Olson v. James, Nos. 78-1706

• Decision Date: 06 August 1979
• Docket Number: 79-1430,Nos. 78-1706
• Citation: 603 F.2d 150
• Parties: Steven Leland OLSON, Plaintiff-Appellant, v. James R. JAMES, Judicial Administrator, Defendant-Appellee. Iley SIMMONS, Plaintiff-Appellee, v. James R. JAMES, Judicial Administrator, and State of Kansas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 150

603 F.2d 150

Steven Leland OLSON, Plaintiff-Appellant, v. James R. JAMES, Judicial Administrator, Defendant-Appellee.

Iley SIMMONS, Plaintiff-Appellee, v. James R. JAMES, Judicial Administrator, and State of Kansas,

Defendants-Appellants.

Nos. 78-1706, 79-1430.

United States Court of Appeals Tenth Circuit.

Argued July 16, 1979.

Decided Aug. 6, 1979.

Richard C. Wallace, Gen. Counsel, Wyandotte County Legal Aid Society of Kansas Legal Services, Kansas City, Kan., for appellant Olson and appellee Simmons.

Janet A. Chubb, Asst. Atty. Gen., Topeka, Kan. (Robert T. Stephan, Atty. Gen., Topeka, Kan., on the brief), for defendants-appellants.

Before HOLLOWAY, BREITENSTEIN and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The case before us is actually two cases which, although tried separately, have been, because of identical issues, consolidated for appeal. Each was a class action seeking declaratory and injunctive relief pursuant to United States civil rights statute 42 U.S.C. § 1983. In both cases attack is leveled against a Kansas statute, Kan.Stat.Ann. § 22-4513 (Supp.1978). The first of these cases is Olson v. James, No. 78-1706. In it Judge O'Connor, United States District Judge for the District of Kansas, held that the allegedly invalid Kansas statute was not unconstitutional. ¹ On the other

hand, in a subsequent case, Simmons v. James, No. 79-1430, Judge Richard Rogers of the United States District Court for the District of Kansas found and determined that the Kansas statute was unconstitutional. Simmons v. James, 467 F.Supp. 1068 (D.Kan.1979).

THE EMBATTLED STATUTE

The statute, Kan.Stat.Ann. § 22-4513 (Supp.1978), provides for liability of a defendant in a criminal case for expenditures for attorney's fees furnished by the state. It provides that whenever an expenditure is made from a defendant's fund to provide counsel and other defense services to a defendant, such defendant shall be liable to the State of Kansas for a sum equal to such expenditure, and such sum may be recovered from the defendant by the State of Kansas for the benefit of the fund to aid indigent defendants. It further calls for immediate enforcement. It declares:

Within thirty (30) days after such expenditure, the judicial administrator shall send a notice by certified mail to the person on whose behalf such expenditure was made, which notice shall state the amount of the expenditure and shall demand that the defendant pay said sum to the state of Kansas for the benefit of the fund to aid indigent defendants within sixty (60) days after receipt of such notice.

The statutory provision goes on to provide for the contents of the notice for interest from the due date until paid. It also declares that failure to receive the notice does not relieve the person from the payment of the sum claimed together with interest. The statute also specifies in detail the procedure to be taken in order to enforce this provision. ² Failure to pay the sum in question results in the clerk of the district entering judgment without further hearing in the amount of the fee plus six percent per annum from the due date until paid. An execution based upon this judgment together with garnishment then issues.

The attack centers on the alleged violation of the Sixth and Fourteenth Amendments to the United States Constitution. Judge Rogers, in an opinion rendered March 30, 1979, granted summary judgment invalidating Finally, it was the inflexibility of the Kansas statute and its lack of concern for the facts applicable to the individual defendants which convinced the district court that it was invalid. The other contentions were disregarded as not necessary to a decision.

