Smith v. Lewis

• Decision Date: 28 July 1988
• Docket Number: No. CV-87-0186-CQ,CV-87-0186-CQ
• Citation: 759 P.2d 1314,157 Ariz. 510
• Parties: Robert Douglas SMITH, Petitioner, v. Samuel A. LEWIS, et al., Respondents.
• Court: Arizona Supreme Court

Page 1314

759 P.2d 1314

157 Ariz. 510

Robert Douglas SMITH, Petitioner, v. Samuel A. LEWIS, et al., Respondents.

No. CV-87-0186-CQ.

Supreme Court of Arizona, In Banc.

July 28, 1988.

Harold L. Higgins, Jr., Pima County Public Defender by John F. Palumbo, Michael S. Mussman, interim Public Defender and Dardis & Hippert, P.C. by Frederic J. Dardis, former Public Defender, Tucson, for petitioner.

Robert K. Corbin, by William J. Schafer III, Crane McClennen, Barbara A. Jarrett, Phoenix, for respondents.

Lewis and Roca by John P. Frank, Jose A. Cardenas, Sylvia Karen Bamberger, Phoenix, for amicus curiae American Civil Liberties Union.

Harrison & Lerch by Stephen M. Dichter, Phoenix, for amicus curiae Arizona Attys. for Criminal Justice.

FELDMAN, Vice Chief Justice.

The Hon. Richard M. Bilby, Chief Judge of the United States District Court for the District of Arizona, has certified the following question to this court:

Whether attorneys employed in county public defenders' offices may appear in federal court to represent death row inmates on Petitions for Writ of Habeas Corpus when their organizations will be paid by the federal government under the Criminal Justice Act?

This court has jurisdiction to answer questions of law certified from the United States District Court. Rule 27, Ariz.R.S.Ct., 17A A.R.S.; A.R.S. § 12-1861.

In 1982, a Pima County Superior Court jury convicted Robert Douglas Smith of first degree murder and other felonies. The trial court then sentenced him to death on the first degree murder charge. We affirmed his convictions and sentences in State v. Smith, 138 Ariz. 79, 673 P.2d 17 (1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984). Smith then petitioned for post-conviction relief. Rule 32, Ariz.R.Crim.P., 17 A.R.S. The trial court denied relief and this court denied review. Attorneys from the Pima County Public Defender's Office represented Smith throughout the trial, appellate, certiorari and post-conviction proceedings.

Apparently having exhausted all available state remedies, on April 14, 1987 Smith filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona. See 28 U.S.C. §§ 2254 and 2255. That court granted Smith's application for a stay of execution and appointed the Pima County Public Defender's Office to represent Smith in the federal habeas corpus action. The Pima County Attorney and the Arizona Attorney General objected to the appointment of the

                [157 Ariz. 512] public defender. 1  The judge promptly certified the question to this court, asking whether public defenders could represent "death row inmates" in federal habeas corpus proceedings if the federal government reimbursed the defenders' office under the provisions of the Criminal Justice Act of 1964, 18 U.S.C. § 3006A.  We accepted jurisdiction and now answer in the affirmative
                

DISCUSSION

A. Standing

We have previously considered the question of standing in State v. Evans, 129 Ariz. 153, 629 P.2d 989 (1981). In that case, the attorney general and two county attorneys filed motions in superior court to prevent county public defenders from representing death row inmates in federal habeas corpus proceedings. The defendants contended, inter alia, that the prosecutors had no standing to challenge who would represent them. Evans held that the superior court had no jurisdiction to act on the motions. 129 Ariz. at 154, 629 P.2d at 990. Further, the majority, relying on Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1308 (1974), stated that it was "very doubtful that the prosecutors had any standing to question the representation of the defendants." Id. Only Chief Justice Struckmeyer, in a separate concurrence, concluded that the prosecutors did have standing.

In the case now before us, Smith also raises the standing issue. In response, the attorney general relies on Chief Justice Struckmeyer's view that the attorney general had standing because A.R.S. § 41-193(A)(3) required him to "represent the state in any action in a federal court." 129 Ariz. at 155, 629 P.2d at 991.

