State v. CitizenState v. Citizen
These consolidated cases present the issue of funding for indigent defendants in
FACTS AND PROCEDURAL HISTORY
The instant direct appeal arises out of two unrelated Calcasieu Parish killings. After a Calcasieu Parish grand jury returned a first degree murder indictment on April 11, 2002 against Benjamin Tonguis, the trial court appointed the Chief Public Defender for the parish, Ronald Ware, to represent him. Ware informed the court of his prohibitive caseload, and the court removed him from the case and sought to appoint solo practitioner Phyllis E. Mann.1 On December 10, 2003, counsel filed a document captioned as a Motion to Determine Source of Funds to Provide Competent Defense. Counsel also requested that the court adopt into the record a transcript from a 2001 hearing in three consolidated prior cases in which the trial court could not readily find funding for court appointed attorneys in private practice.2 The trial court set counsel‘s funding motion for a hearing and granted her request to supplement the record.
On January 30, 2004, the trial court consolidated the Tonguis case with that of Adrian Shannondoah Citizen, another Calcasieu Parish first-degree murder defendant indicted on October 10, 2002, seeking to be represented by appointed counsel Phyllis Mann.3 Also on that date, the trial court held a hearing on the funding issues raised by Mann. At this hearing, counsel for the Calcasieu Parish Police Jury (the “CPPJ“) filed a motion to dismiss his client as a party to Mann‘s motion, as in his view
During that October 2001 hearing, counsel for the CPPJ explained that the current system for maintaining the criminal justice system in Calcasieu Parish, apparently unique among the 64 parishes in Louisiana, evolved in 1985 after voters in the parish approved an ad valorem tax specifically dedicated to maintaining the Criminal Court Fund, established pursuant to
However, by the time of the January 30, 2004, hearing, the attitude of the CPPJ had apparently changed. The parish attorney explained that the CPPJ had concluded that since voters in Calcasieu Parish had approved the ad valorem tax, by far the biggest component of the Criminal Court Fund, specifically for the purpose of maintaining the court system and the District Attorney‘s Office, the CPPJ had no obligation, or even the authority, to divert some of that tax money to criminal defense. Chief Public Defender Ware underscored the problem facing the court by stating that his office currently owed close to $47,000 for capital defense and expected to owe at least an additional $150,000 in upcoming cases which he had already committed to fund. He further informed the court that his office generated approximately $5,550 per month. Despite the apparent intransigence of the CPPJ, Prosecutor Wayne Frey suggested that the court pay defense counsel from the surplus monies contained in the CPPJ‘s Criminal Court Fund (provided the parties agreed upon a funding cap), and the court agreed to propose the idea to his fellow judges and to go before the CPPJ with a funding
On April 27, 2004, after meeting no success with the judges and district attorney, the court found that the CPPJ was the only possible source of adequate funding. The court went on to find
Both the State and the CPPJ have appealed to this Court the trial court‘s declaration of unconstitutionality, see
DISCUSSION
Background
A defendant is entitled to the assistance of counsel in criminal proceedings.
Lower courts have interpreted the constitutional mandate for “uniformity” in
The current legislative system set out in an attempt to meet the constitutional command of
In 1993, this Court addressed the issue of indigent defense funding in State v. Peart, 621 So.2d 780, 785 (La.1993). At the time Peart was decided,
If legislative action is not forthcoming and indigent defense reform does not take place, this Court, in the exercise of its constitutional and inherent power and supervisory jurisdiction, may find it necessary to employ the more intrusive and specific measures it has thus far avoided to ensure that indigent defendants receive reasonably effective assistance of counsel.
Also in 1993, the Court decided State v. Wigley, 624 So.2d 425, 426 (La.1993), wherein we held that uncompensated representation of indigents, when reasonably imposed, is a professional obligation burdening the privilege of practicing law in this state and does not violate the constitutional rights of attorneys. However, we also held that “any assignment of counsel [from the private] bar to defend an indigent defendant must provide for reimbursement to the assigned attorney of properly incurred and reasonable out-of-pocket expenses and overhead costs.” Id. at 429.8 Finally, in order to appoint private counsel in indigent defendant cases, the Court set out the following requirements:
We fully appreciate that the sources of funds from which appointed counsel may be reimbursed are limited. In future cases it will therefore be the district judge‘s responsibility to determine before he appoints counsel that funds sufficient to cover the anticipated expenses and overhead are likely to be available to reimburse counsel in the manner outlined above, whether the funds come from the Indigent Defender Board, from the state, from one court fund or another, from the local government subdivision pursuant to
La.Rev.Stat. Ann. § 15:304 (West 1992), or from any other available source. If the district judge determines that funds are not available to reimburse appointed counsel, he should not appoint members of the private bar to represent indigents.
