State ex rel. Friedrich v. Circuit Court for Dane County

Decision Date18 April 1995
Docket NumberNos. 94-2095-,94-2637-W,s. 94-2095-
Citation531 N.W.2d 32,192 Wis.2d 1
PartiesSTATE of Wisconsin ex rel. Lisa FRIEDRICH and Marlene Porter, Petitioners, v. CIRCUIT COURT FOR DANE COUNTY, Judith Coleman-Nispel, Clerk of Courts for Dane County and Richard Phelps, Dane County Executive, Respondents. In the Matter of the MOTION FOR CONTEMPT IN STATE of Wisconsin v. John E. SCHWIESOW. STATE of Wisconsin ex rel. STATE of Wisconsin, Petitioner, v. CIRCUIT COURT FOR BAYFIELD COUNTY, The Honorable Norman L. Yackel, Presiding and H.G. Nordling, Respondents.
CourtWisconsin Supreme Court

For the petitioners, Lisa Friedrich and Marlene Porter, there was a combined petition for Writ of Mandamus filed by Richard J. Auerbach and Auerbach & Porter, and Nancy C. Wettersten and Julian, Musial, Wettersten & Friedrich, S.C., all of Madison, and oral argument by Nancy C. Wettersten and Richard J. Auerbach.

For the petitioner, State of Wis., the cause was argued by Alan Lee, Asst. Atty. Gen., with whom on the petition for supervisory writ was James E. Doyle, Atty. Gen.

For the respondents, Richard Phelps & Dane County there was a response and oral argument by Margaret L. O'Donnell, Asst. Corp. Counsel.

For the respondent, Judith Coleman-Nispel, there was a response by Bruce M. Davey and Lawton & Cates, Madison.

For the respondent, Bayfield County, there was oral argument by Gary E. Sherman, Portwing.

Amicus curiae brief was filed by Gregg Herman and Loeb, Herman & Drew, S.C., Milwaukee for the Family Law Section of State Bar of Wis.

Amicus curiae brief was filed by Robert Horowitz and Stafford, Rosenbaum, Rieser & Hansen, Madison for Wis. Counties Ass'n.

PER CURIAM.

This court accepted jurisdiction over the issue raised in the Friedrich-Porter petition for a writ of mandamus relating to the compensation of court-appointed guardians ad litem in Dane county. We also accepted the petition in Schwiesow for supervisory jurisdiction of the motion for contempt pending before Norman L. Yackel, presiding circuit judge for Bayfield county, relating to compensation of a court-appointed special prosecutor. We have consolidated these two matters because they present the same question of law: In enacting statutes fixing the amount of compensation to be paid from public funds for court-appointed guardians ad litem and special prosecutors, did the legislature unconstitutionally infringe on the judiciary's power? 1

The issue arises because both this court and the legislature have prescribed the means for a circuit court to calculate compensation for court-appointed attorneys. The Supreme Court Rules (1994) set forth a rate of at least $70 per hour, with exceptions, for payment of an attorney appointed by a court as follows:

SCR 81.01 Compensation of attorneys appointed by the court. Notwithstanding any provision of the statutes, in all cases where the statutes fix a fee and provide for the payment of expenses of an attorney to be appointed by the court to perform certain designated duties, the court appointing the attorney, after the services of the attorney have been performed and the disbursements incurred, shall fix the amount of his or her compensation for the services and provide for the repayment of disbursements in such sum as the supreme court has specified in SCR 81.02.

SCR 81.02 Compensation. (1) Except as provided under sub. (1m), attorneys appointed by any court to provide legal services for that court, for judges sued in their official capacity, for indigents and for boards, commissions and committees appointed by the supreme court shall be compensated at the rate of $70 per hour or a higher rate set by the appointing authority. The supreme court shall review the specified rate of compensation every two years.

(1m) Any provider of legal services may contract for the provision of legal services at less than the rate of compensation under sub. (1).

(2) The rate specified in sub. (1) applies only to services performed after July 1, 1994. 2

The legislature has enacted statutes to govern compensation for court-appointed guardians ad litem and special prosecutors. Effective January 1, 1994, the legislature declared in several statutes that when a court orders a county to pay the compensation of a guardian ad litem, "the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08(4m)." 3 Similarly, sec. 978.045(2)(a), Stats.1993-94, declares that "the court shall fix the amount of compensation for any attorney appointed as special prosecutor under [sec. 978.045(1r) ] according to the rates specified in s. 977.08(4m)."

