In re Attorney's Fees of Mohr

Decision Date11 September 2001
Docket NumberNo. 21564.,21564.
Citation32 P.3d 647,97 Haw. 1
PartiesIn re Attorney's Fees of Reinhard MOHR, Court-Appointed Counsel-Appellant in State of Hawai`i, Plaintiff-Appellee, v. Paul Powers, Defendant-Appellant.
CourtHawaii Supreme Court

Richard Mohr, court-appointed counsel, on the writ.

Opinion of the Court by MOON, C.J.

On December 6, 1999, Reinhard Mohr petitioned this court for a writ of certiorari to review the Intermediate Court of Appeals' (ICA) order, filed November 23, 1999, summarily approving in part and denying in part Mohr's request for attorney's fees, pursuant to Hawai`i Revised Statutes (HRS) § 802-5 (1993).1 Therein, the ICA denied Mohr's request for $1,412.00, granting instead the lesser amount of $292.00. In his petition, Mohr asserts that the partial denial of his fees was "arbitrary" and "not fair." For the reasons stated below, we reverse the ICA's November 23, 1999 order approving in part and denying in part Mohr's request for attorney's fees. Furthermore, we hold that $614.00 (15.35 hours × $40.00 per hour), as opposed to the amount requested, is reasonable compensation for the services rendered in this appeal. Accordingly, we grant Mohr's request for fees in that amount.

I. BACKGROUND

Pursuant to HRS § 802-5, Mohr was appointed as appellate counsel for Paul Powers in State v. Powers, No. 21564, effective May 27, 1998. At the time of Mohr's appointment, Powers, appearing pro se, was in the process of appealing from a May 8, 1998 guilty conviction and sentence for promoting a dangerous drug in the third degree. Powers was sentenced to five years of probation, subject, inter alia, to a special condition of 122 days of incarceration with credit for time served. The notice of appeal was filed on May 20, 1998. Mohr was the eighth attorney, and the first appellate attorney, appointed to represent Powers since charges were filed on January 30, 1996.

Between May 28, 1998 and May 18, 1999, Mohr attempted to withdraw as counsel on at least two occasions. On May 18, 1999, in conjunction with presenting a stipulation for dismissal of appeal, Mohr filed the instant request for attorney's fees. On the same day, the stipulation to dismiss the appeal was filed as "not approved." Although initially denied, Mohr's motion to withdraw as counsel was granted on October 8, 1999, in light of Mohr's resignation from the practice of law in Hawai`i.

Mohr requests fees in the amount of $1,412.00 for 35.3 hours of services. However, the work sheets submitted by Mohr detail only 34.2 hours of services, consisting of 2 hours of client contact, 21.3 hours of research, and 10.9 hours of reading and drafting court documents. The ICA determined that Mohr's request for $1,412.00 was not reasonable and, by order filed November 23, 1999, approved fees in the amount of $292.00 for 7.3 hours of service. On December 6, 1999, Mohr applied for a writ of certiorari to review the ICA's decision, which this court granted.

II. DISCUSSION
A. Appellate Jurisdiction

Preliminarily, we must determine whether an ICA order granting or denying fees and/or costs to an attorney appointed to represent an indigent defendant under HRS § 802-5 is reviewable by this court. Absent jurisdiction, this court has no authority to act on the substantive issues posed by an appeal. See, e.g., Wong v. Wong, 79 Hawai`i 26, 29, 897 P.2d 953, 956 (1995)

(noting that "in each appeal, the supreme court is required to determine whether it has jurisdiction") (quoting Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai`i 115, 119, 869 P.2d 1334, 1338 (1994)).

HRS § 802-5(b), which provides for compensation to appointed counsel, does not contain provisions for the appeal of a fee order granting or denying such compensation. Therefore, the right of appeal, if any, must be found in some other statutory provision. See In Re Tax Appeal of Lower Mapunapuna Tenants Ass'n, 73 Haw. 63, 69, 828 P.2d 263, 266 (1992)

(stating that "the right of appeal is `purely statutory and . . . therefore, the right of appeal is limited as provided by the legislature and compliance with the method and procedure prescribed by it is obligatory'"); see also Dawson v. Lanham, 53 Haw. 76, 84, 488 P.2d 329, 334 (1971) (Abe, J. dissenting) (noting that "it is a well-settled rule that the legislature may define and limit the right of appeal because the remedy of appeal is not a common law right and it exists only by authority of statutory or constitutional provisions") (citations omitted).

The statute providing for appeals from ICA decisions, HRS § 602-59 (1993 & Supp. 1999), provides in relevant part:

(a) After issuance of a decision by the intermediate appellate court, a party may appeal such decision only by application to the supreme court for a writ of certiorari, the acceptance or rejection of which shall be discretionary upon the supreme court.

