Ar Public Defender Commission v. Greene Cnty Court, 00-452

• Decision Date: 07 December 2000
• Docket Number: 00-452
• Citation: 32 S.W.3d 470
• Parties: ARKANSAS PUBLIC DEFENDER COMMISSION, APPELLANT, V. GREENE COUNTY CIRCUIT COURT, HONORABLE JOHN N. FOGLEMAN, CIRCUIT JUDGE, PRESIDING, APPELLEE. CR00-452 7 December 2000 PETITION FOR WRIT OF CERTIORARI PETITION GRANTED TOM GLAZE, Associate Justice The Arkansas Public Defender Commission petitions this court for a writ of certiorari to Greene County Circuit Judge John Fogleman, directing him to set aside an order entered
• Court: Arkansas Supreme Court

ARKANSAS PUBLIC DEFENDER COMMISSION, APPELLANT,

V.

GREENE COUNTY CIRCUIT COURT, HONORABLE JOHN N. FOGLEMAN, CIRCUIT JUDGE, PRESIDING, APPELLEE

CR00-452

7 December 2000

PETITION FOR WRIT OF CERTIORARI

PETITION GRANTED

TOM GLAZE, Associate Justice

The Arkansas Public Defender Commission petitions this court for a writ of certiorari to Greene County Circuit Judge John Fogleman, directing him to set aside an order entered March 15, 2000, requiring the Commission to pay the attorney's fees for appointed counsel representing a prisoner in his postconviction proceedings under Ark. R. Crim. P. 37. For the reasons set out below, we grant the Commission's petition.

The facts leading up to this situation are as follows. William Wesley Skiver was convicted of aggravated robbery on September 29, 1995, and sentenced to life in prison as a habitual offender. The conviction and sentence were affirmed by this court in Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Skiver then filed a pro se petition for postconviction relief; subsequently, on April 10, 1999, Judge Fogleman appointed Paragould attorney Daniel Stidham to represent Skiver in his Rule 37 proceedings. Stidham filed an amended petition for postconviction relief and appeared at a hearing on Skiver's behalf, but the trial court rejected the claim of ineffective assistance of counsel on September 20, 1999. Stidham filed a notice of appeal from this decision on November 16, 1999.

On December 2, Stidham filed with the circuit court a petition for an award of attorney's fees, asking that the court award him $4,715.00 for his representation of Skiver. On December 7, 1999, the court entered an order directing the Arkansas Public Defender Commission to pay Stidham the requested $4,715; however, the Commission was never served with a copy of the petition for attorney's fees. On December 30, Stidham filed a petition for citation of contempt, alleging that the Commission had violated the court's order by not paying his fee. He asked Judge Fogleman to issue an order for the Commission and its Executive Director, Didi Sallings, to show cause why they should not be held in contempt.

The Commission filed a response to the court's order on January 11, 2000, in which it asserted that there was no statutory authority supporting the Commission's payment of attorney's fees in a Rule 37 petition. The Commission further rejoined that sovereign immunity barred the court from ordering it to bear the financial burden inherent in the payment of attorney's fees. On January 14,2000, the Commission filed a motion to set aside the circuit court's December 7 order, which the court set aside on January 21, 2000.

Stidham filed another request for fees on January 31, 2000, specifically alleging that the Commission was responsible for the payment of his fees. He premised his second request on Ark. Code Ann. § 16-87-210(a) (Supp. 1999) which provides that when private attorneys are appointed to represent an indigent person and authorized by the Commission, the attorneys "shall" be paid by the Commission. The Commission responded once again that it was not liable for Stidham's fees. It cited Arkansas Public Defender Commission v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000), for the proposition that the Commission is not authorized by statute or constitution to make payment for attorney's fees in civil cases (emphasis added). The circuit court nevertheless entered an order on March 15, 2000, finding that, despite the holding of Burnett, the Commission should be responsible for Stidham's fees.

The Commission filed a petition for writ of certiorari with this court on April 14, 2000, contending that the circuit court acted wholly without jurisdiction in entering the March 15 order because sovereign immunity, which neither the Commission nor the General Assembly had waived, precluded the imposition of such an order. This court directed both parties to file briefs on the issue, which was done on August 4, 2000.