Section 977.08(4m), Stats. 1993-94, sets the rate of compensation for private attorneys assigned by the State Public Defender to represent indigents on or after December 1, 1992, as $50 per hour for time in court, $40 per hour for time out of court, and $25 per hour for travel time related to a case. This statutory rate of compensation is less than the court-established rate of compensation for court-appointed counsel.

In both matters before the court, the dispute centers around court-appointed attorneys whose level of compensation was ordered by the circuit court in accordance with SCR 81.02 but whose compensation was reduced by the payor to the rate set by the statutes. In addition to specific relief of payment in accordance with the court-established rate, the petitioners in both cases ask this court to declare the legislature's statutes setting fees for court-appointed counsel to be paid from public funds unconstitutional as a violation of separation of powers.

We conclude, along with the parties and the Wisconsin Counties Association and the Family Law Section of the State Bar of Wisconsin as amici, that courts have the power to set compensation for court-appointed attorneys and are the ultimate authority for establishing compensation for those attorneys. The courts derive this power and ultimate authority from their duty and inherent power to preserve the integrity of the judicial system, to ensure and if necessary to provide at public expense adequate legal representation, and to oversee the orderly and efficient administration of justice. We therefore uphold the validity of SCR 81.01 and 81.02.

For the reasons set forth below, we conclude that the statutes in issue are facially constitutional; it is ordinarily within the legislature's province to appropriate funds for public purposes. We further conclude that these statutes fall within the area of power shared by the judiciary and the legislature. Finally, we conclude that the petitioners have not proven beyond a reasonable doubt that the statutes unduly burden or substantially interfere with the work of the courts.

To harmonize the judicial and legislative powers to set compensation for court-appointed counsel, we conclude that a court should abide by the statutes when it can retain qualified and effective counsel at the statutory rate for a case before it. A circuit court should, however, depart from the statutory fee schedule and order compensation at the rate established in SCR 81.01 and 81.02 or at a higher rate when necessary to secure qualified and effective counsel for a case before it. 4 When a circuit court concludes in a case that it must order compensation in excess of the statutory fee schedule to secure qualified and effective representation and to ensure the effective administration of justice, it must set forth its reasons on the record. While we do not view a full-fledged hearing as necessary in every such case, the record must show that the circuit court is unable to obtain qualified court-appointed counsel at the statutory rate. This record facilitates review.

Finally, in the interest of the fair administration of the judicial system, we conclude that guardians ad litem and special prosecutors to be paid from public funds and appointed by a court prior to the announcement of this rule shall be compensated according to SCR 81.01 and 81.02. We therefore order Dane county and the Department of Administration to compensate the guardians ad litem and special prosecutor appointed by the circuit courts prior to the effective date of this decision at the rates specified in SCR 81.01 and 81.02, or at the rates specified by the circuit court in each case, for the duration of those appointments.

I.

The facts of the cases are undisputed. In the mandamus matter, attorneys Lisa Friedrich and Marlene Porter, co-petitioners, were appointed guardians ad litem by Dane county circuit courts on or after January 1, 1994. Their fees are payable by Dane county. On July 20, 1994, the county stated its position that as "a creature of the legislature" it had no choice but to compensate court-appointed guardians ad litem at the statutory rate, "[u]ntil such time as a definitive ruling is made by the Wisconsin Supreme Court on this issue...." 5 On August 12, 1994, the petitioners filed this mandamus proceeding to compel Dane county to compensate them at the rate specified in SCR 81.02. The petitioners claim they have no adequate remedy at law, as it would be impractical for them to challenge the county's position with every appointment.

In the second case, which involves contempt and a supervisory writ, the circuit court for Bayfield county, Thomas J. Gallagher circuit judge, appointed a special prosecutor and set his pay at the rate of $60 per hour, the rate then specified by SCR 81.02. The Department of Administration declined to pay him at the $60 rate, offering instead to compensate him at the statutory rates. On the motion of Judge Gallagher, the circuit court for Bayfield county, Norman L. Yackel presiding judge, ordered the Department of Administration to pay the appointed special prosecutor at the rates specified in SCR 81.02. The circuit court noted that the power to appoint counsel is an inherent power of the court and that the power to appoint must also carry with it the power...

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