State v. Lynch

Oklahoma, Appellant, STATE LYNCH, Appellee. Delbert

Nos.

Supreme Court of Oklahoma.

July Henry, Atty.

Robert H. Gen. and Carol Gen., Dillingham, Atty. Price Asst. Okla- State, City, appellant, homa No. 74,319 respondents, and for Honorable Gor- don, 74,259 Melson, No. et al. Mattingly, Mattingly Jack & Snow Pyron, Seminole, Delbert appellee, Rob 74,319. Lynch, No. Ada, Braly Braly,

George Braly, & W. 74,- County, No. petitioners, Pontotoc Ass’n, et al. Bar 259 and KAUGER, Justice. impression,1 cases of first we

In these the trial court asked to decide whether are 74,259, 74,319, County Lynch and Pontotoc Bar State v. 1. These cases are deemed consolidated: fide, sepa- declaring homa Constitution bona erred rate, adequate independent grounds ap- unconstitutional because court 701.14 finding. our upon which we rest represent pointed counsel were forced indigent defendants without assurance receiving adequate, speedy, and certain FACTS representation.2 compensation for such County lawyers, Two Jack Mat- Seminole 1) Although the statute is

We find that: Pyron, appointed by were tingly and Rob L. unconstitutional, facially the district court Delbert 74,319, no. it is presented facts Cause Lynch, charged had been who 2) The application; unconstitutional degree Although murder. with first system presses' lawyers into ser- present sought penalty, had the death after a State affording post-appointment vice without trial, complicated began August on which why they opportunity to show cause should 21,1989, August.31,1989, and ended on accept appointment; forced to not be gave jury guilty rendered a verdict and 3) arbitrary The statute Following Lynch’s Lynch a life sentence. compensation for and unreasonable rate of 6, 1989, sentencing September on the law- may result in an unconstitu- lawyers which yers petitioned the court for fees and ex- taking property depending private tional penses. facts of each case. on the fees, Matting- hearing At the on counsel recognize responsibility While we spent ly testified that he had 169 hours on of the Oklahoma bar to assist members case, and incurred out $173.03 legal representation to in- provision $17,073.03 expenses, requesting a pocket defendants, digent we find that some Pyron’s testimony was that he had fee. arbitrary and unreasonable instances the behalf, Lynch’s expended 109.55 hours on pro- the due statutory scheme contravenes $10,995.00 Mattingly fee. sought and he Const, 2, 7 art. cess clause Okla. documenting his submitted a statement clause of the as well as the immunities 1986, 1987, hourly overhead rate for 1988 Const, reaching this art. 51. Okla. ranged from $45.80 $53.53—aver- conclusion, rely on federal au- we do not aging Pyron submitted his over- $50.88. thorities, thereto is sole- any figures reflecting reference an aver- head age hourly rate of Had the two purposes.3 $48.00.4 The Okla- ly for illustrative subject standing Although Court fund is not to suit in is not an 2. The Ass’n v. Melson. However, cause is court. the instant district County Lynch, it in Pontotoc issue in is an issue is reviewa- as a common law writ which treated the issue is without Bar Assoc. We find that See, appealable. ble writ but is not this Court found in Missouri- merit because Cook, (Okla.1976). P.2d 878 Fund v. 557 State, 712 P.2d 42 Kansas-Texas R.R. v. (Okla.1985), unincorporated that an association Michigan Long, U.S. 103 463 standing through its members. can have (1983). 77 L.Ed.2d 1214 S.Ct. & SNOW MATTINGLY SEMINOLE, OKLAHOMA COSTS

INDIRECT/OVERHEAD 1987 1988 1986 41,776 47,965 138,929 $ Salaries 4,513 4,723 3,469 Taxes 2,670 4,851 3,029 Repairs 11,348 14,769 13,288 Depreciation 68 113 Advertising 453 133 18 Charges 76 Bank 1,042 1,401 943 Subscriptions Dues 833 436 419 Equipment Rental 17,354 12,481 8,159 Insurance 1154 they worked on the de- statutory every hour that split maximum fee any figures do not reflect $3,200.00, received fense. These Mattingly would have attorneys’ services.5 hour, compensation for the Pyron receiving per $14.61 $9.47 requested approved the computations, The trial court these

per hour. Based on $3,200.00 fees, restriction finding that the Pyron Mattingly would lose $41.41 attorney fees was unconstitutional. expenses for on in overhead would lose $33.39 1988 1987 1986 535 370 Janitоrial Service -0- 239 461 52 Long Distance Service 40 110 Promotion -0- 5,161 5,905 5,895 Expense Office 2,487 2,305 2,158 Postage Box Rent Post Office Telephone -0- 5,174 6,136 4,658 2,415 3,195 3,407 Utilities Bank Box Rent -0- -0- 1,285 Contract Labor 8,003 2,733 2,352 Accounting Legal & Seminars Professional 1,211 Travel Professional Library Backup 5,355 4,005 3,610 $111,333 $110,889 $95,274 Total (based Hourly Rate on Overhead 2,080 53.53 year) 53.31 per $ 45.80 hours Costs for Total Overhead $105,832 years above 3 Average Hourly Rate Overhead 2,080 (based $ 50.88 per year) on hours ROB PYRON COSTS

INDIRECT/OVERHEAD 2,497.00 $ Subscriptions and Dues 990.00 Contributions ' 7,318.00 Supplies Material & Accounting 2,293.00 41,925.00 Salaries 4,349.00 Insurance 198.00 Advertising 7,255.00 Rent 2,322.00 Expense Auto 2,274.00 Postage, Charge, etc. Bank 2,924.00 Maintenance 3,881.00 Telephone & Utilities 4,508.00 Taxes 456.00 Entertainment Library 2,874.00 13,276.00 Travel 284.00 Continuing Education $99,624.00 Total Average Hourly Rate Overhead $ 48.00 (based year) per hours on 2080 lawyers appointed hourly attorneys under which each of the same received 5. Had the hour, i.e., attorneys paid statutory would pay Mattingly $29.26 maximum fee as district would be hour, per hour receiving per $70.67 contribute Mattingly would $18.93 result in contributing per Pyron $62.65 a total of accompanying Pyron net $29.21 —with figures indigent’s These hourly defense. hour to per dis- hour. See $61.21 $48.05 losses of and an rate of both the overhead include compensation. cussion infra. of the statute A construction

H55 traordinary cause circumstances are shown as es appealed Oklahoma State State, consideration on tablished in Bias v. 568 P.2d 1269 at issue our became 1977), (Okla. that an unconstitutional March taking court-appoint does not occur when I. required indi ed is gent defendants. AL- THE STATUTORYCOMPENSATION THE REPRESENTATION LOWED FOR Const, art. that The Okla. § 74,319 VIO- IN NO. OF LYNCH CAUSE life, person deprived of “No shall be liber- 2, 7, ART. THE DUE PROCESS LATED § ty, property or' due THE OKLAHOMA CONSTI- CLAUSE OF law.” The contend that under this TUTION. mandatory repre- provision constitutional just compensation is un- parties dispute not sentation without do Oklahoma Const, attorneys indi The Okla. art. required provide constitutional. is requires competent charged 20 аlso gent who ‍​​‌‌​‌​​‌​​​‌​‌​​​‌‌‌​‌​‌​‌‌​‌‌​​​‌‌​‌​‌‌‌​​‌​​‌‍are Okla defendants felonies, indigent Un- certain misde be defendants.10 homa courts with meanors, trial,6 con art. a criminal defendant has a competency to stand der right reasonably guardianship matt fundamental effec- tempt proceedings,7 and counsel, ers,8 regardless of has tive assistance of or that the State of Oklahoma appointed or retained.11 attempted representation.9 whether counsel provide such means must render the same with the constitu This The basic concern obligations loyalty, confidentiality, art. of the Okla. requirements tional Const. client requires competence court-appointed to a public policy defendants; but, would receive. Oklahoma retained client representation requirement rather, the fulfilled the constitutional practical application of has with the utilizing competent by public counsel policy impairment and its of constitu offices, voluntary pools, and tionally private property rights. defenders’ guaranteed sys- for court-appointments. In order the compensation should The State asserts that work, be maintained statutory limit ex tem to a balance must only the when exceed institution; 3) 1175.2(B)(4) pro- O.S.Supp.1983 in to an result commitment § 6. Title 22 imprisonment when is a real vides: misdemeanors imposed duty upon a possibility. cases These person competency is "4. the whose That if guarantee attorney, the states to meet constitutional question have an in does not attorney person of counsel. appoint for the court will an disposition who him until final shall provides per- O.S.Supp.1985 22 Further 464 in case;”. of the part: tinent arraignment, appear If defendant "A. State, 1089, (Okla. P.2d 1091 7. Brown v. 677 counsel, by he be informed 416, without must State, Crim.App.1984); P.2d Johnson 599 right have counsel before court that it is his to (Okla.Crim.App.1979). 418 being arraigned, be asked if he and must provides in 3-107 Title 30 8. desires aid of counsel. If he desires and pertinent part: counsel, employ financially to unable hearing prior petition assign a on a "A. If at or alleging to defend court must counsel to him....” person incapacitated or be an 2, 20, any incapacitated person, perti partially or if at art. in 10. Okla. Const. pursuant proceeding point part: course of a nent subject proceeding petition, the of the to said prosecutions the accused shall "In all criminal counsel, may by represented the court is not right speedy to a trial have the attorney this sec- appoint in an county impartial jury of in which the an tion, ...” ... shall have been committed He crime shall right be himself and heard have States Court in Gideon The United counsel; 792, 335, ...” Wainwright, 83 S.Ct. 9 372 U.S. Gault, 799, 733-(1963), A.L.R.2d In re L.Ed.2d 93 1003, (Okla. State, (1967), 736 1011 Fisher v. P.2d 18 L.Ed.2d 527 387 U.S. 87 S.Ct. (1987), Hamlin, Crim.App.1987), aff’d, cert. P.2d 523 U.S. S.Ct. Argersinger v. and 2006, denied, (1972) 108 S.Ct. requires 486 U.S. counsel 32 L.Ed.2d (1988), 1) reh'g denied 487 U.S. indigents charged L.Ed.2d appointed with a for: be felony; 2) (1988). may S.Ct. 101 L.Ed.2d 955 juvenile proceedings which in office,12 lawyer’s indigent representation between the oath of an both to subsidize counsel, indigent’s right fundamental regular practice and to forsake his law and the avoidance of state action tanta- during representation indigent of the lawyer’s prac- mount to confiscation of a The Bias recognized defendant. tice. that such circumstances constitute taking private property compen- without appropriate To achieve an balance In conflicting sation. order to harmonize rights constitutional interests interests, payment Court authorized indigent lawyer both the defendant and the of the statutorily prescribed excess norms Here, protected. must be the constitution extraordinary expenditures of time and right indigеnt al to counsel is not at Bias, expense. we held in Ford v. Since appointed process rights issue —the due Ford, (Okla.1988), P.2d that a defendants are. Al practice can jointly law be considered ac- though it is obvious that while Oklahoma’s quired property subject to division as a statutorily cap may mandated not be facial part of the marital estate. Under defective, ly that some instances Ford, analysis attorney’s Court’s payment statutory might fee even be practice property under Oklahoma’s due compensation, an excessive rate of there is property rights may clause —those probability a substantial it will de impaired adequate not be recom- Here, application. apparent fective it is pense. statutory the maximum fee is inade quate compensate rep who Clearly, there is a substantial risk of the Lynch.13 resented deprivation property rights erroneous State, Bias v. appointment under the current system. 1272-73 A (Okla.1977), compelled had lawyer’s been skills and services are his/her provides: paid 12. Title 2§ 5 O.S.1981 "... such shall not be a sum to following exceed the amounts: being "Upon permitted as attor- prior prepa- For services rendered and in law, shall, neys they and counselors at preliminary hearing. ration for court, open following take the oath: You do $200.00 solemnly you support, protect swear that will preliminary For services rendered at hear- and defend the Constitution of the United ing $500.00 .. States, and the Constitution of the State of For services rendered from the time the Oklahoma; ybu that will do no falsehood or charge defendant is bound over on the court, any you consent that be done in and if degree through dispo- murder in the first final any you give knowledge know of will thereof $2,500.00 court, sition in the trial court. ..." judges to the or some one of them, reformed; provides pertinent Title 22 1271 you § O.S.1981 in it that will not part: wittingly, willingly knowingly promote, or sue, sued, attorney procure any paid "... The or to be shall not be a sum to false or unlaw- suit, same; ($500.00) give any ful exceed Five or aid or consent to the Hundred Dollars in malice, case, you delay will no man for lucre or but one ...” attorney 1304(b)(9) act in O.S.Supp.1989 provides will according tion, the office of in this court Title 20 § in your learning pertinent part: best and discre- good fidelity "(9) all with as well to the court Compensation ... from the court fund client, your you help as to so God." attorneys appointed pursuant for to the Okla- Act, Guardianship homa ... shall be substan- statutory legisla- 13. The maximum fee set tially attorneys appointed the same as for in cases, 1) capital $200.00 ture is: in for services juvenile proceedings pursuant to Title 10 of preliminary hearing, rendered before the Oklahoma Statutes.” during prelim- for services rendered $500.00 24(B) O.S.Supp.1989 provides perti- Title 10 § in $2,500.00 inary hearing, for rendered services part: nent from the time the defendant is bound over until Provided, "B. ... that such shall court; .2) disposition final in the trial in other paid not be a sum to exceed One Hundred cases, $500.00; criminal the fee is not to exceed ($100.00) pre- Dollars for services rendered in cases, 3) juvenile guardianship in and the fee is liminary proceedings, compensation and such preliminary hearing, $100.00 to exceed in a shall not exceed Five Hundred Dollars goes $500.00 post-disposition hearings. $100.00 if the cause to trial and ($500.00) during for services rendered trial and not to exceed Dollars One Hundred ($100.00) O.S.Supp.1985 per- Title 21 701.14 § for services rendered at each subse- part: quent post-disposition hearing.” tinent

