Bettencourt v. Gonda

• Decision Date: 19 October 2011
• Docket Number: SCAP NO. 30616
• Parties: In re Attorney's Fees of DAVID BETTENCOURT, Petitioner/Court-Appointed Counsel-Appellant in STATE OF HAWAI'I, Respondent/Plaintiff-Appellee, v. JOSHUA GONDA, Respondent/Defendant-Appellee.
• Court: Hawaii Supreme Court

In re Attorney's Fees of DAVID BETTENCOURT, Petitioner/Court-Appointed Counsel-Appellant

in

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,

v.JOSHUA GONDA, Respondent/Defendant-Appellee.

SCAP NO. 30616

SUPREME COURT OF THE STATE OF HAWAI'I

Dated: October 19, 2011

*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 08-1-1534)

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.

OPINION OF THE COURT BY MCKENNA, J.

I. Introduction

Petitioner/Court-Appointed Counsel-Appellant David Bettencourt ("Bettencourt") appeals from the order of the Circuit Court of the First Circuit's administrative judge summarily reducing excess court-appointed attorney's feescertified by the trial judge as necessary to provide fair compensation. We have accepted Bettencourt's appeal as a discretionary transfer under Hawai'i Revised Statutes (HRS) § 602-58(b)(1)(1993 & Supp. 2010), as this case presents a question of first impression regarding the scope of the administrative judge's authority under HRS § 802-5(b)(1992 & Supp. 2010). ¹

We hold that, under HRS § 802-5(b), both the trial judge and the administrative judge independently review excess fee requests to determine whether a fee award is "fair compensation." Both the trial judge's and administrative judge's orders awarding fees under HRS § 802-5(b) are judicial acts subject to appellate review under the abuse of discretionstandard. In this case, because the administrative judge summarily reduced Bettencourt's attorney's fees with no reasons given, we cannot determine whether the administrative judge abused his discretion in ordering reduced fees. Therefore, we vacate the administrative judge's June 9, 2010 Order and remand for further proceedings consistent with this opinion.

II. Background

A. The Underlying Criminal Case, State v. Gonda, Cr. No. 08-1-1534

On October 10, 2008, the circuit court appointed Bettencourt to represent Joshua Gonda in State v. Gonda, Cr. No. 08-1-1534, nunc pro tunc to the date of the indictment charging Gonda with the following offenses:

Count I: Attempted Murder in the First Degree

Counts II and III: Attempted Murder in the Second Degree

Counts IV, V, VI: Carrying or Use of Firearm in the

Commission of a Separate Felony

Count VII: Place to Keep Pistol or Revolver²

Gonda was accused of shooting a sixteen-year-old passenger in a car on Moanalua Freeway. The sixteen-year-old survived but was paralyzed from the chest down. Gonda faced a maximum penalty of life imprisonment without the possibility of parole if convicted.

Bettencourt represented Gonda before trial judge Michael Town ("trial judge") for the duration of the case, from his appointment in early October 2008 through the end of trial in late January 2010 (approximately sixteen months). Jury selection and trial took place over the course of fourteen days in January 2010. After the jury deliberated for one day, it returned a not guilty verdict as to all counts, and a Judgment of Acquittal was subsequently entered.

B. Bettencourt's Attorney's Fees Requests

Bettencourt filed two requests for his own fees as appointed counsel. First, on October 29, 2009, Bettencourt requested excess attorney's fees for the billing period from September 30, 2008 through July 31, 2009, in the amount of $19,188.00, representing 213.2 hours, billed at the statutory rate of $90.00 per hour. The trial judge certified the entire amount; administrative judge Richard Perkins ("administrative judge") approved the lesser amount of $18,567.00, representing 206.3 hours, billed at the statutory rate of $90.00 per hour. The administrative judge crossed out entries on Bettencourt's submitted time sheets indicating that he would not allow Bettencourt to bill attorney's fees for making copies of documents, which is not legal work. This attorney's fee request is not the subject of the instant appeal.

Second, on March 17, 2010 (after the trial), Bettencourt submitted his Amended Request for Attorney's Fees to the circuit court, for the billing period covering August 1, 2009 through January 28, 2010, requesting $38,529.00 in excess attorney's fees for 428.1 hours of work, in addition to the previously approved $18,567.00 for 206.3 hours of work. The trial judge certified the total amount of fees requested on March 22, 2010. The administrative judge approved only $26,640.00 of Bettencourt's requested attorney's fees on June 9, 2010, which amounts to a cut of $11,889 in fees. No notations were made as to whether the administrative judge reduced the fees by some percentage, reduced the fee rate for all hours claimed, or reduced the amount of hours of work billed. Viewed as a percentage, the reduction is an approximate 31% cut in the amount of fees requested. Viewed as a reduction to the hourly rate, 428.1 hours of work at approximately $62 per hour, rather than at the statutory maximum rate of $90 an hour, were approved. Viewed in terms of hours, 296 hours at the statutory rate of $90, rather than 428.1 hours at the statutory rate, were approved.

