State ex rel. Acocella v. Allen

• Decision Date: 18 December 1979
• Docket Number: N,No. 26277,26277
• Citation: 288 Or. 175,604 P.2d 391
• Parties: STATE ex rel. Charles Anthony ACOCELLA, William Stogsdill, Rocky Joe Nix, Susan Marie Eichler, Richard Wesley Elliott, Donald Bruce Good Year, and Randy Lynn Frazier, Plaintiffs-Relators, v. Edwin E. ALLEN, Presiding Judge of the Circuit Court of the State of Oregon for the County of Lane, and Samuel Bowe, Circuit Judge of the State of Oregon for the County of Josephine, Defendants. STATE ex rel. John Lee CASE, Brian James Powell, Harold "Jake" Holland, Plaintiffs-Relators, v. Edwin E. ALLEN, Presiding Judge of the Circuit Court of the State of Oregon for the County of Lane, Defendant. o. 26296; SC 26277.
• Court: Oregon Supreme Court

Page 391

604 P.2d 391

288 Or. 175

STATE ex rel. Charles Anthony ACOCELLA, William Stogsdill,

Rocky Joe Nix, Susan Marie Eichler, Richard Wesley

Elliott, Donald Bruce Good Year, and Randy Lynn Frazier, Plaintiffs-Relators, v. Edwin E. ALLEN, Presiding Judge of the Circuit Court of the

State of Oregon for the County of Lane, and Samuel

Bowe, Circuit Judge of the State of

Oregon for the County of

Josephine, Defendants.

STATE ex rel. John Lee CASE, Brian James Powell, Harold

"Jake" Holland, Plaintiffs-Relators, v. Edwin E. ALLEN, Presiding Judge of the Circuit Court of the

State of Oregon for the County of Lane, Defendant.

No. 26277, No. 26296; SC 26277.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 6, 1979.

Decided Dec. 18, 1979.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for plaintiffs-relators.

Margie Hendriksen, County Counsel, Eugene, argued the cause and filed the brief for defendant Edwin E. Allen.

John B. Leahy, County Counsel, Portland, filed the brief amicus curiae on behalf of Multnomah County.

DENECKE, Chief Justice.

Relators are nine criminal defendants who were convicted in Lane County circuit court of committing various unrelated felonies. Each was represented in the circuit court by appointed counsel, and in each case the State Public Defender filed a timely notice of appeal, a motion for appointment of appellate counsel, and for a transcript at county expense, supported by an affidavit attesting to the indigency of the appellant. The motions requesting appointed counsel and a transcript at county expense were addressed to the circuit court, as required by ORS 138.500(1)-(2). In each case the Public Defender also notified the trial judge that his office would not be able to process the appeal, due to inadequate staff. ¹ The circuit judges of Lane County refused, however, to permit the Public Defender to decline appointment. On May 9, 1979, Judge Allen sent a letter to Public Defender Gary Babcock regarding the appeal of relator Susan Marie Eichler. The letter stated, in relevant part:

"Hereafter, in those cases in which you advise that it is not possible for you to act as counsel on appeal, in an attempt to assist you we will contact trial counsel and if they are willing to handle the matter on appeal, we will appoint them. If they decline to so act as counsel on appeal, we will appoint you. Consequently, enclosed are copies of Orders appointing you as appellant (sic) counsel for Ms. Eichler in both of the aforementioned cases."

Judge Allen and his colleagues entered orders appointing the Public Defender to represent all nine relators on appeal, despite his efforts to decline appointment. In seven instances Judge Allen also denied subsequent motions by the Public Defender to withdraw as counsel.

Relators filed petitions in this court for an alternative writ of mandamus, praying that the Supreme Court order Judge Allen and the other Lane County circuit judges to appoint counsel other than the Public Defender. We allowed the petitions and issued alternative writs of mandamus to Judge Allen, to which he responded by filing timely demurrers.

I.

This is not a right to counsel case. ORS 138.500(1) clearly provides that the circuit court shall appoint counsel, upon request, for an indigent criminal defendant who wishes to appeal his or her conviction. No party to this proceeding contends otherwise. The petition presents the question of whether a circuit judge has the power to order the Public Defender to serve, where the Public Defender Committee has determined that he is unable to serve. ORS 138.500(1) states:

