State v. Citizen, 2004-KA-1841.[1]

Decision Date01 April 2005
Docket NumberNo. 2004-KA-1841.[1],2004-KA-1841.[1]
Citation898 So.2d 325
PartiesSTATE of Louisiana v. Adrian CITIZEN. and State of Louisiana v. Benjamin G. Tonguis.
CourtLouisiana Supreme Court

Allen L. Smith, Jr., Lake Charles, Counsel for Applicant.

Hon. Charles C. Foti, Jr., Attorney General, Burton Paul Guidry, Assistant Attorney General, Hon. Robert Bryant, District Attorney, Carla Sue Sigler, Assistant District Attorney, Frederick Wayne Frey, Assistant District Attorney; Phyllis Elaine Mann, Alexandria, Gary Proctor, Marilyn Michele Fournet, Counsel for Respondents.

VICTORY, J.

These consolidated cases present the issue of funding for indigent defendants in criminal cases in the State of Louisiana. In particular, the legislature has enacted statutes which require the State to provide the funds for indigent defense through the Louisiana Indigent Defense Assistance Board ("LIDAB") and statewide indigent defender boards in each judicial district but has at the same time failed to provide adequate appropriation to support these services. Further, the legislature has exempted local governmental entities from the payment of such expenses.

FACTS AND PROCEDURAL HISTORY

The instant direct appeal arises out of two unrelated Calcasieu Parish killings. After a Calcasieu Parish grand jury returned a first degree murder indictment on April 11, 2002 against Benjamin Tonguis, the trial court appointed the Chief Public Defender for the parish, Ronald Ware, to represent him. Ware informed the court of his prohibitive caseload, and the court removed him from the case and sought to appoint solo practitioner Phyllis E. Mann.2 On December 10, 2003, counsel filed a document captioned as a Motion to Determine Source of Funds to Provide Competent Defense. Counsel also requested that the court adopt into the record a transcript from a 2001 hearing in three consolidated prior cases in which the trial court could not readily find funding for court appointed attorneys in private practice.3 The trial court set counsel's funding motion for a hearing and granted her request to supplement the record.

On January 30, 2004, the trial court consolidated the Tonguis case with that of Adrian Shannondoah Citizen, another Calcasieu Parish first-degree murder defendant indicted on October 10, 2002, seeking to be represented by appointed counsel Phyllis Mann.4 Also on that date, the trial court held a hearing on the funding issues raised by Mann. At this hearing, counsel for the Calcasieu Parish Police Jury (the "CPPJ") filed a motion to dismiss his client as a party to Mann's motion, as in his view La. R.S. 15:304 and La. R.S. 15:571.11 forbid local funding for the representation of indigent defendants. The court then explored the possibility with prosecutors of amending the charges against each defendant to second-degree murder and, after receiving no favorable response, considered the testimony adduced at the prior October 2001 hearing regarding the financial status of the CPPJ, with an eye toward using it as a funding source.

During that October 2001 hearing, counsel for the CPPJ explained that the current system for maintaining the criminal justice system in Calcasieu Parish, apparently unique among the 64 parishes in Louisiana, evolved in 1985 after voters in the parish approved an ad valorem tax specifically dedicated to maintaining the Criminal Court Fund, established pursuant to La. R.S. 15:571.11(A). Voters renewed the tax in 1995 and will consider it again in 2005. As explained by the parish attorney, this system has clearly been an overwhelming success. Using the figures from the last fiscal year, the attorney explained that in 2000, the tax, as supplemented by fines and forfeitures, put into the Criminal Court Fund $3,500,000, by far the largest portion of the total amount of $5,300,000, which also included funds from other sources such as grant programs. By agreement, 20% of the Fund portion generated by the ad valorem tax and fines and forfeitures goes into the witness and juror fee account, 60% to the D.A.'s office, and 40% to the district courts. Any surplus remaining in the witness and jury fee account at the end of the year does not revert to the general parish fund5 but is split on a 50/50 basis between the courts and the D.A.'s office. In 2000, that surplus amounted to some $440,000, an average figure over a seven year period.6 Counsel for the CPPJ further explained that his client would not mind allocating a portion of these funds for capital defense, but could not do so without the agreement of both the 14th J.D.C. and the Calcasieu Parish District Attorney.

