State v. Lynch

• Citation: 796 P.2d 1150,1990 OK 82
• Decision Date: 24 July 1990
• Docket Number: 74259,Nos. 74319,s. 74319
• Parties: The STATE of Oklahoma, Appellant, v. Delbert LYNCH, Appellee.
• Court: Supreme Court of Oklahoma

Page 1150

796 P.2d 1150

1990 OK 82

The STATE of Oklahoma, Appellant, v. Delbert LYNCH, Appellee.

Nos. 74319, 74259.

Supreme Court of Oklahoma.

July 24, 1990.

An Appeal from the District Court of Seminole County; Gordon R. Melson, Trial Judge.

In Cause No. 74,319, the trial court held that the statutory compensation provisions for death penalty cases provided in 21 O.S.Supp.1985 § 701.14 resulted in an unconstitutional taking of property. In No. 74,259, the Pontotoc, the Seminole, and the Hughes County Bar Associations requested we assume original jurisdiction and grant lawyers just compensation for appointment of indigent defendants. We find that the present application of the compulsory court appointment system which requires lawyers to represent indigent defendants without a post-appointment hearing, and without providing adequate, speedy, and certain compensation for that representation may violate the Okla. Const. art. 2, § 7 and art. 5, § 51. These provisions of the Oklahoma Constitution provide a bona fide, separate, adequate, and independent ground upon which we rest our finding that the present statutory compulsory appointment scheme, while not facially unconstitutional, may be unconstitutional in application depending on the facts of each case. The two causes stand consolidated for disposition by a single opinion.

ORIGINAL JURISDICTION ASSUMED JUDGMENT OF THE TRIAL COURT AFFIRMED AS MODIFIED IN CASE NO. 74,319.

Robert H. Henry, Atty. Gen. and Carol Price Dillingham, Asst. Atty. Gen., Oklahoma City, for appellant, the State, No. 74,319 and for respondents, Honorable Gordon, No. 74,259 and Melson, et al.

Jack Mattingly, Mattingly & Snow and Rob Pyron, Seminole, for appellee, Delbert Lynch, No. 74,319.

George W. Braly, Braly & Braly, Ada, for petitioners, Pontotoc County, No. 74,259 and Bar Ass'n, et al.

KAUGER, Justice.

In these cases of first impression, ¹ we are asked to decide whether the trial court While we recognize the responsibility of members of the Oklahoma bar to assist in the provision of legal representation to indigent defendants, we find that in some instances the arbitrary and unreasonable statutory scheme contravenes the due process clause of the Okla. Const. art. 2, § 7 as well as the immunities clause of the Okla. Const. art. 5, § 51. In reaching this conclusion, we do not rely on federal authorities, and any reference thereto is solely for illustrative purposes. ³ The Oklahoma Constitution provides bona fide, separate, adequate and independent grounds upon which we rest our finding.

erred in declaring 21 O.S.Supp.1985 § 701.14 unconstitutional because court appointed counsel were forced to represent indigent defendants without the assurance of receiving adequate, speedy, and certain compensation for such representation. ² We find that: 1) Although the statute is not facially unconstitutional, under the facts presented in Cause no. 74,319, it is unconstitutional in application; 2) The present system presses lawyers into service without affording a post-appointment opportunity to show cause why they should not be forced to accept the appointment; and 3) The statute provides an arbitrary and unreasonable rate of compensation for lawyers which may result in an unconstitutional taking of private property depending on the facts of each case.

FACTS

Two Seminole County lawyers, Jack Mattingly and Rob L. Pyron, were appointed by the district court to represent Delbert Lynch, an indigent who had been charged with first degree murder. Although the State had sought the death penalty, after a complicated trial, which began on August 21, 1989, and ended on August 31, 1989, the jury rendered a guilty verdict and gave Lynch a life sentence. Following Lynch's sentencing on September 6, 1989, the lawyers petitioned the court for fees and expenses.

At the hearing on counsel fees, Mattingly testified that he had spent 169 hours on the case, and incurred $173.03 in out of pocket expenses, requesting a $17,073.03 fee. Pyron's testimony was that he had expended 109.55 hours on Lynch's behalf, and he sought a $10,995.00 fee. Mattingly submitted a statement documenting his hourly overhead rate for 1986, 1987, 1988 which ranged from $45.80 to $53.53--averaging $50.88. Pyron submitted his overhead figures for 1988, reflecting an average hourly rate of $48.00. ⁴ Had the two

lawyers split the maximum statutory fee of $3,200.00, Mattingly would have received $9.47 per hour, with Pyron receiving $14.61 per hour. Based on these computations, Mattingly would lose $41.41 and Pyron would lose $33.39 in overhead expenses for every hour that they worked on the defense. These figures do not reflect any compensation for the attorneys' services. ⁵ The trial court approved the requested fees, finding that the $3,200.00 restriction on attorney fees was unconstitutional. The State of Oklahoma appealed and the cause became at issue for our consideration on March 21, 1990.

