State v. Green

Decision Date13 September 1971
Docket Number55251,Nos. 55044,s. 55044
Citation470 S.W.2d 571
PartiesSTATE of Missouri, Appellant, v. John Charles GREEN, Respondent. STATE of Missouri, Appellant, v. William COLEMAN, Respondent.
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., John C. Craft, Asst. Atty. Gen., Jefferson City, for appellant.

Eugene K. Buckley, Evans & Dixon, St. Louis, for Bar Ass'n of Metropolitan St. Louis, amicus curiae.

Henry S. Stolar, St. Louis, for Missouri Bar, amicus curiae.

Harold S. Goodman, Maryland Heights, for Lawyers Ass'n of St. Louis, amicus curiae.

James W. Benjamin, Kansas City, for Kansas City Bar Ass'n, amicus curiae.

Guy Magruder, Jr., Kansas City, for Lawyers Ass'n of Kasas City, amicus curiae.

Robert W. Van Dillen, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for City of St. Louis, amicus curiae.

Willard B. Bunch, John J. Cosgrove, Legal Aid and Defender Society of Greater Kansas City, Kansas City, amicus curiae.


These cases involve the question whether counsel appointed to represent defendant indigents charged with crime are entitled to receive compensation for services and reimbursement for out of pocket expenses. In the Green case the charge was felonious escape and in the Coleman case the charge was first degree murder. In each instance the applications for fees and reimbursement were allowed by the trial court, the court in the Green case directing that the sums be taxed as costs against the State and said sums be allowed and approved by the state auditor and treasurer and in the Coleman case that they be taxed as costs and be paid by the State of Missouri. In both cases the State moved to amend the order and re-tax the costs, which motions were overruled, and in each instance the State has appealed.

In 1963, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court held that the United States Constitution requires the State of Missouri, and other States, to furnish counsel to an indigent accused of crime. This means, in practical effect, that an indigent accused of crime cannot be prosecuted, convicted, and incarcerated in Missouri unless he is furnished counsel. The lawyers of Missouri, as officers of the Court, have fulfilled this State obligation, without compensation since we attained statehood, although other persons essential to the administration of criminal justice (e.g. prosecuting attorneys, assistants to the Attorney General, psychiatrists, et al.) have not been asked to furnish services gratuitously. The question is whether the legal profession must continue to bear this burden alone. The question is one for the judicial department (Art. II, § 1, Const. of Mo., V.A.M.S.) and must be decided by this Court (Art. V, § 1, Const. of Mo.; In re Richards, 333 Mo. 907, 63 S.W.2d 672). We consider the following language from State v. Rush, 46 N.J. 399, 217 A.2d 441, 448 (1966), appropriate:

'Although as we said above the assignment of counsel without compensation (except in murder cases) has been the rule in this State since 1795, the burden of those assignments has increased vastly. The increase has been not only in the number of assignments, but also in the demand a criminal case makes upon counsel. A criminal case used to be a fairly simple affair. The issue usually was a pure question of fact--did the defendant commit the crime? Today, with rapidly changing concepts relating to sundry matters, such as confessions, search and seizure, joinder of defendants, right to counsel, etc., the defense of criminal charges consumes far more time than when we came to the bar. To this must be added the impact of the right of the indigent, without cost, to appeal, and to press post-conviction proceedings and as well attacks in the federal courts. Further, the total demand will likely increse, for while criminal proceedings now dominate the stage, in the wings are other matters--minor offenses, juvenile delinquency, and civil commitments, areas in which counsel are now furnished but on a selective basis. We are satisfied the burden is more than the profession alone should shoulder, and hence we are compelled to relieve the profession of it.' (Emphasis ours.)

We recognize, of course, that the legislative power of Missouri government (Art. II, § 1, Const. of Mo.) is vested in the General Assembly (Art. III, § 1, Const. of Mo.), and that the General Assembly has never provided for payment of compensation to Missouri lawyers for their representation of indigents in criminal cases and in cases wherein they seek post-conviction relief.

