Ned PILLERSDORF, Derek Gordon and Jerry Anderson, Appellants, v. DEPARTMENT OF PUBLIC ADVOCACY, Commonwealth of Kentucky, Appellee.
No. 92-SC-449-DG.
Supreme Court of Kentucky.
Oct. 27, 1994.
Rehearing Denied Feb. 16, 1995.
890 S.W.2d 616
Joseph Vincent Aprile, II, Dept. of Public Advocacy, Frankfort, for appellee.
STEPHENS, Chief Justice.
The present action provides yet another twist in the ongoing chronicle concerning constitutionally mandated representation of indigent defendants and “who must pay.” See McCracken County Fiscal Court v. Graves (92-SC-762-TG) and Department for Public Advocacy v. Shadoan, 885 S.W.2d 307 (1994). The issue in this case concerns the
FACTS
In September of 1986 Clawvern Jacobs was arrested and incarcerated on a capital murder charge. He was indicted by the Knott County Grand Jury for murder and other offenses in May, 1987. The record shows that at least from February, 1987, defendant Jacobs was represented pursuant to
On July 9, 1987, Jacobs’ counsel informed the Knott Circuit Court, Honorable John R. Morgan presiding, that based upon information gained from a psychological evaluation of the defendant by Dr. Elmer Maggard, they believed Jacobs to be “psychotic, delusional, and incompetent.” The attorneys moved for a competency hearing on that issue. The motion was granted over Jacobs’ strong objections. Four days later, Jacobs mailed a letter to DPA requesting the discharge of his attorneys who had “plead [him] insane” and “sold out [his] defense,” and asked that new counsel be appointed. At the competency hearing on October 20, 1987, Jacobs’ counsel tendered the letter to be filed with the record. During the same hearing, the Knott Circuit Court declared Jacobs to be incompetent to stand trial, and for that reason, deferred ruling on his request to discharge his counsel.
Less than one year later, after a period of hospitalization, evaluation, and various competency hearings, the trial court declared Jacobs to be competent to stand trial, and set a trial date of November 21, 1988. The issue of Jacobs’ outstanding request to discharge his defense attorneys was considered by the Court at a pretrial hearing on October 21, 1988. Both Jacobs and counsel Walker, who wished to remain on the case,1 addressed the court at that time. In an order entered October 26, 1988, the trial court directed DPA to appoint new counsel for Jacobs within ten days.
On November 1, 1988, general counsel for DPA, J. Vincent Aprile, II, indicated in a letter to Judge Morgan the Department‘s intent to obtain substitute counsel within the time period specified by the order. The letter also expressed the general counsel‘s understanding that, presumably, the judge was directing the agency to “assign substitute counsel” pursuant to
On November 23, 1988, Judge Morgan entered an order formally removing Mr. Walker as defendant‘s counsel. It is not known if this order contained a good cause finding. On November 29, 1988, the Knott County Commonwealth‘s Attorney moved the trial court to issue a show cause order in view of DPA‘s “contempt of the court‘s order of October 26, 1988” to appoint substitute counsel. On the same day, assistant public advocate Walker filed a motion for reconsideration of Judge Morgan‘s November 23, 1988, order removing him as counsel for Jacobs. A show cause hearing was held on December 13, 1988. DPA‘s general counsel filed a response expressing his agency‘s conflict in appointing new counsel at the same time their assistant public advocate‘s motion for reconsideration was under advisement by the trial court, and again, raised the issue of good cause. The response also included an affidavit by DPA‘s Personnel Administrator establishing that its Defense Service Division had suffered numerous resignations within the past six months, a circumstance which
Only six days later, on December 19, 1988, the Knott Circuit Court entered an order, sua sponte, stating that because the Department for Public Advocacy was “unable to provide counsel,” the court was appointing Ned Pillersdorf and Derek Gordon to represent Jacobs. The order further declared that DPA‘s “$2,500.00 cap” on compensation for such appointments “is arbitrary and in violation of appointed counsel‘s involuntary servitude rights . . .” Accordingly, the court directed that newly appointed counsel would be compensated by the Department for Public Advocacy and the Kentucky State Treasury at the maximum statutory rate,2 with no cap, along with reasonable and necessary expenses. DPA filed a motion for reconsideration of this order which the trial court overruled.
On April 18, 1989, the Knott Circuit Court sustained Mr. Pillersdorf‘s motion to withdraw as Jacob‘s counsel and appointed Jerry Anderson to replace him as co-counsel at the compensation rate reflected in its order of December 19, 1988.
