Stroinski v. Office of Public Defender

• Decision Date: 28 April 1975
• Citation: 134 N.J.Super. 21,338 A.2d 202
• Parties: Francis STROINSKI, Plaintiff-Appellant, v. OFFICE OF the PUBLIC DEFENDER et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 21

134 N.J.Super. 21

338 A.2d 202

Francis STROINSKI, Plaintiff-Appellant, v. OFFICE OF the PUBLIC DEFENDER et al., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued April 8, 1975.

Decided April 28, 1975.

Herbert O. Brock, Jr., Camden, for plaintiff-appellant (Camden Regional Legal Services, Inc., attorney; Allen S. Zeller and Wayne R. Bryant, Camden, on the brief; Rita L. Bender, Newark, of counsel).

Michael S. Bokar, Deputy Atty. Gen., for defendants-respondents (William F. Hyland, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel; William C. Rindone, Jr., Deputy Atty. Gen., on the brief).

Before Judges CARTON, CRANE and KOLE.

The opinion of the court was delivered by

KOLE, J.A.D.

This action for declaratory judgment and injunctive relief involves the validity of that portion of the Public Defender Act, N.J.S.A. 2A:158A--17, mandating that a lien be filed against the present or after-acquired property of an indigent who is represented by the Public Defender where the value of the services rendered appears to exceed $150. The trial judge upheld the provision. We affirm. ¹

In 1969 plaintiff, qualifying for Public Defender assistance, was represented by an attorney from that office in connection with charges of breaking, entry and larceny. At the time he was given such assistance he signed a reimbursement agreement permitting the Public Defender (Defender) to place a lien against his property and agreeing to repay the Defender for legal services at the rate of $5 a week. He was convicted and his convictions were affirmed on appeal.

The Defender sent plaintiff a notice of lien in the amount of $685 for legal services rendered at trial and thereafter sent him a similar notice in the amount of $957.57 for services rendered and the cost of the transcript on the appeals. No attempt has been made to execute on the liens.

In 1967 the New Jersey Legislature adopted the Public Defender Act, N.J.S.A. 2A:158A--1 et seq. The purpose of the act was to provide for the 'realization of the constitutional guarantees of counsel in criminal cases for indigent defendants.' N.J.S.A. 2A:158A--1. An 'indigent defendant' was defined as someone charged with an indictable offense who does not have 'the present financial ability' to retain an attorney and to provide the necessary expenses of representation. N.J.S.A. 2A:158A--2. ² Eligibility for the services of the Defender is determined by the need of defendant adjudged by Defender after an investigation of his financial status. N.J.S.A. 2A:158A--14; 2A:158A--15.

The statute provides for a reimbursement procedure.

N.J.S.A. 2A:158A--16 provides:

In all cases where it appears that the defendant has or reasonably expects to have means to meet some part, though not all, of the cost of the services rendered to him he shall be required to reimburse the office, either by a single payment or in installments, in such amounts as he can reasonably be expected to pay; But no default or failure in the making of any such payment shall in any wise affect or reduce the rendering of the services to him. (Emphasis supplied)

N.J.S.A. 2A:158A--17, the provision here in controversy, states:

The reasonable value of the services rendered to a defendant pursuant to this act may in all cases be a lien on any and all property to which the defendant shall have or acquire an interest. The Public Defender shall effectuate such lien whenever the reasonable value of the services rendered to a defendant appears to exceed $150.00 and may effectuate such lien where the reasonable value of those services appears to be less than $150.00.

To effectuate such a lien, the Public Defender shall file a notice setting forth the services rendered to the defendant and the reasonable value thereof with the Clerk of the Superior Court. The filing of said notice with the Clerk of the Superior Court shall from the date thereof constitute a lien on said property for a period of 10 years, unless sooner discharged and except for such time limitations shall have the force and effect of a Judgment at Law. Within 10 days of the filing of the Notice of Lien, the Public Defender shall send by certified mail, or serve personally, a copy of such notice with a statement of the date of the filing thereof to or upon the defendant at his last known address. If the Public Defender shall fail to give notice, the lien shall be void. ³

N.J.S.A. 2A:158A--18 orders the Clerk of the Superior Court to provide separate books for the recording of said liens, 'properly indexed in the name of the judgment debtor.' N.J.S.A. 2A:158A--19 provides that the Defender 'shall do all things necessary and proper to collect all moneys due to the State by way of reimbursement for services rendered'; that he shall have all of the remedies 'which may be had or taken for or upon the recovery of a judgment in a civil action,' including the institution of court actions or proceedings for such purposes, and that in any such proceedings or action, defendant may contest the value of the services rendered by the Defender. Pursuant to N.J.S.A. 2A:158A--20, the Defender is authorized to compromise and settle any claim for services 'whenever the financial circumstances of said person are such that in the judgment of the Public Defender the best interest of the State will be served by such compromise and settlement.'