Accordingly, believing that a 'permanent solution to the problem presented is an appropriate subject for the legislature' (People ex rel. Conn v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337, 340), and believing that the General Assembly should have the opportunity to respond to the position taken today by this Court, we hold and announce:

(1) that the judgments are reversed and remanded with directions to strike the allowance of attorneys' fees and expenses; and

(2) that this Court, after September 1, 1972, will not compel the attorneys of Missouri to discharge alone 'a duty which constitutionally is the burden of the State.' State v. Rush, supra, 46 N.J. 399, 217 A.2d 441, 446.


SEILER, J., concurs in result in separate concurring opinion filed.

FINCH, C.J., dissents in separate dissenting opinion filed.

HENLEY, J., dissents and concurs in separate dissenting opinion of FINCH, C.J.

SEILER, Judge (concurring in result).

I concur with the result reached in this case, but I would phrase the final paragraph of the opinion in terms so that it is clear this court and the trial courts can continue, when necessary, to require lawyers to serve as officers of the court, including representation of indigents in criminal cases. Courts cannot operate without lawyers. As Judge Albert Ridge put it years ago (Journal of the Missouri Bar, August, 1950), the operation of the courts is really done by 'Judge and Company'. The judge and the lawyers together are necessary for the courts to function. The lawyers cannot escape being officers of the court and cannot escape a certain amount of pro bono publico work, which inevitably go with the special and exclusive privilege of being allowed to represent others in the court. Despite the increasing (and I think regrettable) trend toward commercialization of the law profession, 1 these obligations remain a part of the practice of law and I believe thoughtful lawyers would not want it otherwise.

It is impossible at this writing to foresee all the contingencies which may arise in the representation of indigents in criminal cases after September 1, 1972. There are certain to be instances, however, where the courts find it necessary to appoint counsel to represent an indigent, without compensation for time spent or reimbursement for out-of-pocket expenses. I do not take the opinion in today's case to mean the courts are surrendering their power to require a lawyer to perform his obligation as an officer of the court, even if it means doing so without financial reward or reimbursement. It would be a sad day for the courts and the profession if we get to the point where there is no obligation for a lawyer to serve as an officer of the court unless he is first assured of a fee.

FINCH, Chief Justice (dissenting).

I would affirm the jdugments of the trial courts allowing attorneys' fees and reimbursement of expenses, and hence I must dissent from the principal opinion. I express my reasons in considerable detail because of the great importance I attach to the problem presented.

The resolution of the ultimate issue of whether these claims were properly allowed involves several questions. The first of these is whether appointment of counsel was required. I agree with the conclusion in the principal opinion that such appointments were necessary under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Furthermore, the court was obligated to appoint counsel under the terms of § 545.820, V.A.M.S., which provides as follows:

'If any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours.'

Actually, an obligation to furnish counsel to indigent defendants has been recognized by the State of Missouri since its very earliest days. The predecessor of § 545.820 was first enacted in 1825 (Laws 1825, Ch. II, § 22, p. 319) and the statute has been carried forward virtually unchanged to the present time. A similar provision was in force in territorial days. See Digest of the Laws of the Missouri Territory, 1818, Crimes and Misdemeanors, § 35. Also, Supreme Court Rule 29.01(a), V.A.M.R., provides that an accused has the right to appear and defend by counsel, and that if a person charged with the commission of a felony is indigent and unable to employ counsel, the court, on request, has the duty to appoint counsel to represent him. It is crystal clear, therefore, that in the administration of justice in this state the trial court in these two cases had no choice other than to appoint counsel to represent these defendants after the court had determined that they were indigent and unable to employ counsel themselves.

The second question presented is whether attorneys so appointed are entitled to be compensated for their services and reimbursed for their out-of-pocket expenses if they so request. I agree with the principal opinion that this is a question for the judicial department, but, contrary to that opinion, I would hold that the attorneys were so entitled in these cases.

Historically, the lawyers of this state have accepted appointment in indigent cases and as a public...

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