State v. Lehman, 85-1082

CourtUnited States State Supreme Court of Wisconsin
Citation137 Wis.2d 65,403 N.W.2d 438
Docket NumberNo. 85-1082,85-1082
PartiesIn the Matter of the Finding of Contempt Relative to Attorney's Fees in STATE of Wisconsin v. William LEHMAN. DOUGLAS COUNTY, Appellant, v. Robert EDWARDS, Respondent.
Decision Date08 April 1987

Stephen D. Meyer, Superior (argued), for appellant; corp. counsel for Douglas County, on brief (in the court of appeals), Superior.

James Drill, New Richmond (argued), for respondent; Robert Edwards, Duluth, Minn., on brief (in the court of appeals).

James M. Peterson, Wis. Counties Ass'n, Madison, on brief for amici curiae.

James A. Drill, Lila M. Hambleton, Doar, Drill and Skow, S.C., New Richmond, on brief for amici curiae (in the court of appeals).

DAY, Justice.

This case comes to us on certification from the court of appeals and is an appeal from an order of the circuit court for Douglas county, Hon. Robert F. Pfiffner, Reserve Circuit Judge, ordering that Douglas county pay Attorney Robert Edwards $7,300 for his court-ordered legal services assisting Mr. William Lehman in his pro se defense on various criminal charges.

This order also found that the members of the Douglas County Board of Supervisors "wilfully and contemptuously" disobeyed an earlier court order to pay Attorney Edwards, and each member was ordered confined to the Douglas County Jail for six (6) months or until the contempt was purged by payment of the entire fee. The contempt orders were stayed pending appeal. 1

At issue is the trial court's authority to appoint Attorney Edwards. Specifically, the following questions are presented: 1) Does the court have the inherent power to appoint counsel to assist an indigent criminal defendant who elects to proceed pro se if the State Public Defender declines to appoint counsel for him under the administrative rules of the Public Defender Board?; 2) If the court has such inherent power, does the court have the authority to appoint an attorney for this position that is not licensed to practice in the State of Wisconsin?; 3) Are the reasonable attorney fees of court-appointed counsel an "operating cost" of the circuit court which must be paid by the county pursuant to section 753.19, Stats., 2 if no other provisions of the statutes provide for payment of such counsel?; 4) Did the circuit court lack the jurisdiction: a) to order the county to pay the attorney fees without first starting a separate action against the county for such fees?; or b) to hold the members of the County Board in contempt for refusal to pay such fees?

We conclude that the trial court had the inherent authority to appoint counsel to assist the Defendant in his pro se defense. Further, we conclude that the trial court had the authority to appoint counsel in this case, despite the fact that counsel was not licensed to practice law in this state. The attorney fees constitute an operating cost of the Douglas county circuit court within the meaning of section 753.19, Stats. Therefore, the county is liable for payment of the reasonable attorney fees incurred as a result of the appointment. We also conclude that the circuit court was not required to commence a separate action against the county in order to seek payment of the fees and had jurisdiction and authority to order payment. However, we find that the trial court did not follow the statutory procedure for assessing contempt sanctions against the members of the County Board. We therefore strike that part of the order dealing with contempt of court. In all other respects the order is affirmed.

The underlying criminal case out of which the present case arose has its origins in a 1980 trial at which William Lehman was convicted of armed robbery, concealing identity, escape and operating a motor vehicle without the owner's consent. In 1982 this court reversed the conviction and ordered a new trial on Lehman's plea of not guilty by reason of mental disease or defect. State v. Lehman, 108 Wis.2d 291, 321 N.W.2d 212 (1982). Judge Robert F. Pfiffner was assigned to the case in December of 1983. Judge Pfiffner was the fourth judge to be assigned to the case. Mr. Lehman had five separate attorneys appointed for him through the office of the State Public Defender. Lehman had fired four of these attorneys, and the fifth attorney withdrew due to a disagreement between Lehman and the attorney.

Prior to the appointment of the fourth attorney, Lehman was advised by the State Public Defender that it would make no further appointments in his case. Despite this warning, another attorney was appointed for him and he was again told this was the last attorney that would be appointed for him.