1157 taking republic respect there- this is the enforcement only of livelihood. means compensation, of, adequate is ana- way. of the law a neutral The services goods of merchants or lagous taking the competent necessary counsel are in- architects, engi- requiring free services system justice sure that our functions accountants, neers, physicians, nurses or of smoothly, justice dispensed that even occupations other thirty-four or one of the handedly, rights and that and interests require state which a professions in this safeguarded defendants are practicing licensed before person to be truly lawyer A adversarial forum.16 profession. or None of the li- occupation weighted responsibility un- with which is require that censing the members statutes ordinary professional,17 common to donate professions those their skills bar, integrated as a member public.14 to the We know that services duty has a to the oath of Oklahoma professionals these so. We many of do office, Courts, clients, to the to his/her that it would be unusual for the also know large at to be more than a licensing boards to force their licen- various tradesperson. indigents proffer their services to sees haircuts, prices to offer cut-rate on or requires Procedural due of law dentures, embalming, surgeries. perms, notice, adequate opportunity a realistic appear hearing, right partic- at a and the acknowledge present system that We ipate meaningful in a manner before one’s may deprive lawyers of interests their rights irretrievably altered.18 We find are Nevertheless, practices. we also rec- law provide safeguards order to which ognize lawyer’s calling is different compliance bring system will into professions. other licensed from that of process, proffer trial courts must due government of and not of We are a laws post-appointment оpportunity for the law- At the foundation of men and women.15 698.9, profes- O.S.Supp.1989 Occupational occupations Thera- § licensed 14.The other 888.6; pist, O.S.Supp.1984 Building are: § sions 59 Accountants, Inspector, O.S.Supp.1989 O.S.Supp. Construction 59 Public 59 Certified 1036; 15.18; Security Adjusters, Guards and Private Investi- O.S. § Insurance 36 § 1982 6206; Architects, 1750.6, O.S.Supp. gators, O.S.Supp.1989 Supp.1983 § 59 59 Mechani- § 46.24; Trainers, Contractor, O.S.1981 O.S.Supp.1987 Athletic § § cal 1850.8. Bondsmen, 530; O.S.Supp.1987 Bail profession problem § has faced this The medical 1303; O.S.Supp.1989 Chiropractors, § development system of an alternative 1503; 164; Reporters, 20 O.S.1981 § § indigents. providing medical service for Hygenist, O.S.1981 Dentists and Dental clinics, system a welfare establishment of free 328.21; Dietitian, O.S.Supp.1984 § provides medical care medical and/or 353.9; O.S.Supp.1988 Druggists, Electrol- federally medical care insurance and funded 536.7; O.S.Supp.1987 ogist, Funeral Di- programs need have alleviated most of the Embalmers, rectors compel physicians their services. to donate Technician, 396.3; Emergency 63 Medical § Christensen, Lawyer’s Bono Publico "The Pro Foresters, 330.74; 59 O.S.1981 § O.S.1981 1, Responsibility”, Am.B.Found. 18-19 1981 Contractor, 1212; Electrical Electrician and § (1981). amplified by Depart- the This is further 1685; Cosmetologist, O.S.Supp.1982 59 § 59 O.S.Supp. provides partial which ment of Human Services 199.7; Agent, So- Insurance § 1985 hospitals payment physicians and that 1425; Broker, O.S.Supp.1988 § 36 licitor Department indigents. of Hu- the See service 567.5; Nurse, Nurse Anesthe- O.S.1981 § 59 Services Provider Manual. man tist, 567.51; O.S.Supp.1988 Optometrist, § 59 584; O.S.Supp. Osteopath, 59 § 59 O.S.1981 Bohle, Quo- Book American 15. B. The Home 633; Physical Therapist, O.S.Supp. 59 § 1983 tations, 1967) (Dodd, (quote p. Mead & Co. 180 887.7, O.S.Supp.1987 Physicians, 59 1987 § Adams). from John 1006; Plumbers, 493; Podia- § 59 O.S.1981 § Examiner, 144; trist, Polygraph § O.S.1981 59 Co., Casualty McLaughlin and Sur. 16. v. Western 1458; Pruner, O.S.Supp.1985 2 O.S.1981 § 59 978, 1985). (S.D.Ala. F.Supp. 980-81 603 3-272; O.S.Supp.1984 Psychologist, 59 § 1366; O.S.Supp. Adjuster, Public 36 1983 § 7, 1, Wright, A.2d 92 131 Vt. 310 17. In re Broker, 6206; O.S.Supp.1982 Real Estate 59 § (1973). 647-48 A.L.R.3d Schoolteachers, 858-303; O.S.Supp.1982 70 § Worker, 6-154; O.S.Supp.1987 Social § Co., 1261.1; Audiologist, Oil P.2d Pathologist Cate v. Archon Speech Veterinarians, 1605; (Okla.1985). O.S.Supp.1982 appear ability represent also yer to and to show cause the client.20 We appoint- why penalty, he/she should not find Rule 1.16 of the that Model Rules represent indigent Conduct, ed an defendant. O.S.Supp.1988 Professional Ch. unpublished in or- 3-A, This is accord with the applicable repre- App. to all client Court, July promulgated der of this sentation, and that it should be construed 67,114. Pitts, Wolfe, No. Pitts “good cause” rule with the factors. This jurisdiction original we refused assume provides lawyer may repre- a refuse to prohibit the enforcement the order 1) representation if: the would sent a client judge by a trial in issued the Seventeenth violate the Rules of Professional Conduct ap- District. The trial court had Judicial law; 2) lawyer's the physical or other lawyer, a pointed primary whose materially impairs mental condition the District, in the Seventh was Judicial 3) client; lawyer’s representation of the the represent indigent evidently an defendant persists involving client conduct law- the because he had listed his name the yer’s lawyer service which believes Oklahoma, telephone directory. Hugo, We fraudulent; 4) has criminal or the client power noted that the exercise of the was lawyer’s perpetrate services to a used O.S.Supp.1985 specifically authorized fraud; 5) discharges crime or the client 464(A), petitioner and that had an lawyer.21 remedy adequate in the trial to chal- court appointment order on the lenge the jus The efficient administration rep- grounds adequately he could not pragmatism, as the tice and as well indigent defendant. This is also resent rights defen constitutional with the Model of Profes- accord Rules dants, court requires continuation of Conduct, O.S.Supp.1988 App. Ch. sional private indi appointments counsel for 3-A, 6.2 and the comments Rule committee gent clause defendants. The due thereto,19 provide lawyer may that a such of the Oklahoma Constitution forbids appointment representa- for the refuse provisions appointments unless are made indigent upon showing good tion of an adequate, speedy, compen for certain cause. holding today prohibit sation. Our would repre appointment both the of counsel to good We find that cause consists indigents post-appointment without a sent of, following is not but limited to the good why opportunity to show cause 1) lawyer qualified factors: is not appointment accepted should not be 2) competent representation; provide appointment just of counsel without representation will result in a conflict of 3) Providing adequate interest; repugnant compensation. case is so lawyer funding indigent representation that it either the is a impair would lawyer’s legislative attorney-client relationship or the matter for action. 3-A, 3-A, O.S.Supp.1988 App. App. Rule Rule Title 5 Ch. 21.Title Ch. provides: pertinent part: 6.2 1.16 appointment shall not seek to "A avoid "(a) (c), Except paragraph as stated in a law- except represent person tribunal to or, yer where shall a client cause, good such as: commenced, representation has with- shall (a) likely representing the to result client is representation if: draw from of a client of the Rules of Professional Con- violation (1) representation will viola- the result in law; or other duct tion Rules of Professional or Conduct (b) representing likely to the client is result law; other unreasonable financial on the in an burden (2) lawyer’s physical condi- the or mental lawyer; or materially impairs lawyer’s ability the to tion (c) repugnant the client or the cause to is so client; represent the lawyer likely impair as to be to the client- the (3) persists the client in a course action ability lawyer relationship lawyer’s or the to lawyer’s lawyer involving the services that the represent the client.” fraudulent; reasonably believes is criminal or (4) (b) lawyer’s guides adopted today the client has used the services the is