However, by the time of the January 30, 2004, hearing, the attitude of the CPPJ had apparently changed. The parish attorney explained that the CPPJ had concluded that since voters in Calcasieu Parish had approved the ad valorem tax, by far the biggest component of the Criminal Court Fund, specifically for the purpose of maintaining the court system and the District Attorney's Office, the CPPJ had no obligation, or even the authority, to divert some of that tax money to criminal defense. Chief Public Defender Ware underscored the problem facing the court by stating that his office currently owed close to $47,000 for capital defense and expected to owe at least an additional $150,000 in upcoming cases which he had already committed to fund. He further informed the court that his office generated approximately $5,550 per month. Despite the apparent intransigence of the CPPJ, Prosecutor Wayne Frey suggested that the court pay defense counsel from the surplus monies contained in the CPPJ's Criminal Court Fund (provided the parties agreed upon a funding cap), and the court agreed to propose the idea to his fellow judges and to go before the CPPJ with a funding proposal. However, an increase in jury and witness fees had reduced the surplus in the Fund from a previous average of $450,000 to approximately $300,000. The court expressed its frustration with the continued lack of funding and the fact that it faces some version of the same funding dilemma in virtually every criminal case before it. The court vowed to address the issue at the next judges' meeting, and informed the parties that if the judges (and presumably the district attorney and police jury) could not resolve the funding issue collectively, then the court would issue an order that the money needed to pay defense counsel would come from the CPPJ.

On April 27, 2004, after meeting no success with the judges and district attorney, the court found that the CPPJ was the only possible source of adequate funding. The court went on to find La. R.S. 15:304 and La. R.S. 15:571.11 "ambiguous," and that the statutes unconstitutionally deprive the defendants of their right to a fair and speedy trial and their right to counsel. Finally, the court ordered the CPPJ to place $200,000 into the court registry to be distributed to the attorneys representing Tonguis and Citizen. In its ensuing written reasons, the court also ordered the CPPJ to place into an escrow account $75,000 for expert witness fees and case related expenses.

Both the State and the CPPJ have appealed to this Court the trial court's declaration of unconstitutionality, see La. Const. art. V, § 5(D), with the Office of the Attorney General filing a brief as is its right under La. R.S. 13:4448, and the trial court's order that the CPPJ provide the funds for these indigents' defenses.7

DISCUSSION
Background

A defendant is entitled to the assistance of counsel in criminal proceedings. U.S. Const. Amend. IV; La. Const. Art. I, § 13; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)8; State v. Strain, 585 So.2d 540, 542 (La.1991); State v. Carpenter, 390 So.2d 1296, 1298 (La.1980). Specifically, La. Const. Art. I § 13 provides that "at each stage of the proceedings, every person is entitled to assistance of counsel [ ... ] appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents." Id.; State v. Adams, 369 So.2d 1327, 1329 (La.1979); see also La. Const. Art. I § 2 ("[n]o person shall be deprived of life, liberty, or property except by due process of law."); cf. La. Const. Art. I § 3 ("No person shall be denied the equal protection of the laws."). Louisiana responded to the command of Gideon by creating a state indigent defender board (former La. R.S. 15:141 et seq.) in 1966 and, within a decade, by enacting La. Const. Art. I § 13.

Lower courts have interpreted the constitutional mandate for "uniformity" in La. Const. Art. 1, § 13 to allow that either an indigent defender board or public defender provide the required counsel to indigent criminal defendants in each judicial district, notwithstanding the language "uniform system" in the mandate. In Re Compensation for Indigents' Criminal Defense, 580 So.2d 1058, 1060 (La.App. 2 Cir.1991). This court found that the language of the constitution "was to allow `for workability in a state with political subdivisions of widely varying population, geography, customs and problems,' [with] the primary concern being that all indigent defendants would be appointed counsel." Id. (quoting State v. Bryant, 324 So.2d 389, 393 (La.1975)).

The current legislative system set out in an attempt to meet the constitutional command of La. Const. Art. I § 13 to provide a uniform system for securing and compensating qualified counsel for indigents appears in La. R.S. 15:144 et seq. (Title XIV: Right to Counsel). These statutes require each judicial district to create an indigent defender board, La. R.S. 15:144, which shall maintain lists of volunteer and non-volunteer attorneys licensed to practice law in Louisiana. La. R.S. 15:145(A). Each board must then select the procedure for providing counsel to indigents, whether it be through court selection of volunteer attorneys (or...

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