A writ of certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy and is available to this court in exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). A demonstration of plain, manifest, clear, and gross abuse of discretion is essential before this court will grant a petition for writ of certiorari. Meeks v. State, 341 Ark. 620, 19 S.W.3d 25 (2000) (citing Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994)). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Arkansas Public Defender Commission v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000); Hanley v. Arkansas State Claims Comm'n, 333 Ark. 159, 970 S.W.2d 198 (1998).¹

The circuit court's alleged lack of jurisdiction to order attorney's fees is precisely what the Commission is arguing in this case. The Commission raises the defense of sovereign immunity, which is jurisdictional immunity from suit.² Brown v. Arkansas State HVACR Licensing Board, 336 Ark. 34, 984 S.W.2d 402 (1999). Where the pleadings show that the action is one against the State, and sovereign immunity is not waived, the trial court acquires no jurisdiction. See State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996). Where a suit is brought against an agency of the State with relation to some matter in which the agency represents the state in action and liability, and the State, though not a party of record, is the real party in interest so that a judgment for the plaintiff would operate to control the action of the State or subject the State to liability, the action is, in effect, one against the State and is prohibited by the constitutional bar. Burnett, 340 Ark. at 237, 12 S.W.3d at 193.

We have also held that tapping the State's treasury for payment of damages will render the State a defendant and violate the principles of sovereign immunity. Id. Unless sovereign immunity is waived, the doctrine prohibits imposing liability upon the State. Id. We have recognized two exceptions to the doctrine of sovereign immunity: 1) where the State is the moving party seeking specific relief; and 2) where an act of the legislature has created a specific waiver of immunity. Id. Clearly, the order that Stidham's attorney's fees be paid by the Commission is an act that will tap the State's treasury. Thus, the question presented by this case relates to the second of the exceptions just mentioned: Has the General Assembly created a specific waiver of immunity for the Public Defender Commission that would enable the circuit court to order the Commission to pay attorney's fees for appointed counsel in a civil matter? The answer is no.

We explicitly held in the Burnett case that the Commission is not responsible for attorney's fees in civil matters. There, we made the following statements:

The duties of the Commission in Ark. Code Ann. § 16-87-306 (Supp. 1999) are stated as follows:

The public defender in each judicial district shall have the following duties:

(1) Defend indigents within the district as determined by the circuit, municipal, city, police, juvenile, probate, or chancery courts in the district in all felony, misdemeanor, juvenile, guardianship, and mental health cases, all traffic cases punishable by incarceration, and all contempt proceedings punishable by incarceration[.]

There is no declaration of legislative intent to waive the Commission's sovereign immunity, nor is there any requirement that the Commission have responsibility for attorney's fees in civil cases.

Burnett, 340 Ark. at 238, 12 S.W.3d at 194 (emphasis added).

Despite the holding in Burnett, the circuit court in the instant case determined that the Commission should be responsible for attorney's fees in this Rule 37 proceeding. The court's reasons for doing so were because "the Rule 37 petition is, without a doubt, a proceeding related to the underlying felony charge. . . . Rule 37 is a part of the Rules of Criminal Procedure, [and] this Rule 37 petition was not filed in a separate civil case but is filed as a part of the criminal case as is evident by its case number of CR-95-108." In addition, the trial court concluded that, because the statutes delineating the duties of the Commission provide that public defenders shall represent indigent persons "in felony case," Rule 37 proceedings should be considered criminal, and the Commission should therefore be required to pay the fees of an attorney appointed to represent a Rule 37 petitioner. On appeal, the circuit court continues this argument, and contends that this court has merely "parroted the phrase" that Rule 37 proceedings are civil in nature without adequately explaining why that is the case. The circuit judge's analysis simply ignores our case law and that of the United States Supreme Court on this subject.

First, we point out the recognized principle that a postconviction proceeding under Rule 37 amounts to a collateral attack on the judgment rendered at trial. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996). As a postconviction remedy, Rule 37 does not provide a method for the review of mere error in the conduct of the trial, nor does it serve as a substitute for appeal. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). We have repeatedly held that such proceedings are civil in nature. This holding has been announced most often in the context of a convicted defendant's request for appointed counsel for his or her Rule 37 proceedings; we have rejected such requests by noting that, because such proceedings "are civil rather than criminal in nature, there is clearly no constitutional right to appointment of counsel to prepare a petition under Rule 37." Fretwell v. State, 290 Ark. 221, 222, 718 S.W.2d 109 (1986). See also Martin v....