Machado v. Leahy, 17 Mass. L. Rptr. No. 12, 263 (Mass. Super 1/3/2004)

• Decision Date: 03 January 2004
• Docket Number: No. BRCV200200514.,BRCV200200514.
• Citation: 17 Mass. L. Rptr. No. 12, 263
• Parties: Paul J. Machado et al.<SMALL><SUP>1</SUP></SMALL> v. William J. Leahy<SMALL><SUP>2</SUP></SMALL> et al.<SMALL><SUP>3</SUP></SMALL>
• Court: Massachusetts Superior Court

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17 Mass. L. Rptr. No. 12, 263

Paul J. Machado et al.¹ v. William J. Leahy² et al.³

No. BRCV200200514.

Commonwealth of Massachusetts, Superior Court.

Bristol, Ss.

Memorandum Dated January 3, 2004.

Attorneys — Compensation — Misc. Cases — Action Brought Seeking an Increase in the Extremely Low Compensation Rates Paid by the Commonwealth to Attorneys Appointed to Represent Indigent Parties Who Are Constitutionally Entitled to Representation Is Dismissed on Various Jurisdictional Grounds.

Constitutional Law — Right to Counsel — Misc. Cases — Action Brought Seeking an Increase in the Extremely Low Compensation Rates Paid by the Commonwealth to Attorneys Appointed to Represent Indigent Parties Who Are Constitutionally Entitled to Representation Is Dismissed on Various Jurisdictional Grounds. An action brought by a group of attorneys that accept assignments from the Private Counsel Division of the Committee for Public Counsel Services to represent persons constitutionally entitled to counsel at the Commonwealth's expense in criminal and certain civil matters, seeking

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to correct the exceedingly low compensation rates paid by the Division to private attorneys, is dismissed on the grounds that: (1) the claimed injury—an alleged looming crisis in the Commonwealth's ability to meet the constitutionally guaranteed rights to counsel for many indigent litigants—is speculative and therefore not ripe for judicial review; (2) the plaintiffs lack standing to assert the rights of indigent persons as a group; (3) the Legislature, through its appropriation authority, indirectly controls the rates and the issue therefore is nonjusticiable under the Separation of Powers doctrine; (4) there is no unconstitutional taking of property because appointments are voluntary; and (5) there is no violation of the Equal Protection Clause because the defendants are not similarly situated with respect to the classes to which they seek comparison (attorneys who are full-time government employees and non-attorney service providers used by the Division), and because there are rational reasons for the different treatment accorded the claimed classes. The opinion contains a useful discussion of the very low compensation provided to private counsel for representing indigent defendants, particularly as compared to other types of service providers hired by the Division to provide support services for litigation involving indigent clients, even non-professional providers. The plaintiffs argue the fees are unreasonably low, the pool of attorneys willing to take such appointments is shrinking in terms of numbers as well as experience and ability; it is unfair to pay other providers, many with no professional qualifications, more than is paid appointed counsel; it is unfair to pay persons who incur no overhead a fee greater than that paid to an attorney who must cover the overhead costs of a private practice; and it is unfair to pay more to providers hired to meet non-constitutional needs of indigent parties than is paid to attorneys retained to meet constitutional needs.

KANE, J.

Plaintiffs are eleven of approximately 2,500 attorneys who accept assignments from the Private Counsel Division of the Committee for Public Counsel Services (CPCS) to represent persons constitutionally entitled to counsel at the Commonwealth's expense in criminal prosecutions and certain civil matters. Plaintiffs filed this action claiming that the compensation rates set and paid by CPCS, subject to legislative appropriation, are inadequate, leaving plaintiffs unfairly underpaid, overburdened, and less able to provide constitutionally required representation. They brought this action against William Leahy, CPCS's Chief Counsel, Willie J. Davis, CPCS's Chairman, William F. Galvin, the Secretary of the Commonwealth, Timothy P. Cahill, the Treasurer of the Commonwealth, and Martin J. Benison, the Comptroller of the Commonwealth.

Plaintiffs' Second Amended Complaint contains five counts: the low compensation rates set and paid by CPCS have created a risk of denying their clients' rights to counsel and to due process (Count I); CPCS' failure to set fair compensation rates prior to December of 2002 and its failure to pay fair compensation rates amount to a taking of property without just compensation (Count II); CPCS's nonpayment of the fair rates it set in December of 2002 also constitutes a taking of property without just compensation (Count III); the current compensation rates violate plaintiffs' equal protection rights, as CPCS pays higher rates to other service providers (Count IV); and the statutory provision making CPCS compensation rates subject to legislative appropriation, G.L.c. 211D, § 11, is unconstitutional (Count V). Plaintiffs seek declaratory, monetary, and equitable relief consistent with these counts.⁴

Defendants have moved to dismiss all claims against them.⁵ For the reasons stated in this memorandum, I allow the motion.

