State ex rel. Stephan v. Smith

• Decision Date: 15 December 1987
• Docket Number: No. 60643,60643
• Citation: 747 P.2d 816,242 Kan. 336
• Parties: , 56 USLW 2422 STATE of Kansas, ex rel. Robert T. STEPHAN, Attorney General, Petitioner, v. The Honorable James J. SMITH and The Honorable Phillip M. Fromme, Respondents.
• Court: Kansas Supreme Court

Page 816

747 P.2d 816

242 Kan. 336, 56 USLW 2422

STATE of Kansas, ex rel. Robert T. STEPHAN, Attorney General, Petitioner, v. The Honorable James J. SMITH and The Honorable Phillip M Fromme, Respondents.

No. 60643.

Supreme Court of Kansas.

Dec. 15, 1987.

Syllabus by the Court

1. Mandamus is an appropriate proceeding designed for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion.

2. Mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law.

3. The State of Kansas is required to furnish counsel to all indigent defendants charged with felonies in Kansas courts.

4. The State has an obligation to compensate attorneys appointed to represent indigent defendants accused of crime.

5. It is the moral and ethical obligation of the bar to make representation available to the public.

6. The responsibility to provide the Sixth Amendment right to counsel is a public responsibility that is not to be borne entirely by the private bar.

7. A judge has a duty, under the statutes and regulations, to appoint counsel for indigent defendants.

8. Simply because one has a license to practice law does not make one competent to practice in every area of the law.

9. The essence of due process is protection against arbitrary government action.

10. The test for whether due process has been afforded is whether the legislation has a real and substantial relation to the objective sought, whether it is reasonable in relation to the subject, and whether it was adopted in the interest of the community.

11. Attorneys' services are property, and are thus subject to Fifth Amendment protection.

12. The power to regulate the bar, including the power to discipline its members, rests inherently and exclusively with this court.

13. The traditional yardstick for measuring equal protection arguments is the "reasonable basis" test. Under this test, the constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.

14. The present system for appointment of counsel for the indigent, as administered, violates the Equal Protection Clause of the United States Constitution, and Article 2, § 17 of the Kansas Constitution.

Robert T. Stephan, Atty. Gen., argued the cause, and John W. Campbell, Deputy Atty. Gen., and Wm. Scott Hesse, Asst. Atty. Gen., were with him for the petitioner.

Max W. Foust, of Morris and Foust, Kansas City, argued the cause, and Stephen J. Smith, of Helbert, Bell & Smith, Burlington, and Steven D. Steinhilber, of Morris and Foust, Kansas City, Mo., were with him for the respondents. James J. Smith, District Judge, Fourth Judicial Dist., appeared in person.

Orville J. Cole, of Cole & Doering, Garnett, argued the cause pro se.

Joseph G. Herold, Osage City, for amicus curiae Joseph G. Herold.

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, for amicus curiae Kansas Bar Ass'n.

Clyde W. Toland, of Toland & Thompson, of Iola, and R. Kent Pringle, of Coombs, Pringle & Horn, Chanute, for amicus curiae Southeast Kansas Bar Ass'n.

Edward G. Collister, Jr., Lawrence, for amicus curiae Douglas County Bar Ass'n.

MILLER, Justice:

This is an original action in mandamus, brought by the attorney general against two judges, the Honorable James J. Smith, of Garnett, a district judge of the Fourth Judicial District, and the Honorable Phillip M. Fromme, of Burlington, a district magistrate judge of the Fourth Judicial District. At issue is an order entered by Judge Smith on March 5, 1987, establishing Anderson County rules and panels for indigent defense services, and a similar order entered by Judge Fromme for Coffey County on March 9, 1987. Judge Smith has responded, and Judge Fromme has adopted that response. The matter was argued orally before the court and is now ready for resolution.