The so-called standing issue presents a difficult question. Undeniably, counsel has the authority and the obligation to object to the appearance of opposing counsel under some circumstances--for instance, when opposing counsel appears without consent of the client or in the face of a patent conflict of interest. On the other hand, a prosecutor's status qua prosecutor does not grant authority to designate who will represent defendants. Allowing prosecutors to dictate the selection of defense counsel would undermine public confidence in our system of justice by creating an inescapable appearance of impropriety. It is in that context, we believe, that the majority of this court stated in Evans that the prosecutors had no authority "to question the representation of the defendants." Evans, 129 Ariz. at 154, 629 P.2d at 990.

We do not believe, however, that this case requires us to consider whether prosecutors may question, in federal court, a state public defender's right to appear for the defendant. ² We adhere to our previous statement that it is the county board of supervisors which is "the body charged with establishing, employing and paying the public defender, and therefore appears to be the more appropriate party to complain of actions by the public defender which might be in excess of his authority." Id.

Whatever may be the scope of "standing" for prosecutors in this area, we believe that a federal judge may certainly inquire about the state public defender's power under state law to accept a federal appointment to represent a state defendant in federal habeas corpus proceedings. That is the question before us, and it is the one to which we turn. B. Power of the State Public Defender to Appear in Federal court

The question is whether state public defenders "may appear" in federal court when appointed by the district judge, not whether they must appear in all cases as a routine matter. The relevant statutes permit the public defender to assist in the defense of persons accused of crime only "as provided in this article." A.R.S. § 11-583(B). The applicable statutes also provide in pertinent part that:

A. The public defender shall perform the following duties:

1. Upon order of the court, defend, advise and counsel ... any person who is not financially able to employ counsel in the following proceedings:

(a) Offenses triable in the superior, municipal or justice courts at all stages of the proceedings ...

A.R.S. § 11-584(A)(1)(a) (emphasis added).

In Evans, Justice Gordon disagreed with any assertion by the court that public defenders could not represent indigent defendants in the federal court system. 129 Ariz. at 155, 629 P.2d at 991 (Gordon, J. and Cameron, J., concurring). He stated that such a "rule ... may cause unjust results and a lack of judicial economy."

He elaborated as follows:

Although this court's opinion finds nothing in A.R.S. § 11-584 to allow public defenders to represent Arizona defendants in federal courts, I do not find anything in that section or any other law in Arizona which would preclude public defenders from doing so. Perhaps this court is worried about taxpayers' funds being used to pay lawyers to represent indigent defendants in federal courts. This concern does not have its source in the wording of A.R.S. § 11-584 or any supporting statute. It is possible that this problem may even be avoided if continued representation were allowed.

129 Ariz. at 155, 629 P.2d at 991 (first emphasis in original).

Circumstances have changed since Evans. At that time no provision existed for the federal government to pay state public defenders for services rendered in federal court. The federal court now operates under the following rule:

Appointment of Counsel in Death Penalty Cases.

In the event that counsel is appointed for a person who has been sentenced to death by a state court and is seeking relief pursuant to 28 U.S.C. § 2254, the judicial officer may appoint and compensate under the Criminal Justice Act an attorney furnished by a state or local public defender organization ... to represent the person. Such appointments may be in place of, or in addition to, the appointment of a federal defender organization or [other attorneys recognized under the CJA guidelines]. Such appointment should be made when the court determines that they will provide the most effective representation. In making this determination, the court should take into consideration whether the attorney represented the person during prior state court proceedings.

JUDICIAL CONFERENCE OF THE UNITED STATES, 7 GUIDE TO JUDICIARY POLICY AND PROCEDURES § A "Guidelines for the Administration of the Criminal Justice Act," ch. 2, § 2, p 2.14(B) (1987) (emphasis added) (hereafter CJA Guidelines).

We believe that the federal court's new authority to appoint and compensate local public defenders dispells the concerns that engendered the earlier restrictive view. Although the legislature may not have contemplated the use of public defenders in federal court at state expense, we find no statutory or policy impediment to public defenders' representing capital defendants at federal cost. The statute provides that a court may order defenders to appear for indigent defendants in cases involving "offenses triable in the superior ... courts at all stages of the proceedings...." A.R.S. § 11-584(A)(1)(a). Thus, the law requires only that a court order the appearance and the matter to be heard involves an offense of a type "triable" in superior court, not that the specific matter actually be heard there. Nor does the statute limit the public defenders' appearance to trial proceedings appeal proceedings, or state habeas corpus proceedings. It contemplates that such appearances may be made by the defender "at any stage of the proceedings." The statute thus lends itself to the interpretation urged by the...