Yarbrough v. Superior Court, S.F. 24698

• Decision Date: 29 July 1985
• Docket Number: S.F. 24698
• Citation: 702 P.2d 583,39 Cal.3d 197,216 Cal.Rptr. 425
• Court: California Supreme Court
• Parties: , 702 P.2d 583 Terry Val YARBROUGH, Petitioner, v. The SUPERIOR COURT of Napa County, Respondent; COUNTY OF NAPA, Real Party in Interest.

Page 425

216 Cal.Rptr. 425

39 Cal.3d 197, 702 P.2d 583

Terry Val YARBROUGH, Petitioner, v. The SUPERIOR COURT of Napa County, Respondent COUNTY OF NAPA, Real Party in Interest.

S.F. 24698.

Supreme Court of California.

July 29, 1985.

[702 P.2d 584] [39 Cal.3d 199] Wagner, Henderson, Davis & Robertson and J. Roland Wagner, Napa, for petitioner.

Ephraim Margolin, Richard J. Wilson, Doron Weinberg, Nina Wilder, San Francisco, Gerald F. Uelmen, Los Angeles, Gary M. Mandinach, Edward L. Lascher, Wendy Cole Lascher, Lascher & Lascher, Ventura, Frank M. Woodhead, Altadena, Charles A. Lynberg, Arthur E. Schwimmer, Richard H. Benes, William S. Dato, San Diego, Peter Hans Klee, Los Altos, Siegfried Hesse, Berkeley, Cindy Alberts-Carson, Richard Gruner, Gerald Masahiro Sato, Los Angeles, Lee D. Morhar, San Francisco, David J. Linden, Lawrence M. Gassner, Upland, [39 Cal.3d 200] Irving F. Reichert, David M. Balabanian, Fred H. Altshuler, San Francisco, Michael Dufficy, Kenneth Drexler, San Rafael, Mark N. Aaronson, San Francisco, Judy R. Campos, Sacramento, Michael J. Brady, Gail Y. Norton, Ropers, Majeski, Kohn, Bentley & Wagner, Redwood City, Richard Alexander, Lynne Yates-Carter, San Jose, Keogh, Marer & Flicker, Gerald Z. Marer, Palo Alto, Herbert M. Rosenthal, Ellen P. Dreibelbis, Russell B. Longaway, San Francisco, and Burke Critchfield, Livermore, as amici curiae on behalf of petitioner.

Robert F. Wilson, Wilson, Borror, Dunn & Scott, San Bernardino, Richard Bawden, Reynolds, Reider & Bawden, Redlands, Thomas F. Schroeter, Bakersfield, Gary L. Frank, Susan Jackson Balliet, San Francisco, Eric W. Wright, Palo Alto, Catherine Fancher Campbell and Elizabeth Benford, San Francisco, as amici curiae.

No appearance for respondent.

Stephen W. Hackett, County Counsel, and R. Clifford Lober, Chief Deputy County Counsel, Napa, for real party in interest.

Ronald A. Zumbrun, Sacramento, Mark A. Wasser, Madera, Douglas J. Maloney, County Counsel, Marin, John F. Govi, Deputy County Counsel, San Rafael, Beverly Jean Gassner, Gassner & Gassner, Ontario,

[702 P.2d 585] Kathleen J. Purcell, Remcho, Johansen & Purcell, San Francisco, Charles E. Dickerson, III and Sanders & Dickerson, Los Angeles, as amici curiae on behalf of real party in interest.

INTRODUCTION

KAUS, Justice.

In 1976 we decided in Payne v. Superior Court, 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565, that as a matter of due process and equal protection under both the federal and California Constitutions an indigent prisoner who is a defendant in "a bona fide legal action threatening his interests" is entitled to access to the courts to be heard in his defense. We left to the trial court's discretion how access is to be achieved in particular cases, recognizing that, at times, appointment of counsel may be the only alternative. We made it clear, however, that the trial court's authority to appoint counsel is independent of its power to order compensation.

