Williamson v. Vardeman

• Decision Date: 06 April 1982
• Docket Number: No. 81-1863,81-1863
• Parties: J. D. WILLIAMSON, Jr., Appellant, v. Paul E. VARDEMAN, Judge of Jackson County, and Susan Stanton, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1211

674 F.2d 1211

J. D. WILLIAMSON, Jr., Appellant, v. Paul E. VARDEMAN, Judge of Jackson County, and Susan

Stanton, Appellees.

No. 81-1863.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1982.

Decided April 6, 1982.

Robert G. Duncan, Kansas City, Mo., for appellant.

Albert A. Riederer, Pros. Atty. in and for Jackson County, Mo. by Robert Frager, Asst. Pros. Atty., Kansas City, Mo., for appellees.

Before LAY, Chief Judge, ARNOLD, Circuit Judge, and WOODS, ^* District Judge.

LAY, Chief Judge.

The sole issue in this case is whether the courts of Missouri may compel private attorneys to represent indigent defendants when the state legislature has failed to appropriate sufficient funds to compensate lawyers for their services or to pay expenses deemed necessary for the defense of the accused.

On April 9, 1981, a state circuit judge, the Honorable Paul E. Vardeman, appointed petitioner, J. D. Williamson, to represent Robert Powell, an indigent, charged with four counts of sale of a controlled substance. In its order, the court stated that, unless it was prohibited from doing so, it would make the appointment despite the fact that petitioner might not receive payment or recover his expenses.

Williamson filed a petition for a writ of prohibition in the Missouri Supreme Court. On May 13, 1981, the court denied the petition. Williamson then moved in the trial court for an evidentiary hearing on the issue of his appointment and for an order authorizing the prepayment of expenses or, in the alternative, dismissing the case. ¹ At the evidentiary hearing, Williamson admitted that the appointment would not burden him in a manner qualitatively different than any other private practitioner and the court therefore refused to discharge him. Williamson then alleged that an adequate defense of Powell would entail taking several depositions, hiring an investigator, and possibly retaining other experts to evaluate laboratory evidence. Williamson requested that the court order the State to advance funds to meet these expenses, but the court indicated that no funds remained to pay such costs. The following colloquy took place:

THE COURT: Well, I would be willing to order the advancement of costs; I'm doubtful they would pay it. I am informed they don't have any money.

MR. WILLIAMSON: Your Honor, I had a conversation with Mr. Willard Bunch, who is a member of the Public Defender's Commission, within the last couple of days and I was advised by him that the Public Defender's Commission has zero money, no money at all to comply with any orders such as this Court might enter.

THE COURT: I don't see how I can order them to pay if they don't have any money, do you?

MR. WILLIAMSON: I don't think so, Judge, I don't believe you can.

But I think that you then should determine whether or not the expenses are such that this Defendant should be discharged based on the lack of funds to prepare for his defense.

THE COURT: Well, I don't think that the Court intended that the Defendants be discharged except under very unusual circumstances and I am not persuaded that is the course to take. I think that somebody could represent this man adequately without advancement of these costs, at least in the amount that you suggest.

I guess I am not required to do a useless act. I know as a matter of fact that the Public Defender's Commission doesn't have funds to advance these costs but if you think it appropriate, will enter an order directing them to pay this $500.00. It is obvious it is not going to be forthcoming. The Court held in the Wolfe (sic) case, if the costs are not forthcoming then the Court may dismiss, but I am not going to do that.

What did you start to say, I interrupted you?

MR. WILLIAMSON: I would agree with the statement that you just made to enter an order requesting money from the Public Defender is futile; if there isn't any money there they can't pay it. I do request these charges be dismissed.

THE COURT: That request is denied.

Williamson then refused to serve and the court thereupon held him in contempt and sentenced him to a prison term of ten days. The court stayed execution of the judgment in order to give Williamson an opportunity to seek appellate review and apply for a writ of habeas corpus.

On June 17, 1981, Williamson filed a petition for a writ of habeas corpus in the Missouri Supreme Court (Missouri law does not provide for appeal from a contempt citation). He alleged that confinement would constitute involuntary servitude and deprive him of liberty and property without due process in violation of both the Missouri and United States Constitutions. On July 14, 1981, the Supreme Court of Missouri, without argument or briefing, denied relief.

On July 20, 1981, Williamson filed a petition for habeas relief in federal district court. On July 28, Judge Howard F. Sachs dismissed the petition. This appeal followed. We reverse and order that the writ of habeas corpus be granted.