The background facts are not in dispute. Orville J. Cole, an experienced trial attorney who offices at Garnett, in Anderson County, was appointed to represent three indigent defendants in criminal cases--A. DeWayne Buckridge in Coffey County, and Ricky Dale Revelle and Kyle W. Wallace in Anderson County. Cole filed motions in each of the cases, asking the district court to discharge him as appointed attorney for each defendant. Buckridge was charged with eleven felony counts; Mr. Cole, at the time of filing the motion, had made five trips from Garnett to Burlington, a round trip of 60 miles, and had spent a total of 40 hours on the case, which at that time was only through the preliminary hearing stage. Mr. Cole alleged in his motion that the amounts allowed for compensation from the State Board of Indigents' Defense Services are inadequate to pay even his office overhead costs while his time was being spent on the indigent defense. He alleged that the defendant could not receive effective assistance of counsel unless counsel is adequately compensated and can thus afford to spend the time to properly represent his client. Also, in the case of State v. Bonweg, pending in the District Court of Osage County, Joseph G. Herold, an attorney whose office is in Osage City, in Osage County, had been cited for contempt by the district magistrate judge for refusing to accept an appointment to represent an indigent defendant, David Bonweg. Mr. Herold's appeal of that contempt citation, and Mr. Cole's motions to be discharged as attorney for indigent defendants in the three criminal cases were consolidated for hearing before Judge Smith. An evidentiary hearing was held in the consolidated matters on February 23, 1987, and the matter was continued until March 3, 1987, at which time the trial court set aside the contempt conviction of Joseph G. Herold, apparently finding that Mr. Herold was incompetent in criminal law matters, and discharged Mr. Cole from his appointments as counsel for defendant Buckridge in the district court of Coffey County and for the defendant Wallace in the district court of Anderson County. The court continued the appointment of Mr. Cole as attorney for defendant Revelle in the district court of Anderson County, but set his compensation at $68 per hour for representing the indigent defendant in that proceeding. The court also ordered that the charges against Buckridge and Wallace be dismissed without prejudice, and the defendants discharged from custody within 30 days, unless during that time effective counsel agreed to represent said defendants for the rate allowed by the State Board of Indigents' Defense Services or the State provided "reasonable compensation."

That order and the proceedings in the four criminal cases, are not the subject of this mandamus action, but are related here simply to show the background of the general orders next discussed, which form the basis of this proceeding.

On March 5, 1987, Judge Smith entered and filed an order in the office of the clerk of the district court of Anderson County, establishing Anderson County rules and panels for indigent defense services. We will refer to it as the "general order." The general order recited, inter alia, that attorneys cannot be required to serve as counsel for indigent persons unless a reasonable compensation is provided. "Reasonable compensation" is defined in the general order to mean compensation in the amount of $68 or more per hour, allowed by the executive branch for such amount of hours as is required for effective representation of the indigent defendant. The order further states:

"If reasonable compensation is not available for an attorney and does not become so available within 30 days after a defendant is determined to be indigent and effective assistance of counsel is not available to such indigent defendant at the end of such period, the charges against such defendant shall be dismissed without prejudice."

The order then proceeds to list six attorneys who are included on all panels, and one attorney who is included only on the care and treatment panel and the misdemeanor panel, for Anderson County.

On the following day, March 6, 1987, Judge Fromme entered a general order establishing Coffey County rules and panels for indigent defense services in that county. It contained findings and orders identical to those of Judge Smith in the Anderson County order, and it listed five attorneys who are included on all panels.

On March 25, 1987, the State, on relation of the attorney general, filed a petition for mandamus. The petition sets forth the factual background and the entry of the general orders referred to above. It then recites that compensation for court appointed counsel for indigent criminal defendants is set by statute, K.S.A.1986 Supp. 22-4507(a), and by regulation, K.A.R. 105-5-1 et seq. The State asks this court to issue a writ of mandamus compelling Judges Smith and Fromme to perform their statutory duties as directed by the Indigent Defense Services Act, K.S.A.1986 Supp. 22-4501 et seq., and the rules and regulations promulgated by the State Board of Indigents' Defense Services as published at K.A.R. 105-1-1 et seq., and the common law, and to make appointments of counsel to indigent defendants as directed by law, and to compel Judges Smith and Fromme to rescind their respective general orders, described above, insofar as they apply to conditions of appointment based on compensation and the rates of compensation which exceed those established by the State Board of Indigents' Defense Services.

Judge Smith filed a response. He contends that mandamus is inappropriate; necessary parties are not included; there is no clear right to relief; appointed attorneys are entitled to reasonable compensation, based upon various...