Payment of Witness Fees in State v. Huisman

• Decision Date: 29 January 1992
• Citation: 167 Wis.2d 168,482 N.W.2d 665
• Parties: In the Matter of the PAYMENT OF WITNESS FEES IN STATE v. HUISMAN. BROWN COUNTY, Appellant, v. STATE PUBLIC DEFENDER, Respondent. d 91-1492. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 665

482 N.W.2d 665

167 Wis.2d 168

In the Matter of the PAYMENT OF WITNESS FEES IN STATE v. HUISMAN.

BROWN COUNTY, Appellant, v. STATE PUBLIC DEFENDER, Respondent. ^d

91-1492.

Court of Appeals of Wisconsin.

Oral Argument Jan. 29, 1992.

Opinion Released Feb. 11, 1992.

Opinion Filed Feb. 11, 1992.

On behalf of appellant, the cause was submitted on the briefs of and orally argued by John C. Jacques Asst. Corp. Counsel, of Green Bay.

On behalf of respondent, the cause was submitted on the brief of Asst. State Public Defenders Kenneth P. Casey of Madison, William G. Retert of Fond du Lac and Henry R. Schultz of Green Bay; and the amicus curiae brief of Kenneth P. Casey. The cause was orally argued by Kenneth P. Casey.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE Judge.

Brown County appeals an order requiring it to pay expenses for three defense experts hired by a private attorney who was appointed by the state public defender (SPD) to represent an indigent criminal defendant. The trial court found that the expert services were necessary for an adequate defense and their fees reasonable. The issue is whether the county should be responsible for reimbursement for defense experts under ch. 977, Stats., in cases where the appointed attorney fails to receive advance authority from the SPD. The SPD concedes that the state budget includes some funds for payment of experts, and concedes responsibility to pay the fees of experts when the assigned counsel follows the procedures set forth in the Wisconsin Administrative Code. ¹ The attorney here did not uniformly seek advance approval from the SPD for hiring the experts. The county argues that in light of the ultimate judicial determination that the experts were necessary, the alleged failure to follow the proper procedures is a matter between the SPD and the assigned attorney. We conclude that because the trial court found that the fees were reasonable and that the experts were necessary to provide an indigent defendant with due process and a fair trial, the SPD is obligated to pay. The order is therefore reversed and the matter remanded for an order directing the SPD to provide reimbursement.

The facts are as follows: Attorney Royce Finne, a private attorney, was appointed by the SPD's office to represent Brian Huisman, who was indigent. Huisman was charged with first-degree intentional homicide. Huisman pled not guilty and not guilty by reason of mental disease or defect. Because the case concerned Huisman's mental state at the time of the homicide, Finne sought the services of three experts.

DR. TERRY COBABE, PSYCHOLOGIST

Finne filed a request with the SPD's office in Green Bay for approval to hire Dr. Terry CoBabe, a psychologist, to assist in the juvenile court waiver proceedings and address the waiver criteria under sec. 48.18, Stats., as applicable to Huisman. Finne requested approval for $500. The Green Bay SPD's office sent Finne a letter stating that only $400 would be approved. In the letter it was stated: "If you believe that the amount of money I am approving is insufficient, please advise. The State Public Defender will not be responsible for payment of amounts that are not preapproved." Later, Finne submitted a voucher to the SPD requesting $615.36 for payment, but the SPD paid only the approved $400.

DR. JOHN MARSHALL, PSYCHIATRIST

Finne initially did not formally request permission to hire Dr. John Marshall as a psychiatric expert for trial, but allegedly contacted the SPD's office by telephone. He said he was advised to seek court approval to hire Dr. Marshall as a psychiatric expert for trial pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). That case holds that once a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be significant at trial, the United States Constitution requires that a state provide access to a psychiatrist's assistance for an indigent defendant. Later, after Marshall was already hired, the SPD denied Finne's request for reimbursement in the amount of $1,046.25.

DR. DONALD DEROZIER, PSYCHOLOGIST

Dr. Donald Derozier, a psychologist and the third expert witness, was originally appointed by the juvenile court to conduct a psychological examination upon Huisman. Derozier concluded that Huisman did in fact suffer from a mental disease or defect such that he was unable to conform his conduct to the requirements of the law. Based upon the report, Finne then asked Derozier to re-examine Huisman shortly before trial. After the examination, Derozier prepared an additional report with the same conclusion. He was asked to testify by Finne, and did so. Finne never sought prior approval from either the SPD or the court for Derozier's services in the sum of $2,425.20. ²

After Huisman's trial, the court heard Finne's motion regarding payment for the three experts and it found that the costs were reasonable and necessary. No one disputes the circuit court's inherent authority to ultimately decide the necessity of defense consultants for an indigent criminal defendant, see In re Lehman, 137 Wis.2d 65, 76, 403 N.W.2d 438, 443-44 (1987) (courts retain the inherent power to appoint counsel for an indigent defendant where the SPD fails to act), nor is there a challenge to the court's factual findings that the experts were necessary and their fees reasonable.

The circuit court reasoned that because none of the exceptions to the county's responsibility for costs of operation of the circuit court under sec. 753.19, Stats., applied, the county was responsible for payment of the fees. Section 753.19 provides:

The cost of operation of the circuit court for each county, except for the salaries of judges and court reporters provided to be paid by the state, and except for the cost assumed by the state under this chapter and chs. 40 and 230, and except as otherwise provided, shall be paid by the county. (Emphasis added.)

Section 977.05(4)(h) and (i), Stats., establishes the relevant duties of the state public defender:

(h) Accept requests for legal services from indigent persons entitled to counsel under s. 967.06 or otherwise so entitled under the constitution or laws of the United States or this state and provide such persons with legal services when, in the discretion of the state public defender, such provision of legal services is appropriate.

(i) Provide legal services in:

1. Cases involving persons charged with a crime against life under ss. 940.01 to 940.12.

This case involves the interpretation of statutes, which we review de novo. State v. Sher, 149 Wis.2d 1, 8, 437 N.W.2d 878, 880 (1989). In determining legislative intent, statutes relating to the same subject matter should be read together and harmonized if possible. Edelman v. State, 62 Wis.2d 613, 619, 215 N.W.2d 386, 389 (1974). It is a cardinal rule of statutory construction, however, that when a general and a specific statute relate to the same subject matter, the specific statute controls. Raisanen v. City of Milwaukee, 35 Wis.2d 504, 516, 151 N.W.2d 129, 136 (1967). State v. Ramsay, 16 Wis.2d 154, 166, 114 N.W.2d 118, 124 (1962), holds that the power to order a public agency to perform an act exists if there is a statute that imposes upon the public agency the duty to perform.

Section 977.05, Stats., does impose a duty to perform. Inherent in the obligation to provide "legal services" is the obligation to provide expert assistance when it is essential to the legal defense. The SPD contends that the limited size of the private bar appropriation in the state budget is an...