On appeal Williamson asserts (1) that requiring him to render services without compensation violates the thirteenth amendment prohibition of involuntary servitude and constitutes a taking of liberty and property without due process in violation of the fourteenth amendment and (2) that requiring counsel to pay expenses incident to defense of the accused without reimbursement similarly violates the due process clause.

The Missouri Supreme Court has confronted these issues on several occasions. In State v. Green, 470 S.W.2d 571 (Mo. en banc 1971), the court held that the burden of representing indigent defendants without compensation or reimbursement had become unconstitutionally large. The court stated that after September 1, 1972, it would "not compel the attorneys of Missouri to discharge alone" a duty which constitutionally is the burden of the State. Id. at 573. Thereafter, as pointed out in State ex rel. Wolff v. Ruddy:

In 1972, the General Assembly declared the public policy of Missouri to be that in cases where counsel, other than public defenders, are appointed to represent indigent defendants "the reimbursement of expenses and the attorney's fees for services shall be paid by the state from funds appropriated for that purpose."

617 S.W.2d 64, 65 (Mo. en banc 1981).

In 1981, the General Assembly appropriated a total of only $3,475,894 to finance representation of indigent defendants. As of June 30, 1981, all the appropriated money was spent. Id. at 65.

In a recent opinion, State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. en banc 1981), the Missouri Supreme Court outlined the procedure to be followed in appointing counsel to represent indigents when sufficient funds are not appropriated. The court first traced the history of such appointment in Missouri and discussed the public nature of the lawyer's role. It concluded that an obligation to defend indigents without fee was implicit in this role and was assumed upon taking the oath which all lawyers take before being admitted to practice in the State of Missouri. This obligation had been recognized earlier in State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181 (1943). The court there observed:

A better reason for not allowing counsel compensation in such cases is that "when a lawyer takes his license he takes it burdened with certain honorary obligations. He is a sworn minister of justice, and when commanded by the court he cannot withhold his services in cases prosecuted in forma pauperis." 1 Thornton, Attorneys at Law, Sec. 86, pp. 143, 144.

174 S.W.2d at 184.

With this background and confronting the problem of insufficient funds, the court in Wolff adopted temporary guidelines to govern appointment of counsel which provide: (1) circuit judges should require strong proof of indigency; (2) appointed counsel may request a hearing in order to show that the appointment would create undue hardship; (3) failure to compensate a lawyer for prior service within 120 days is grounds for excusing the lawyer from additional service; (4) a hearing should be held to determine what expenses are necessary, the State should be ordered to pay such expenses, and, if the State fails to so pay within the time during which the accused must be tried, the court should discharge the accused; (5) government employment is not necessarily a bar to appointment; and (6) the public defender commission shall pay fees and costs in the order certified. 617 S.W.2d at 67.

We have no difficulty concluding that the procedure established in Wolff is a constitutional mode of selecting counsel to represent indigent defendants. Attorneys may constitutionally be compelled to represent indigent defendants without compensation. The thirteenth amendment has never been applied to forbid compulsion of traditional modes of public service even when only a limited segment of the population is so compelled. See Hurtado v. United States, 410 U.S. 578, 589-90 n.11, 93 S.Ct. 1157, 1164-65 n.11, 35 L.Ed.2d 508 (1973) (witnesses); Selective Draft Law Cases, 245 U.S. 366, 390, 38 S.Ct. 159, 165, 62 L.Ed. 349 (1918) (draft); Butler v. Perry, 240 U.S. 328, 333, 36 S.Ct. 258, 259, 60 L.Ed. 672 (1916) (work on public roads); Bertelson v. Cooney, 213 F.2d 275, 277-78 (5th Cir.), cert. denied, 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 674 (1954) (special draft of medical personnel).

The vast majority of federal and state courts which have addressed the due process issue have decided that requiring counsel to serve without compensation is not an unconstitutional taking of property without just compensation. See, e.g., Tyler v. Lark, 472 F.2d 1077, 1078-79 (8th Cir.), cert. denied 414 U.S. 864, 94 S.Ct. 114, 38 L.Ed.2d 84 (1973); United States v. Dillon, 346 F.2d 633, 635-36 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966); Daines v. Markoff, 92 Nev. 582, 555 P.2d 490, 493 (1970); Jones v. Commonwealth, 411 S.W.2d 37 (Ky.1967); Warner v. Commonwealth, 400 S.W.2d 209,...