20. Under section fraud; unnecessary just compensation perpetrate a crime or has to because (5) discharged_” provided. been the

H59 and, such, li- they are Bar Association II. law in the state of Okla- practice to censed OF COUNSEL APPOINTMENT practice in lawyers who homa. Because practical purposes, 19 O.S. For all from the are immunized certain counties 138.1 O.S.Supp.1989 137.1 and § § defendants, indigent representation of have attorneys in counties which exempt equally. lawyers are treated all Oklahoma representing offices from public defenders’ discrimination between also find that We Law defendants in state courts. indigent may be forced to attorneys who ap subject to in these counties are yers solely on the based indigent defendants of interest only when a conflict pointment they county in the which population of office.22 in the defender’s arises any is unconstitutional practice law neither attorneys are Currently, these scrutiny.25 level of disaster nor impending financial faced with matter, However, practical we note as practice order ignore their forced unnecessary expenses prevent indigent. for an provide effective counsel costs, trial logistical transportation circumstances, these attor Except rare pools voluntary first utilize courts should “immunity” by granted an neys have been maintain an office lawyers who аnd the legislature. the dis- practice regularly within indigent defen- representation of to be appointment trict in which prob- problem. The a state-wide dants is appointing judge In the event the made. geographical not confined to lem is judi- beyond the necessary to look finds it counties limits of the individual ap- judge sits an in which cial district Const, pro- art. The Okla. state. § Pre- requested from the pointment pass no Legislature “the shall vides that from Judge selected siding association, corpora- any granting to law Should district. within that administrative rights, tion, any exclusive or individual judge appointment, in an not result this State.” immunities within privileges, or the state appointment from may request an was enacted provision This constitutional Ap- large from the Chief Justice. bar at are citizens who equality between preserve by Special or Associate made pointments enacting By 19 O.S. similarly situated.23 attorneys from Judges should be District 138.1, 137.1 and 19 § county, if such but office within who exemption created an Legislature necessary beyond look it judge finds in counties attorneys practice who request may make such a county, judge At- public defender’s offices. qualify for pro- Judge, who shall District of the Chief non-qualifying practice torneys who priority for according the order of ceed indigent required to shoulder are counties above. appointments set out potential regard to overhead representation the loss of business.24 expenses or III. are posed under questions OF VOLUNTARY THE FORMATION similarly situ- attorneys are whether DE- INDIGENT REPRESENT POOLS TO attorneys are treated and whether ated ENCOURAGED. FENDANTS IS applied are the facts equally. When Attorneys are licensed find that provision, we constitutional of Oklahoma of the State of the Oklahoma are all members (Okla. Trust, City Hosp. perti- provides in 22 O.S.1981 22. Title J., 1986) concurring opinion). (Opala, part: nent are defendants two or more "... If by popu- defender charged conjointly, qualify and the Thirty do not nine counties both, may ap- justly the court defend cannot public defender’s have a office. lation to compensate counsel as point and above.” Porter, 822-23 Reynolds v. 25. (Okla.1988). Co., P.2d Kimery Serv. v. Public (Okla.1980); v. South Oklahoma Roberts law, attorney and an responsibility owes his/her first sume this and to relieve law- Likewise, duty to the Court. the Court has yers practice who in counties few law- an immediate interest in the character and yers court-imposed from an unfair case good the function of the bar—a is bar recognize load. We also that at this time necessary good applaud bench.26 We voluntary services are insufficient to acco- attorneys individual or associations of at- indigent right modate the of citizens to the torneys provide who volunteer pro either of counsel effective assistance where that legal representation representation bono or right implicated. of defendants at may rates which drastically under the market value of IV. lawyers skills and services. It reflects law, in pride practice exempli- and it COMPUTATION OF FEES many fies the best of virtues found State Oklahoma has obli practicing provision legal bar. The ser- gation indigents to furnish counsel for indigents responsibili- vices to is one of the felonies; charged with: misdemeanors legal profession, ties assumed imprisonment upon when conviction is a personal problems involvement in the possibility; juvenile proceedings real disadvantaged can be one of the most institution; result commitment to an rewarding experiences in the life of a law- matters;29 contempt pro mental health yer. ceedings; guardianship matters.31 Every lawyer, regardless professionаl obligation pay The State also has an prominence workload, professional or appointed lawyers fairly sums which will participate should find time to in or other- lawyer, compensate top not at the rate support provisions legal wise servic- lawyer might charge, which a but at a rate disadvantaged.27 strongly es to the We confiscatory, considering which is not after urge the continuation of these services. expenses. overhead and The basis of the attorneys We believe would voluntar- paid amount to be for services must not ily donate their skills and services were vary judge; with each rather there must be they unduly compulsory burdened with ascertaining statewide basis or scale for appointments.28 We also believe that Okla- local, hourly lawyers county, a reasonable rate in order to avoid homa will form dis- trict, voluntary pools proscribed special intra-state to as- the enactment of a law.32 Bar, Integration person competency 26. In re State 185 Okla. "4. That if the whose (1939). 95 P.2d 113-14 question attorney, does not have an appoint person court will for the 27. See Offical Committee Comments to 5 O.S. represent disposition who shall him until final 3-A, Supp.1988 App. Ch. Rule 6.1. case;”. Recently, Superior in Federal Trade Comm. v. Assoc., U.S. -, -, supra. 30. See note Lawyers Court Trial (1990), 110 S.Ct. 107 L.Ed.2d Supreme the United States Court discussed the 8, supra. 31. See note underpaid attorneys issue of who indi case, gents. distinguishable This which is from Const, pertinent 32. Okla. art. 46§ consideration, pool the one under attorneys involved a part: voluntarily represented indigents who not, Legislature except "The shall as otherwise Washington, lawyers D.C. After the became Constitution, pass any services, in this local paid dissatisfied with the fees they for their special authorizing: or law assignments. refused to take new boy States held United that this arrangement cott constituted horizontal of, Regulating jurisdiction or or among competitors resulting in a restraint of changing judicial pro- the rules of evidence in price output in violation of the antitrust courts, ceedings inquiry justices or before the Here, attorneys laws. tory appointments; have received manda commissioners, sheriffs, peace, arbitra- they did not volunteer for tors, tribunals, providing or other or appointment; boy and the are not changing debts, the methods for collection of cotting indigent representation. judgments or the enforcement of ' 1175.2(B)(4) prescribing estate; pro- the effect of real 29. Title sales vides: ...” salary $56,180.00 per receive the same legislative atten Although we invite — interim, per in we hour. find that the problem, year the We $29.26 tion to this apply uni guides attorney which will may must establish court award the from trial violating due formly either attorney’s based on the $29.26 $14.63 immun- constitutional rights granting range is tied to the qualifications. This to Okla ites. Bias provided some relief range paid to assistant district attor- salary however, it did not address lawyers; homa (As neys attorneys.34 and the district a are infirmities which the constitutional course, matter of when the district attor- Therefore, in or squarely presented here. are neys’ public defenders’ salaries the defects render der to correct the which so, too, Legislature would the by raised the unconstitutional, present statutory scheme hourly compensation rate for defense of was the foundation which we must build on counsel.) litigation The overhead and the the most even Bias. in We find that laid attorney are fur- expense of the district tie the setting in fees is to approach handed place In order to the by nished the state. appointed for the hourly rate of the counsel equal footing the defense on an counsel for hourly rate of the to the indigent defendant prosecution, provision counsel for the with public attorney and the prosecutor/district compensation of defense must be made for defenders.33 overhead and out of counsel’s reasonable to 19 O.S. 1988 amendment Before the expenses. pocket 215.30(B)(2), salary of a Supp.1988 § However, can before population in attorney was based on district overhead, percent for amendment, compensated be After the district. rate di- hourly attorneys age of reasonable overhead all district statute Const, (90%) salary the district provides: cent of the of attor- § art. Okla. ney county ...” general a uni- of such nature shall have "Laws of a Title, State, provides the sal- throughout O.S.1981 138.4 operation form 200,- ary public in counties over applicable, defenders general be made law can where pertinent population. provides It in 000 in special be enacted.” law shall no (Okla. part: Goforth, 772 P.2d State v. Porter, "(a) supra.; public defender on a full-time 1989); ... a Reynolds note see salary receive a commensurate basis ... shall Independent Dist. No. School Maule by (Okla.1985). salary the district attor- received P.2d district, ney in said ...” amendment, the district the 1988 33. Prior to provides O.S.Supp.1988 in population § 215.34 attorney's in 34. Title 19 were based on salaries part: pertinent districts. Under 215.30(B)(2) attorneys receive the all district January as- full time Effective "A. 215.30(B)(2) provides in amount. Section same (1) year experi- of than one with less sistants pertinent part: salary of not more shall receive ence ... (50%) salary fifty percent of the of the compensation, payable than the annual "B. ... attorney as- the district. Full-time attorney district of monthly, shall be as each district of (2) (1) less than two over one but sistants with ... follows: years experience not more January, shall receive commencing of period 2. For (70%) fifty December, percent than seventy nor less than ending the sum 1989 and (50%) salary percent of the district Eighty of Fifty-six One Hundred Thousand attorney assistants ($56,180.00).” the district. Full-time Dollars $56,180.00 (2) experience years but less by with over two hourly rate was determined (3) years experience year shall re- three by in a than being the twelve months divided (80%) eighty percent nor more than month. ceive not hours for each divided then (50%) salary fifty percent of the salary than is tied less Currently defender's attorney Full-time of the district. attorney's the district salaries. provides district (3) years experi- three assistants with over for the sal- 137.2 Title 19 O.S.1981 24,727 salary of not more than receive ence shall ary in counties defenders (90%) fifty than —60,000 perti- ninety percent and not less population. It (50%) salary percent of the district of the part: nent district; desig- except that the paid public defender ... shall "... (3) years with over three assistant county Reve- nated first General from the funds up ninety-five experience receive to be determined Fund an amount nue (95%) salary of the district percent county commissioners board attorney_” ninety per- be in excess of shall not amount Calculation of Fees rectly attributable to the case controver- Mattingly’s out-of-pocket expenses 173.03 $ @169 hourly sy, out-of-pocket and the amount of ex- $50.88 overhead hours Average Hourly 8,598.72 @169 $29.26 rate 4,944.94 hours penses incurred, presented must be to the compensation Total $13,716.69 items, trial court.35 These addition to @109.55 Pyron’s $48.00 5,258.40 overhead average hours $ @109.55 Hourly $29.26 3,205.43 range rate hours an $14.63 $29.26 hour for compensation 8,463.83 Total $ services, lawyers’ must be considered Bias, attorneys representing Since defen- setting Obviously, fees. сharged capital dants crimes37 have charged duty trial court with the extraordinary expenses been awarded ascertain whether the number of billable attorney extraordinary compen- fees. This reasonably necessary hours were to the sation has been calculated under a formula provision by competent of a defense coun- by devised former Chief Justices of Okla- (These subject sel. fees are also to final cooperation homa in with the Administra- Justice.)36 approval by the Chief Current- practical tive Director of the Courts. As a statute, ly, O.S.Supp.1985 464, matter, the fees which have been awarded payment for a limit on $750.00 range adopted have been we have amount, If costs. these costs exceed this today. they paid will not be unless defense counsel petitions approval the court for of extraor- AND CONCLUSION EFFECTIVE dinary expenses they are incurred. DATE OF DECISION before payment To receive the reasonable reaching After the conclusion that overhead, fees, pocket and out of provision Lynch of counsel fees for case, expenses charged 701.14, O.S.Supp.1985 was constitu- present must accurate itemizations of over- infirm, tionally duty our is unmistakable.38 sheets, expenditures, head time and invoic- present- Under the unusual circumstances support es to the number of hours reason- here, ed and because of this Court’s direct ably spent on the defense. power39 reg- and inherent constitutional Oklahoma, ulate the of law in we Mattingly Pyron have com “weighty counterveiling poli- conclude that plied guidelines with the we are establish cies” and considerations of econo- so, ing. Were this not we would remand my by addressing are best served the mer- proceedings. they 74,259 for further We find that its in both Cause No. and Cаuse No. 74,319. lawyers paid are seasoned who should be This treatment will avoid confu- disorder, hour; negate sion and and it hourly per rate of that the will endless $29.26 litigation on case case basis. average pocket overhead rate and out of reasonable; expenses presented are held, Integration In re We State lawyers spent alleged time that the Bar, 505, (1939), 185 Okla. 95 P.2d 113 Lynch’s pursuit defense. The trial primary duty proper of courts is the approved court counsel fees in the amount justice; and efficient administration of $10,995.00 $17,073.03 Mattingly important part judi- are an Pyron. computation Our results in a state; system cial of this and that smaller fee than that which was allowed power ‍​​‌‌​‌​​‌​​​‌​‌​​​‌‌‌​‌​‌​‌‌​‌‌​​​‌‌​‌​‌‌‌​​‌​​‌‍regulate inherent to define and its practice naturally logically the trial court. resided in Smith, 336, Bar, Stephan Integration ex rel. 35. State 242 Kan. 39. In re State see note " (1987). supra. Opala, 747 P.2d ‘Inherent’ Powers of the Judi- ciary”, Academy American of Judicial Edu- Independence Separation cation —Judicial & O.S.Supp.1989 36. See 20 § 1304. 21-26, (May Powers Conference Materials 1989). Capital are ones in which the death cases penalty sought. See 21 State, 701.14. 40. Broadrick v. 413 U.S. 93 S.Ct. (1973); 37 L.Ed.2d NAACP 449, 459-60, State, Alabama, Vanderpool v. 357 U.S. S.Ct. (Okla.1983). (1958). 2 L.Ed.2d

