Martin County v. Makemson

• Decision Date: 06 March 1985
• Docket Number: No. 83-1138,83-1138
• Citation: 464 So.2d 1281,10 Fla. L. Weekly 569
• Parties: 10 Fla. L. Weekly 569 MARTIN COUNTY, Petitioner, v. Robert MAKEMSON, Esquire, and Robert G. Udell, Esquire, Respondents.
• Court: Florida District Court of Appeals

Page 1281

464 So.2d 1281

10 Fla. L. Weekly 569

MARTIN COUNTY, Petitioner, v. Robert MAKEMSON, Esquire, and Robert G. Udell, Esquire, Respondents.

No. 83-1138.

District Court of Appeal of Florida Fourth District.

March 6, 1985.

Michael H. Olenick, Stuart, for petitioner.

Robert Makemson of Summers & Makemson, P.A., Stuart, pro se respondent.

Robert G. Udell, Stuart, pro se respondent.

GLICKSTEIN, Judge.

This is a petition for certiorari brought by a county which originally named as respondents the trial judge ¹ who awarded attorney's fees to court-appointed attorneys for the trial and appeal, respectively, of a criminal case, and the two attorneys to whom they were awarded. The trial judge, in awarding the fees, declared section 925 036, Florida Statutes (1981), ² which authorized but limited them, to be a legislative usurpation of an exclusive judicial power, contravening Article V, Section 1 of the Florida Constitution.

The highest court of this state considered attacks upon the pre-1981 version of this statute based upon other Florida constitutional provisions, as well as the United States Constitution, and has repelled them. In Metropolitan Dade County v. Bridges, 402 So.2d 411, 414 (Fla.1981), it said:

Neither the due process nor equal protection clauses are implicated by section 925.036. In MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973), we upheld the constitutional validity of section 925.035 which established a maximum of $750 as reasonable compensation to counsel appointed to represent an indigent in a criminal case. This statute was challenged on the basis that it contravened the equal protection and due process clauses of the Constitutions of the United States and of the State of Florida. Initially, we reiterated that the right to recover attorney's fees as a part of the costs in an action did not exist at common law and that it therefore was provided for by the legislature's enactment of section 925.035. [emphasis added.]

The trial court here disregarded a major caution sign which expressly appears in Metropolitan Dade County v. Bridges. Notwithstanding that it was only a plurality decision, three of the justices agreed upon the following:

We also hold that this section [925.036] is mandatory and not directory and that the trial court erred in construing it by adding the language which would permit the trial court to award fees higher than those specified by statute where the court determined exceptional circumstances to exist.

Id. at 413. Two of the justices dissented in part, expressing their conclusion that the trial court had the power to award a fee in excess of the statutory maximum in extraordinary circumstances. A third justice agreed in essence with these latter two justices by ruling the statute to be directory, not mandatory. The remaining justice concluded that the statute was sufficiently constitutional on its face to repel the specific attacks being made upon it; however, he rejected the exceptional circumstance test being applied to individual cases and concluded it should be determined by a showing relating to lawyers or types of cases as a class.

After Metropolitan Dade County, Marion County v. DeBoisblanc, 410 So.2d 951 (Fla. 5th DCA), pet. for rev. denied, 419 So.2d 1196 (Fla.1982), expressly rejected the contention upon which the trial court made its judgment in this case. In DeBoisblanc, the facts of which were strikingly similar to those of the present case, the fifth district said:

The issue in this case is whether or not the trial court has an inherent power to award an attorney fee irrespective of any attempted limitation by the state legislature. Section 925.036, Florida Statutes, became effective October 1, 1978. The Florida Supreme Court previously has upheld the constitutionality of a statutory fee limit, which was the predecessor of the 1978 enactment. MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973). Recently, the Florida Supreme Court again has upheld the constitutionality of the fee limitation statute against an attack that it violates the equal protection and due process clauses of the Constitutions of the United States and of the State of Florida. Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981). This court, applying the MacKenzie precedent, has upheld the constitutionality of the specific statutory limitation challenged by this appeal. County of Seminole v. Waddell, 382 So.2d 357 (Fla. 5th DCA 1980).

