Halverson v. Iowa Dist. Court for Decatur County, 93-1867

Decision Date24 May 1995
Docket NumberNo. 93-1867,93-1867
Citation532 N.W.2d 794
PartiesScot M. HALVERSON, Plaintiff, v. IOWA DISTRICT COURT FOR DECATUR COUNTY, Defendant.
CourtIowa Supreme Court

Scot M. Halverson, Leon, pro se.

Thomas J. Miller, Atty. Gen., Robert P. Ewald, Asst. Atty. Gen., and Robert L. Fulton, County Atty., for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, LAVORATO, and SNELL, JJ.

LAVORATO, Justice.

In this certiorari action, an attorney challenges the district court's rulings reducing his attorney fee award for representing an indigent defendant in a criminal case. The attorney raises three issues challenging the authority of several district court judges who set hearings and issued orders after the original fee award.

First, the attorney believes the district court acted illegally in setting aside the original order awarding attorney fees. Second, he contends that the district court illegally asserted appellate or certiorari power when it entered rulings after the original order. See Iowa Code §§ 602.6101 ("The district court has exclusive, general, and original jurisdiction of all actions, proceedings, and remedies, civil, criminal, probate, and juvenile, except in cases where exclusive or concurrent jurisdiction is conferred upon some other court, tribunal, or administrative body."); 602.6102 ("The district court has jurisdiction in appeals and writs of error taken in civil and criminal actions and special proceedings authorized to be taken from tribunals, boards, or officers under the laws of this state....") (1993). Last, he believes the district court cannot reduce a court appointed attorney fee award based on a client's change of heart to plead guilty rather than to stand trial.

We conclude the district court did not act illegally in any of its rulings. We annul the writ.

I. Background Facts.

On April 9, 1993, the State charged Kathy Mae Overton in a four-count complaint. Counts I and II charged lascivious acts with a child, class D felonies. Counts III and IV charged second-degree sexual abuse, class B felonies. On the same date a magistrate appointed Scot M. Halverson as Overton's counsel on her "application for appointment of counsel and financial statement." On May 21 the State filed a trial information against Overton and alleged the same counts.

Halverson has been in practice since 1986. He testified that in his career he has handled between 300 and 400 criminal cases. About thirty of these were jury trials.

Halverson appeared at Overton's May 21 arraignment as her counsel. The court set her trial for August 3. Halverson began preparing for trial, exploring several theories.

On June 16 Overton expressed to the court her dissatisfaction with Halverson's representation through a letter. She requested his removal and the appointment of another lawyer as substitute counsel.

On July 16 the district court appointed new counsel for Overton and continued the trial date to August 17. On July 30 the court again continued the trial to August 31.

On August 27 Overton pleaded guilty to one count of sexual abuse in the second degree.

II. Background Proceedings.

Halverson applied ex parte for attorney fees on September 24. He asked for $2772. District Judge Peter Keller approved Halverson's fee application in full on the same date.

On October 8 the district court sentenced Overton. On the same day her new lawyer applied for attorney fees. District Judge Michael Streit approved the attorney fees and expenses in the amount of $1822.40.

On the same day, Judge Streit set aside Judge Keller's order of September 24 in which Judge Keller approved Halverson's fee application in full. Judge Streit's reason for doing so was because the "State wants [a] hearing." Judge Streit then set a hearing on Halverson's fee application for October 22.

On October 22 District Judge James Brown entered the following order:

A hearing was held on October 22, on attorney Halverson's app. for fees. No evidence was presented. The court has examined the application and finds, under the circumstances, the preparation time spent was excessive. The reasonable time for in-court appearances is found to be 2.15 hours (the amount claimed) at $60 per hour, or $129.00. The reasonable time for out-of-court preparation is found to be 23.25 hours at $50 per hour, or $1162.50. The total fee approved is $1291.50.

On November 3 Halverson filed a "motion to amend and enlarge and motion for new hearing." In essence the motions requested an order reinstating Judge Keller's order or in the alternative a new hearing on fees. District court Judge Dale B. Hagen set the hearing on these motions for November 19.

Judge Streit conducted the November 19 hearing. Halverson testified in his own behalf. In a ruling from the bench, Judge Streit declined to modify Judge Brown's order reducing Halverson's fee.

