Smith v. State
| Decision Date | 15 November 1978 |
| Docket Number | Nos. 78-081 and 78-137,s. 78-081 and 78-137 |
| Citation | 118 N.H. 764,394 A.2d 834 |
| Parties | , 3 A.L.R.4th 568 Ernest T. SMITH, III v. The STATE of New Hampshire. James R. ANDERSON v. The STATE of New Hampshire. |
| Court | New Hampshire Supreme Court |
Upton, Sanders & Smith, Concord (Ernest T. Smith III, Concord, orally), pro se for plaintiff Smith.
J. Gilbert Upton, and Carroll F. Jones, Concord, by brief as amicus curiae.
James R. Anderson, Pittsfield, by brief and orally pro se.
Thomas D. Rath, Atty. Gen., and David W. Marshall, Asst. Atty. Gen., for the State.
Judicial Council of New Hampshire, (Brian D. Kenyon, Exeter, executive director) filed a memorandum.
These cases present the issue whether RSA 604-A:5 and Laws 1975, ch. 505 § 1.01(04), (05), which limit compensation to court-appointed attorneys, are unconstitutional. Plaintiffs in both cases are attorneys who challenge the system designed to compensate court-appointed counsel who represent indigent defendants.
RSA 604-A:4 provides in pertinent part:
(C)ounsel appointed pursuant to this chapter to represent the defendant at the conclusion of the representation or of any segment thereof, shall be reasonably compensated therefor and shall be reimbursed for expenses reasonably incurred. . . . Each court before which the counsel represented the defendant shall fix the compensation and reimbursement to be paid the counsel . . . .
RSA 604-A:5 provides in part:
For representation of a defendant in any criminal case in which one or more felonies are charged, the total compensation paid counsel shall not exceed five hundred dollars . . . . In cases where homicides are charged or the penalty exceeds twenty-five years and there are extraordinary circumstances, payment in excess of these limits may be made if the court finds that the nature of the case is such as to require intensive and protracted representation.
Laws 1975, ch. 505, § 1.01(04), (05) provides that, other provisions of the law notwithstanding, fees to reimburse attorneys for indigent defendants shall not exceed ten dollars per hour for case preparation and fifteen dollars per hour for time in court.
Plaintiff Smith was appointed by the Concord District Court to appear as counsel for Gary Farrow, an indigent charged with the crimes of armed robbery and murder in the first degree. After a probable cause hearing and indictment, Smith was appointed by the Merrimack County Superior Court as counsel for Mr. Farrow relative to the charge of murder. Plaintiff Smith represented the defendant throughout his trial and submitted the following summary as a bill:
247.3 (legal time) at $10 per hour $ 2,473.00
198.9 (court time) at $15 per hour 2,983.50
496.2 (overhead expenses) at $24.29 per
hour 10,838.20
Miscellaneous specific out-of-court
disbursements 1,893.36
Total Services and Disbursements 18,188.06
The Court (Johnson, J.) signed a form certifying that payment to plaintiff was proper. This certification was forwarded to the office of comptroller for payment. The deputy comptroller directed an aide to return the bill and explain to Attorney Smith that no authority existed for payments of fees in excess of those established by Laws 1975, ch. 505. The aide stated that Smith's charge for overhead was inappropriate for payment. Smith filed a bill of complaint challenging this determination. Smith has been paid $7,349.86 for all except the overhead expenses listed in his bill.
Plaintiff Anderson was appointed by the Merrimack County Superior Court to represent three indigent defendants. None of the indigents were charged with homicides or other crimes where the penalty exceeds twenty-five years, so plaintiff Anderson's compensation was limited in each case to five hundred dollars under RSA 604-A:5. Plaintiff represented these indigent defendants through jury trials and submitted bills for these cases in amounts exceeding the statutory limit. The Court (Johnson, J.) during a post-trial conference in one of the cases stated: "Mr. Anderson provided, in the court's opinion excellent services on behalf of (the defendant) and that the bill as submitted indicates an extraordinary amount of work on the case, and further, that if the court had the authority to waive the statutory fee established by RSA 604-A:5, the court would indeed do so." Attorney Anderson contends that the maximum fee of five hundred dollars and the limitation of hourly rates to ten and fifteen dollars are unconstitutional. The Court (Johnson, J.) reserved and transferred all questions of law raised by both sets of pleadings to this court.