By September 20, 1990, the three appellants had submitted compensation claims to the Department for Public Advocacy in the following amounts: Pillersdorf—$962.00; Gordon—$10,234.01 and Anderson—$7,231.25. In an order entered June 7, 1990, the court approved the claims and ordered DPA to pay them within twenty days. In an order entered June 26, 1990, the court upheld its previous order, and also entered a finding that statutory “special circumstances” existed in this case.
The Department for Public Advocacy filed a timely appeal in the Court of Appeals. A three-member Court of Appeals panel reversed the Knott Circuit Court, holding that “the circuit court failed to make findings of fact sufficient to sustain the order” in question. Counsel for appellants herein petitioned the Court of Appeals to hear the case en banc or, in the alternative, to have the original panel rehear the case. Both requests were denied. Appellants filed with this Court a motion for discretionary review, which we granted.
WHETHER THE KNOTT CIRCUIT COURT LACKED AUTHORITY TO APPOINT APPELLANTS AS TRIAL COUNSEL FOR INDIGENT DEFENDANT JACOBS AND ORDER THE DEPARTMENT FOR PUBLIC ADVOCACY TO COMPENSATE APPELLANTS AT STATUTORY RATES WITH NO CAP.
It would only be forthright to begin our discussion of this issue by clarifying, in advance, that its specific resolution does not rest upon constitutional analysis. This is not a separation of powers case because, under these facts, no ultimate power of the judiciary (or any other branch of government) is in question. Neither is this case about involuntary servitude. There was nothing involuntary about appellants’ service as counsel, and appellants will not remain uncompensated. This case is about the relevant provisions of the Kentucky Public Defender Act,
In Bradshaw v. Ball, Ky., 487 S.W.2d 294 (1972), this Court considered the question of whether the Commonwealth was required to compensate court-appointed attorneys repre-
In agreement with the trial court we found that such compensation is constitutionally mandated. We held:
It is in the public interest that the administration of criminal justice proceed fairly, impartially, expeditiously, and efficiently. Therefore, it appears elemental that the public interest in the enforcement of criminal laws and the constitutional right of the indigent defendant to counsel can be satisfied only by requiring the state to furnish the indigent a competent attorney whose service does not unconstitutionally deprive him of his property without just compensation.
Id. at 298. (Emphasis in original). Of equal consequence for the present case, the Court also addressed the separation of powers concern of where, in government, the practical task of providing effective counsel lies. Echoing the fundamental concept of the doctrine of separation of powers contained in No. 78 of The Federalist Papers,3 we declared:
In the context presented, we are persuaded that it is the duty of the executive department to enforce the criminal laws, and it is the duty of the legislative department to appropriate sufficient funds to enforce the laws which they have enacted. The proper duty of the judiciary, in the constitutionally ideal sense, is neither to enforce laws nor appropriate money. The judiciary‘s reason for existence is to adjudicate.
Id. at 299. (Emphasis in original).
In 1972, the year of the Bradshaw decision, the General Assembly enacted the Kentucky Public Defender Act,
This opinion shall focus on
KRS CHAPTER 31
The complexity of the system of representation established by
A. County Fiscal Court Involvement Plans
The most basic breakdown of the numerous schemes involves whether or not a county, through its fiscal court, chooses to become involved by implementing a local plan of representation under
When a county fiscal court elects local involvement, the procedures by which the program it chooses shall be administered are set forth in
B. Strictly DPA Plans—No County Involvement
Under the Act, DPA is charged with the duty to ensure that services are provided to indigents in all 120 counties of the Commonwealth.
Various district public advocacy systems may be established to service a “county containing less than ten (10) circuit judges or a group of counties . . .”
The Present Case
Before addressing the merits of this case, one thought bears repeating: the particular plan under which any single
Since the Knott County Fiscal Court has declined to provide local legal defense services under
Applying the law to the sequence of events evidenced by the record, it is clear that the Knott Circuit Court acted outside the statutory framework which governs its authority and jurisdiction in this case. While Judge Morgan‘s order is understandable in light of the delays in the case up to that point, the court simply did not have the prerogative, as the Court of Appeals stated, “to intrude as it did into the appointment or assignment process of the Department.” What follows explains why.
