Atchison v. Circuit Court for the Seventh Judicial Circuit, 2004 SD 20 (S.D. 2/11/2004), 22873
| Decision Date | 11 February 2004 |
| Docket Number | No. 22873,22873 |
| Citation | 2004 SD 20 |
| Parties | RENA M. ATCHISON, Petitioner, v. CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT, Respondent. |
| Court | South Dakota Supreme Court |
RENA M. ATCHISON, Rapid City, South Dakota, LAWRENCE E. LONG, Attorney General, Pro se petitioner.
JEFFREY P. HALLEM, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent.
[¶ AUTONUM 1.] The trial court appointed Rena Atchison, attorney at law, to represent an indigent defendant charged with one count of child rape and three counts of sexual contact with a child.1 Atchison submitted vouchers for her fee of $13,299.50. Judge Tice, who presided in the criminal case, reduced the fee by a total of approximately $4,100.00. Atchison requested an explanation for the reductions, to which the judge replied by letter detailing his reasons. Atchison asked the Seventh Judicial Circuit judges to review Judge Tice's decision. A panel of four judges of the Seventh Judicial Circuit conducted a review hearing.2 Atchison submitted various affidavits in support of her fees. She was allowed fifteen minutes for oral argument at the hearing. The panel issued an Order affirming Judge Tice's reductions. Atchison petitioned this Court for Writ of Certiorari which we granted. Atchison raises constitutional challenges and claims she was denied reasonable and just compensation for the legal services she provided. We remand for reconsideration.
Whether the Lower Court Applied the Correct Legal Standard in Determining Whether Atchison's Legal Fees were Reasonable.
[¶ AUTONUM 2.] We will first address the lower court's action in determining the reasonableness of Atchison's fees. Our scope of review in a writ of certiorari is limited to determining "whether the inferior court . . . has regularly pursued the authority of such court." SDCL 21-31-8; Duffy v. Circuit Court, 2004 SD 19, ¶3, __ NW2d __. Regular pursuit of the trial court's authority requires it to apply the correct legal standard. We stated in Duffy:
[I]n determining whether a trial court "has regularly pursued its authority," we examine if the court applied an incorrect legal standard or whether the court abused its discretion to the extent that it acted illegally in setting the amount. The attorney is entitled to "just and reasonable" compensation. The judge determines whether it is "just and reasonable." In applying the correct legal standard, the court is required to explain orally or in writing the reasons for modifying the attorney's submitted voucher considering the factors enumerated in this opinion. The attorney has the burden of proof to show that the trial court applied the incorrect legal standard or acted illegally in setting the amount.
2004 SD at ¶19, __ NW2d at __.
[¶ AUTONUM 3. ] The factors for the court to consider are as follows:
(1) the time spent and services rendered;
(2) the complexity of the case and difficulty of the questions involved;
(3) the character and importance of the litigation;
(4) the skill required to perform the legal service properly;
(5) the time limitations imposed by the client or by the circumstances;
(6) the fee customarily charged in the locality for similar legal services;
(7) the experience, reputation, and ability of the lawyer performing the services; and
(8) the possible punishment involved.
Id. ¶16, at __. The court should consider all the factors starting with the number of hours spent on the case multiplied by the hourly fee established for court appointments. Id. "[T]he trial court is entitled to look at the case as a whole in light of the calculations and factors." Id. ¶17, at __. The trial court should use "its independent judgment" but not overlook the "`high standard of diligence and preparation demanded of counsel in criminal cases.'" Id. ¶17, at __ (quoting Hulse v. Wilfvat, 306 NW2d 707, 710 (Iowa 1981)). "Although a court has the benefit of hindsight, it should not overlook the attorney's perspective in preparing for the case." Id. (citing Hulse, 306 NW2d at 709).
[¶ AUTONUM 4. ] Additionally, the court must "`explain, either orally or in writing, the reasons for change or modification of the statement or voucher submitted by counsel.'" Id. ¶18, at __ (quoting South Dakota Rules for Compensation of Court Appointed Counsel). The attorney may request a review by the judges of the circuit. The procedure for review is set as follows:
A. If the full amount of the voucher or statement for fees by counsel is not approved by the trial judge, the trial judge must explain, either orally or in writing, the reasons for change or modification of the statement or voucher submitted by counsel.
B. Appeal. If the attorney is dissatisfied with the amount of compensation allowed by the judge presiding in the case, the attorney may request that all judges in that circuit review the claim for compensation and hold a hearing thereon. A decision by the majority of the judges in that circuit shall become the amount of the fees and costs authorized.