H63 power inherent of this court to de- because Oklahoma law; intimately regulate so connected of practice practice of law was fine and the and the of up nature, with exercise and bound the and the cer- because of justice.41 power of in the administration problem the tainty of reoccurrence of Const, 7, explicit- 4 and 6 art. The Okla. compulsory must presented, §§ we declare the power of ly this Court with the endows appointment providing of general general and superintending control post-appointment opportunity to show administrativе all inferior authority over why they required cause should not be is consti- in this State.42 The Court courts appointment, provid- accept the or without power to control tutionally vested the compen- ing adequate, speedy, and certain this practice law in regulate the of and representation, sation for such an unconsti- State,43 regulates, among other it and taking property. private tutional of We moral, 1) resi- the and things: educational adopt guidelines the must also trial the qualifications dential admission repre- in setting courts to follow fees for bar; 2) taking a bar necessity the of indigent defendants all sentation 45 3) examination; at- requirement the where the cases state of Oklahoma re- Bar Asso- torneys belong to the Oklahoma provide representation quired to such legal ciation;46 4) continuing mandatory erratic, unequal, the uncon- order to avoid education;47 5) pro- the and standards taking of private property which stitutional attorneys.48 discipline of cedures for might by if fees are set a different occur seventy-sev- in each of state’s formula the Because our constitutional We our constitution- relating managerial en counties. find that responsibilities respon- by assuming met this al duties are of the district superintending control law; by delegating than it to practice sibility because rather ad- of the courts and (Okla. by Supreme eligible Ogden, for examination 41. Archer examination, 1979). its first and thereafter Court at Supreme Court shall hold examinations pertinent provides in § 42. art. Okla. Const. year applicants at each and at least twice part: may Supreme times such other as the jurisdiction Supreme original "... "The prescribe.” superintending general to a extend Court shall Agen- and all control over all inferior courts cies, 7(a), App. art. § Title 5 O.S.1981 Ch. created and Boards Commissions provides: law...." “(a) practice law in No shall pertinent art. Okla. Const. part: is not an active mem- State of Oklahoma who Association, pro- except as herein ber of the authority all general over administrative "... vided.” State, hereby in the ... vested courts in this Supreme Court ...” 1-B, App. Rule Ch. 47. Title 5 Assoc., 624 P.2d Tweedy Oklahoma Bar provides: (Okla.1981). attorney subject pursuant rules to these “Each attend, provides: complete O.S.1981 44. Title 5 2 herein shall or to Rule attendance, a Supreme approved Oklahoma substitute for mini- Court of the State of “The authority (12) power approved twelve con- have exclusive mum of hours shall year qualifications legal of all pass upon tinuing and fitness calendar education each January law applicants beginning for admission to 1986.” Oklahoma, qualifications of and the State of provides: are now 48. Title 5 O.S.1981 13 applicants shall be those which such prescribed statutes may be hereafter Supreme the State of Oklahoma “The Court of Supreme and the Oklahoma rules authority power shall exclusive have Court.” discipline attorneys at law and counselors granted permit practice law or revoke provides: 16§ 45. Title 5 O.S.1981 attorneys at law and counselors (30) thirty days act takes after this "Within effect, attorneys and counselors of conduct of rules appli- Supreme examine Court shall are now state such as at law in this shall he appli- all admission to the bar and cants for prescribed by the statutes of hereafter passed upon have heretofore been cants who and the rules of Oklahoma to take the examination and allowed shall be Court.” of State Bar Examiners Committee personnel ministrative who are answerable ORIGINAL JURISDICTION ASSUMED peо- neither to the constitution nor to the THE JUDGMENT OF TRIAL COURT ple. AFFIRMED AS MODIFIED IN Certainly, the framers constitution 74,319. CASE NO. did not intend to obliterate the due HARGRAVE, C.J., HODGES, rights lawyers in protect order to LAVENDER, ALMA WILSON and rights constitutional defen- SUMMERS, JJ„ concur. attorney dants. An cannot be forced to accept appointment represent the indi- OPALA, V.C.J., part, concur in dissent gent meaningful defendants without a part. post-appointment opportunity good to show DOOLIN, JJ., and SIMMS dissent. why assignment cause unacceptable. the by providing post-ap- We believe WILSON, Justice, ALMA concurring pointment process hearing, by due and as- specially: suring adequate, speedy, pay- and certain applaud I this Court’s extension of Bias services, legal ment for repre- the that the State, (Okla.1977) v. 568 P.2d 1269 and indigent sentation by of defendant court specially express my preference write appointed counsel will not result in an un- appointments of counsel for the indi- taking private property constitutional of gent pools private from attorneys, rath- process without due of law and that the extending er than the prohibitively expen- defendant, bench, bar, indigent the the and public system. sive defender public the bewill better served. HODGES, Justice, concurring specially. However, above, as we noted I in today’s concur decision which holds provision of counsel for defen requiring lawyers indi- dants, compensation of such coun gent post-appoint- defendants without a Legislative sphere, sel also lie within the hearing, providing ment and without ade- myriad prob and its consideration of the quate, speedy, compensation, and certain presented lems impor invited. This is an violates the Oklahoma Constitution. The area, Legislature tant which the should act present application compulsory court Nevertheless, to address. until such time appointment system may also violate the Legislature matters, as the considers these equal protection due clauses of pursuant power grant to the constitutional the United States Constitution. by ed art. 4 and 6 of the Oklahoma §§ specially I write to state that today’s Constitution, guidelines these shall become merely stopgap decision is measure to effective in all cases in which the State of remedy constitutional infirmities in the required provide Oklahoma is assistance present system. Legislature is free to appointment insofar as the adopt any solution that is consistent with implementation post-ap counsel and the the Oklahoma and United States Constitu- pointment hearings show cause are con tions. upon cerned the issuance of the mandate computation cap herein. of fees in all example, Legislature may adopt For according cases shall also be calculated ital suggested by majority the formula promulgated guidelines after the opinion by tying hourly appoint- rate of However, issuance of the mandate. under ed attorneys counsel to that of district State, authority Vanderpool 672 public compensating defenders while (Okla.1983), recovery P.2d out-of-pocket reasonable overhead and ex- guidelines Or, penses. Legislature may fees the new will opt to non-capital not be effective in cases until develop sys- a state-wide defender August Legislature suggested by to allow the tem concurring part problem, to address the and to enact dissenting part opinion. cor Another legislation. rective simply alternative would be to raise the

