676 N.W.2d 126 (S.D. 2004), 22837, Duffy v. Circuit Court, Seventh Judicial Circuit

Docket Nº:22837.
Citation:676 N.W.2d 126, 2004 SD 19
Opinion Judge:[10] The opinion of the court was delivered by: Meierhenry, Justice
Party Name:Veronica L. DUFFY, Petitioner, v. CIRCUIT COURT for the SEVENTH JUDICIAL CIRCUIT, Respondent.
Attorney:[6] Veronica L. Duffy Rapid City, South Dakota.
Case Date:February 11, 2004
Court:Supreme Court of South Dakota

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676 N.W.2d 126 (S.D. 2004)

2004 SD 19

Veronica L. DUFFY, Petitioner,



No. 22837.

Supreme Court of South Dakota

February 11, 2004.

Argued on Nov. 18, 2003

Page 127

Veronica L. Duffy, Rapid City, South Dakota, Pro Se petitioner.

Lawrence E. Long, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent.


[¶ 1.] The Seventh Judicial Circuit Court appointed Veronica Duffy, attorney at law, as counsel in four cases involving two indigent persons. Duffy submitted verified vouchers with itemized charges for her fees in each case. Circuit Court Judge Janine Kern reduced the bills by a total of $5957.41. 1 Fees for the four cases were reduced as follows: (1) CRI02-617 from $7,190.73 to $6,100, (2) CRI02-3791 from $2,187.30 to $1,356.19, (3) A02-0530 from $5,281.29 to $3,585.15, and (4) CRI 02-2049 from $6,633.84 to $4,294.41. Duffy requested an explanation for Judge Kern's reductions. She also asked that the judges of the Seventh Judicial Circuit review Judge Kern's decision. In response, Judge Kern provided Duffy with copies of the original vouchers in two of the cases marked with highlighting showing some items and fees reduced and some struck completely, but provided no explanation for the reduction in the other two cases. As requested, the judges of the Seventh Judicial Circuit scheduled a hearing. Duffy was to submit all evidence in writing prior to the scheduled hearing and was informed that she would be allowed fifteen minutes to present oral argument. A panel of four judges conducted the hearing. 2 The panel issued a memorandum decision affirming the reduced fees. Duffy petitioned this Court for Writ of Certiorari.

Review of Court Appointed Attorney Fees by Writ of Certiorari

[¶ 2.] Counsel for the judges of the Seventh Judicial Circuit challenges

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whether this Court has jurisdiction to review the lower court's decision on attorney fees. Counsel claims that this Court's jurisdiction on a writ of certiorari is limited to determining whether a lower court had the power to act and not whether the court's decision was correct. Counsel further argues that the lower court's decision can only be reviewed by direct appeal. Duffy claims that this Court has jurisdiction in the form of a writ of certiorari because the lower court has exceeded its jurisdiction by committing a gross abuse of discretion in disallowing reasonable and just compensation and is, therefore, subject to a writ of certiorari. 3

[¶ 3.] A writ of certiorari is an equitable remedy available when an inferior court exceeds its jurisdiction "and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy." SDCL 21-31-1. The scope of review "cannot be extended further than to determine whether the inferior court ... has regularly pursued the authority of such court." SDCL 21-31-8. Other courts have looked at this issue and determined that because of the nature of the claim, a writ of certiorari is the proper procedure to review court appointed attorney fees. Bye v. District Court, 701 P.2d 56, 59 (Colo.1985); Norton v. Iowa Dist. Court for Cedar County, 554 N.W.2d 301, 303 (Iowa App.1996); Green v. Iowa Dist. Court for Mills County, 415 N.W.2d 606, 607 (Iowa 1987).

[¶ 4.] A trial court's review of an attorney's fee for a court appointment is collateral to an underlying case. The Rules of Appellate Procedure set forth the types of judgments and orders which can be appealed. SDCL 15-26A-3. In this case, the Order affirming the reduction in fees is not a separately filed case and bears the case number of the criminal cases for which the services were provided. The only category of appeal under which it could conceivably fall is SDCL 15-26A-3(4) as a "final order affecting a substantial right, made in special proceedings, or upon a summary application in an action after judgment." Id.

