Jewell v. Maynard

• Decision Date: 20 July 1989
• Docket Number: No. 18320,18320
• Court: West Virginia Supreme Court
• Parties: Millard E. JEWELL, et al., SER, v. Hon. Elliott E. MAYNARD, et al. . Rehearing Granted

Page 536

383 S.E.2d 536

181 W.Va. 571

Millard E. JEWELL, et al., SER, v. Hon. Elliott E. MAYNARD, et al.

No. 18320.

Supreme Court of Appeals of West Virginia.

Rehearing Granted July 20, 1989.

Decided July 21, 1989.

Syllabus by the Court

1. "The requirement that an attorney provide gratuitous service to the court for little or no compensation does not, per se, constitute a violation of the due process clause of the Fourteenth Amendment. However, where the caseload attributable to court appointments is so large as to occupy a substantial amount of an attorney's time and thus substantially impairs his ability to engage in the remunerative practice of law, or where the attorney's costs and out-of-pocket expenses attributable to representing indigent persons charged with crime reduce the attorney's net income from private practice to a substantial and deleterious degree, the requirement of court appointed service will be considered confiscatory and unconstitutional." Syl.Pt. 3, State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976).

2. "In the interest of justice, to protect the rights of indigent persons charged with crime and to assure that the attorneys of this State will not be subjected to an unconstitutional taking of their time and financial resources, in the absence of legislative action to establish a system of providing counsel for indigent defendants which adequately protects these interests, the Court will, on July 1, [1990,] order that the lawyers of this State may no longer be required to accept appointments as in the past." Syl.Pt. 4, State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976) as modified with respect to date of order.

3. It is an unconstitutional taking of property without just compensation to require a lawyer to devote more than ten percent of his or her normal work year involuntarily to court appointed cases.

4. Hourly compensation for court appointed representation that is so low that it fails to cover a lawyer's overhead and makes no contribution to a lawyer's net income creates a conflict of interest between lawyer and client that implicates the Sixth Amendment right of the indigent client to effective assistance of counsel.

5. Failure to pay for court appointed work promptly and to provide advances for out-of-pocket expenses places an unconstitutional burden on indigent clients in court-appointed cases because lawyers may be financially unable to advance costs or keep their offices operating properly.

6. Circuit courts may appoint lawyers from in-circuit and out-of-circuit pursuant to the guidelines in W.Va.Code, 29-21-9 [1989] to represent indigent defendants in court-appointed cases, and the travel expenses of out-of-circuit lawyers are automatically payable as reasonable expenses in addition to the $500 limitation set forth in W.Va.Code, 29-21-13 [1989]; however, out-of-circuit lawyers should not be required to travel an unreasonable distance.

7. The rates of hourly pay, limits on number of compensable hours, and limits on expenses, originally established by the legislature in 1977, (now W.Va.Code, 29-21-13 [1989] ) for court-appointed cases, are now so low that they fail to meet constitutional standards; however, the court's order with regard to a remedy will be stayed until 1 July 1990 in order to afford the legislature an opportunity to solve the problem.

Millard E. Jewell, Williamson, pro se.

Joseph M. Ferrell, Jr., Hunt & Wilson, Huntington, Michael Frasher, Public Legal Services, Charleston, for petitioner.

Paul Stone, Charleston, for Elliott E. Maynard.

NEELY, Justice:

Today we must revisit a subject first addressed in State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976), concerning the constitutionality of West Virginia's system for providing counsel to indigents at state expense. In Partain, we held that the system in effect in 1976 was unconstitutional because rates of pay for indigent work were so low and the volume of appointed cases so burdensome that the system took lawyers' property without just compensation. Partain, 159 W.Va. at 821-22, 227 S.E.2d at 322-323.

Although the Court in Partain did not prohibit involuntary appointments, we concluded that there was "more than adequate evidence that the burden imposed upon attorneys of this state by virtue of the present system of appointment is rapidly approaching an unacceptable and potentially unconstitutional state." Id. 159 W.Va. at 814, 227 S.E.2d at 319. The Court then delayed the entry of the order to permit the legislature to adopt a suitable alternative system.