H65 work, (1) today modifies the extraordinary fense the court codify the statutory cap and reducing hourly applied by in Bias v. court’s оrder trial doctrine circumstances (Okla.1977). State, pay by drawn district P.2d 1269 rate to the level attorneys/public defenders and their assist- chap- is another pronouncement Today’s ants, (2) approves claimed amount struggle across the na- ter out-of-pocket for overhead and appropriate balance be- “to find the tion (3) adopts expenses guidelines for trial obligation legal the ethical tween apply assignments in future courts make services available and profession to counsel. attorneys just compensa- rights of Smith, 242 Stephan ex rel. tion.” State concluding regime that the join (Kan.1987). Kan. assigning lawyers for criminal defense recognize eases “that the historical Recent are work in counties which duty provide from which conditions is tainted a constitu- defender services longer evolved no exists legal free services I recede from the court’s infirmity. tional America.” Id. in modern [sic] gov- design that is to interim institutional tra- changes impaired the Dramatic have legislature sys- ern until the overhauls ap- compensation and method ditional view, my the whole scheme is tem. In represent indigent of counsel to pointment flaw. It by a fatal and incurable affected have witnessed years Recent defendants. responsibility judiciary with the saddles the complexity, specialization, increased in operating defense services 75 coun- defense work. Added costs in criminal properly performed to be ties—a function this, Drugs” fueling a dra- the “War on department. Until the by the executive of criminal increase in the number matic in- professionally legislature establishes already heavily bur- heaped upon cases sys- dependent statewide defender exacerbating system.1 These dened I department, within the executive tem emerging view “that have led to the factors measure, (1) would, stopgap merely as responsibility provide Sixth equalize, on develop guidelines that would right to counsel is Amendment basis, for the Bar’s burden a statewide entire- that is not to be borne responsibility in services those providing defense Although law- private Id. ly by the bar.” (2) upon call the Oklahoma counties obligation provide have an ethical yers called the Bar Association Bar] [hereafter legal obligation indigents, the services for pool qual- service manage a statewide Legisla- up It is to the on the state. rests in criminal as deployment for ified obligation. fulfill that ture to public-service work. mandated well as other Justice, concurring OPALA, Vice Chief dissenting part. in part

in today that the stat- pronounces The court EXECUTIVE A THAT IMPOSES SYSTEM scheme, requires assignment which utory THE JUDICIAL SER- UPON DUTIES indigent lawyers represent defendants ART. OKL. VICE VIOLATES cases, in certain in criminal—and civil— CONST.1 infirm, may unconsti- facially not while is the constitu- The threshold issue here In a application. present-day in its tutional judicial in placing propriety tional from the corrective relief for proceeding man- function of department executive order, approved two judge’s trial deploy- for aging resources exceeding professional fees in an amount lawyers’ criminally accused ment in the defense criminal de- statutory maximum rates for to 400 in the U.S. During compares with a rate of 350 point. this demonstrates 1. One statistic Britain, S.R., 47 in in France and years, of incarceration has ten the rate the last World, July at 1. Norway. Tulsa 100,000 per citizens to 407. increased from highest one of the States now has The United figure nóte 11. 1. See the world. This rates in incarceration infra indigent persons.2 pro- provision legal In a series of for service is constitu- against tionally imposes nouncements еnforceable infirm. It on states, im- Supreme has U.S. responsibility managing pro- service the posed governments on state the burden of necessary fessional human resources providing indigent services deployment in the executive service of defense (a) charged a felo- persons who stand government i.e., the indi- State defense of — (b) ny, prosecutions in misdemeanor involv- gent persons. (c) juvenile ing liberty loss with a principal judiciary is function of the noncompli- delinquency.3 penalty preside adjudicative process over the of state ance is federal invalidation convic- proceed- ensuring with a view to that the legislature’s present- tions. The Oklahoma ings are It does not include error-free. day response mandate consists U.S. procuring lawyers to make the (1) authorizing public defender services Amendment, legal, meet 6th or other stan- all, counties,4 (2) some, directing but dards.7 Defense services the State is con- judiciary assign counsel for stitutionally provide mandated to are clear- pro- criminal and civil defendants certain ly executive character.8 The Oklahoma (3) ceedings5 establishing a maximum “superintending control” Court’s court-pro- statutory compensation rate for Const.,9 Art. neither Okl. cured defense services.6 purely managerial nor administrative but legislative and feder- obedience adjudicative character.10 Its terms will mandates, judiciary the al constitutional support judi- not this court’s ukase for the manpower has furnished for defense ser- ciary’s involuntary assumption manage- of (a) public no de- vices in counties where responsibilities rial extraneous to the dis- exists, (b) system in all cases where fender charge governmental of service. its public disqualifies a conflict of interest the managerial powеr exercise (c) Judicial of serving and in certain defender from view, over the defense service criminal cases my noncriminal cases. In the entire design clearly separation-of-powers offends the assignment regime’s institutional Governor, typically provided any 2. Defense services are the other executive or for 1) assigned programs, legislative three methods: office. 2) 3) deliv- defender offices and contract Ball, 294, [Ky. v. S.W.2d Bradshaw 487 299 ery systems. Project ABA on Minimum Stan- 1972], duty that "it is the of the court notes Justice, Relating Criminal Standards dards for department criminal executive laws, to enforce the Services, Providing Approved Draft Defense duty legislative depart- and it is the 1968, (a). Commentary appropriate ment to sufficient funds to enforce they proper the laws which have enacted. The 335, Wainwright, v. 372 U.S. 83 S.Ct. 3. Gideon duty judiciary, constitutionally in the 792, [1963]; Argersinger L.Ed.2d v. Ham- 9 799 sense, appro- ideal is neither to enforce laws nor 2006, lin, 25, U.S. S.Ct. 32 L.Ed.2d 530 407 92 priate money. judiciary's The reason exist- 1, Gault, [1972]; Application U.S. 87 S.Ct. 387 of added.) adjudicate." (Emphasis ence is to 1428, [1967], 18 L.Ed.2d. 527 Okl., Court, County 8. Earl v. Tulsa Dist. 606 P.2d O.S.Supp.1989 and 19 § 4. 19 O.S.1981 137.1 545, [1980]; Dodson, County 547 see also Polk 138.1. § 312, 334, 445, 458, 5, 454 U.S. 102 S.Ct. n. 70 1175.2(B)(4) (compe- O.S.Supp.1983 C.J., 5. See 22 § (Burger, concurring). L.Ed.2d 509 [1981] trial); tency O.S.Supp.1985 22 464 § to stand (arraignments). 7, 4, Const., provides pertinent § 9. Art. Okl. part: (maximum O.S.Supp.1985 See 701.14 § cases); 21 “ * * * original jurisdiction The the Su- of statutory capital 22 O.S.1981 fee preme general superin- Court shall extend ato (other cases); O.S.Supp.1989 20 1271 criminal § tending all control over all inferior courts and cases); 1304(b)(9) O.S.Supp. (guardianship 10 § Agencies, by created Commissions and Boards 24(B) (juvenile proceedings). § * * *” mine.) (Emphasis law. statutorily perceive no between the difference Approval professional 10. In Re: of Rules Mandated procurement mandated of Act, Dispute deployment Resolution resources defense of 8, [April legislative seq., indigent persons 1986] 1801 et 57 OBJ 876 §§ (Opala, accused and a com- J., participating). judiciary supply not mand that staff of government by with enjoined doctrine on this ment services than that defense 4, 1, pro That Art. Okl. Const.11 section which marks out its involvement with the incur judiciary’s hibits the unauthorized prosecution.14 sion into the affairs of the executive anyone’s The law must insulate from explicitly Our fundamental law branch.12 judicial, legislative or execu- interference— prohibits judge exercising from functions aspects tive—all of a defender’s at- (or to) incompatible germane torney/client relationship. litigation- The Bench’s constitutionally articulated mis choices, strategy any related as well as posture sion and with the mandated professional decision-making other facet of neutrality.13 judi detachment and defense, person’s in the conduct of a must ciary permit any cannot to have itself operational entangle beyond pale meddling.15 greater degree outsiders’ 11. A 12. Earl v. Tulsa judicial nature functions of S.Ct. that executive or administrative duties of a non- 222, 223 [1978]. of Art. our fundamental explicitly departments. expressly and See In Re: Dispute see IMS. v. rel. Mears v. separation stitution. The United States v. 40, enforced when the U.S. on rules holding nonparticipating), placed the the Judicial In the federal thorized this We should not be cials of the executive authorized nection the views 569 [1988] U.S. 8; Case, 165 Okl. Judicial; Oklahoma shall be divided into three “The stitution, departments: rate and others.” cial see also proper a more recent 13 How. Court’s carefully 654, 697, 2764, 2784, tripartite 2 U.S. powers properly departments upheld powers Resolution office by regulations mandated management distribution investigate in this connection Pulaski distinct, 409, court opinion (Scalia, Chadha, 462 U.S. Appeal Adkisson, 262 Ark. Depаrtment; see also in this con- 40, government be divided into three powers designed under Art. Ill of the federal Con- Sterling Refining judicial system Okl. P.2d Legislative, may division of inflexibly except County Dispute 2 Dall. 14 L.Ed. 42 congressional 77 L.Ed.2d 317 [1983]. commingling law, exposition S.Ct. assignment where Act, 312, Const, of Rules Mandated J., in Morrison Legislative, not be branch) government came to be Scalia, J., for mediation government belonging Art. supra constitutional 2597, 2622, of mediation 409, dissenting) Dist. the U.S. Resolution Act which neither government prosecute Supreme this court commands that Executive, are: 4, government imposed of the Court’s view [1933], and in Mistretta v. [1851]; Hayburn's note Court, 919, 951-952, L.Ed. 436 Ferreira, 636, the functions of in dissent from enactment recognized to either of Executive, Co. v. 1, of the State of shall exercise shall be Constitution; independent principle Okl. in this Con- 101 L.Ed.2d certain offi- services au- (where 560 S.W.2d Court supra Olson, services in The terms (Opala, on County structure. and Judi- functions approved separate Walker, 54 U.S. Const., [1792]; by judges is not sepa- note held that the ex J., 13. Earl v. Tuba 15. The 14. Earl v. pendent to the Polk supra 321, ion function cannot dence from assigned State to subjugating the defense to executive dictation. "the professionally fense state, they ed that "a administrative direction S.Ct. at clients.” In with interests unrelated trative loway that because public employees, important L.Ed.2d 714 ^[1989] pendent body ation of a cial. ... Okl.Cr. (where 8, 606 P.2d at 547. [1967]; ly ascribes to other U.S., Walker, fully Election, promulgate binding Sentencing 606 P.2d at N.E.2d County 102 S.Ct. at government Burger, 488 U.S. employees note Polk, supra separate superior.” recognize client are defined the Court Opinion supra respect task b Truesdell, "is the constitutional are Tulsa who, Sentencing public defender is not amenable to 8, governmental refuting this 114 Mass. that under Gideon defenders my public C.J., of the Judicial Branch with is subject obligations 454 U.S. Dodson, qualified government. note writing by either as 361, not, 451, be, 547; Sterling Refining the County County institutionаl the to be of the undertakes are called The Court noted that states approved congressional note [1974]; the servant of 83 Nev. defenders are professional independence professional the and 11; 109 S.Ct. Commission as an inde- supra whom it (Scalia, at Justices, performed “supervision by persons Dist. Dist. in his State” and that “a de- advocate argument assigned notion, owed to those of by Ex control as to how the 321-322, Simms, J., 202-203 454 U.S. at upon Case the same note only the nature of his It is the design Court, Court, parte Coffelt, concurring opin- obligation by engages.” J., 365 Mass. 647, 675, the Court stat- to defend. In 422 P.2d 237 independence 8, counsel wholly professional was [1951]; paid an adminis- Guidelines). 102 S.Ct. at Supervisors Argersinger the flaw of supra 454 U.S. at supra dissenting) erroneous- provide [1873], sense as indepen- pressed equally is cru- by Co. v. power of the or Polk, inde- note note Gal cre- the as Nevertheless, II of the service to the essence correctly characterized be is A DEFENSE SYSTEM FOR PUBLIC legislative judicial or extraneous COUNTIES, TO WHICH FAILS ONLY to that of the executive.16 function and akin EQUALIZE THE PUBLIC-SERVICE to seek responsibility It is the executive’s BURDEN AMONG ALL LAWYERS IN judicial reversal-proof convictions in tribu- STATE, THE OFFENDS OKLAHOMA administer properly nals constituted to FOR CONSTITUTION’S COMMAND adjudicative process which con- standard of EQUAL THE TREATMENT UNDER our fundamental forms to the dictates of AND 7 AND LAW IN ART. 6§§ Gideon short, law. the aftermath " ART. § defense, prose- progeny, as much as and its mechanism for There is no statewide cution, component govern- is an essential im- equalizing public-service burdens crimi- the enforcement of ment service assignment regime posed by the flawed on nal laws. lawyers in affected counties. The the 75 impose nonjudi- legislature may not practice weighs heavily on current —which upon any judicial officer or tri- cial duties im- lawyers in some of these counties and bunal, may judi- neither it command legal nearly from like service all munizes lawyers to used for what ciary to recruit largest two practitioners with offices discharge purely essentially the of a is metropolitan counties —offends our State exclusive, consti- function.17 The executive uniformity-of-procedures Constitution’s requisition Bar tutionally power invested 46,22 clause, equal Art. as well as the professional pro for rendition of resources components treatment infused into Art. bono services Supreme resides 6 and 7.23 §§ Judges of other courts exer- Court.18 discharge In the Court’s delegated power only to the extent cise this power regulate of law and by this court.19 to them codes, entity every injury person, property, reputa- governmental or from tion; justice compensation right shall be adminis- which the defense advocate’s sale, denial, mine.) delay, preju- (Emphasis tered without derived." dice.” design I would counsel 16. The new institutional Const., provide: Art. Okl. The terms of greater power judiciary leave the with no should life, liberty, person deprived shall be "No customarily component the defense than it over property, without due of law." prosecution. over the In this framework wields Const., judica- provide role would recede to that of Okl. 21. The terms of Art. component part: defense pertinent ture. Once department, integrated executive either into the not, Legislature except as otherwise "The shall agency commission as an under autonomous Constitution, pass any local in this otherwise, independence the defend- of or authorizing: special or law decision-making process professional must ers' respect prosecutorial discre- less than receive no jurisdiction of, Regulating practice or tion. changing pro- the rules evidence in of courts, justices ceedings inquiry before Walker, Sterling Refining supra v. note 17. In Co. commissioners, sheriffs, peace, arbitra- of the tors, 320, 11, "by held that reason P.2d at the court 25 [Emphasis or other tribunals...." 4, §1, legislative provisions of article mine.] delegated powers not be to or conferred could upon Court of Oklahoma." supra Independent 22. See note 21. Maule v. Okl., 198, 203-204, Dist. No. 714 P.2d School 9, II, 18. See Part ‍​​‌‌​‌​​‌​​​‌​‌​​​‌‌‌​‌​‌​‌‌​‌‌​​​‌‌​‌​‌‌‌​​‌​​‌‍infra. [1985]; City Fed. n. 32 Ind. Schl. Dist. v. Okl. of Okl., 719, Teachers, (Opala, 612 P.2d 725 [1980] power Supreme Court's inherent over The 19. Okl., J., dissenting); City Griffin, v. Oklahoma Integration nondelegable. In re the Bar is of 463, State, [1965]; v. 200 P.2d 465 Fenimore 403 24; Oklahoma, note Winters v. Bar State of infra 852, 400, P.2d 854 [1948]. Okl. 194 J., concurring City (Opala, City in Oklahoma of dissenting part) part note 26. and infra process supra clause in See note 20. Our due 2, 6, Const., Const., provisions 2, 7, of Art. Okl. are: sweep 20. The Okl. has a definitional Art. counterpart. justice with its federal shall be that is coextensive courts of of the State “The open Amendments, Const.; speedy U.S. every person, and certain See 5th and 14th and 259, Drilling Egbert, every wrong 170 Okl. 40 remedy McKeever Co. v. and for afforded