Substitution of Counsel
The facts prompting the challenged order, without question, raised the issue of substitution of counsel. The statute which governs this circumstance is
Assignment of substitute attorney.—At any stage, including appeal or other post-conviction proceeding, the public advocate may for good cause assign a substitute attorney. The substitute attorney has the same functions with respect to the needy person as the attorney for whom he is substituted. The court shall prescribe reasonable compensation for him and approve the expenses necessarily incurred by him in defense of the needy person, and shall if state compensation is desired, forward the request to the Office for Public Advocacy. (Emphasis added).
Here, defendant Jacobs had requested new counsel and continued to persist in his request for over one year. On the other hand, while there is evidence in the record that DPA was having difficulty finding substitute counsel due to vacancies in the Department and the $2,500.00 cap on counsel fees, there is also clear evidence that Jacobs rejected and refused to cooperate with the various other staff attorneys DPA did send to talk with him. Further, when asked by the Court to explain his behavior, for the most part, Jacobs responded with delusional complaints.6 In short, it is clear there was at least a legitimate dispute as to whether “good cause” to substitute counsel existed, as
Although the statute does not explicitly state, we believe that whether “good cause” exists is a determination which lies within the discretion of the trial court. However, our review of the record fails to disclose any clear determination of good cause by the judge, a finding which under
- 10/26/88—Order that DPA provide new counsel within ten days—no good cause determination.
- 11/23/88—Order formally removing DPA counsel Walker from the case. While this order is missing from the record, neither party claims that the order contained a good cause finding.
- 12/13/88—Knott Circuit Court calendar documenting show cause hearing, at which trial court overruled Walker‘s motion for reconsideration of his removal as counsel and the Commonwealth withdrew its show cause motion—no good cause determination.
- 12/19/88—Order appointing appellants as defendant‘s counsel and setting fees—no good cause finding.
- 1/26/89—Amended Order in response to DPA‘s motion for reconsideration—mention of defendant‘s speedy trial right in light of DPA‘s “fail[ure] to provide counsel within a reasonable time . . .”
From what appears in the record, the only evidence of good cause-type thinking on the part of the trial court is the “speedy trial” language which appears in the last order cited. We need not decide the adequacy of this brief reference to defendant‘s speedy trial right as a determination of good cause,
This is not to suggest that absolutely no circumstance exists in which a trial court, as a final recourse, could invoke its inherent judicial power, step outside the statutory framework and appoint counsel on its own. Appellants raise this question in their brief: “If the Public Advocate chooses not to supply attorneys when needed, or cannot do so, or assigns incompetent lawyers or an attorney with a conflict of interest, is a circuit judge to understand he is powerless to correct the situation?” Without hesitation, the answer is no.
However, as the Court of Appeals correctly suggested, it must be a last resort alternative. “Only then, when the Department fails or refuses to act, and all other means are exhausted, may the circuit court go outside of the statutory framework to make such appointments.” In this case, for example, had there been a definitive determination of good cause and had the trial court concluded, after a show cause hearing and finding of contempt, that DPA was able, but refusing to provide counsel, a different result might well need to be obtained. Or had there been sufficient facts to conclude that DPA was literally unable to assign substitute counsel, judicial appointment of appellants would have been justifiable.
What is key is that under these suggested scenarios, a trial court, having done everything in its power to operate within the statute, could rightly exercise its inherent authority to provide effective counsel, and make the appointment. What is manifestly critical, however, is that a trial court proceed according to the mandates of the statute until there is simply no other option.
The Setting of Fees
The challenged order, which improperly appointed appellants as counsel, further abridged established authority by setting counsel fees. In the December 19, 1988, order, the Knott Circuit Court held that DPA‘s “$2,500.00 cap on compensation for such appointments” is “arbitrary and in violation of appointed counsels [sic] involuntary servitude rights, as well as the 6th, 8th, and 14th Amendment Rights of the defendant to have competent counsel.” The order further directed “The Department of Public Advocacy and the Kentucky State Treasury” to compensate appellants “at the rate of $35.00 per hour for in court time, and $25.00 per hour for out of court time, with no cap.” As mentioned before, a later order found the existence of “special circumstances.” Neither order provides an indication of the source of authority for the court‘s directive awarding fees, and appellants have pointed to none which supports it. Because there is law to the contrary, the order must be reversed on this ground, as well.