"If a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order or judgment of a circuit court or district court and if such person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court or district court from which the appeal is or would be taken to appoint such counsel to represent the person on such appeal. The request shall be in writing and shall be made within the time during which an appeal may be taken or, if the notice of appeal has been filed, at any time thereafter. The request shall include a brief statement of the assets, liabilities and income in the previous year of such person. Upon receiving such a request, the circuit court or district court, if it finds that petitioner or defendant is without funds to employ suitable counsel for an appeal, shall appoint such counsel to represent petitioner or defendant on the appeal. The circuit court or district court, in its discretion, may appoint counsel who represented petitioner or defendant in the circuit court or district court in the case, or If the Public Defender is able to serve, it may appoint the Public Defender as counsel on appeal." (Emphasis added.) ^1a

Relators contend that the legislature invested the Public Defender Committee with the authority to determine whether the Public Defender is able to serve. The Committee, created by the legislature in 1963, ² consists of five individuals appointed by the Supreme Court. ORS 151.280 prescribes the duties of the Committee, which include the appointment of the Public Defender, the determination of "policies and procedures for the performance of the defender's functions," and other supervisory functions. Most relevant to this case is ORS 151.280(7), which states:

"Where the defender is unable to perform fully his authorized functions (the Committee shall), determine the nature and extent of the services he shall render."

This language, and the amendment to ORS 138.500(1) which authorized the trial court to appoint the Public Defender "if the Public Defender is able to serve," were enacted as different sections of the same bill. ³ The clear inference, both from this fact and from the plain language of ORS 151.280(7), is that the legislature intended that the Public Defender Committee make the determination.

Defendant ⁴ contends, however, that ORS 151.280(7) is unconstitutional, in that it infringes upon the inherent power of the judiciary to compel attorneys as officers of the court to represent indigent defendants. The defendant views ORS 151.280(7) as a legislative incursion into the judicial domain, in derogation of Art. III, § 1 of the Oregon Constitution. ⁵ We have no doubt that Oregon courts have the inherent power to call upon members of the bar to represent an indigent defendant who has no other means of obtaining counsel. ⁶ That is what Judge Allen attempted to do here. The question is whether ORS 151.280(7) unconstitutionally limits the court's power, by permitting the Committee to remove certain attorneys from the pool of eligible appointees.

The power reserved to the judiciary by Art. III, § 1, is neither absolute nor exclusive. As we stated in a recent decision:

"The separation of powers principle cannot in practice work absolutely; there is a necessary overlap between the governmental functions. The rule has evolved that legislation can affect the practice of law so long as it does not unduly burden or substantially interfere with the judiciary." Sadler v. Oregon State Bar, 275 Or. 279, 285, 550 P.2d 1218, 1222 (1976).

On a number of occasions this court has considered claims of alleged encroachment by the legislature upon powers reserved to the judiciary. The challenging problem, in each of these cases, has been to articulate a standard for deciding what constitutes undue interference.

In Sadler, supra (275 Or. 279, 550 P.2d 1218), a citizen brought suit under the Public Records Law, ORS 192.410 Et seq., to compel the Bar to furnish copies of certain disciplinary records. The Bar contended that a Supreme Court rule then in effect exempted the records from disclosure, and that the statute must give way to the inherent power of the court to regulate the practice of law. We recognized that applying the Public Records Law to bar disciplinary proceedings would constitute legislative regulation of the Bar, 275 Or. at 294, 550 P.2d 1218. But we upheld the statute, for the reason that the Public Records Law did not "unreasonably encroach upon the judicial function of disciplining lawyers." 275 Or. at 295, 550 P.2d at 1227. See also Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594 (1959); State ex rel. Oregon State Bar v. Lenske, 243 Or. 477, 407 P.2d 250 (1965), Cert. den. 384 U.S. 943, 86 S.Ct. 1460, 16 L.Ed.2d 541 (1966), Reh. den. 384 U.S. 1028, 86 S.Ct. 1920, 16 L.Ed.2d 1047 (1966).

These cases establish that the legislature may regulate the legal profession and the practice of law, provided that a statute does not unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions. Viewing ORS 151.280(7) against that standard, we do not see how the occasional unavailability of the State Public Defender to represent indigent defendants on appeal would impair the court's ability to carry out any judicial function. No one contends that the Public Defender is the only lawyer in Lane County qualified to represent the relators on appeal. The reason the Lane County circuit judges insist upon his appointment is to reduce the fiscal burden on Lane County taxpayers. ⁷ Although ORS 151.280(7) may occasionally frustrate the realization of that goal, it does not unreasonably impair the court's power to regulate the practice of law.

The defendant makes the additional argument that a writ of mandamus does not lie to compel defendant to appoint counsel other than the Public Defender. He contends that the selection of an attorney for appointment is entrusted to the sound discretion of the trial judge, and that ORS 34.110 prohibits the use of a writ of mandamus to control judicial discretion. The flaw in this argument is that the decision to appoint the...