Bradshaw v. Ball

• Decision Date: 22 September 1972
• Citation: 487 S.W.2d 294
• Parties: Don BRADSHAW, Commissioner of Finance, et al., Appellants, v. Lewis A. BALL et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 294

487 S.W.2d 294

Don BRADSHAW, Commissioner of Finance, et al., Appellants, v. Lewis A. BALL et al., Appellees.

Court of Appeals of Kentucky.

Sept. 22, 1972.

Rehearing Denied Dec. 15, 1972.

Ed Hancock, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for appellants.

Carl H. Ebert, Newport, Allen Schmitt, Louisville, for appellees.

REED, Justice.

These consolidated cases again present the intolerable condition that developed by the past failure of the state to compensate attorneys who are directed by court appointment to represent indigent criminal defendants.

This appeal resulted from these events: In late 1970 and early 1971, the presiding trial judges in certain criminal felony cases processed in the Campbell Circuit Court and in the Jefferson Circuit Court entered orders awarding fees in specified amounts to court-appointed attorneys who had represented the indigent defendants. When these attorneys attempted to collect, the Commissioner of Finance and the State Treasurer refused to approve the payment of or satisfy the court awards. The attorneys then filed actions in the Franklin Circuit Court against the Commissioner of the Department of Finance and the State Treasurer; judgment was sought to direct these state officials to approve and pay the circuit court awards. The same attorneys also filed a declaratory judgment action as individuals and as representatives of a class composed of the members of the Kentucky State Bar Association. In this proceeding the attorneys demanded a declaratory judgment that the Commonwealth was required to compensate court-appointed attorneys for professional services rendered in the representation of indigent defendants in criminal cases.

The Attorney General defended (the actions were consolidated for decisional purposes) by filing a 'Response and Motion to Dismiss' wherein he contended: (a) that the Commonwealth was immune from suit under the doctrine of sovereign immunity; (b) that this court had decided that the Commonwealth could not be required to make the kind of payment demanded without legislative appropriation of funds for the purpose.

In October 1971 the Judge of the Franklin Circuit Court entered an inclusive judgment that first directed the payment of the awarded fees. This judgment then also declared that: (1) the State and Federal Constitutions required courts to appoint competent counsel for indigent criminal defendants, and that there was likewise a mandate obligating such courts to set and direct the payment of compensation to appointed counsel; (2) the cost of compensating appointed counsel for indigent defendants was an essential governmental expenditure; (3) it was the mandatory duty of the legislative and executive departments of the state government to pay essential governmental expenses; (4) the General Assembly of Kentucky had failed and neglected to provide funds with which to pay fees to court-appointed attorneys for indigent criminal defendants; (5) the burden of furnishing constitutionally necessary legal services to defendants had fallen largely upon the younger members of the Bar and that such burden had become onerous, unconscionable and was a hardship upon and deprived them of their property without due process of law; (6) it was a primary, basic and fundamental responsibility of the judiciary to provide for compensation for court-appointed attorneys for individual criminal defendants in the absence of legislative provisions therefor; (7) for the General Assembly to procrastinate further in this matter would continue to cause the loss of compensatory fees to young attorneys essential to their remaining in the profession. The Attorney General, in the name of the concerned state officials, appealed this judgment in its entirety to this court.

After entry of the judgment and while the appeal was pending, the 1972 General Assembly enacted the Kentucky Public Defender Act, KRS Chapter 31. Serious constitutional issues are presented; moreover, since one provision of the judgment involved almost explicitly called for legislative action, the subsequent enactment by the legislature of a state-wide plan to afford compensated counsel to indigent criminal defendants cannot be ignored in the disposition of this appeal. Cf. Johnson v. City of Paducah, Ky., 461 S.W.2d 357 (1970).

In view of the predominating legal authority in force at the time the judgment was entered and for other reasons discussed later, we hold that the individual attorneys should not have been adjudged entitled to collect the fees awarded from the Commonwealth; nevertheless, we have also concluded that the trial judge was correct in his conclusion that the present system can no longer be continued and that current conditions require that indigent criminal defendants be afforded competent counsel who must be compensated on a reasonable basis. We do disagree, however, with the trial judge's conclusion that the ultimate responsibility to provide compensation for court-appointed attorneys in the concerned circumstance is a required function of the judicial department of government. It is our view that the duty to enforce the criminal laws rests upon the executive department, and the duty to appropriate money for the adequate enforcement of the criminal laws rests upon the legislative department.

I

In the excellent brief filed by counsel for the appellees and in a subsequently published note in 60 Ky.L.J. 710, 'The Uncompensated Appointed Counsel System: 'A Constitutional and Social Transgression,' the questionable constitutional basis and the unjust results of the present system of uncompensated appointed counsel for indigent criminal defendants are convincingly portrayed. Because of the increased crime rate and the expansion by U.S. Supreme Court decisions of new federal constitutional standards to the administration of criminal justice in the state courts, an intolerable burden has been thrust particularly upon the younger members of the legal profession. 'Today, with rapidly changing concepts relating to sundry matters, such as confessions, search and seizure, joinder of defendants, right to counsel, etc., the defense of criminal charges consumes for more time then when we came to the bar. To this must be added the impact of the right of the indigent, without cost, to appeal, and to press post-conviction proceedings and as well attacks in the federal courts. Further, the total demand will likely increase, for while criminal proceedings now dominate the stage, in the wings are other matters--minor offenses, juvenile delinquency, and civil commitments, areas in which counsel are now furnished but on a selective basis. We are satisfied the burden is more than the profession alone should shoulder, and hence we are compelled to relieve the profession of it.' Those statements were made in State v. Rush, 46 N.J. 399, 217 A.2d 441, 448, in 1966. In 1968 our court noted: 'The law is now clear that all accused of crime are entitled to effective representation by counsel at all critical stages of the litigation. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966) and Smith v. Commonwealth, Ky., 412 S.W.2d 256 (1967).' Commonwealth, Dept. of Corrections v. Burke, Ky., 426 S.W.2d 449, 451.

The accuracy of those observations and the resounding change from conditions present when prior decisions denied compensation were proved when the Supreme Court of the United States, in June 1972, decided that indigent criminal defendants in misdemeanor cases, at least where any term of imprisonment would be inflicted, were constitutionally entitled to representation by counsel. Argesinger v. Hamlin, 407 U.S. 25, 92...