Simmons v. State Pub. Defender

• Decision Date: 24 November 2010
• Docket Number: No. 07-0870.,07-0870.
• Citation: 791 N.W.2d 69
• Parties: Kent A. SIMMONS, Appellant, v. STATE PUBLIC DEFENDER, Appellee.
• Court: Iowa Supreme Court

791 N.W.2d 69 Kent A. SIMMONS, Appellant, v. STATE PUBLIC DEFENDER, Appellee. No. 07-0870. Supreme Court of Iowa. Nov. 24, 2010.

Kent A. Simmons, Davenport, pro se.

Mark C. Smith, State Appellate Defender, for appellee.

APPEL, Justice.

In this case, we are asked to review determinations by the state public defender rejecting the payment of fees to a court-appointed appellate counsel in excess of $1500. In the underlying criminal cases, appellate counsel successfully obtained reversal of the criminal convictions on the ground that the defendants were provided ineffective assistance of counsel at trial. In response to a fee application in each case, the state public defender determined that under his administrative rules, counsel was not entitled to compensation in excess of $1500 per appeal.

The district court affirmed the decisions of the state public defender, largely based upon the existence of a rule limiting compensation to $1500 per appeal except in cases that are so unusual and factually or legally complex as to be "beyond the purview of both the attorney and the state public defender." See Iowa Admin. Code r. 493-12.5 (2006).¹ For the reasons expressed below, we reverse the decision of the district court and remand the case to the district court for further proceedings.

I. Factual and Procedural History.

A. Nature of the Underlying Cases. The fee applications in these cases arise out of challenges to convictions based on ineffective assistance of counsel. In both cases, attorney Kent Simmons was appointed by the court to represent defendants in their appeals-one involving a postconviction relief proceeding and the other involving a direct appeal. The result in both cases was the reversal of convictions carrying lengthy prison terms and the grant of new trials for the defendants.

In the first case, Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008), Millam was convicted of two counts of sexual abuse. His original appeal was dismissed as frivolous under Iowa Rule of Appellate Procedure 6.104 (now rule 6.1005). Millam, 745 N.W.2d at 721. Millam filed an application for postconviction relief, asserting that his trial counsel provided ineffective assistance of counsel by failing to present evidence of a victim's prior false accusation of sexual abuse. Id. The district court granted the application for postconviction relief, but was reversed by the court of appeals. Id. We granted further review, vacated the decision of the court of appeals, affirmed the judgment of the district court, and remanded the case for a new trial. Id. at 724.

In the second case, State v. Cromer, 765 N.W.2d 1, 5 (Iowa 2009), Cromer was convicted of third-degree sexual abuse. On direct appeal, the defendant claimed that trial counsel provided ineffective assistance of counsel because of trial counsel's failure to object to the admission of a tape-recorded conversation between the defendant and the victim. Cromer, 765 N.W.2d at 6. The court of appeals affirmed the conviction. Id. On further review, this court vacated the court of appeals decision, reversed the district court judgment, and remanded the case for a new trial. Id. at 12.

B. Statutory, Regulatory, and Contractual Context of Indigent Representation. Iowa Code section 13B.4(3) (2007) authorizes the state public defender to contract with private attorneys to provide services to indigent persons. The state public defender is directed to establish "fee limitations" for particular categories of cases. Iowa Code § 13B.4(4)( a). The fee limitations are to be reviewed at least every three years. Id. In establishing the fee limitations, the state public defender is directed to:

consider public input during the establishment and review process, and any available information regarding ordinary and customary charges for like services; the number of cases in which legal services to indigents are anticipated; the seriousness of the charge; an appropriate allocation of resources among the types of cases; experience with existing hourly rates, claims, and fee limitations; and any other factors determined to be relevant.

Id. The state public defender is required to adopt rules to implement the chapter. Id. § 13B.4(8).