Halverson then filed this petition for a writ of certiorari, which we granted in a single-justice ruling.

III. Scope of Review.

A petition for a writ of certiorari is proper when the district court "is alleged to have exceeded its jurisdiction or to have acted illegally." Grant v. Iowa Dist. Court, 492 N.W.2d 683, 685 (Iowa 1992) (citation omitted). We review certiorari actions at law. Zimmermann v. Iowa Dist. Court, 480 N.W.2d 70, 74 (Iowa 1992).

IV. Was the Order Setting Aside the Original Order Awarding Halverson Attorney Fees Illegal?

A. Applicable law. Iowa Code section 815.7 (1991) applies to fees paid to counsel appointed in criminal cases. The statute pertinently provides that

[a]n attorney appointed by the court to represent any person charged with a crime in this state shall be entitled to a reasonable compensation which shall be the ordinary and customary charges for like services in the community to be decided in each case by a judge of the district court....

Iowa Code § 815.7.

One must read this language in tandem with our supervisory order, issued in 1985, pertinently stating that "[a] copy of the application [for attorney fees] shall be provided to the county attorney." 1985 Iowa Sup.Ct.Supervisory Order, In re Costs of Court-Appointed Counsel, § 5(a) [hereinafter Supervisory Order] (emphasis added).

In 1988 the legislature created the office of the state public defender. See 1988 Iowa Acts ch. 1161, § 2. In 1991 the legislature authorized the state public defender

to review any claim made for payment of indigent defense costs and to request a hearing before the court granting a claim within thirty days of receipt of such claim if the state public defender believes the claim to be excessive.

1991 Iowa Acts ch. 268, § 411. This provision was in effect when Halverson filed his application for attorney fees and was codified in the 1993 Iowa Code at section 13B.4(4).

Iowa Code section 13B.4(4) was amended in 1994 and now pertinently reads:

4. The state public defender is authorized to review any claim made for payment of indigent defense costs if the state public defender believes the claim to be excessive.

a. If the claim is from a noncontract attorney, the state public defender shall request a hearing before the court granting the claim as to the reasonableness of the claim within thirty days of receipt of such claim.

See 1994 Iowa Acts ch. 1187, § 17. This language is now codified in the 1995 Iowa Code at section 13B.4(4)(a).

B. The merits. Halverson's argument in the district court and his argument here is this. Before enactment of section 13B.4(4), county attorneys had the right to become involved in resisting payment of court appointed attorneys for indigents. Because the county paid the fees, the county had the right to object to the cost of court appointed attorney services through the county attorney, its legal officer. The county was therefore entitled to notice and hearing when indigent fee applications were filed. See State v. Iowa Dist. Court, 286 N.W.2d 22, 25 (Iowa 1979).

The State, Halverson's argument continues, now has assumed the cost of indigent defense. As a representative of the State, the county attorney retained the right to object to such cost and the State through the county attorney was entitled to notice and hearing. The 1985 Iowa supreme court supervisory order--which remains unchanged--recognized this right. But the legislature by virtue of section 13B.4(4) has now specifically given the state public defender, as a representative of the State, the right to notice and hearing on such applications and the right, of course, to contest the reasonableness of the indigent fee requests. The county attorney therefore no longer has the right to contest such indigent fee requests and is no longer entitled to notice and hearing on these requests. Because there was no request for hearing from the state public defender, Judge Keller's order was valid and could not therefore be set aside by another district court judge. In these circumstances when Judge Streit set aside Judge Keller's order, he was acting illegally because Judge Streit had no authority to do so.

For reasons that follow, we disagree with Halverson's argument. There is no hint in section 13B.4(4) that it supersedes or renders invalid our 1985 supervisory order. Our order is still valid. So attorneys filing fee applications for representing indigent defendants must still give the county attorney a copy of the application. And the law that led to this requirement of notice to the county attorney is still good law. See Supervisory Order (notice of hearing to determine compensation for representing indigent defendants must be given to county attorney, and county through county attorney has right to participate and present evidence at hearing to determine such compensation if county chooses to do so).

We see good reason to continue this practice even though (1) the State rather than the county bears the cost of indigent defense in criminal cases, and (2) section 13B.4(4) gives the state public defender the right to intervene if that public...

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