In a related vein, in State v. Craig, 93-2515 (La.5/23/94), 637 So.2d 437, which, like the instant case involved pre-trial applications filed by defendants facing capital murder charges, this Court held that the extant version of
However, barely three months after this Court decided Craig, the legislature amended
§ 304. Expenses to be paid by parishes; juror‘s fee in city of New Orleans
All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provided for by law, jurors and all prosecutorial expenses whatever attending criminal proceedings shall be paid by the respective parishes in which the offense charged may have been committed or by the city of New Orleans, as the case may be. The expenses shall be paid by the parish treasurer or by the city of New Orleans after an account of the expenses shall be duly certified to be correct by the presiding judge and the clerk of court. The fees, salaries, and expenses to be paid shall be fixed and regulated by the parish or city authority unless otherwise provided by law; however, those persons serving as jurors in the trial of criminal cases in the city of New Orleans shall be entitled to compensation of sixteen dollars for each and every day or part of a day on which they serve as jurors in any criminal case to be paid by the city of New Orleans; provided further that this shall not become effective until the council of the city of New Orleans will have appropriated sufficient funds for this purpose. Notwithstanding the provisions of this Section, the city of New Orleans shall only pay the above expenses after the special account created pursuant to R.S. 15:571.11(D), and to the extent authorized thereby, shall have been depleted. Nothing in this Section shall be construed to make the parishes or the city of New Orleans responsible for the expenses associated with the costs, expert fees, or attorney fees of a defendant in a criminal proceeding. (Emphasis added.)
§ 571.11. Dispositions of fines and forfeitures
A. (1)(a) All fines and forfeitures, except for forfeitures of criminal bail bonds posted by a commercial security imposed by district courts and district attorneys, conviction fees in criminal cases, and prosecutions for violations of
state law or parish ordinances, upon collection by the sheriff or executive officer of the court, shall be paid into the treasury of the parish in which the court is situated and deposited in a special “Criminal Court Fund” account, which, on motion by the district attorney and approval order of the district judge, may be used or paid out in defraying the expenses of the criminal courts of the parish as provided in Ch.C. Articles 419 and 421 and R.S. 16:6, in defraying the expenses of those courts in recording and transcribing of testimony, statements, charges, and other proceedings in the trial of indigent persons charged with the commission of felonies, in defraying their expenses in the preparation of records in appeals in such cases, for all expenses and fees of the petit jury and grand jury, for witness fees, for attendance fees of the sheriff and clerk of court, for costs and expenses of a parish law library, and for other expenses related to the judges of the criminal courts and the office of the district attorney. In the Second Judicial District, the criminal court fund shall be used to defray the expenses of the criminal court system. (Emphasis added.)
Constitutionality of La. R.S. 15:304 and 15:571.11
In the instant case, defense counsel challenged the constitutionality of
The trial court rejected counsel‘s argument regarding counsel‘s own due process claim, but agreed with counsel‘s argument regarding the most recent changes to
under the provision of Article I, Sections 2,3, and 13 of the Louisiana Constitution of 1974, as amended, and the corresponding Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, securing the rights of due process, equal protection, and the right to counsel.
As an initial matter, statutes are presumed constitutional, and any doubt is to be resolved in the statute‘s favor. State v. Brenner, 486 So.2d 101, 103 (La.1986); Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515, 520 (La.1983). The party challenging the constitutionality of a statute bears the burden of proving that statute to be unconstitutional. State v. Fleury, 01-0871 (La.10/16/01), 799 So.2d 468, 472; State v. Brooks, 541 So.2d 801, 811 (La.1989); State v. Griffin, 495 So.2d 1306, 1308 (La.1986). The challenging party must also cite to the specific provision of the constitution which prohibits the legislative action. Fleury, supra at 472 (citing Moore v. Roemer, 567 So.2d 75, 78 (La.1990)).
