Public Defender Standards Council v. State

• Decision Date: 09 March 2009
• Docket Number: No. S09A0379.,S09A0379.
• Citation: 285 Ga. 169,675 S.E.2d 25
• Parties: GEORGIA PUBLIC DEFENDER STANDARDS COUNCIL v. The STATE et al.
• Court: Georgia Supreme Court

285 Ga. 169

675 S.E.2d 25

GEORGIA PUBLIC DEFENDER STANDARDS COUNCIL v. The STATE et al.

No. S09A0379.

Supreme Court of Georgia.

March 9, 2009.

Turner, Bachman & Garrett, Judson H. Turner, Gilbert, Harrell, Sumerford & Martin,

Mark D. Johnson, Taylor H. Haley, Brunswick, for appellant.

Daniel J. Craig, District Attorney, Tucker, Everitt, Long, Brewton & Lanier, John B. Long, Augusta, for appellees.

Bondurant, Mixson & Elmore, Emmet J. Bondurant, Atlanta, Michael A. Caplan, for amici curiae.

CARLEY, Justice.

Willie Palmer was convicted of two counts of malice murder and other offenses and was sentenced to death. This Court affirmed the judgments in Palmer v. State, 271 Ga. 234, 517 S.E.2d 502 (1999). On petition for writ of habeas corpus, Palmer's convictions were vacated, and we affirmed, ordering a new trial. Schofield v. Palmer, 279 Ga. 848, 853(3), 621 S.E.2d 726 (2005). After inquiry by habeas counsel and by the trial court in 2006, Michael Mears, who was then the director of the Georgia Public Defender Standards Council (Council), assured the trial court that counsel would be selected to represent Palmer on retrial and that all attorney's fees and expenses would be paid by the Council. Mr. Mears asked Michael C. Garrett to represent Palmer and to employ co-counsel, and informed Mr. Garrett that he would be paid out of the Council's conflict funds. Mr. Garrett agreed and employed J. Randolph Frails as co-counsel. Neither Mr. Garrett nor Mr. Frails (Attorneys) had previously been involved in Palmer's defense. During their representation, Attorneys submitted periodic invoices, and the Council eventually denied their requests for funding, stating through its chief legal officer that the Council is not the responsible entity for the compensation for legal services in this case because notice of intent to seek the death penalty was given prior to January 1, 2005. Palmer was again convicted and sentenced to death, and Attorneys submitted a final bill for $68,946.61.

On August 24, 2007, the trial court ordered the Council to pay Attorneys' fees and expenses pursuant to former OCGA § 17-12-127(b), which read as follows:

If for any reason the [O]ffice [of the Georgia Capital Defender] is unable to defend any indigent person accused of a capital felony for which the death penalty is being sought, the presiding judge of the superior court in which the case is pending shall appoint an attorney or attorneys to represent the defendant. Counsel appointed pursuant to this subsection shall be paid with state funds appropriated to the [C]ouncil for use by the [Capital Defender]....

Ga. L.2003, pp. 191, 217, § 1. This code section was part of Article 6 of Chapter 12 of Title 17. That Article created the Office of the Georgia Capital Defender and became "effective on January 1, 2005." Former OCGA § 17-12-128 (Ga.L.2003, pp. 191, 217, § 1). We note that Article 6 was repealed in 2008 when the Office was succeeded by the capital defender division of the Council, but comparable provisions are now found in OCGA §§ 17-12-12 and 17-12-12.1. Ga. L.2008, pp. 846, 865-867, 873, §§ 26, 27, 42. The trial court held that former OCGA § 17-12-127(b) did not expressly exclude reimbursement by the Council where, as here, the defendant was indicted prior to January 1, 2005 and his attorneys were appointed after that date. The Council failed to comply with the August 24, 2007 order, and the trial court entered an order on September 12, 2008 holding the Council in contempt and directing the Council to pay $68,946.61 into the registry of the court pending appeal. The Council appeals pursuant to OCGA § 5-6-34(a)(2).

The Council contends that the August 24, 2007 order is void because the County is responsible for payment of Attorneys' fees and expenses incurred during Palmer's retrial. Under former OCGA § 17-12-44, which was enacted in 1979,

a court was empowered to order a county to pay for legal services for an indigent defendant in a capital felony case. [Cits.] However, this Code section was only effective until January 1, 2005, following establishment of the Georgia Public Defender Standards Council. [Cits.]

Fulton County v. State, 282 Ga. 570, 572(3), 651 S.E.2d 679 (2007). The Council was established by the Georgia Indigent Defense Act of 2003, OCGA § 17-12-1 et seq. (Act). That Act replaced the previous county-level piecemeal system with a statewide system which places on the Council the responsibility "for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons who are entitled to representation under [the Act]." OCGA § 17-12-1(c). See also Alison Couch, Criminal Procedure, 20 Ga. St. U.L.Rev. 105 (2003).

The Council argues that former OCGA § 17-12-124 contemplated only contemporaneous or future indictments and future death penalty notices because it required the Capital Defender to submit "a proposed budget for representation of all indigent persons accused of a capital felony for which the death penalty is or is likely to be sought." Ga. L.2003, pp. 191, 216, § 1. However, nothing in that provision required that the Council fund representation only for defendants who are indicted or sent a death penalty notice after a certain date. See Walker Electrical Co. v. Walton, 203 Ga. 246, 249(1), 46 S.E.2d 184 (1948) (relying on the fact that the remedial statute there "does not contain any restriction or limitation as to cases pending on the effective date of the act"). Compare Nickerson v. State, 287 Ga.App. 617, 618-619(1), 652 S.E.2d 208 (2007) (clause involving effective date expressly provided for pending cases); former OCGA §§ 17-12-108, 17-12-127.1 (Ga. L.2003, pp. 191, 215, § 1; Ga. L.2004, pp. 631, 636, § 17(11)) (dealing only with continued representation by and payment to attorneys appointed pursuant to former Article 5, which temporarily created the office of the multicounty public defender). Furthermore, former OCGA § 17-12-127(b) explicitly tied payment with Council funds to appointment of defense counsel pursuant to that subsection. Thus, in this case, the fact that Attorneys were appointed after the effective date of former OCGA § 17-12-127(b) indicates that their payment is governed by that statute rather than preexisting law. Compare State v. Crittenden County, 320 Ark. 356, 896 S.W.2d 881, 884(I) (1995).

Moreover, payment was expressly promised to come from the conflict funds which are the subject of former OCGA § 17-12-127(b). Contrary to the Council's argument, it appears that the actions of Mr. Mears, as director, were not ultra vires. The Council was responsible for the management of the Office of the Georgia Capital Defender, which included administering and overseeing the expenditure of funds made available to the Office, and the Director was authorized to hire those staff employees and contract with outside consultants on behalf of the Council as may have been necessary to provide the services contemplated by the Act. Former OCGA §§ 17-12-5(b)(3), 17-12-123(4) (Ga.L.2003, pp. 191, 197, 216, § 1). Even if Mr. Mears was not authorized to hire Attorneys and promise payment, former OCGA § 17-12-127(b) placed ultimate responsibility on the trial court for the appointment of c...