H69 in one law, practitioners government-op fundamental became conformity with our equalization de licensure, discipline create an interim system erated of would sign integration came regulation.25 With also providing defense services lawy deprivatization the Bar.26 uniformly all Oklahoma Lawyers are will of affect “integrated” quasi-public functionaries27 under the Su the Bar was When ers.24 preme regime rule-structured 1938, organized into Court’s profession became license. lawyers occupational All are of a state governmental agency. holders single a 25. Whether 26. The Sch. supra; P.2d hence Ford tions tive.” L.Ed. 884 nation J., P.2d profession ing Amendment, against tion Court 99 ing supra note 24. torial P.2d 423 um, Okl., homa Tax S.Carol.L.Rev. unlike [1986]; Harry The period it to important quasi-public deemed services.” the State Bar of U.S. the common law’s ^[1983] Court rated censed” Martineau, the [Okl.1968].. Court: Time To in the land [1990]; Naifeh, Oklahoma, S.Ct. Tweedy dissenting). equal-protection Bar of its exclusive 32, Finance Coun. Okla. -, v. Board say could be 1135, 1148, serving professional Service, Inc., our Davis v. (independent, (Opala, law). Sharpe, that of Oklahoma — was permissible Personal clause. McKeever of unreasonable or see also component deprivatization 2264, 2271, 35 its own here [1967], 732 [1954]; Okl., own) "government v. Oklahoma Bar England of Keller v. State [1981]; the common [1935]; The Com’n., Okl., 437 P.2d entity, no need not be reached now. the Oklahoma Admission State, power R. Carlile Trust Cotton Petrole J., dissenting); P.2d 185 Okl. accomplished by that the Bar’s Passman, S.Ct. 598 P.2d 347 U.S. contains Take The Gown Off "important improving Attorney Tweedy v. Oklahoma Bar Tax-Roll interest in Loan & Finance Our n. 48 Oklahoma is at see State ex rel. State practitioners. societies history. During In re Elam v. Okl., for the 438, 443, Okl., was entrusted to the Inns [1984]. expenditures component of self-governing, jurisprudence L.Ed.2d 846 [1987], The latter admitting agency," Integration to 730 a built-in anti-discrimi- 659 unreasoned classifica- As An Officer Of Bar law, Drilling Corrections, purpose that trained students practice governmental "regulating Workers’ Ass'n, Okl., 95 P.2d 113 The affords P.2d 226 [1979] n. P.2d v. activities serve an U.S. Black v. Ball Jani v. 74 S.Ct. Bar quality each court "li State, Okl., (a) in our own 25 underwent or some California, English 110 L.Ed.2d 1 See variance with 510, 513, 228, candidates to 938, 941, Co. v. Co. v. Okla [1979]; Boll of determin- [1986]; entering private the law in The should be unincorpo Compensa recognizes protection State generally Okl., 234-235, Bd., classical Bar, (Opala, Egbert, the 1st Suffice [1939]; objec- Bar— Ass'n, other legal legal (and Eng Fair n. Etc. bar. The due Bar 943 746 one — 9 27."An government formal Profession Holdsworth, History Michie and was tice in the courts. the bar America, candidate was a member. A Office in the Law Courts’ concept nett, proteсtorates and mandated territories were re- tice in the 224-230 England. and Decline of the Inns of al wide bar under Strand. Chroust, of the American dation of the quired the admission to the bar of a when in 1938 of ing 26 at see also Winters source of the [1933]; in this connection Law: The Law refashioned the [4th The federal law.” an officer of the State Oklahoma made ly organized. privilege, sense. He excerpt §§ 641, establish and to control in ment each United 1400, 172 [1965]. part society 107 S.Ct. Ed.1936]; A Bar four p. (Emphasis required Company "call to the signed and Concise from and of a Chroust, tacitly [1956]). Before Costigan, supra at The Rise of the Vanderbilt L.Rev. Vol. I at sign —has not Only lawyers Inns Court in King’s and Its exercises a and state license to dissenting Oklahoma, 2071; n. 24. A See In re judiciary. 2607, 2611, Hurst, 729 [1987] an official roll it the Roll at his own Inn of Court under the court but English Legal Profession After In the federal Nolan, permitted of legal training Makers 285-293 profession into a is organized no modern History v. English 1980] overseas added.) Costigan, supra note Legal Costigan, Cases On The States court is authorized Ethics, bar" of the Inn of which the 33-35, Nolan, see neither a court, City [1933]. auspices sharp license to practitioners are different- The Growth of American Frazier Readings in the quasi-public in (an excerpt Beginning, Flourishing of supra its own bar. 28 U.S.C. who intended to Profession at 15 [The of the Common Law "call to the (Opala, n. English pgs. supra at 177-178 Central part). in London, (b) Oklahoma dominions, Legal Court: The Consoli- break with L.Ed.2d 557 79, private public kept equivalence any proper of this court v. note judicial person 12 and law. practice n. Heebe, judges Vol. II at 171— [1950]). J., there was no (c) receiving Profession Integration Law 484-512 at the Crown Office regulated 31; 24; into from Pluck- franchise, a officer profession- concurring under the [1956]; bar" — City, called to 86, colonies, complet- environ- see also 482 U.S. see аlso History a state- history law [1987]; Legal n. prac- prac- in a legal Okl., nor i.e., (an re- to II Rulemaking Supreme equal government-ser- for distribution of the the Bar imposed.32 to be constitutionally in vice burden exercise its Court’s legal profes power regulate to vested Competence lawyers for authority sion and of law. criminal work lawyers solely Supreme in the over resides approve developing competen- I do not spelled It is in its rules.28 Court. out adjudicative pro- through cy standards lawyers public for ser power requisition appellate opinion. task cess of an This and conditions and to define the terms vice accomplished by guide- rules and should be shall legal practitioners upon which cooperation with developed lines to be public this carry duty their lies within out representatives prius of the nisi Bench profess authority exclusive over the court’s Appeals. Court Criminal ion.29 courts, directly af- Those are more vitally compe- in the fected and interested Ill bar, participate of the criminal must tence formulating these standards. PLAN A BAR-MANAGED INTERIM lawyers’ competence not treat I would EQUALIZING THE DEFENSE SER- FOR to all criminal applicable single concept VICE BURDEN developed proceedings. Criteria be should legislative department estab- Until lawyers qualify mis- that will enable for public service30 lishes a statewide defender defense, they though perhaps demeanor totally judi- independent both qualified felony work. might not be so for tinkering, ciary impervious may professionally be fit for certain Some constitutionally exercise the would court’s e.g., felony service for defense but not all — interim powers develop an invested capital robbery offenses. but homicide court-assignment system with a built-in may qualify for Lastly, there be those who equalizing for burden juvenile delinquency mechanism or in the defense qualified practitioners all in the among juve- case under the some other rubric words, Bar upon process. competency I would In other State.31 call nile assignments stopgap to ensure an must neither be manage plan this standards mechanism, Ass'n, supra ac- Tweedy equalization note 24 could maintain an v. Oklahoma Bar 1052; Virginia counting system keep P.2d at Court would establish 731-732, Union, Etc., public 446 U.S. how much service be due Consumers track of 1967, 1974, must serve. All [1980]. 100 S.Ct. 64 L.Ed.2d from each licensed who pool lawyers be in and be would this service conscription pro bono work treated alike for Southern See Mallard U.S. Dist. Iowa, U.S. -, conformity specialty with the licensee’s S.Ct. Dist. J., qual- (Stevens, dissenting). this manner who do not skills. In 104 L.Ed.2d 318 [1989] ify law utilized for for criminal work could be assignments. pro civil bono example comprehen- the California 30. See adopted system for each defender sive county paid major law- in the state to be staffed of those who 32.“One conclusions (West. yers. participated 27700-27712 §§ Cal. Code of the Federal [Gov’t] formulation Cook, Supp.1984). Appoint- & See also Act and in that act is Criminal Justice embodied People systematic v. John- of Counsel California: A in a ment that counsel must [1981], Perspective, arrangements 3 Whittier L.Rev. 499 son and not ad hoc fashion notes, coun- day-to-day improvisation reflecting author at that most where the the ideas of x-xi, Report judges. Att’y California defender ties in maintain See Gen. individual 42-43; statutory scheme allows office. While Justice Act of 18 U.S.C. Criminal assign private in criminal view is in the sur- court 3006A. This substantiated cases, jurisprudence practice, a firm vey California indicates that the of state which indicates against allowing defendant policy inequities, an and the to both the defendant worst bar, public court-assignеd organized de- where a other counsel in those areas where no occur Cook, supra systematic approach problem at 506-508. has been fender is available. See added.) Project (Emphasis on ABA taken." Justice, by creating Stan- accomplished Standards for Criminal could be Minimum 31. This Services, Relating pool deploy- Providing lawyers Defense service for dards statewide 1968, Bar, (a) Commentary p. Approved at 15. as an Draft service work. The ment in