The Public Defender Act was the Legislature's response to decisions of the United States Supreme Court and the New Jersey Supreme Court implementing the constitutional guarantee to an indigent defendant in a criminal case of the right to counsel and the related costs of criminal proceedings at public expense. That guarantee has been firmly established on the basis of equal protection and the Sixth Amendment's grant of the fundamental right to assistance of counsel in a criminal case, made applicable to the states by the Due Process Clause of the Fourteenth Amendment. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Horton, 34 N.J. 518, 534, 170 A.2d 1 (1961); State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966); State v. Welch, 46 N.J. 57, 214 A.2d 857 (1965).

Plaintiff first contends that N.J.S.A. 2A:158A--17 constitutes an invalid encroachment by the Legislature upon the rule-making authority of the New Jersey Supreme Court. The argument is without merit.

This State has long been a leader in the matter of providing counsel for indigent defendants. See State v. Horton, Supra, 34 N.J. at 522--523, 170 A.2d 1. The most significant New Jersey case, prior to the establishment of the Office of the Public Defender, is State v. Rush, Supra. There the court was faced with the question of whether counsel assigned to defend indigents charged with a crime other than murder was entitled to receive from the county or the State compensation for services and reimbursement of out-of-pocket expenses. Chief Justice Weintraub stated that while it was the continuing responsibility of the bar to defend such indigents, the bar should not be required to continue to absorb the full cost thereof. The court found ample evidence of a legislative will that the cost of criminal prosecutions, including the services of appointed counsel, be paid by the county, rather than the State. It, however, delayed the effective date upon which the members of the bar would be relieved of the burden they were then bearing to serve without fee in non-murder indigent criminal cases in order to give the Legislature an opportunity to decide whether the State's obligation to provide such indigents with counsel should be met by the then system of assignment in individual cases, or by a public defender, or some combination of both. 46 N.J. at 415, 217 A.2d 441.

The court also indicated that a court rule relating to out-of-pocket disbursements of such assigned counsel was not required in view of its opinion in State v. Horton, Supra. What it stated in that connection applies equally to the matter of payment for services of such counsel. 46 N.J. at 415, 217 A.2d 441.

Thus, the matter of providing counsel for indigent defendants in criminal cases, including the allocation and method of payment of costs thereof, was expressly left by the Supreme Court to the Legislature. Under these circumstances it cannot be said that the subsequent enactment by the Legislature of the Public Defender Act in response to the court's invitation constitutes an invalid encroachment by it of the court's rule-making power. In fact, in Rush, the court took pains to note 'without exploring the subject at all' the question of whether the judiciary has the inherent power to order payment of counsel fees for indigent criminal defendants in the absence of statute. 46 N.J. at 413, 217 A.2d at 448.

The situation here is not unlike that discussed by the court in Busik v. Levine, 63 N.J. 351, 367, 307 A.2d 571 (1973), app.dism. 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973), when it observed that although, arguably, evidence is both procedural and substantive, nevertheless the rules of evidence were adopted cooperatively by the three branches of government.

The fact that the Supreme Court has general authority under its rule-making power to award and allocate counsel fees does not mean that in appropriate circumstances the Legislature, with that court's acquiescence, may not act in this area where a public interest or obligation is involved. See Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493--496, 86 A.2d 201 (1952), cert. den. 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952). Cf. Busik v. Levine, Supra, 63 N.J. at 372 and 373, n. 10, 307 A.2d 571; McMullen v. Maryland Cas. Co., 127 N.J.Super. 231, 237, 317 A.2d 75 (App.Div.1974).

Additionally, it is not without significance in this respect that the Public Defender Act itself refers to the Defender's duty,...