Once again, both case law and
In a case factually similar to the present case, Department for Human Resources v. Paulson, Ky., 622 S.W.2d 508 (1981), the Court of Appeals reaffirmed this principle. Paulson involved attorneys representing indigent parents in a parental rights termination action. The Fayette Circuit Court awarded attorney‘s fees which exceeded the $300.00 statutory fee set by
The Court of Appeals reversed, reiterating the constitutional break-down of the government‘s responsibility to compensate attorneys who provide indigent representation. In language strikingly applicable to the case before us, it stated:
We conclude that [the setting of fees] was the proper and appropriate function of the legislature, and that by limiting the fee to this amount, neither appellee will be unconstitutionally deprived of his property or time. Acceptance of the appointment was voluntary, and the appellees had statutory notice of the limited fee.
We could not have said it better, ourselves.
Similarly supportive of the outcome, as well as the “theme” of this case—that trial courts must operate within the scheme of the statute—is the fact that nowhere in
This is a
Thus, by setting the fees appellants were to be paid and by ordering DPA to pay them, the Knott Circuit Court clearly failed to operate within the statutory compensation procedure applicable to Knott County. From the language and substance of its orders, it is fair to suggest that the authority under which the court intended to operate lies in
At the risk of redundancy to a fault, we again stress a guiding benchmark to the operation of
Even if it could apply, the trial court would still lack the authority to order DPA to pay the fees claimed by appellants.
We offer a final thought to the readily conceivable protest that
It is the obligation of this Court to interpret the law in difficult cases and in the face of what may appear to be harsh results. In this case,
For the above stated reasons, the decision of the Court of Appeals is affirmed. The order of the Knott Circuit Court directing the Department of Public Advocacy to compensate appellants in the amounts stated therein is hereby reversed on the ground that the trial court lacked the authority and jurisdiction to issue it. Pursuant to the mandate of Bradshaw, that attorneys representing indigent defendants not remain uncompensated, this case is referred to the Public Advocate of the Commonwealth of Kentucky for a determination of reasonable state compensation in accordance with DPA guidelines and
LAMBERT, REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur.
SHERRY BRASHEAR, Special Justice, and LEIBSON, J., dissent in a separate dissenting opinion.
STUMBO, J., not sitting.
SHERRY BRASHEAR, Special Justice, and LEIBSON, Justice, dissenting.
Respectfully, we dissent. For the reasons set out below, we would reverse the Court of Appeals and affirm the Knott Circuit Court.
The substantive issue in this appeal, to borrow from the language of both the majority of this court and that of the Court of Appeals, is whether Knott Circuit Judge Morgan had the prerogative to intrude upon the function of providing counsel to indigent criminal defendants assigned to the Department of Public Advocacy (hereinafter DPA) by the legislature‘s enactment of
The members of the majority have allowed themselves to be beguiled by the attractive convolutions of
Though the majority denies that this case concerns either the separation of powers doctrine or the ultimate power of the judiciary, it frequently and repeatedly alludes to the discussion of these concepts in Bradshaw v. Ball, Ky., 487 S.W.2d 294 (1972). Bradshaw states “[t]he judiciary‘s reason for existence is to adjudicate,” not to “appropriate money,” Id. at 294 (emphasis original), but it does not exclude the power and responsibility inherent in the judiciary to do all that is necessary to carry out this adjudicatory power. This includes mandating payment from the State Treasury when such payment is essen-
While we believe the facts of this case are more critical to its determination than any judicial philosophy, we must also acknowledge that the integrity of the judiciary as one of the three coequal branches of our government lies at the heart of the matter. For it is the independence of the judiciary that empowered Judge Morgan to appoint appellants and order they be paid.
In Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court located in the U.S. Constitution a mandate that those accused of crimes be provided counsel. Nine years later, in Bradshaw v. Ball, supra, we concluded that the Kentucky Constitution likewise requires that counsel for indigent criminal defendants be compensated for their representation. Despite finding the system of court-appointed, uncompensated counsel an unconstitutional deprivation of property, we reversed the court‘s payment of fees. But Bradshaw v. Ball was decided “[i]n the context presented,” and critical to that “context” was the court‘s finding that “the Kentucky Public Defender Act of 1972 appears to provide means adequate to observe the required standards, if that act is properly construed, administered, and promptly put into operation.” 487 S.W.2d at 299. (Emphasis added). In this case the coequal branches of government failed to carry out these necessary contingencies expressed in Bradshaw v. Ball. Implicitly, the trial court has so found and the record supports such a finding. The judiciary then must exercise its inherent power as necessary to carry out its “reason for existence,” its assigned function “to adjudicate” (Bradshaw v. Ball, as quoted, supra). Under Bradshaw v. Ball the attorneys then appointed must be paid a reasonable fee for their services, since otherwise “the burden of such service [is] a substantial deprivation of property and constitutionally infirm.” Id., at 298.