Further, although the courts generally possess the power and authority to decide the constitutionality of challenged statutory provisions, a court “is required to decide a constitutional issue only `if the procedural posture of the case and the relief sought by the appellant demand that [it] do so.‘” State v. Mercadel, 03-3015 (La.5/25/04), 874 So.2d 829, 834 (quoting Ring v. State, Dept. of Transp. & Development, 02-1367 (La.1/14/03), 835 So.2d 423, 428). Further, a court should avoid constitutional questions whenever the case can be disposed of on non-constitutional grounds. Ring, 835 So.2d at 427; see Cat‘s Meow, Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186, 1200.
Notably, neither the trial court, nor defense counsel, made any mention of the statutes in question enjoying a presumption of constitutionality. Further, in issuing its ruling, the court stated that it found the language of
Trial court‘s requirement that the CPPJ provide indigent defense funding
As we have found that the statutes are not unconstitutional, the next issue is whether the trial court exceeded the constitutional function of the judiciary in ordering the police jury to set aside funding for indigent defendants.
As a general matter, as mentioned above,
Given the above, the constitution explicitly places the duty of providing a working system for securing the representation of indigent defendants squarely on the shoulders of the legislature. See In Re Compensation for Indigents’ Criminal Defense, supra at 1060-61 (“[the duty] to compensate counsel for indigent criminal defendants in Louisiana is squarely directed at the Legislature.“). Accordingly, while the legislature may be in breach of
The legislature has clearly determined through statutory enactments that the State, not the parishes, will pay for indigent defense pursuant to the constitutional mandate of
However, we have often expressed in indigent defendant funding cases that budget exigencies cannot serve as an excuse for the oppressive and abusive extension of attorneys’ professional responsibilities, and that this Court, in the exercise of its constitutional and inherent power and supervisory jurisdiction, has the power to take corrective measures to ensure that indigent defendants are provided with their constitutional and statutory rights. See Peart, supra; Wigley, supra. In fact, in Peart, we specifically warned the legislature that we would undertake more intrusive measures if the legislature failed to act.
The legislature has taken steps to remedy the critical state of indigent criminal defense in Louisiana since our warnings in Peart. For instance, it created the statewide Indigent Defense Assistance Board in 1997, via
However, even assuming that these steps will lead to sweeping reform of the system and to adequate funding for indigent defense, reform will not likely come in any reasonable time to help the present defendants. Until the legislature takes remedial action, this Court must address the immediate problems of the instant defendants in securing constitutionally adequate counsel (in a constitutionally and statutorily
In this case, Mr. Citizen, was indicted for first-degree murder on October 10, 2002, and he remains in jail with no funds available for the attorney appointed to represent him and, under current circumstances, may remain there indefinitely13 unless funds are provided for his defense. Mr. Tonguis, was indicted for the first-degree murder of his infant child on April 11, 2002, and though he is not incarcerated, no funds are available for the attorney appointed to represent him. Implicit in these defendants’ constitutional right to assistance of counsel is the State‘s inability to proceed with their prosecution until it provides adequate funds for their defense.14 While
In order to assure timely representation, we now alter one of the rules previously laid down in Wigley, supra. A district judge should appoint counsel to represent an indigent defendant from the time of the indigent defendant‘s first appearance in court, even if the judge cannot then determine that funds sufficient to cover the anticipated expenses and overhead are likely to be available to reimburse counsel. The appointed attorney may then file a motion to determine funding, as was done in this case, and if the trial judge determines that adequate funding is not available, the defendant may then file, at his option, a motion to halt the prosecution of the case until adequate funding becomes available.15 The judge
DECREE
For the reasons stated herein, the judgment of the trial court is reversed. We order that unless adequate funds are identified and made available in a manner authorized by law as expressed in this opinion, upon motion of the defendants, the trial judge may halt the prosecution of these cases until adequate funds become available to provide for these indigent defendants’ constitutionally protected right to counsel or take other measures consistent with this opinion which protect the constitutional or statutory rights of the defendants.
REVERSED AND REMANDED.
KNOLL, J., concurs in the result.
JOHNSON, J., concurs in part, dissents in part and will assign reasons.