The legislature responded to Partain during the 1977 regular session by replacing the $200 flat fee for felony cases and $100 flat fee for misdemeanor cases with an hourly rate of $20 per hour for out-of-court work and $25 per hour for in-court work. These rates remain in effect today, as do limits per case of $1,000, except in cases where life imprisonment may be imposed. W.Va.Code, 29-21-13 [1989].

By 1981, the legislature recognized that the post-Partain adjustment in pay did not entirely solve the problems associated with indigent representation. In response, the legislature created Public Legal Services, W.Va.Code, 29-21-1 [1989] et seq., authorizing experiments with new, salaried, public defenders. Numerous judicial circuits were designated for public defender offices; however, the legislature funded only a few of those offices. The result has been that most judicial circuits still rely on the appointment of private practitioners for indigent defense work.

The case now before us arose when the petitioner, Millard E. Jewell, a practicing lawyer in Mingo County, brought an original action here to prohibit the respondent judge of the Circuit Court of Mingo County from appointing him to additional criminal cases. Mr. Jewell alleged that since 1978 the number of court-appointed cases grew to such an extent that he must now turn away paying clients. In 1986, Mr. Jewell opened 121 new files in his office of which 37 were court-appointed criminal cases. In 1987, he opened 100 new files in his office of which 61 were court-appointed criminal cases. Mr. Jewell demonstrated that his time/work records reveal that in 1987, 27.18 percent of his time was devoted to court-appointed cases. Thus, Mr. Jewell contends, he is now so inundated with criminal cases that he cannot provide effective assistance of counsel to respondent Opal Blankenship, or for that matter, to any other court-appointed client.

Mr. Jewell's petition raised important issues of statewide concern. Accordingly, in March, 1988 the Court appointed Judge Ronald E. Wilson of the First Judicial Circuit as special master to take evidence, develop a record and present findings of fact and conclusions of law. Specifically the special master was asked to inquire into the following: (1) the selection of lawyers for indigent criminal appointments; (2) the exemption of lawyers from indigent criminal appointments; (3) the granting of permission to exceed statutory limits on fees and costs paid for indigent criminal appointments; (4) the average fees and costs paid for indigent appointments; and, (5) the average time expended for indigent criminal appointments.

The special master was authorized to: (1) take evidence concerning the absence of funding adequate to fulfill the state's obligation to provide constitutionally required counsel for indigent defendants; (2) take evidence concerning the ability of the system, as currently structured and funded, to guarantee adequate representation; (3) take evidence concerning whether the current system operates unconstitutionally upon certain participating lawyers; and, (4) recommend to the Court a remedy or remedies that would cure any problems that became apparent.

In accomplishing his mission the special master held hearings in Martinsburg, Wheeling, and Charleston. Counsel for the State Bar and the Director of Public Legal Services actively participated in the hearings by presenting and cross-examining witnesses.

I.

The special master made numerous findings of fact that are supported by the evidence. Preeminently, the master found that the amount of compensation provided in W.Va.Code, 29-21-14 [1977] (now W.Va.Code, 29-21-13 [1989] ) for court-appointed lawyers combined with the failure of the legislature adequately to fund the existing public legal services program have caused a critical shortage of qualified lawyers to represent indigent criminal defendants, indigent juvenile defendants, and indigent persons subject to mental health proceedings.

Lawyers appointed to represent indigents are paid at the rate of $20 per hour for out-of-court work and $25 per hour for in-court work with a maximum of $1,000 per case. There is an exception to the $1,000 limit when the penalty of life imprisonment may be imposed, and a further exception for multi-count indictments.

The master found that the $20 and $25 hourly rates do not cover the average hourly overhead costs of private law offices. A Public Legal Services survey of 259 West Virginia lawyers appointed to represent indigents discloses that the average hourly overhead costs of private lawyers is $35 per hour. The average hourly compensation of all appointed counsel for all cases during calendar year 1987 was $20.70. Consequently, appointed lawyers must involuntarily subsidize the State with out-of-pocket cash.

The master also found that the $1,000 case limitation is a significant problem because many lawyers are required to work without any pay after the limit has been reached, even though such work can cause extreme financial hardship to the lawyer involved when a case consumes weeks or even months of his or her time.

Perhaps the most serious defect of the present system is that the low hourly fee may prompt an appointed lawyer to advise a client to plead guilty, although the same lawyer would advise a paying client in a similar case...