The administrative rule adopted by the state public defender is found at Iowa Administrative Code rule 493-12.5. At the time of the applications for fees in this case, the administrative rule provided that fees for appeals for contract attorneys were limited to a cap of $1500, with $1000 payable on the filing of a proof brief and the balance upon the filing of the final brief. Iowa Admin. Code r. 493-12.5. The cap on fees, however, was subject to the following exception: ²

12.5(4).Unusually complicated cases. In an appeal that is unusually complicated, the attorney may negotiate with the state public defender for a fee in excess of the fees contained in rule 12.5 (13B, 815). However, this rule does not require that the state public defender agree to a higher fee in any particular case. The term "unusually complicated" as used in this rule means that the case is highly exceptional and complex from a legal or factual perspective and so atypical as to be beyond the purview of both the attorney and the state public defender. A case is not considered unusually complicated merely because the client is difficult to work with or because the case took longer than the attorney anticipated. A case in which an application for further review is filed or a case in which oral argument is held at a location other than Des Moines is generally deemed to be "atypical" as that term is used in the rule.

Iowa Admin. Code r. 493-12.5(4) (emphasis added).

In both cases, Simmons entered into a fee contract with the state public defender. Among other things, paragraph three of the contract provided that the contractor would be paid "for reasonable and necessary legal services performed by the Contractor under this Contract, pursuant to administrative rule adopted by the State Public Defender."

Iowa Code section 13B.4(4)( d) provides an avenue for judicial review of the action of the state public defender on a fee application. According to this provision of the Code, "[n]otwithstanding chapter 17A," an action for judicial review may be filed with the district court by motion with the court having jurisdiction over the original appointment. Iowa Code § 13B.4(4)( d). "If a claim or portion of a claim is denied, the action of the state public defender shall be affirmed unless the action conflicts with a statute or an administrative rule." Id. § 13B.4(4)( d)(5). "If a claim is reduced for being excessive, the claimant shall have the burden to establish by a preponderance of the evidence that the amount of compensation and expenses is reasonable and necessary." Id. § 13B.4(4)( d)(6).

C. Procedural Background. On September 27, 2006, Simmons filed fee claims in each case after filing his opening page proof brief as permitted by the administrative rule. In Millam, counsel filed a claim for a first installment of $3980. In Cromer, counsel filed a claim for a first installment of $4040. In response to the claims, the state public defender cited the terms of the fee contract, noting that only $1000 was due at the filing of the proof brief and that the claims were approved only in this reduced amount. Simmons appealed both decisions to the district court.

The district court consolidated the appeals for hearing only. At the original hearing, the court adjourned the proceedings to allow further discussions between Simmons and the state public defender regarding whether Simmons was entitled to compensation in excess of the fee cap because the cases were unusually complicated. The state public defender determined that because Simmons conceded in his district court pleadings that he was not entitled to additional compensation under the "unusually complicated" exception tothe flat fee, the state public defender could not grant him additional compensation. Nonetheless, the state public defender offered Simmons an additional $2500 to settle the cases, an offer Simmons rejected.

As a result of the lack of resolution, the matter was heard again by the district court. Simmons presented evidence including billing statements, excerpts from his fee contracts with the state public defender, commentary by past Iowa State Bar Association President Alan Fredregill on the inadequacy of fees paid to appointed counsel, a survey of the Iowa State Bar Association indicating the average overhead per lawyer for most Iowa attorneys exceeds $40 per hour, and an affidavit from a criminal law attorney offering her opinion that the fees in both cases were reasonable and necessary and stating her unwillingness to work as a contract attorney in light of the fee cap. Simmons also presented copies of various pleadings and correspondence with the state public defender. Simmons pointed out that if the decision of the state public defender stood, he would be compensated at a rate of less than $12 per hour for services that were necessary and reasonable on behalf of his client. With overhead costs of the average lawyer approaching $40 per hour, Simmons, in effect, was working for free.

Simmons also filed a written professional statement. Simmons stated that brief writing was "a time-consuming, arduous task." He recalled seminars he attended where former justices of this court emphasized the importance of selectively analyzing cases and writing law and facts as a seamless web. All this, according to Simmons, takes time, even in a case that cannot be characterized as "atypical." The rule, according to Simmons, is "Prepare. Prepare. Prepare."

The district court upheld the decision of the state public defender. According to the district court, the flat-fee limitations in the administrative rules were valid and not contrary to the statute. On the constitutional question of whether the flat fee violated an indigent client's right to counsel, the district...