I.

THE STATUTORY COMPENSATION ALLOWED FOR THE REPRESENTATION OF LYNCH IN CAUSE NO. 74,319 VIOLATED ART. 2, § 7, THE DUE PROCESS CLAUSE OF THE OKLAHOMA CONSTITUTION.

The parties do not dispute that Oklahoma is required to provide attorneys for indigent defendants who are charged in Oklahoma courts with felonies, certain misdemeanors, competency to stand trial, ⁶ contempt proceedings, ⁷ and guardianship matters, ⁸ or that the State of Oklahoma has attempted to provide such representation. ⁹ The basic concern is not with the constitutional requirements of the Okla. Const. art. 2, § 20, or the public policy which requires representation of indigent defendants; but, rather, with the practical application of the public policy and its impairment of constitutionally guaranteed private property rights. The State asserts that compensation should only exceed the statutory limit when extraordinary circumstances are shown as established in Bias v. State, 568 P.2d 1269 (Okla.1977), and that an unconstitutional taking does not occur when a court-appointed attorney is required to represent indigent defendants.

The Okla. Const. art. 2, § 7 provides that "No person shall be deprived of life, liberty, or property without due process of law." The lawyers contend that under this constitutional provision mandatory representation without just compensation is unconstitutional. The Okla. Const. art. 2, § 20 also requires that competent counsel be provided for indigent defendants. ¹⁰ Under art. 2, § 20, a criminal defendant has a fundamental right to the reasonably effective assistance of counsel, regardless of whether counsel is appointed or retained. ¹¹ This means a lawyer must render the same obligations of loyalty, confidentiality, and competence to a court-appointed client as a retained client would receive. Oklahoma has fulfilled the constitutional requirement of competent counsel by utilizing public defenders' offices, voluntary pools, and court-appointments. In order for the system to work, a balance must be maintained To achieve an appropriate balance of constitutional interests the rights of both the indigent defendant and the lawyer must be protected. Here, the constitutional right of the indigent to counsel is not at issue--the due process rights of appointed counsel for indigent defendants are. Although it is obvious that while Oklahoma's statutorily mandated cap may not be facially defective, and that in some instances payment of the statutory fee might even be an excessive rate of compensation, there is a substantial probability that it will be defective in application. Here, it is apparent that the maximum statutory fee is inadequate to compensate the lawyers who represented Lynch. ¹³

between the lawyer's oath of office, ¹² an indigent's fundamental right to counsel, and the avoidance of state action tantamount to confiscation of a lawyer's practice.

In Bias v. State, 568 P.2d 1269, 1272-73 (Okla.1977), a lawyer had been compelled both to subsidize indigent representation and to forsake his regular law practice during the representation of the indigent defendant. The Bias Court recognized that such circumstances may constitute a taking of private property without compensation. In order to harmonize conflicting interests, the Court authorized payment in excess of the statutorily prescribed norms for extraordinary expenditures of time and expense. Since Bias, we held in Ford v. Ford, 766 P.2d 950, 952 (Okla.1988), that a law practice can be considered jointly acquired property subject to division as a part of the marital estate. Under the Court's analysis in Ford, an attorney's practice is property under Oklahoma's due process clause--those property rights may not be impaired without adequate recompense.

Clearly, there is a substantial risk of the erroneous deprivation of property rights under the current appointment system. A lawyer's skills and services are his/her We acknowledge that the present system may deprive lawyers of interests in their law practices. Nevertheless, we also recognize that a lawyer's calling is different from that of other licensed professions. We are a government of laws and not of men and women. ¹⁵ At the foundation of this republic is the respect for enforcement of the law in a neutral way. The services of competent counsel are necessary to insure that our system of justice functions smoothly, that justice is dispensed even handedly, and that the rights and interests of indigent defendants are safeguarded in a truly adversarial forum. ¹⁶ A lawyer is weighted with responsibility which is uncommon to the ordinary professional, ¹⁷ and as a member of the integrated bar, an Oklahoma lawyer has a duty to the oath of office, to the Courts, to his/her clients, and to the public at large to be more than a tradesperson.

only means of livelihood. The taking thereof, without adequate compensation, is analagous to taking the goods of merchants or requiring free services of architects, engineers, accountants, physicians, nurses...