BACKGROUND

General Laws c. 211D, §5, mandates CPCS to establish, supervise and maintain a system for the appointment or assignment of counsel for persons for whom a constitutional obligation exists to provide counsel. CPCS carries out its responsibilities through its two divisions, the Public Counsel Division and the Private Counsel Division. Through its Private Counsel Division, and pursuant to G.L.c. 211D, §6(b), CPCS contracts with county-based agencies which in turn contract with plaintiffs and other attorneys (collectively referred to as bar counsel) who provide the constitutionally required legal services. Approximately 2,500 attorneys throughout the Commonwealth currently accept assignments through the Private Counsel Division of CPCS.⁶ Plaintiffs, who practice law in Bristol County, are qualified to and do accept these assignments.⁷ Their service to indigents and the Commonwealth, particularly in the difficult circumstances described in their complaint, are highly commendable.

CPCS is authorized and required to set rates of compensation for bar counsel. G.L.c. 211D, §11.⁸ CPCS's payment of those rates is subject to appropriation by the Legislature. Id. General Laws c. 211D, §12, nonetheless requires CPCS to "establish policies and procedures to provide fair compensation to private counsel . . ."

Apart from bar counsel, CPCS engages the services of other professionals as well as nonprofessionals. Pursuant to G.L.c. 211D, §9, CPCS has authority to establish a range of rates payable for vendors for investigative services, social services or social service referrals, and expert witnesses, "taking into consideration the rates, qualifications and history of performance; provided, however, that such ranges may be exceeded with approval of the court." CPCS must pay its staff attorneys in the Public Defender Division a salary comparable to that of an attorney in a district attorney's office. G.L.c. 211D, §6. In contrast to

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plaintiffs' compensation, nothing in the statute makes the rates for the other service providers expressly subject to legislative appropriation.

COMPLAINT

1. Compensation of Bar Counsel

Since 1996, CPCS has paid bar counsel the following rates: $30 per hour for services related to District and Juvenile Court representation; $39 per hour for legal services in the Superior Court, in the Appeals Court and in family and mental health matters and $54 per hour for murder cases. According to the complaint, these rates are lower than those paid by the Federal government and all but two states.

Plaintiffs distinguish between defendants' actions before and after December of 2002. They attribute the low compensation rates paid prior to December of 2002 to defendants' failure either to set fair rates pursuant to G.L.c. 211D, §12, or to convey adequate information to the Legislature in support of appropriating funds for fair rates. In December of 2002, CPCS set what plaintiffs describe as fair rates of compensation. Nonetheless, for reasons not disclosed, plaintiffs claim defendants have not compensated them in accordance with those fair rates "in spite of an existing appropriation."⁹ Plaintiffs further complain that the Legislature has historically underfunded the budget for assigned counsel, resulting in delayed payment of their already low compensation.

Plaintiffs assert that CPCS pays its other service providers at rates two to eight times more than plaintiffs, even though many of the other providers' services are only reasonably necessary rather than constitutionally required. Plaintiffs fault defendants' failure to collect and publish data to determine appropriate compensation rates for plaintiffs, and to adjust plaintiffs' compensation rates to keep pace with inflation as they have for other CPCS service providers. Plaintiffs compare their compensation with that of "other like and unlike providers of services to the Commonwealth" who are attorneys, professionals who provide services for indigent persons, and non-professionals. They offer two examples: laborers "at prevailing wage jobs" are paid at rates similar to plaintiffs but do not incur overhead costs, and attorneys serving the Commonwealth receive higher compensation than plaintiffs, revealing a "gross disparity." Plaintiffs claim because no rational basis or legitimate purpose justifies this disparity, it violates their right to equal protection.

2. Impacts on Bar Counsel

Plaintiffs have satisfied all training requirements and qualify for appointments or assignments of matters from the Private Counsel Division. They represent indigents in compliance with CPCS's performance guidelines¹⁰ and the Canons of Ethics. In order to be able to provide these services, plaintiffs must incur not only basic overhead costs, such as office space, insurance, transportation, telephone and clerical assistance, but also the costs of more advanced communication equipment and services, including faxes, on-line research capability, email accounts, cell...