Okeechobee County v. JenningsOkeechobee County v. Jennings
We treat the appeal as a petition for certiorari, grant the writ and quash the order herein on the authority of Martin County v. Makemson, 464 So.2d 1281 (Fla. 4th DCA 1985); and we certify to the Supreme Court of Florida the same question as we did in that case as being of great public importance.
LETTS and GLICKSTEIN, JJ., concur.
ANSTEAD, C.J., concurs specially with opinion.
ANSTEAD, Chief Judge, concurring specially.
This is an appeal from an order of the trial court holding that
In the court below the lawyers who originally accepted appointment as special public defenders came to the court in the midst of the proceedings and asked that the statutory cap on fees be relaxed. In essence, the lawyers contended that because of the complexity of the cases and the necessity to devote inordinate amounts of time to prepare and try the cases, to continue with representation would result in financial ruination to them. They asserted that they were trapped between the choices of continuing and suffering the disastrous financial consеquences or withdrawing and leaving the defendants without counsel. After taking evidence, including expert testimony that lawyers were not generally available in the area to take such complex cases for the statutory fees allowed, the trial court entered an order voiding the statutory cap for the purpose of assessing fees in these cases. The court set out its reasons in a written order:
This Court bases its decision upon the following findings:
Cases of this type, that is trafficking controlled substance and conspiracy to trafficking controlled substance are characterized as some of the most complex criminal defense cases. This particular case has over one hundred and thirty state‘s witnesses listed to testify or may possibly testify. There are some four thousand pages of the State‘s evidence that may be introduced. There are eight defendants currently in the case. Most of the witnesses should be deposed by each defense counsel or at least interviewed by them. The case involves the use of interception of oral communicаtion by use of body bugs, informers, some investigation by Federal, both Federal and State agencies. The defense of entrapment has been asserted. Currently it is estimated that over six weeks at approximately four days a week and four hours per day will be required to select a jury in the case. To this point, there have been four weeks of evening motion sessions at three hours per day, two to three times a week. (As of February 25, 1983). It is estimated that the trial will take between four to eight weeks, once the evidence starts. That would be approximately four days a week six hours in court time per day. Discovery and pre-trial time has taken between forty and one hundred sixty five hours per lawyer. As рer defense lawyer. It is extremely unlikely that any competent lawyer would accept representing a defendant in this case as special public defender for a fee of twenty five hundred dollars or less. If a lawyer knows that the fee in the case would be limited to twenty five hundred dollars or less, and that lawyer is not independently wealthy, that competent counsel could not be found who would accept representation as special public defender in this case either from the outset of the case or from jury selection forward. A reasonable expected fee in this case, for a private lawyer, would be an amount between thirty and forty thousand dollars, exclusive of out of court costs or out of pocket costs.
In Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla. 1981), the facial validity of
We further hold that Ross has failed to demonstrate that an indigent defendant‘s right to counsеl has been impinged upon in any way by this statute. Indigent defendants are not denied counsel by
section 925.036 . At common law, it was the professional obligation of the lawyer toaccept an assignment to represent an indigent party when directed to do so by the court, but there was no right to compensation from the government or any other source for representation of the poor. In the Interest of D.B., 385 So.2d 83 (Fla. 1980). Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which established a fundamental constitutional right to counsel in various classes of cases, questions have arisen as to whether lawyers should be relieved of their historical duty to represent the poor. Questions have even arisen as to whether requiring a member of the Bar to represent an indigent with no сompensation or minimum compensation amounts to a taking of property without due process of law. We have held that lawyers should not be completely relieved of their responsibility to represent the poor although we have recognized the concomitant obligation of the government to provide legal representation when such is constitutionally required, and we have held that requiring a lawyer to perform his historical professional responsibility to represent the poor does not constitute an unfair “taking” of private property in violation of due process. In the Interest of D.B. Unless it is demonstrated that the maximum amounts designated for representation in criminal сases by
section 925.036 are so unreasonably insufficient as to make it impossible for the courts to appoint competent counsel to represent indigent defendants, we cannot say thatsection 925.036 violates the sixth amendment right to counsel. In the present case, the defendant represented by Ross was not denied his sixth amendment right to representation bysection 925.036 , nor is it contended that he was denied such right.