At an August 27, 1984 hearing, three motions brought by Lehman were heard. The first of these motions was a request by Lehman to appear pro se. This motion was not opposed by the State, and the court, finding that Lehman understood the issues involved, and recognizing his right to appear pro se, granted the request. The Public Defender was ordered to appoint counsel to assist him.

At a September 18, 1984 hearing the court again dealt with the problem of appointment of counsel. The court stated that it contacted the State Public Defender's district office in Ashland and the Public Defender declined to appoint further counsel for Lehman since it had already appointed five attorneys and it was not required to furnish further counsel under its administrative regulations. 3 Lehman stated that his own efforts to secure counsel in the Douglas county area had proven unsuccessful. 4

Also dealt with at the September 18th hearing was the subject of Lehman's indigence. Evidence was entered, and the State did not contest Lehman's indigence. The court found Lehman to be indigent.

The trial court engaged in the task of trying to locate an attorney that would assist Lehman in his defense. The president of the local bar association was contacted, and several local attorneys were called. The Chief Judge of the Tenth Judicial District, Hon. William D. O'Brien, wrote to J. Denis Moran, Director of State Courts, explaining the nature of Judge Pfiffner's problem, and asked Mr. Moran to request that the State Public Defender make an exception in this case and appoint another attorney.

Mr. Moran did contact the Public Defender's office and received a response from Marcus T. Johnson, Chief of the Trial Division. Mr. Johnson stated that the State Public Defender's office took the position that it had discharged its duties under ch. 977, Stats., and section SPD 2.04, Wisconsin Administrative Code and declined to appoint either a member of its staff or a member of the private bar to represent Lehman.

Concerned whether Lehman was knowingly and intelligently waiving his right to counsel, the trial judge, at a November 5, 1984 hearing, questioned Lehman on his decision to appear pro se. The court expressed its preference that Lehman have counsel assisting him at trial saying such assistance would benefit the court in allowing the case to go more smoothly.

Judge Pfiffner clearly recognized the role of a "standby" counsel in cases where indigent defendants elect to proceed pro se. He stated: "I can have somebody sit stand-by during any trial if you appear pro se; and if you got into hot water or you want to ask for some assistance, why I think it would be in the court's interest or benefit to have someone so that the matter could go smoothly...." The Judge also noted:

"I'm familiar with many cases where the Judge, and I could do the same thing, would have somebody here in the courtroom during any trial proceedings other than proceedings such as we have here, so that if you got in hot water you could turn over and get some help from the guy that's standing by. That's very frequently done. It's going to be done here...."

A hearing was held on November 13, 1984, to determine whether or not Attorney Robert Edwards should be appointed as stand-by counsel to assist Mr. Lehman in his defense. Mr. Edwards stated that he was admitted to the State Bar of the State of Oklahoma in October in 1981. He was also admitted to the United States District Court for the Northern District of California, the United States District Court for the Western District of Wisconsin, and The United States Tax Court. Attorney Edwards was not licensed to practice law in the State of Wisconsin.

Lehman stated that he was satisfied with Attorney Edwards. The court ruled that although Mr. Edwards was not licensed to practice law in the State of Wisconsin, he would be "permitted to practice law in the State of Wisconsin for the purpose of the defense of Mr. Lehman as his assistant in his pro se defense only, and that he serve in that capacity at an hourly rate of $50 per hour...." The court also ordered Douglas county to pay for Mr. Edward's services.

At a January 10, 1985 hearing, the Corporation Counsel for Douglas county informed the court that the County Board had passed a formal resolution stating that the county would not pay the fees of counsel appointed to assist Lehman in his defense.

Following the trial, the court held a hearing on April 2, 1985, in order to discuss the issue of payment of Mr. Edwards' fees. The court found that Mr. Edwards should be paid for one hundred and forty-six hours of time spent on the case and that the time spent was reasonable and necessary. By order dated April 15, 1985, Douglas county was ordered to pay the sum of $7,300 to Mr. Edwards for his assistance to Lehman.

The court also ruled that the County Board was in contempt for willfully disobeying the court's order to make the initial payment of the fees within ten days as ordered, and that each of the members would be confined in the county jail for a period not to exceed six months or until they were purged of the contempt by authorizing payment. Execution of the contempt order was stayed in the event that the county appealed from the order. Mr. Edwards' fees...

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