In Waddell the trial court had not directly passed upon the validity of the statutory limitation, but had held it to be directory rather than mandatory. We reversed on authority of MacKenzie and the clear wording of the statute. See also Pinellas County v. Maas, 400 So.2d 1028 (Fla. 2d DCA 1981); Dade County v. Goldstein, 384 So.2d 183 (Fla. 3d DCA 1980). In the instant situation, the trial court, despite the precedents of MacKenzie and Waddell, purported to invalidate section 925.036 on the ground that it was "a mandatory usurpation by the legislature of constitutional power vested solely in the judiciary under Article V, Section 1 of the Florida Constitution (1968), which power is removed from the legislature by Article II, Section 3, Florida Constitution (1968)...." This holding by the trial court is in direct conflict with Bridges and MacKenzie and, therefore, must be reversed.

Id. at 952-53.

Later, this court relied upon Metropolitan Dade County to uphold the constitutionality of the 1981 version of the statute and its mandatory nature in Broward County v. Wright, 420 So.2d 401 (Fla. 4th DCA 1982).

With such plethora of authority, the trial court was incorrect in awarding an excess fee to trial counsel by determining the statute to be unconstitutional. Moreover, it ignored another well-known caution sign spotlighted by the Metropolitan Dade County Court:

A legislative enactment is presumed valid and will not be declared unconstitutional unless it is demonstrated beyond a reasonable doubt that the statute conflicts with some designated provision of the constitution. Whenever reasonably possible and consistent with the protection of constitutional rights, courts will construe statutes in such a manner as to avoid conflict with the constitution.

402 So.2d at 413-14. Accordingly, we grant the writ and quash the award to trial counsel.

We do likewise as to the award to appellate counsel, not only because of all of the foregoing decisions but also because of the express language of the statute which provides for the award of compensation "at the conclusion of the representation." Here, the award to appellate counsel was made at the beginning of the appeal, not at the conclusion.

Notwithstanding everything we have said, we feel that an absolute fee cap works an inequity in some cases. We therefore request that the Florida Supreme Court visit the difficult questions which the present case poses, as being of great public importance. Accordingly, we certify the following with the additional thoughts recited herein:

I

We first ask whether section 925.036, Florida Statutes (1983) is unconstitutional on its face as an interference with the inherent authority of the court to enter such orders as are necessary to carry out its constitutional authority.

Although this is a question of our state constitution, and other states' holdings on this question are not dispositive, we have nevertheless considered the decisions of other states on the subject. In Smith v. State, 118 N.H. 764, 394 A.2d 834 (1978), the New Hampshire Supreme Court ruled as did the present trial judge, Justice Grimes speaking for the court:

We hold that RSA 604-A:5 and Laws 1975 ch. 505, § 1.01(04), (05) are unconstitutional insofar as they shift much of the State's obligation to the legal profession and intrude impermissibly upon an exclusive judicial function.

We are convinced that the profession must be relieved of this burden and that the burden must pass to the citizens of New Hampshire, whose duty it has been since 1966. The members of the bar, being taxpayers, will of course share in it. We also believe, however, that the bar should continue to contribute something more. To accomplish the ends of this decision, court-appointed attorneys should be paid a reasonable fee, but one somewhat less than that which an ordinary fee-paying client would pay.

It remains to be determined just what "reasonable compensation" means and who is to decide the matter in this and future cases. The obligations and responsibilities of the bar are matters of judicial concern alone. See Schware v. Bd. of Bar Examiners, 353 U.S. 232, 248, 77 S.Ct. 752 , 1 L.Ed.2d 796 (1957) (Frankfurter, J., concurring); N.H. Judicial Council 5th Report 20-21 (1954); State v. Rush, 46 N.J. 399, 411, 217 A.2d 441, 447 (1966); In re Lacey, 11 Cal.2d 699, 701, 81 P.2d 935, 936 (1938). Since the obligation to represent indigent defendants is an obligation springing from judicial authority, so too is the determination of reasonable compensation for court-appointed attorneys a matter for judicial determination. The power to regulate officers of the court is a power inherent in the judicial branch. Implicit in that power is the authority to fix reasonable compensation rates for court-appointed attorneys. The legislature recognized this authority in enacting RSA 604-A:4, which provides that "[e]ach court before which the counsel represented the defendant shall fix the compensation and reimbursement to be paid the counsel." Thus, we hold that it is for the trial courts of New Hampshire to fix the amount of compensation due in each case hereinafter provided. The rate awarded by the court should neither unjustly enrich nor, as the present fee schedule does, unduly impoverish the court-appointed attorney.

Id. at 838-39.

We have found no agreement by other states that such statute is facially unconstitutional as a usurpation of the judicial role. In fact, the entire current of the law has...