402 So.2d at 414-15. A fourth justiсe concurred in the result but reserved the right to reconsider the right to counsel issue “should it be demonstrated that the monetary limitation placed by the legislature on the compensation paid to court appointed attorneys representing indigent criminal defendants be so unreasonable as to make it impossible to secure effеctive counsel to those individuals.” Id. at 415 (Sundberg, Chief Justice, concurring specially). Three justices dissented and would have approved a result permitting the assessment of fees above the statutory limits in cases involving such extraordinary circumstances that the amount of time required to be spent by the appointed lawyer on the case would render the fee allowed under the statute a meaningless token.2
There is a division of authority in other jurisdictions as to the validity of similar statutory limitations on fees. Some states, under circumstances similar to those involved herein, have struck down statutory caps on attorneys’ fees. In People ex rel. Conn v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337 (1966), the court held that fee limits could be unconstitutional in extraordinary circumstаnces. In such cases, the courts have the inherent power to abrogate such limits. “[T]he statute cannot constitutionally be applied where it appears, as here, that appointed counsel cannot continue to serve because they are suffering an extreme, if not ruinous, loss of practice and income and must exрend large out-of-pocket sums in the course of trial.” Id. at 341. Randolph was adopted in Bias v. State, 568 P.2d 1269 (Okla. 1977); Daines v. Markoff, 92 Nev. 582, 555 P.2d 490 (1976); and Application of Armani, 83 Misc.2d 252, 371 N.Y.S.2d 563 (1975).
In Smith v. State, 118 N.H. 764, 394 A.2d 834 (1978), the New Hampshire Supreme Court held that the Legislature violated the separation of powers doctrine by establishing a fee limit because the determination of fees is solely a judicial responsibility.
The obligations and responsibilities of the bar are matters of judicial concеrn alone. See Schware v. Bd. of Bar Examiners, 353 U.S. 232, 248, 77 S.Ct. 752 [761], 1 L.Ed.2d 796 (1957) (Frankfurter,
J., concurring); N.H. Judicial Council 5th Report 20-21 (1954); State v. Rush, 46 N.J. 399, 411, 217 A.2d 441, 447 (1966); In re Lacey, 11 Cal.2d 699, 701, 81 P.2d 935, 936 (1938). Since the obligation to represent indigent defendants is an an obligation springing from judicial authority, so too is the determination of reasonable compensation for court-appointed attorneys a matter for judicial determination. The power to regulate officers of the court is a power inherent in the judicial branch. Implicit in that power is the authority to fix reasonable compensation rates for court-appointed attorneys.
Id. at 838-39. Subsequently, in State v. Robinson, 123 N.H. 665, 465 A.2d 1214 (1983), the court amended a supreme court rule, formulated in response to Smith, to include an exception for unusual circumstances. The Federal statute also provides for an abrogation of fee limits for extraordinary circumstances.
In states that have no statute or court rule, the traditional rule has been that attorneys must represent indigent criminal defendants without compensation. Sparks v. Parker, 368 So.2d 528 (Ala. 1979). In State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980), the court held that a $350 statutory maximum fee for appointed counsel was constitutional because each attorney had a duty to provide his services without compensation. This result was reached by similar reasoning in Keene v. Jackson County, 3 Or. App. 551, 474 P.2d 777 (1970). Some state courts however, have refusеd to follow this rule. See State ex rel. Partain v. Oakley, 159 W. Va. 805, 227 S.E.2d 314 (1976); and State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966). Thus it appears that the states are in disagreement on whether attorneys need be paid at all for their representation of indigent defendants, and, if so, whether a fee limit may be abrogated under any circumstances.