The majority in this case implies that the separation of powers doctrine requires us to abdicate wholly to the legislature in the appointment and payment of counsel for accused indigents. In fact, the separation doctrine requires the opposite: it demands that the judiciary maintain the coequal status conferred by
In recent years, many courts have construed as inherent in the constitutional grant of power to the judiciary the power both to appoint counsel for indigent criminal defendants and to compel payment of their fees. See Young v. United States, 481 U.S. 787 (1987) (to vindicate their authority, courts have inherent authority to appoint counsel to prosecute contempt actions); Annot., 59 A.L.R.3rd 569 (1980 & Supp.1993) (collecting cases on the inherent power of courts to compel expenditure of funds for judicial purposes). Many courts have determined that the inherent power of the judiciary to ensure the orderly administration of justice permits them not
There is much to deplore and much with which to sympathize in the situation that confronted Knott Circuit Judge Morgan in December of 1988. Clawvern Jacobs, accused of capital murder, had been jailed in September of 1986. He was not indicted, however, until some eight months later, in May of 1987. Prior to the indictment, two assistant public advocates had undertaken to represent Jacobs. When they moved for a competency hearing, in July of 1987, he requested their discharge. After the hearing, in October of 1987, Judge Morgan declared Jacobs incompetent to stand trial. He did not entertain Jacobs’ request to discharge his counsel until a year later, after evaluations and subsequent hearings convinced the judge of Jacobs’ competency, and a trial had been set for November 21, 1988.
At a pretrial conference on October 21, 1988, Judge Morgan took up Jacobs’ request to discharge his defense attorneys, which had been reiterated by Jacobs in court at the final competency hearing in August of 1988. A few days later, he ordered the DPA to appoint new counsel within ten days. When, over a month later, substitute counsel had not been assigned, the prosecution moved for a show cause order. At the same time, one of Jacobs’ defense attorneys sought to have the order removing him set aside. Further, at the show cause hearing, on December 13, 1988, the DPA showed opposition to the removal of the attorney whose discharge Jacobs had demanded and filed an affidavit demonstrating the difficulty of obtaining replacement counsel from within the Department.
No wonder Judge Morgan took the matter into his own hands by appointing counsel for Jacobs and prescribing how and by whom they would be paid. Jacobs had been incarcerated for over two years and had, finally, after a year, been found competent to stand trial. Jacobs denounced the DPA lawyers as having “pled [him] insane” against his wishes and tape recorded him without his knowledge. Moreover, Jacobs asked his lawyers to “file a motion for a speedy trial,” and they did not. Such a motion, if filed, required Jacobs to be brought to trial within 180 days.
Judge Morgan was left with no choice but to exercise his inherent power as a judicial officer to ensure the orderly administration of justice in his court, both for Jacobs and for the citizens of the Commonwealth whose peace and dignity Jacobs was accused of having disrupted. The Judge‘s authority to do as he did is a natural incident to the powers vested in the Court of Justice by
Finally, in directing that appellant‘s attorney fees be paid Judge Morgan did not, as the majority implies, arrogate to himself the legislative function of appropriating funds to enforce the laws. The appropriation had already been made by the legislature in funds budgeted to the DPA. Judge Morgan merely ordered payment from funds already earmarked by the executive and legislative branches for the purpose for which Judge Morgan directed they be paid: representation of indigent criminal defendants. The fact the fees exceeded the statutory cap does not render the judge‘s order a controversion of the separation of powers. He wielded a power possessed by all trial judges that exists apart from
COMMONWEALTH of Kentucky, TRANSPORTATION CABINET, Appellant, v. Ronnie BLACKBURN; Robert L. Whittaker, Acting Director of Special Fund; and Workers’ Compensation Board, Appellees.
Robert L. WHITTAKER, Acting Director of Special Fund, Appellant, v. Ronnie BLACKBURN; Commonwealth of Kentucky, Transportation Cabinet; Ronald W. May, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
Nos. 94-SC-390-WC, 94-SC-444-WC.
Supreme Court of Kentucky.
Nov. 23, 1994.
As Modified on Denial of Rehearing Feb. 16, 1995.