[¶ 5.] Yet, limiting review to a direct appeal rather than by writ of certiorari presents its own set of unique circumstances. For example, the court's action in reducing the fee does not start out as a lawsuit in the usual way by one party serving a summons and complaint. Neither the attorney nor the court is a party in the underlying case. The attorney is involved only because the court ordered the attorney to represent the indigent party. When the underlying case is appealed, the attorney fee issue may not be ripe for appeal because the attorney's services have not been completed. Additionally, the attorney on appeal may not be the same attorney that tried the case below.

[¶ 6.] The trial court's review of court appointed attorney fees is more in the form of an administrative function collateral to the underlying case. It is unlike other cases which allow a court to award attorney fees as part of the judgment to be paid by the opposing party, such as in a divorce or condemnation action. Court appointed

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attorney fees are not paid by the opposing party but from the county treasury. The procedures governing the submission, approval and review of attorney fees is set by the presiding judges and is separate from the underlying case. SDCL 23A-40-8, 23A-40-9. 4

Scope of Review

[¶ 7.] Courts that have found a writ of certiorari an appropriate means to bring the issue before a higher tribunal have limited the scope of review. Lunde v. Ruigh, 356 N.W.2d 566, 569 (Iowa 1984); Bye, 701 P.2d at 60 (Colo.1985). The Iowa Supreme Court limits review to whether the lower court used the correct legal standard and whether it abused its discretion in applying the correct legal standard. Lunde, 356 N.W.2d at 569. The Iowa Court stated:

[T]here are two types of challenges to trial court orders determining compensation for court-appointed counsel; (1) those asserting that an incorrect legal standard has been applied in fixing fees; and (2) those asserting an abuse of discretion in the application of the proper legal standard. We pointed out in Walters that:

Our scope of review depends on what part of the challenge is being considered. Plaintiff's assertion that an incorrect legal standard was applied is reviewed on error. When an incorrect standard is applied we remand for new findings and application of the correct standard. When a correct legal standard is applied our review is greatly circumscribed; we affirm unless the trial court's discretion "was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable."

Lunde, 356 N.W.2d at 569 (citing Walters v. Herrick, 351 N.W.2d 794, 796 (Iowa 1984)). The Court further clarified "an abuse of discretion" challenge as limited to whether the lower court "abused its discretion to the extent that it acted illegally in setting the fee." Green, 415 N.W.2d at 609.

[¶ 8.] Similarly, Colorado courts limit a review of court appointed attorney fees to whether a lower court "has exceeded its jurisdiction or abused its discretion in exercising its functions, and appeal is not an appropriate remedy." Bye, 701 P.2d at 59 (citing Prudential Property & Casualty Insurance Co. of America v. District Court, 617 P.2d 556, 558 (Colo.1980)).

[¶ 9.] We determine that Duffy has properly brought this matter as a writ of certiorari because in this case, "there is no

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writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy." SDCL 21-31-1. However, the scope of review is limited to whether the trial judge and/or the Seventh Circuit court "has regularly pursued the authority of such court." SDCL 21-31-8. In order to determine whether the court has "regularly pursued" its authority, it is important to review the background of court appointed attorney fees and the court's authority in approving the fees under South Dakota law.

Background of Compensation for Court Appointed Attorney Fees

[¶ 10.] We begin with the premise that appointed counsel serves an invaluable service in maintaining the integrity of our criminal justice system. The Sixth Amendment to the United States Constitution guarantees a right to counsel for criminal defendants. The importance of this right has been expressed by the United States Supreme Court in numerous cases. It was succinctly explained in U.S. v. Cronic :

An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases "are necessities, not luxuries." Their presence is essential because they are the means through which other rights of the person on trial are secured. Without counsel, the right to a trial itself would be "of little avail," as this Court has recognized repeatedly. "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other right he may have."

466 U.S. 648, 653-54, 104 S.Ct. 2039, 2043-44, 80 L.Ed.2d 657 (1984). In fact, criminal defendants possess the right of effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). One way South Dakota meets this demand is to appoint private counsel to represent indigent defendants. SDCL 23A-40-8; SDCL 23A-40-9. Although lawyers are encouraged to provide public services, 5 it has long been realized that lawyers cannot afford to provide effective assistance of counsel to indigent defendants without compensation.

[¶ 11.] At least since Gideon v. Wainwright, state courts, county commissioners, and attorney groups have been challenged by how best to provide indigent clients with their Sixth Amendment right to counsel. 6 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In...

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