(Emphases added.)

In State v. Przeradzki, 6 Haw.App. 20, 709 P.2d 105 (1985), the ICA determined that, under HRS § 641-11 (providing for appeals from final orders of circuit courts by any aggrieved party), a court-appointed attorney, as the "aggrieved party," has standing to appeal an order awarding attorney's fees under HRS § 802-5. Id. at 21, 709 P.2d at 107 (citing Booker v. Midpac Lumber Co., Ltd., 2 Haw.App. 569, 636 P.2d 1359 (1981)), rev'd on other grounds, 65 Haw. 166, 649 P.2d 376 (1982). Applying Przeradzki analogously, ICA fee orders would be appealable under HRS § 602-59 if the attorney is a "party" and the order is a "decision."

Contrary to the holding in Przeradzki, a majority of federal circuit courts of appeal have determined that awards or denials of attorneys' fees for court-appointed attorneys are not appealable under the federal Criminal Justice Act (CJA), 18 U.S.C.A. § 3006A, which is similar to HRS § 802-5. The United States Court of Appeals for the Ninth Circuit, in In re Baker, 693 F.2d 925, 927 (9th Cir.1982), held that attorneys' fees orders under the CJA, although final, were not "decisions" within the meaning of that statute because: (1) the context of awarding attorneys' fees was not adversarial; (2) the decision to award fees was not outcome dependent; and (3) the collateral order doctrine applied only to "judicial" decisions and not to administrative acts. The Sixth Circuit agreed with the Ninth Circuit in United States v. Stone, 53 F.3d 141 (6th Cir.1995). The Sixth Circuit also pointed out that the Seventh, Tenth, and Eleventh Circuits have each held that requests for attorneys' fees under the CJA are non-appealable administrative acts. Id. at 142-43.

As noted by the Ninth Circuit in In re Baker, we recognize that attorneys' fees requests under HRS § 802-5 do not involve an adversarial process and that an award or denial of fees is not dependent upon the outcome of the case. The award of fees involves an act that is collateral to the criminal appeal before the court. It requires the court to certify that fees paid out of state funds to court-appointed attorneys as compensation for services rendered are reasonable. If the court determines that a fee request is properly documented and is reasonable, based on the statutory criteria and the services rendered, the request is granted; no opposition is permitted or appropriate.

However, we also recognize that every review of a fee request requires an analysis of evidence and an application of statutory standards. Such analysis and application is a judicial process like any other original proceeding in which evidence is taken and law is applied. It is an adjudication of the appointed attorney's private, statutory right to be compensated for the work the attorney has done, and the attorney bears the burden of adducing evidence sufficient to justify his or her claim. Cf. Atkinson-Baker & Associates, Inc. v. Kolts, 7 F.3d 1452 (9th Cir.1993)

(noting that judicial acts are those involving the "performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights") (citing Antoine v. Byers & Anderson, 508 U.S. 429, 435, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993)) (some citations omitted). "Administrative acts are, among others, those `involved in supervising court employees and overseeing the efficient operation of a court.'" Atkinson-Baker, 7 F.3d at 1454 (citing Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)).

Based on our analysis of the foregoing, we hold that the grant or denial of attorney's fees under HRS § 802-5 is a judicial act and is, therefore, subject to review. As a judicial act, an ICA order denying attorney's fees in part or in full is a "decision" for purposes of appeal under HRS § 602-59, and the attorney requesting compensation is a "party." See HRS § 602-59 (providing that "a party" may appeal a "decision" of the ICA); Cf. Przeradzki, 6 Haw. App. at 21,

709 P.2d at 107 (holding that, under HRS § 641-11, a court-appointed attorney was an "aggrieved party" for the purpose of appealing from a "final order" of the circuit court).

B. Standard of Review

This court generally reviews an award or denial of attorney's fees under the abuse of discretion standard. Canalez v. Bob's Appliance Serv. Center, Inc., 89 Hawai`i 292, 299, 972 P.2d 295, 302 (1999) (citing Eastman v. McGowan, 86 Hawai`i 21, 27, 946 P.2d 1317, 1323 (1997); Coll v. McCarthy, 72 Haw. 20, 28, 804 P.2d 881, 887 (1991)). Under HRS § 802-5, requests for fees should be granted if the court certifies that the requesting attorney has met his or her burden to prove that the fees requested are for hours expended and that the hours expended were "reasonable" for the services rendered. Thus, the certifying court must exercise discretion in determining whether fees are reasonable. Accordingly, we hold that requests for fees by court-appointed attorneys under HRS § 802-5 are reviewable under the abuse of discretion standard. "An abuse of discretion occurs where the . . . court has clearly exceeded the bounds of reason or...

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