the statute after both parties had filed and had thus submitted motions. The judge considered the statute to be overbroad and unnecessarily chilling to the defendant's right to counsel. One reason which was prominent in his opinion was that the judgment against the person for whom counsel was provided was mandatory and automatic and did not take into account that some of the defendants would remain indigent during the the five-year tenure during which the judgment could be enforced. Judge Rogers considered this deficiency in the statute to be entirely lacking in value and unnecessary. The judge also gave effect to the idea that the statute would cause many indigent defendants to forego the exercise of this constitutional right. He pointed out that this view was consistent with the earlier decision of a three-judge court in Strange v. James, 323 F.Supp. 1230, 1234 (D.Kan.1971). The judge concluded that the failure of the statute to take into account the poverty of the accused and the automatic entry of judgment required by the statute serve to chill the underlying right. By failing to exempt the persons unable to pay, the statute was, according to the further reasoning of Judge Rogers, in conflict with the Supreme Court's decision in James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972).

DUE PROCESS AND EQUAL PROTECTION

The due process argument was (and is) predicated on the concept that the statute compels the state to proceed automatically to recoup the expenditure and on its application to all involved defendants without regard to the outcome of the trial or the individual's financial condition. Also, the judgment is entered without any hearing or any procedure involving the accused.

Counsel for Simmons emphasize that the action is not against recoupment statutes generally, but, rather, it opposes the rigid, demanding automatic procedure, and the allegedly irrational requirements of the Kansas enactment. Counsel seeks to show that the Supreme Court (in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974)), in upholding Oregon's recoupment provision, has pointed to it as a model enactment, which offers dramatic contrast when compared to the grudging, demanding and discriminatory provisions found in the Kansas recoupment statute which counsel says impedes and turns away the assertion of Sixth Amendment rights. This effect is the product, so it is further argued, of the automatic and demanding terms that are found in the Kansas statute. Counsel refers to its failure to make any distinction between indigent defendants, its failure to consider the financial condition, present and future, of individual defendants and its failure to take into account ultimate guilt or innocence.

JAMES v. STRANGE AND EQUAL PROTECTION

The issue is therefore whether the Kansas statute which was found to be unconstitutional in the Supreme Court's 1972 decision in James v. Strange, supra, and which was repaired somewhat, continues to be contrary to the Supreme Court's pronouncements and thus suffers from failure to give full effect to the fundamental right to counsel.

In the Supreme Court's definitive decision, James v. Strange, supra, the majority opinion of Justice Powell held that the fact that the statute was arguably discouraging to indigent defendants did not condemn it since it did not expressly and in the strictest sense deny the right to counsel. Further, it was said by the majority opinion that whether the statutory obligation for repayment impermissibly deterred the exercise of the right to counsel did not need to be reached because the Court found that there were more obvious deficiencies such as the But, it was the failure of the statute to protect the wages and the intimate personal property of the defendant from seizure and its consequent discouraging of independence and self-sufficiency with its natural impeding of rehabilitation that brought the Court to the conclusion that the provisions constituted a violation of the equal protection clause.

failure to give the criminal defendant the right to exercise exemptions, which rights including the right to unrestricted garnishment were extended to all other debtors. A further shortcoming pointed to was the demand made by the statute for recoupment regardless of the indigency of the defendant or regardless of whether he was acquitted or found guilty. It was pointed out that there was no rational basis for recouping attorney's fees where the defendant was acquitted since the state had brought on the prosecution.

Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), had previously ruled that it was not permissible to require an indigent defendant to reimburse the state for the cost of a transcript on appeal. Such a provision was held to have fastened a financial burden only on the unsuccessful appellants who were confined in state institutions. For this reason it lacked rationality which the equal protection clause required. Also, the Court considered that the rationality was lacking in the provision subjecting indigent defendants to discriminatory terms of repayment. In essence then the Court held that indigent defendants were entitled to evenhanded treatment in relationship to other classes of debtors.

THE OREGON STATUTE AND THE FULLER DECISION

The subsequent decision of the Supreme Court in Fuller v. Oregon, supra, considered a statute which the Court regarded as basically reasonable in that it did not require defendants who at the time of the proceedings were indigent to pay, but it made provision for their repaying only after they had subsequently acquired financial means. Persons who presented at the time of the proceedings no...