Notes
[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, [] it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
We find that in order to be reasonable and not oppressive, any assignment of counsel to defend an indigent defendant must provide for reimbursement to the assigned attorney of properly incurred and reasonable out-of-pocket expenses and overhead costs. However, a fee for services need not be paid, as long as the time the attorney must devote to cases for which he does not receive a fee does not reach unreasonable levels. What is unreasonable in this context is to be determined by the trial judge in the exercise of his discretion. Such a system will strike a balance between the attorney‘s ethical duty to provide services pro bono publico and his or her practical need to continue to perform his or her other obligations.
We conclude that the petitioners are being deprived of their right to counsel under art. 12 of the Massachusetts Declaration of Rights, a deprivation that has resulted in severe restrictions on their liberty and other constitutional interests. Although we do not grant the precise remedy the petitioners seek for the reasons we shall explain, we hold that, on a showing that no counsel is available to represent a particular indigent defendant despite good faith efforts, such a defendant may not be held more than seven days and the criminal case against such a defendant may not continue beyond forty-five days.
The court reached this holding after looking to the manner in which other courts presented with difficulties securing or paying counsel addressed the problem. Lavallee, 812 N.E.2d at 908. Specifically, the court recognized that while many of its sister courts have rightly concluded that the inadequate compensation of counsel amounts to the deprivation of the constitutional rights of the criminal defendants represented by inadequately compensated counsel, such courts also face the constraint that appropriating funds is a legislative matter. Id. The court further noted that several State courts have temporarily deferred in the first instance, and only temporarily, to legislative action to ensure that the system for compensation for indigent representation meets constitutional standards. Id. (citing Peart, 621 So.2d at 791; State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816, 848-50 (1987) (unconstitutional system of compensation to be remedied by legislative and administrative action); Smith v. State, 118 N.H. 764, 394 A.2d 834, 839 (1978) (“adequate [legislative] appropriations will have to be made in order to comply with this ruling and to ensure the continued functioning of the criminal justice system“)).
The Lavallee court also recognized that some state courts of last resort have granted preliminary relief in the form of increased compensation rates, but have simultaneously directed their Legislatures to amend permanently the compensation rates for indigent representation. Id., 812 N.E.2d at 908 (citing State ex rel. Wolff v. Ruddy, 617 S.W.2d 64, 67-68 (Mo.1981) (court established temporary guidelines pending solution); State v. Lynch, 796 P.2d 1150, 1164 (Okla.1990) (guidelines set by court effective until Legislature acts)). Along these lines, a New York trial court recently issued a permanent injunction directing that counsel be paid $90 per hour, and removed the statutory fee cap until the Legislature changed the rates and increased its appropriation for compensation for indigent representation. Lavallee, 812 N.E.2d at 908 (discussing New York County Lawyers’ Ass‘n v. State, 196 Misc.2d 761, 763 N.Y.S.2d 397 (N.Y.Sup.Ct.2003)). Finally, the court recognized that “[a] spirit of mutual cooperation among the legislative, executive, and judicial departments is unquestionably the people‘s best guaranty of constitutional government.” O‘Coin‘s, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 287 N.E.2d 608, 615 (1972).
In contemplating more dramatic action should the need arise, the Court in Peart pointed to cases such as Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770, 776-77 (1991) ($1,000 cap on fees constitutionally unacceptable because burden imposed on attorneys was excessive to the extent that it constituted a taking; court also found that system of appointing attorneys, based on where attorney lives and his ability to provide effective assistance of counsel, violated the appellants’ right to equal protection); State v. Lynch, supra (applauding pro bono legal representation, court nevertheless holds that “voluntary services are insufficient to accommodate the right of indigent citizens to the effective assistance of counsel“); Stephan, supra, 747 P.2d at 841 (ordering the dismissal of charges against certain defendants if the state cannot make available funds for their defense).
At least one indigent defender has prompted a trial court to take the extreme measure of threatening to hold a legislative body reluctant to release funds in contempt. When Kentucky cut the budget for his office, indigent defender Dan Goyette responded with a corresponding cut in services. Specifically, his office refused to provide attorneys for people facing involuntary mental hospitalization. The chief judge in Goyette‘s District reportedly ordered the official in charge of the state budget to restore Goyette‘s funding or face contempt. Other judges in the district ordered the release of four unrepresented persons hospitalized against their will. Abbe Smith, For Tom Joad and Tom Robinson: The Moral Obligation to Defend the Poor, 1997 Annual Survey of American Law 869, 887.