I believe that it has been sufficiently demonstrated in the record below that the maximum amounts designated by statute for representation in these cases are so unreasonably insufficient as to make it impossible for the trial court to appoint competent counsel for the indigents involved. See Bridges. Hence, I believe this case meets the criteria for the exception set out in Bridges for avoiding the statutory cap and I would approve the decision of the trial court under the narrow facts presented. While I am in complete concurrence with the supreme court‘s observations in Bridges as to the obligation of lawyers to represent the indigent, I am also cognizant of the great variations in complexity, and attendant time demands, involved in criminal cases to which lawyers may be assigned. In my view the present statute‘s failure to recognize these distinctions and to deal with them in a realistic and reasonable manner, as exemplified in the case at hand, constitutes a major flaw in the overall scheme.
The stakes, of course, in the form of fines, imprisonment, and, in some cases even death, are at their highest in criminal proceedings and the lawyer‘s responsibility correspondingly greater. Under our adversary system of justice the role of the defendant‘s advocate is critical in assuring a just result in each case to the maximum extent possible under the law. Under the adversary system, with the exception of certain fundamental responsibilities placed on the prosecutor and the court, we rely on the defendant, acting through his counsel, to discover and present all relevant defensive and mitigating circumstances to the adjudicators.3
Unlike medicine or engineering or plumbing, the art or science of lawyering relies a great deal more on individual personality and motivatiоn for success. A lawyer who “doesn‘t have his heart in it” can lose a jury trial in a hurry. In most instances, a lawyer‘s professional ethics and personal concern for justice may motivate him to devote whatever time and effort is necessary in the individual case. Indeed, that is what keeps the present system afloat. But it would be foolish to ignore the vеry real possibility that a lawyer may not be capable of properly balancing the obligation to expend the proper amount of time in an appointed criminal matter where the fees involved are nominal, with his personal concerns to earn a decent living by devoting his time to matters wherein he will be reasonably compensated. The indigent client, of course, will be the one to suffer the consequences if the balancing job is not tilted in his favor. In this case the trial court has concluded that just such a dilemma existed and it acted to relieve the dilemma by allowing a greater fee.
Government provided public defenders, of course, ordinarily represent indigents. The problem arises, only when, as here, conflicts between codefendants require other counsel to be appointed. One solution to this problem would be to appoint public defenders from neighboring circuits, as opposed to private lawyers, and have those public defenders serve on special assignment for the time nеcessary. This is already the practice when local prosecutors are unable to act in a particular case because of conflict or other reasons, and another prosecutor, usually one from another circuit, is appointed. Of course, budgetary limitations and travel expense may limit the efficacy оf this solution. Another possible solution may be to base the statutory fees on an hourly rate rather than a cap for the total fee. Such a scheme could keep the hourly rate modest but permit lawyers to receive a fee based on the necessarily
I recognize that there are no easy answers. But I think we can do better, and certainly should try.
BY ORDER OF THE COURT:
ORDERED that the Motion filed March 13, 1985 by Appellee, Richard Lee Dennis, to withhold the issuance of the Mandate pending Supreme Court review is granted, conditioned upon said appellee, оr any other party, initiating proceedings in the Supreme Court of Florida.
ORDERED that the March 18, 1985 Stipulated Motion to remove Richard D. Kibbey, Esquire, as a party appellee to these proceedings is granted.
ORDERED that the March 28, 1985 Motion to remove Robert G. Udell, Esquire, as a party appellee to these proceedings is hereby granted.
Notes
This Court has long recognized that when a state brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the 14th Amendment‘s due process guarantee of fundamental fairness, derives from thе belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the advеrsary process, and that a criminal trial is fundamentally unfair if the state proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. To implement this principle, we have focused on identifying the “basic tools of an adequate defense or appeal,” and we have required that such tools be provided to those defendants who cannot afford to pay for them.
Ake v. Oklahoma, ___ U.S. ___, 105 S.Ct. 1087, 84 L.Ed.2d 53, opinion issued February 26, 1985.