H71 assigned to associ- by this court’s or hired —should be free rigid prescribed nor too pro- specialists in com- counsel They should be formulated ate with or other ukase. by rules. promulgated viding defense services.35 mittees speech and 1st Amendment IV associational freedoms OF PROPOSED SCHEME DICHOTOM- condemning today in join I the court PRIVATE IZED COMPENSATION FOR lawyer’s advertising competitive use of a SERVICES PRACTITIONERS WHOSE county permissible as a activity within a REQUISITIONED ARE THE DE- FOR legal practitioner’s gauge for a nonresident DE- INDIGENT CRIMINAL FENSE OF pool criminal defense inclusion into a for FENDANTS county in a other than that assignment professional maintains a lawyers he or she which I reward for dis would targeted office. No should be charging public-duty their service with for assignment puni- as a a criminal compensation equals which sal quantum of defense exercising his/her sanction tive 1st attorneys/public the district aries drawn any- to advertise Amendment freedom Rather, I and their assistants. defenders unthin the state. where To sanction dis- legislative power restrict to set rates would single judge cretion that would enable no more lawyers’ public service work to lawyers assignment out-of-county out for Bar-prescribed quantum of annu than the maximum,36 profession- their seek business dehors who public-duty al Once an indi impermissibly would have an al residence performed all that practitioner has vidual practitioner’s 1st chilling legal effect on the permissibly claimed may constitute right to advertise.33 Amendment maximum, beyond all work public service for the that maximum —whether benefit assigned practitioner allow an would in criminal defense or for the State right 1st Amendment exercise his/her governmental enti of some other handling a benefit with other associate value market its ty paid be at public service defense or other criminal fair —should .37 volunteer, Any lawyer duty.34 —whether 33. 34. Bar Amendment. Griswold 479, 483, freedom to associate 242, 350, 383, gious regulation. 609, 810 S.Ct. clearly outweigh scrutiny S.Ct. L.Ed.2d whether both compensation cation, ware [1984]; ation 1923, [1965]; 1215 See Bates v. State I would save political, Assoc., [1977], 54 622, 3409, [1982]; Co., and cultural ends is 100 L.Ed.2d rights engendered by the 431 U.S. right L.Ed.2d 164 Roberts see also (Buckley 261 [1977]. 97 S.Ct. 104 S.Ct. 85 S.Ct. 458 U.S. reh’g 486 3422-3423, 3435-3436, social, economic, to associate have the Abood 46 L.Ed.2d 659 for services rendered. v. United States U.S. for another N.A.A.C.P.v. Claiborne denied 2691, 475, 1678, 1681, [1977]; Shapero Kentucky 3244, 3251, 886, 907-909, 932-933, 231, repressive v. Detroit Board Valeo, 466, 476, Bar should be entitled effect of v. 486 2708-2709, Governmental with others in 434 U.S. subject Connecticut, protected by S.Ct. 424 U.S. [1988], Arizona, [1976]) and must day educational, Jaycees, effect on associ- 14 L.Ed.2d 510 82 L.Ed.2d 462 108 curtailing 1782, 1797, governmental 881, v. 73 53 L.Ed.2d S.Ct. 1, 25, 433 U.S. question 381 U.S. 468 U.S. 98 S.Ct. L.Ed.2d pursuit the 1st closest to full action Hard- 1916, Edu- reli- 102 52 36. Randolph, traordinary Supreme Court in the exercise of bearer formed tory would constitute N.E.2d 624 vice representations; Misc.2d what different analogous concept although espousing Ill.App.3d cation ed authority oped by limitation could not scheme [1977], People [1966], extraordinarily lengthy The A compensation Fees, component, fee. 429 N.E.2d 497 [1981] others, minority of a state license the court dichotomized quantum into a annually the Bar and then Armani, over ^[2] 35 Ill.2d [1986], circumstances” to exist 302 N.Y.S.2d should Ill.App.3d v. "regular” and professional activities of of courts terminology. Johnson, see also holding a burden to be bornе in excess at the court in — 83 Misc.2d Ill.Dec. where the court be a norm constitutionally 24, People statutory 219 N.E.2d have People promulgated by “extraordinary” Ill.2d 102 Ill.Dec. service to be and In Re Petition [1969], complex its ^[1] v. recognized initially compensation regular its 371 N.Y.S.2d statutory Atkinson, rate and award law, found "ex N.E.2d 94 Wilson, ‍​​‌‌​‌​​‌​​​‌​‌​​​‌‌‌​‌​‌​‌‌​‌‌​​​‌‌​‌​‌‌‌​​‌​​‌‍57 Ill.Dec. legislative People 337, multiple lawyers. applied equally which Appli some devel- statu per- ser 341 fee v. 1172 qualify property would whose services adopt hence a dichotomized I would compensated taking public use must be lawyers compensation for as- of scheme value, there be an at market lest fair For the signed perform public service. sense.38 expropriation constitutional lawyer a

required public service work private from sector Lawyers appointed statutory compensated at would be compensated for all out-of- must also be done, rate; duty excess that is but when who re- pocket expenses.39 Volunteers Defense: The Need dards, the absence S.E.2d see pointments A also stitute signed the court noted obligation; Moultrie, cludes thus fair market be awarded in in State ex rel. ments but holds In DeLisio 437, when present. "a court represent taking cash rel. Scott v. Under the Nevada directed court P.2d 719 [1983]. mum fees for indigent, Cty., Cal.App.3d cumstances construction nism the court holds quired allowed for normal work excess of parable 563 v. 1985]; tion. ...” “Private aged minority required,” required Maynard, The terms of Kirwin, generally 442-443 [1975], [Cal.App., 1978] County subject advances for that allows established a "taking” that at to devote 14 S.W.Univ.L.Rev. 389 principles place to that in the appointment compelling "extraordinary property for which 3 725 F.2d Jewell v. See Lueck 816, an 547, property duty-bound v. Alaska attorneys’ ALR4A value of the uncompеnsated existed and awarded counsel of statute or court also to 5th of statute or Roper, infra legislature 383 S.E.2d which is [Alaska statutory indigent criminal defense work year indigent excess of the Attorneys courts take the attorney appointed to Stephan Kendrick, Fresno v. 841-842 are entitled to in the constitutional the court Family that "an unreasonable that a Art. found that more than 10 See also note out-of-pocket expenses”. Maynard, use without Amend, 695, statutory compensation shall not be 688 S.W.2d For v. 1987], court-assigned Superior services equal protection and due 2, (Hopper, federal court maximum. to be "measured criminal State, v. property appropriated;” lawyer may Div. 705-706 to establish a [1987], the court con- For to receive Superior 536, court rule circumstances” acknowledges Smith, Uncompensated accept upward Annot., Validity and 24, at protection; statutory maximum the court holds service” Cal.Rptr. supra just compensation Indigent scheme, extraordinary Trial 99 Nev. 547 are compensation in position Okl. Const. rule Court, just compensa- J., 8 [1981]. defendant is taken or dam- 757, percent of his [D.C.Cir.1984], [1984]; an court property and Ct. regime [W.Va.1989], limit on this note n. 2. up ^[3] fixing Lawyers v. authorizing dissenting); system and cases. The might sense; not be re- Kan. 768 [Mo. fees 740 P.2d Criminal In Jewell 717, “mecha- State that as- amount 37, by the assign- Fresno fees in $1,500 Pirsig maxi- Stan- com- 884- con- 336, that are: Ap- 669 see cir- are ^[4] ex Randolph, son v. And For Co. vice—when the court holds tionally require proach There imbursed Ill.2d nard, out-of-pocket expenses. bursement of N.J. criminal charging on out-of-pocket County Fulton supra 421, ber notes that the But United States Roper, supra tion Ind. For Award, Wis. Statute 393, amounts rejected Cir.1965]; compensation; F.2d Annot., Bd. Prison 550, 9, Salt it v. [1968 [Wash. 146 County 195 property (Bradshaw reject Under this dichotomized 16 Green, aрpointed the basis of Canadian of the authors cited of cf. [1968]; McNabb v. Indigent that a [1966], Lake 493, 422-423 170 A.2d 17 L.Ed.2d 304 [1966] 249, 1211, supra 15 L.Ed.2d [Iowa & at has been a trend toward Vardeman, supra 1970]; County, would an Oklahoma Council v. State ex rel. or Court Compensation Right 1989 his/her 823-824; defendants; to a 29 N.E.2d 217 A.2d on actual 221 N.E.2d 645 252 County, 22 470 S.W.2d supra lawyer’s cert. See State 1214-1215 [8th right. note cert. reasoning appointed to a case in Canadian 1982]; Of 688 S.W.2d expenditures argument to render Accused Supp.]) Terms & 466 P.2d and travel assigned counsel for v. [1969]; State v. majority of commentators draw Carpenter of [Wis.1859]). 1, taking 113 court-assigned Ball, Washoe, Williamson that the state denied 382 U.S. note denied, annual [N.J.1961]; State v. Rule, Attorney 469 but Ga.App. services should Honore pay 383 S.E.2d at 405, outlay v. supra Utah 2d and that a County v. Second Jud.Dist.Ct. In People 37; To, [1966], P., Annot., 571, see State ex rel. Scott v. Dillon, Osmundson, gratuitous 21 ALR3d at the fair that note 38 at at expenses quantum public 413 v. Dillon, 85 Nev. 385 property County [1966]; Public, in behalf of Cir.1982]; Weiner v. Roper 764, Appointed v. 343, note basis. 576 County v. Annot., compelled [1940]; compensation ap- U.S. lawyer [1966]; People 346 F.2d 633 [9th Washington 12, where the court Court's counsel cannot constitu Construction Horton, McCormick, where the court Vardeman, lawyer may supra. 148 allowing reim [Mo.1971]; see 7 standards, Jewell v. 547; 241, in Absence of take the 447 service 978, would market value out-of-pocket 958, at 485, be treated as 819, —after 315 N.W.2d of S.E.2d Watson, Bedford 21 ALR3d 298; P.2d Rush, Power William to make Dane, 86 S.Ct. 495-496 87 S.Ct. 34 N.J. Part III A num appear service where be re- (Knox Court May posi State State P.2d 143, 193, just ser- dis- 674 but 217 v. 9