In addition to making no notations on Bettencourt's time worksheets as to which billed items he disallowed, the administrative judge provided no written explanation for thereduction beyond what was documented by his clerk in an internal court memorandum, which was eventually appended to Bettencourt's second fee request. According to the internal memorandum, dated June 9, 2010, addressed to the Fiscal Office from the 8th Division Law Clerk, the reason for the reduction in fees was as follows:

The reason that the request for attorney fee totals do not match the hourly worksheet totals is that [the administrative judge] summarily reduced the amount. Because the attorney requested an amount of compensation over the $6,000 statutory limit, [the administrative judge] was entitled per the Crim. Admin. Order to summarily reduce the fees granted by the court to a reasonable amount.

Therefore, there are no changes that I can make to the hourly worksheet totals, since the changes were summarily made by [the administrative judge] based on his discretion and were not based on particular inaccuracies or errors in the hourly worksheets.

Criminal Administrative Order ("CAO") No. 1.1, part II reads: "Court-appointed counsel are entitled to reasonable compensation for necessary fees [HRS § 802-5]. The Court determines the amount of reasonable compensation based upon statutory limits. If a request appears unreasonable, the court may summarily reduce or deny it."

Likewise, CAO No. 1.1, Part II, 4 "Payment Exceeding Maximum Fees" reads, in pertinent part: "Where the presiding judge . . . determines that the excess payment is not necessary to provide fair compensation, the amount may be summarily reduced."

(emphasis in original).

The 8th division law clerk's memorandum referred to Criminal Administrative Order ("C.A.O.") 1.1, which read in pertinent part:

II. REQUESTS FOR ATTORNEY'S FEES

Court-appointed counsel are entitled to reasonable compensation for necessary fees [HRS § 802-5]. The Court determines the amount of reasonable compensation based upon statutory limits. If a request appears unreasonable, the court may summarily reduce or deny it. Reasonable compensation for fees is based upon the following:

A. Fee Schedule

1. Maximum Fees [HRS § 802-5(b)]

a. Felony case $6,000

. . . .

2. Compensation Rate [HRS § 802-5(b)]

$90 per hour

. . . .

4. Payment Exceeding Maximum Fees [HRS § 802-5(b)] Payment in excess of the statutory maximum is within the discretion of the Court. Such payment may be made if 1) the presiding trial judge certifies that the excess payment is necessary for fair compensation and 2) the Administrative Judge approves. Where the presiding judge or Administrative Judge determines that the excess payment is not necessary to provide fair compensation, the amount may be summarily reduced.

(emphasis in original, footnote omitted).

Coincidentally, on the same day that the administrative judge reduced Bettencourt's court-appointed attorney's fees, Chief Justice Ronald T. Y. Moon issued a June 9, 2010 Order Rescinding Statewide Court Administrative Orders and Memoranda. The Order stated:

It appears that previously approved statewide court administrative orders or memoranda include requirements that are more appropriate for court rules than for administrative orders and memoranda and that revised administrative orders and memoranda have not been submitted for my review, as instructed by my May 24, 2007 memorandum to the Chief Judges. Therefore,IT IS HEREBY ORDERED, pursuant to Article VI, § 6 of the Hawai'i Constitution and effective immediately upon filing of this order, that all previously approved statewide circuit, family, and district court administrative orders or memoranda are hereby rescinded.

IT IS FURTHER ORDERED that the Administrative Director shall cause any such administrative orders or memoranda published on the Judiciary's web page(s) to be removed therefrom and shall not permit posting of any administrative order or memorandum unless approved by the Chief Justice.

(emphasis added). The order was time-stamped filed at 9:57 a.m. on June 9, 2010. There is no time stamp accompanying the administrative judge's approval of $26,640 in fees on June 9, 2010.

C. The Instant Appeal

Bettencourt timely appealed to the ICA, and his timely application for transfer to this court was accepted. An order granting or denying attorney's fees under HRS § 802-5 is an appealable final order. See State v. Pzeradzki, 6 Haw. App. 20, 21, 709 P.2d 105, 107 (1985). Bettencourt argues that the administrative judge, in reducing his fees, engaged in a standardless independent review of the trial judge's certification of his attorney's fees, abused his discretion by leaving no reasons on the record for the fee reduction, did not afford Bettencourt notice and an opportunity to be heard before reducing his fees, erroneously relied on C.A.O. 1.1, and was most likely driven...