Wood v. Superior Court, 7386
| Decision Date | 30 October 1984 |
| Docket Number | No. 7386,7386 |
| Citation | 690 P.2d 1225 |
| Parties | John WOOD, Appellant, v. SUPERIOR COURT, State of Alaska, Third Judicial District, Appellee. |
| Court | Alaska Supreme Court |
John W. Wood, Anchorage, pro se.
Robert H. Wagstaff, Anchorage, for Anchorage Bar Association, amicus curiae.
Elizabeth L. Shaw, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for the State of Alaska, amicus curiae.
Before BURKE, C.J. and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.
In Jackson v. State, 413 P.2d 488, 490 (Alaska 1966), we recognized "a tradition deeply rooted in the common law":
[A]n attorney is an officer of the court assisting the court in the administration of justice, and ... as such he has an obligation when called upon by the court to render his services for indigents in criminal cases without payment of a fee except as may be provided by statute or rule of court.
This appeal requires us to re-examine the nature of this obligation and the manner in which it may be enforced.
John Wood is an Anchorage attorney. On July 15, 1981, he was appointed to represent an indigent defendant charged with committing nine different offenses. Most indigent defendants are represented by the Public Defender. 1 When, as in this case, the Public Defender is unable to represent a particular defendant, the private bar is, by court rule, 2 required to cover that defendant's case. In Anchorage, the court system's administrative director had, by contract, arranged for an Anchorage firm to handle most cases in which the Public Defender was disqualified due to conflicts; but this firm, too, recognized a conflict of interest in this particular case and was unable to represent the defendant. This case, then, reached the third tier of attorneys: a list of private attorneys, compiled pursuant to a superior court order. Wood's name was on the list, and he was appointed.
Claiming that he was not competent in criminal matters and that for this reason the defendant's right to effective assistance of counsel would be impaired, Wood refused to accept the appointment. District Court Judge (now Superior Court Judge) Cutler referred the matter to Presiding Judge Moody, whose 1979 order had created the list from which Wood's name was selected. Meanwhile, Judge Cutler assigned another attorney to the case. Two weeks later, Judge Moody issued an order for Wood to show cause why he should not be held in contempt. After several hearings, during which alternatives to the existing court-appointed counsel system were discussed, Judge Moody concluded that the existing system was constitutional and stated that he did not "feel compelled to excuse [an] attorney from service on a mere assertion to the court that [the attorney] is incompetent to represent a criminal defendant." Judge Moody found Wood in contempt and ordered him to pay a $500 fine. From this decision Wood, supported by Amicus Curiae Anchorage Bar Association, now appeals.
The order Wood is attacking reads, in full, as follows:
ORDER
The Supreme Court has announced that, effective July 1, 1979, counsel appointed to represent defendants in criminal cases in which the Public Defender has established a conflict exists will be compensated at the rate of $40 per hour with a maximum of $1,500 in misdemeanor and $2,500 in felony matters.
The Alaska Court System expenditure transactions reflect approximately two hundred ten (210) appointments of counsel in criminal conflict cases during the calendar year of 1978.
As the Greater Anchorage telephone directory contains approximately four hundred seventy (470) names of lawyers engaged in the private practice of law,
IT IS ORDERED that a list be established which will contain the name of each lawyer above-described. The order in which the names will appear on the list will be from a drawing, and it will be the responsibility of each attorney so appointed to provide legal representation or to arrange for another attorney to provide said representation.
If, during the preceding six-month period, any lawyer has been appointed to represent a defendant in a criminal matter, and so requests, his name will appear at the end of the newly established list.
Any lawyer who has been admitted to practice in Alaska for less than one year may request and have only misdemeanor assignments for a period of not more than one year.
IT IS FURTHER ORDERED that similar lists will be established for Palmer, Kodiak, Kenai and Valdez. In the event that hardships result in small communities from the lack of adequate numbers from which to rotate assignments, with approval from this office, appointments may be made from the Anchorage list or other convenient locations.