H73 assignments example in excess when quest service Abe Fortas he sounded Times”, trumpet the Bar-established maximum would be Gideon’s in “Modern compensated at the state-authorized rate. j dissent SUMMARY SIMMS, Justice, dissenting: accordingly direct that the fee- I would system jurispru- Under our of criminal setting judge reconsider the claim on re- dence, attorney a licensed finds himself in a conformity my in first mand views very unique position. lawyer That is an determining if the affected had such, officer of the court. And as is bound made, case, required more than their this required by to render service when his or public-service individual annual contribu- appointment represent her judge If the conclude that the tion. should Alabama, defendant. Powell v. State of that mini- case demanded work excess of 287 U.S. 53 S.Ct. 77 L.Ed. 158 contribution, mum then the balance of the (1982). However, he is not a “officer” in the should be services rendered case ordinary meaning within the of that term. compensated on the basis of its fair market category An in the same is not as out-of-pocket to all value addition marshals, bailiffs, judges. court clerks or por- That expense travel reimbursement. engaged private profes- A in a represents of the service which tion sion, important though system it be to our compen- public-work contribution should be justice. As Justice Cordoza stated for statutory sated at the rate. Appeals People, New York Court ex furnishing manpow- Because the task of rel., Culkin, 248 N.Y. 470- Karlin v. day-to-day criminal defense services er for (1928): 162 N.E. may not is an executive function that be “Membership privilege in the Bar is a urge imposed upon judiciary, I would appellant burdened with conditions. The legislature prob- to address itself fellowship into that ancient was received possible date with a lem at the earliest gain. something private more than establishing implementing view to court, and, He became an officer of professionally independent statewide itself, like the court an instrument or the executive system defender within agency justice. to advance ends of agency government. Until such branch cooperation His with the court was due created, would, quickly possible, as justice imperiled would if whenever be equalization begin utilizing the Bar as an cooperation might He be was withheld. pool of mechanism to create a statewide needy, in assigned as counsel for the develop plan qualified lawyers and to civil, serving causes criminal or public-service evenly the Bar’s distribute pay.” practitioners among all licensed burden on Limita- In his treatise Constitutional this State. within Cooley wrote: tions Professor Justice, DOOLIN, dissenting. humanity of the law has “[T]he that, employ prisoner com- if the is unable present traditional method of counsel, may designate some- competent the court appointment of pensation and paid him shall one to defend indigent defendants counsel to provi- no such government; British but when well and existed in the has worked made, duty it is a which counsel repre- Adams sion is system when John Colonial profession, perpetrated designated so owes his Troops British who sented the trial, Massacre, and to the engaged the court not to mention the Boston win, Responsibility Providing Compensation n. Of and Kir Professional For State Statutes Attorney counsel, Court-assigned By Appointment Ed. [3rd 1976]. Under For Services Act, 3006A(d), Accused, Defending Indigent 18 U.S.C. 18 ALR3d the Criminal Justice Buchwald, out-of-pocket [1968]; Indigent are entitled to reimbursement Criminal 7§ Annot., Fed 16-20 Right Compensat- expenses, §§ see 9 ALR Constitutional Defendant’s Counsel, [1967]; Supp.]. Pirsig L.Q. and 1989 [1971 ed 52 Cornell humanity justice, convincing (1) cause of not to and evidence that all ex- spare withhold his assistance nor his best traordinary good actions were taken exertion in the defence of one who has faith, (2) extraordinary per- all work by the double misfortune to be stricken (3) formed necessary, was he is unable to poverty crime. and accused of No one is (4) practice, maintain his reasonable- liberty appointment at an to dеcline such extraordinary ness of fee.” few, hoped, it is to be would be Simply I would remand this action to the disposed Cooley, to do so.” T. Constitu- trial court for consideration under the (2nd 1871). tional Limitation 334 Ed. guidelines and, proper of Bias under find- footnote, Cooley In a added: “[A] court, ings by extraordinary the trial right require has the the service whether expenses approved payment should be not; compensation is to be made or and by the Chief Justice from the State Judicial it, perform that counsel should decline to Fund. for no other reason than that the law does my opposition I must also voice provide pecuniary compensation, is un- approach by my colleague, taken Vice worthy responsible to hold his office in the Opala, in special writing. Chief Justice his Id,., 334, justice.” administration of note He has recommended action to legislative legislature phi- Oklahoma’s embraced the public sys- establish state-wide defender losophy Cooley enacting and Cordoza in interim, upon tem and in the call the Okla- 5, O.S.1981, reads, Title 3 which “It is the Bar pool homa Association to establish a duty of an and counselor: 7th. attorneys subject appointment aon reject any per- never to consideration Although state-wide basis. a state-wide sonal to himself the cause of the defense- system public accept- defender would be an words, oppressed.” less or the In other solution, disturbing able what is most unique relationship because of this a law- my colleague system would make that yer enjoys system with our of criminal part of the Executive Branch of Govern- justice, fulfilling legally recognized his ment.1 duty required by to render services when Ackerman, Ferri v. U.S. appointment an (1979), S.Ct. 62 L.Ed.2d 355 Mr. Justice defendant, me, cannot to be described Stevens observed: taking most instances terms of a of his “property” without due of law. is, however, “There a marked difference responsi- between the nature of counsels compelling why can find no reason Bias bilities and those of other offices of State, Okl., (1977) 568 P.2d 1269 should servants, prosecu- court. As case, applied thereby avoiding not be in his judge represent tor and the the interest extraordinary compensation the award of society as a whole. conduct of grounds. on so-called constitutional Under may their adversely official duties affect Bias, Pyron Mattingly are entitled to individuals, variety a wide each of extraordinary expenses. be reimbursed potential whom be a source of fu- there, pointedly We held that: controversy....” ture “Prospectively, in order to obtain a com- contrast, pensation statuatory primary “In per- award above the office prove by appointed parallels amount a must thru clear formed counsel repeatedly questioned. Attorneys court, 1. The Court has indicated are officers of the court, duty that it is the of the trial not the and are bound to render service when government, required by executive branch of indigent to see that an appointment. such an See Coo- right Limitations, defendant’s Sixth Amendment ley, supra, 700 and Constitutional protected. counsel is note. Alabama, by every In Powell v. the Court said: The United States statute and state law, duty appoint by express provision "The of the trial court to counsel in the Union clear, courts, such circumstances is as it is make it the determination of its duty judge, such as are clear under circumstances dis- of the trial where the accused is here; counsel, power appoint employ closed so, the record and its to do unable to statute, U.S., S.Ct., even in the absence of a can not be for him.” 287 at at 65.

H75 hourly rate fixed for cousel. defendants to privately retained the office of premature I think this is prosecutors. coun- appointed true that Although it is unsupported. only Not are we without the ‍​​‌‌​‌​​‌​​​‌​‌​​​‌‌‌​‌​‌​‌‌​‌‌​​​‌‌​‌​‌‌‌​​‌​​‌‍statuatory autho- pursuant to sel serves empirical impact data of the of a state-wide of the federal and in furtherance rization suggested by system defenders insuring representa- effective interest defendants, Opala, we are without duty my likewise his is brother of criminal tion establishing it comes to a large, except in that such data when public at not to the hourly lawyers, rate for responsibility state-wide whose way. principal His general entirely different from that of interest of his function the undivided is to serve Indeed, appointed counsel. Ferri v. Acker indispensible element an client. man, supra. performance of his re- of the effective indepen- ability to act sponsibilities is Legislature’s atten- We should direct oppose and to dently of the Government Act' which the tion to the Criminal Justice adversary litigation.” init enacted, Congress of the United States making public a defender a My fear is that “Adequate Represen- 3006A titled U.S.C. § government the executive branch part of of Defendants”. This bill underwent tation serving position places a Rep- the House of scrutiny by careful both Oklahoma, masters, i.e., the State Judiciary two Com- resentatives and the Senate of his conflicting way, the interest See, Ackerman, in a supra, mittee. Ferri v. not, any circum- I would page client. notes 15 and 16 at 100 S.Ct. defender stances, make a state-wide closely parallels the Okla- 3006A Section totally inde- than a system anything other respects. pro- in certain It homa scheme decides, body. legislature If the pendent paid to an caр for a to be vides $3500.00 funding study impact organization after in each attorney or defender undoubtedly would system, such or more felonies are case where one considerable, ready for this state is waiving provision be charged, with a place such a de- system, it should such amounts where it is shown maximum system under the umbrella necessary provide fender fair payment is excess System” Defender approved “The Oklahoma Public payment and the compensation, by Bias, in 1988 the enactment Judge created by the Chief Circuit. preferably, more O.S.Supp.1988, may payment supra, recognizes that excess system as an arm of Judi- compensation maintain the necessary provide Department government. trial by cial order of the only could be done this our Chief Jus- approval judge, with County Bar addressing the Pontotoc provides for a The federal act further tice. case, being appointed they object do not hourly expended time rate for uniform much indigent defendants so magistrate and a uniform court before being adequately they the fact are as to expended out of court. hourly rate for time may or not be compensated. What enactment of a state submit that would might vary from compensation adequate 18 U.S.C. closely paralleling statute guidelines legal mind. If the legal tomind 3006A, simple and direct an- might be a met, however, any attorney are of Bias majori- problems raised swer to the petitioning Bar Associations within opinion in this case. ty extraordinary expenses, making a claim for why the claim should not be no reason I see the solutions emphasize that We should expertise approved. problems are within to these Legislature and proper power amount of majority today ties the not this Court. awarded to counsel fees to be

Case Details

Case Name: State v. Lynch

Court Name: Supreme Court of Oklahoma

Date Published: Jul 24, 1990

Citation: 796 P.2d 1150

Docket Number: 74319, 74259

Court Abbreviation: Okla.