us to
court,
refuse to act.
could not
as we re-
in these cases.
Just
resentation
performed
act of service
Where an
government
quire the other two branches of
to direct mandate of
obedience
separation
powers doc-
to observe the
law,
tribunal
under
direction
part,
on
we should
trine with care
their
law is
enforcement of that
which the
scrupulously
observe the doctrine
on our
committed,
compensation to
reasonable
part.
own
is a
person
performs
who
that service
majority
jurisdictions,
A substantial
incident; otherwise,
necessary
the arm of
courts,
including federal
Dolan
United
accomplish
short to
its
the law will
too
States,
(5th
1965);
351 F.2d
Cir.
attorneys,
designs.
If
as officers
Dillon,
(9th
F.2d
Cir.
they
which
obligations
have
denied,
1965),
382 U.S.
cert.
they
professionally,
also have
must act
(1966);
Pleas
Miller v.
L.Ed.2d
entitled,
they
rights
which
are
1961),
ure,
(2nd
de
F.2d 283
Cir.
cert.
may justly
in common
they
which
claim
nied,
964, 82
8 L.Ed.2d
men in the business
life.
with other
States,
(1962);
1 Ct.Cl.
Nabb United
Among
of reasonable
rights,
these
(1S64),
attorney
deny
compensation
services rendered
treasury in
from the
the absence
profession
justly
to be considered.
their
Annot., 21
statute.
A.L.R.3d
judicial power,
in order
The exercise
com
(1968). This
has allowed such
law,
the common and statute
effectuate
juvenile proceed
in criminal and
pensation
necessary, and must
frequently becomes
appointment
ings where
authorized
statutes
incidentally. By virtue of such
exist
situation we
attorneys
for the accused —a
commissioners,
auditors,
power,
masters
Washington
do
have here. Hall v.
act,
&c,
chancery,
appointed
1850);
County,
(Iowa
Fergu
IQ
labor
professional
supreme
skill are his own.
tained
the
court of Vermont.
Wolcott,
37;
Vt.,
He
should not
to bestow them
Wolcott v.
Vermillion
Scam.,
court,
Knight,
Co. v.
gratuitously at the will
any
of the
any
more than should
other officer. But
Co.,
In the case of Whicher v. Cedar
the
that,
enough
it is
say
here to
whilst the
court
to the necessity
legisla-
adverts
of
statute requires
appoint
the court
to
provide
tive
interference
order to
for
this,
compensation
counsel in
like
a case
it
silent on
of this kind. We are of the
subject
opinion,
the
pay
requiring
for
act
of
his services.
It
the
the court
appoint
prisoner
leaves
counsel for
disposed
upon
that matter to be
the
quite
for
purpose,
sufficient
as
principles
the
of the
we
practice of the com-
not, however,
have shown.
If it were
mon
legal
law. There
is no
certainly
enjoined
duty
when the
per-
had been
exception
attorney,
as
an
so as to
counsel,
right
formed
the
to his
distinguish his case from
other
any
func-
pay for
prisoner
it had accrued. The
tionary.
deciding
In
the
case Whicher
being
pauper,
the liability attached to
Co.,1
ground,
Cedar
court took the
the county of which he
awas
citizen.
“that
there is no
providing
statute
for
right
compensa-
the attorney
compensation for services rendered in
tion
complete,
legis-
without further
county
cases. If
board of
com-
lative enactment. This
is not
case of
missioners
to compensate
choose
an attor-
voluntary services. It is a fundamental
ney
services,
objection.
for such
we see no
right,
rule of
established
the constitu-
But this is a matter
their
left to
discre-
States,
private
tion of the United
“that
tion.” We
position
cannot see how this
property
shall not be taken for
use
operate
could
plaintiff’s
denial of the
just compensation.”
The service
right of action.
It
seems to
admitted
required by competent
legal authori-
there, that
the attorney was entitled to
which,
rendered,
ty,
having been
the at-
pay for his services. That the commis-
torney
pay
is entitled to his
for it.
proper
sioners had
authority
allow his
fees;
Id.
476-78.
but
they might
it is decided that
not,
make the allowance or
their
dis-
Ferguson
juvenile
In
This,
think,
cretion.
is untenable.
If
attorneys
juveniles,
represent
acting
un-
the attorney was
compen-
entitled to his
section
der
Code of 1935: “The
sation,
law,
under the
and if
commis-
may,
filing
time after the
sioners were authorized
him
pay
for his
petition,
an
other
services, they had and could exercise no
person
represent
appear
suitable
discretionary power. They
officially
juve-
child.”
said
At
conclusion of the
by operation
existent only
statute
proceedings
nile
the court
allowed
at-
law. They
could
act under its au-
torneys
county,
their fees
which re-
case,
thority.
In
this
pay.
an
relying principal-
fused to
action in
plaintiff
Hall,
arise
does not
from
ly
county,
allowed the fees of the
contract;
express
necessarily saying:
but it is
given by the statute. The statute autho-
It
makes
true that section 3631
no
counsel,
rizes the appointment of
in de-
provision
the com-
as to
amount of
pauper
crime,
fence of a
when
accused
pensation
allowed
for the services
view of the
performed.
case the
compensation
rendered,
for the service
pointing
attorneys
delinquents
for the
obedience,
law,
to that
as an incident nec-
was acting
express
in obedience to
statu-
essarily
liability
and,
such,
attaches a
the serv-
obligation
tory authority,
county
ices to
properly
which is
part
county
arose on
chargeable with the maintenance of the
rendered.
services
services
These
proceeding. This view of the case is sus-
were
but in obe-
voluntarily,
not rendered
(Iowa 1848).
1.
dience statute. *11 contemners part obligation representation arises on stances bar, at least compensa- places heavy a burden county a reasonable public private legal organiza- aid where tion therefor. persuasive argument exist. A tions do not Assembly that to the General can made full at the court had the case bar In alleviated, ought perhaps the burden authority appoint- to make the representation responsibility for by adding appoint- services under ments. The That public defenders. to the functions attorneys performed ments were matter, however, legisla- for the policy ais enti- they therefore appointed, so tive branch. compensation therefor. tled to reasonable problems naturally desire to solve Courts Id. 278 N.W. 224 Iowa to them. Under our completely which come 224, 225. however, some separated powers, system public not hold that funds This court did coming necessitate problems to the courts a may pay attorneys, be used other branches the involvement of the authorizing appointment attor- statute contempt proceeding government. neys, Uhlenhopp, in Schmidt an area. (1966). that case a In statute which authorized both existed McGIVERIN, J., joins dissent. pointment attorneys payment 775.5, The Code their fees. §§ G.A., ch. § amended question in the case was whether indigent. This court
Schmidt in fact he was.
held on record that authorizing
I a agree a statute for an fac- attorney BANK, Appellant, SAVINGS CITIZENS legislative ing incarceration demonstrates a public
intent that the is liable for fee. however, contempt situation, the Gener- BANK, Appellee. CITY SAC STATE Assembly al has not seen fit to enact such statute. of Iowa. legis- themselves give The courts cannot expend public power lative funds 20, 1982. Jan. construing the Constitu- 18, 1982. Rehearing Feb. Denied prohibit unrepre- tion to incarceration of reasoning indigents. sented That course
would mean that when courts hold constitu- proce- requires
tional due certain process do,
dures, the courts frequently as courts procedures fund those because the
could them. Construction requires
Constitution function, judicial but Constitution step, funding second the constitutional-
ly measures, legislative is a func- Indigents charged
tion. with felonies long
federal court have had constitutional attorneys, generations, but for attorneys Congress acted, re-
until those
ceived no funds.