DATED at Anchorage, Alaska, this 22nd day of June, 1979, with an effective implementation date of July 1, 1979.
/s/___
Ralph E. Moody
Presiding Judge
Third Judicial District
(Emphasis added).
Analytically, one can best understand Wood's objections to this order by dividing them into two categories. One set of objections depends on the fact that under the order some attorneys are required to provide services to people they would rather not represent at rates they consider inadequate. The other set of objections concerns the fact that some of the attorneys called upon to represent criminal defendants may not be competent practitioners of criminal law. We discuss these objections in turn.
Wood first argues that courts do not have legal authority "to coerce one class of persons to involuntarily provide services to a second class of persons when no contractural [sic] or tortious relationship exists between them." We rejected a similar argument in Jackson and see no reason to reverse now. Lawyers have traditionally been responsible for representing indigent clients, and courts have traditionally supervised the terms and conditions of this representation. Wood offers no authority for the proposition that this practice unconstitutionally encroaches on the executive or legislative domain and we can perceive none. 3
Nor do we accept Wood's argument that courts do not have power to issue orders like the one he attacks. Article IV, section 15 of the Alaska Constitution gives this Court authority to make and promulgate "rules governing the administration of all courts" and "rules governing practice and procedure in civil and criminal cases in all courts." Under this authority, we promulgated what is now designated as Administrative Rule 12, 4 which requires the presiding judge in each of our four judicial districts to maintain lists of attorneys eligible to receive court appointments to represent indigent defendants in criminal cases. Presiding Judge Moody issued his orders pursuant to this rule, and Wood does not argue that we unconstitutionally delegated our responsibility to the judge. 5
Nor does an order requiring an attorney to represent a criminal defendant necessarily take that attorney's private property without just compensation. Jackson's holding on this issue is consistent with the "vast majority" of federal and state courts decisions. See Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir.1982), and the cases cited therein. It may be that in some extreme cases an assignment would cripple an attorney's practice and thus rise to the level of a taking. See People v. Randolph, 219 N.E.2d 337 (Ill.1966), and Annot., 18 A.L.R.3d 1074 (1968). But Wood has not shown that this is an extreme case. Moreover, under Administrative Rule 12(h) the court system's administrative director may, "[i]f necessary to prevent manifest injustice, ... authorize payment of compensation or expenses in excess of the amounts [otherwise] allowed under this rule." 6
Wood also argues that the order denies him equal protection of the law. On the record before us, we cannot agree. His claim that the list of eligible attorneys arbitrarily fails to comply with the superior court's order is based on a comparison of the names on the list with the names listed in the attorneys' section of the 1981 Anchorage telephone directory. But the list was compiled based on the 1979, not the 1981 directory, and Wood has not shown that the court system has failed to update the list. Nor has he supplied sufficient evidence for his claim that "attorneys for a privileged client such as a bank or insurance company" routinely escape their responsibilities under the order. It is also clear that these specific objections were not raised before the superior court. Thus, we need not rule on Wood's claim that the way the list was prepared and used violated his equal protection rights. 7
The Anchorage Bar Association emphasizes that counsel in Wood's position may not receive as much compensation as would counsel working under contracts with the court system. It notes that under Administrative Rule 12 "third-level" counsel receive a maximum of $2,500 per felony, while the court system's contracts provide that attorneys working for "conflict firms" may receive up to $8,000 in unclassified felony cases and up to $3,000 in less serious felony cases. We first point out that in this case an unclassified felony is not involved. We also think that elementary economic theory explains the difference between the $3,000 limit on fees a "conflict firm" might have received in this case and the $2,500 limit on fees Wood might have received. In contracting for "second-level" representation, the court system, represented by its administrative director, quite understandably had to offer "second-level" firms an incentive to enter into contracts. The administrative director apparently decided that the advantages a "second-level" firm could offer were worth the added expense. We conclude that the $500 difference bears a fair and substantial relationship to the court system's goal of providing reliable and competent representation for individual defendants. 8 In short, if we assume for purposes of argument that all...
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