Id. ¶13, at __ (citing South Dakota Rules for Compensation of Court Appointed Counsel; Seventh Judicial Circuit, Standing Order 00-1).
[¶ AUTONUM 5.] Atchison's client was charged with one count of child rape and three counts of sexual contact with a child.3 Defendant faced a potential sentence on the criminal charges of life plus forty-five years.
[¶ AUTONUM 6.] Atchison submitted bills to the court as the case against her client developed. Her total bill was $ 25,250.15 which included (1) $13,299.50 for attorney fees, (2) $ 8,614.50 for Expert Fees, (3) $950.00 for Investigator Fees and (4) $ 2,386.15 for Costs/Disbursements. Judge Tice reduced the attorney fees by approximately $4,100. The experts and investigator's fees were paid in full.
Atchison wrote Judge Tice a letter requesting an explanation "as to why [Judge Tice] believed such a reduction was necessary." Judge Tice indicated that the main reasons for reducing Atchison's fees were because (1) her "efforts went beyond that which would be reasonable or appropriate under the circumstances"(2) that she had "pursued areas of law which were not particularly productive under the circumstances, in particular you chose to initiate an inquiry into the proportionality of sentencing before sentencing occurred" and (3) the "`Daubert' proceedings considerably exceeded that which is necessary to present what is appropriate under the circumstances of this case." Judge Tice was also concerned about the expert fees generated by the lengthy hearing.4
[¶ AUTONUM 7.] Although Judge Tice's letters explain his reasons for reducing the bill, the explanation did not take into consideration all of the reasonableness factors that a court is required to consider and that we have recently set forth in Duffy. Id. ¶16, at __. For example, Judge Tice did not address that the defendant faced a possible punishment of a life sentence. Judge Tice's main concern was the length and nature of a hearing on the admissibility of the child's hearsay statements and the research on proportionality in preparation for the sentencing hearing. Yet, the reduction of fees does not appear to be in proportion to the time spent on these matters.
[¶ AUTONUM 8.] In justification for her fee to the reviewing panel of judges, Atchison submitted documents, her affidavit and affidavits from attorneys attesting to the reasonableness of her strategies and fees. She also presented oral argument during the fifteen minutes she was allowed. Atchison explained to the panel that the lengthy hearing of which Judge Tice complained moved the State to offer her client a plea bargain allowing her client to plead to two counts of child neglect with dismissal of the other charges.5
[¶ AUTONUM 9.] The panel affirmed the fee reductions (Judge Delaney dissenting) in an Order which simply stated:
A majority of the Circuit Court Judges having considered an appeal filed by attorney, Rena Atchison, from the Trial Court's Judgment reducing her request for attorney's fees from
$ 13,299.50 to $ 9,149.35 and the Court having considered an oral presentation from Ms. Atchison as well as Affidavits and documentary evidence, does hereby Affirm the trial Court Order reducing her fees in the above-entitled matter.
The panel also wrote Atchison a post-hearing letter which merely restated the reasons for the reductions from Judge Tice's earlier letters to Atchison.
[¶ AUTONUM 10.] Although Judge Tice explained the reasons for reducing Atchison's fees, the explanation did not apply the correct legal standard in determining whether the attorney fees were just and reasonable. Consequently, the court did not regularly pursue its authority. We, therefore, remand for the Seventh Judicial Circuit to apply the correct standard and procedure. On remand, Judge Tice is to reconsider the reasonableness of Atchison's attorney fees by taking into consideration all of the reasonableness factors and by giving an explanation based on those factors.
[¶ AUTONUM 11.] In light of our ruling, the other issues counsel raises need not be addressed.
[¶ AUTONUM 12.] GILBERTSON, Chief Justice, and KONENKAMP, and ZINTER, Justices, concur.
[¶ AUTONUM 13.] SABERS, Justice, concurs specially.
1. The facts of the underlying criminal case are available in State v. McCrary, 2000 SD 18, __ NW2d __.
2. Judges Tice, Trimble, Kern and Delaney sat as the review panel. Judge Davis recused himself. Judge Fuller, appointed but not having taken the oath of office, did not participate.
3. Atchison represented this client in a divorce proceeding. The divorce evolved into an Abuse and Neglect action resulting in the criminal charges that Atchison was appointed to defend.
4. Following is the entire...
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