Attorneys are, of course, obligated to represent indigent persons when appointed by the court. This obligation is based both upon ethical canons and court duty. See, e. g., ABA Code of Professional Responsibility E.C. 2-29. It is often stated that Brown v. Bd. of County Comm'rs, 85 Nev. 149, 151, 451 P.2d 708, 709 (1969); State v. Rush, 46 N.J. 399, 410, 217 A.2d 441, 447 (1966). A refusal of the court's request would in most instances constitute contempt. State v. Frankel, 119 N.J.Super. 579, 293 A.2d 196 (1972), Cert. denied,409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973), and an unexcused failure to represent the indigent would certainly constitute conscious disregard of our Code of Professional Responsibility, and thus be grounds for disciplinary action by this court. See generally, In re Decato's Case, 117 N.H. ---, 379 A.2d 825 (1977); In re Mussman's Case, 111 N.H. 402, 286 A.2d 614 (1971).
The legal profession has accepted for many years the burden of providing indigent persons with legal representation in criminal cases. In 1966, however, the people of New Hampshire decided that this burden should be borne by the State. Part I, article 15 of our constitution was amended in that year to provide that "(e)very person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel At the expense of the state . . . ." N.H.Const., pt. I, art. 15 (emphasis added). In explaining the amendment, Mr. Bittenbender of the constitutional convention's committee on the Bill of Rights stated that "(w)hile we are in grateful sympathy with the stronger support of the courts and the bar for their defense of our Bill of Rights, we of the committee are of the opinion that this is not something which should be depending on ethics or practice alone . . . ." N.H.Const. Convention Jour. 178 (1964). Another committee member, (now Governor) Meldrim Thomson, Jr. explained the provision as follows: "(A)ll we are saying is that a person is entitled to the right of counsel whether he be an indigent or not and if he is an indigent then he must show that he is and the cost of it must be provided by the State." Id. at 182.
It is long settled that this court is the final arbiter of State constitutional disputes. The interpretation of our constitution is a traditional function of the judiciary and "is not within the competence of the other two branches." O'Neil v. Thomson, 114 N.H. 155, 159, 316 A.2d 168, 170 (1974). In interpreting the 1966 amendment, we will give the words the same meaning that they must have had to the electorate on the date when the vote was cast. Concrete, Inc. v. Rheaume Builders, Inc., 101 N.H. 59, 60, 132 A.2d 133 (1957). Thus we first will inquire as to the plain meaning of the amendment.
Turning to the language of the constitutional amendment, we find the meaning to be clear. The amendment speaks of the "right to counsel at the expense of the state." N.H.Const. pt. I, art. 15. That language plainly requires that the cost of services rendered by attorneys on behalf of indigent defendants be borne by the government of this State. In interpreting the amendment we are assisted by the phrasing of RSA 604-A:4, which provides that court-appointed counsel "shall be reasonably compensated."
In the absence of an agreed-upon price, what constitutes reasonable compensation for performed services is, and has historically been, a matter for judicial determination. See, e. g., Beaudoin v. Zaccardo, 117 N.H. 273, 371 A.2d 1174 (1977); R. J. Berke & Co. v. J. P. Griffin, Inc.,116 N.H. 760, 367 A.2d 583 (1976); Britton v. Turner, 6 N.H. 481 (1834). Moreover, it is peculiarly within the judicial province to ascertain reasonable compensation when the person who performs the services is acting under court appointment as an officer of the court. We view it implicit in the constitutional scheme that the courts of this State have the exclusive authority to determine the reasonableness of compensation for court-appointed counsel. The statutes in question intrude upon this judicial...
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