We reaffirm Payne: In an appropriate case, and as a last alternative, appointment of counsel may be the only way to provide an incarcerated, indigent civil defendant with access to the courts for the protection of threatened personal and property rights. We again stress that access--not the right to counsel--is the keystone of the structure we built in Payne, and we point out once more that the power to appoint is independent of the power to compensate.

This case illustrates, however, that there may be some misunderstanding as to the standards for the exercise of the trial court's authority to appoint counsel. Preliminarily, we note that the proceedings on motion for appointment of counsel are essentially ex parte. Absent a truly adversary hearing--the county here opposed only an order requiring compensation--the burden is on the trial court to recognize the unusual case where future property rights are genuinely at stake for the presently indigent incarcerated defendant. It falls on the trial court to recognize and adhere to the guidelines set out in Payne. We examine this case in that light.

I. FACTS

Terry Val Yarbrough seeks a writ of mandate to compel respondent Superior Court of Napa County to appoint counsel to represent him in an action for wrongful death (Cantrell v. Brass Rail Bar et al. (Napa Super.Ct., No. 44340) ) in which he is named a defendant. ¹ Yarbrough is imprisoned at Folsom Prison, serving a term of 17 years to life for second degree murder. (People v. Yarbrough (A020826, app. pending).) His conviction resulted from the shooting death of Keith Cantrell outside the Brass Rail Bar in Napa. Cantrell's minor son filed a complaint on June 10, 1982, suing the bar, as well as its owner and bartender, and Yarbrough for wrongful death, seeking one million dollars in both general and punitive damages.

Yarbrough was not served with the complaint and summons until April 20, 1983, some ten and a half months after filing of the complaint. He moved for appointment of counsel; ² Napa County contested the motion only insofar as the county might be required to compensate counsel.

In the motion for appointment of counsel, Yarbrough alleged that he was being sued and that he was incarcerated, indigent, and uneducated; that the civil litigation was "harassment" inasmuch as he was "totally indigent and unable to respond in damages or even retain an attorney"; that he would suffer a default judgment of two million dollars, a result which could be avoided by appointment of counsel; and that if default were taken against him, a "significant issue of liability" would arise for the county and/or the state from the "state action" in refusing to appoint counsel. Yarbrough relied on Payne, supra, 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565, Government Code section 27706, subdivision (c) ³ and the federal Civil Rights Act, 42 United States Code section 1983.

In opposition, the county alleged that it was not required to compensate counsel for Yarbrough because the Legislature has not appropriated funds for the defense of prisoners who are defendants in civil cases; the court had no power to order compensation where no legislative authority exists; appointment of counsel for Yarbrough would not significantly affect the outcome of the civil suit and thus no fundamental interest of Yarbrough would be jeopardized; the state was a necessary party to the motion; Government Code section 27706 applied only to the office of public defender, not to a contract public defender; and the legal needs of Yarbrough could possibly be met by the fund set up in section 6210 et seq. of the Business and Professions Code.

The trial court started the hearing on the motion by pronouncing Yarbrough's right to counsel: "Lord knows the man ought to have a lawyer." The thrust of the proceedings was who would be appointed--inquiry of the legal aid services and the State Public Defender had proved futile--and whether the attorney could be compensated. Yarbrough's principal contention was that the contract public defender should continue to represent him in the civil suit. He relied on section 27706, subdivision (c), of the Government Code. The court found the section inapplicable.

The court took judicial notice of Yarbrough's incarceration and of his 1981 financial declaration of indigency, made before the criminal trial, and determined that he currently had no assets. Counsel asserted that the case would entail extensive litigation, speculating that the gun manufacturer would be joined and complicate the case with problems of discovery and experts. ⁴

The court recognized that, on the issue of liability, the evidence of the conviction would be admissible as an exception to the hearsay rule under Evidence Code section 1300. The court also noted that, as a practical matter, a judgment for damages against Yarbrough was "useless" even if not dischargeable in bankruptcy. Nevertheless, and without further inquiry, the court concluded that appointment of counsel was appropriate. When Mr. Wagner indicated he would decline to accept any gratuitous representation, the court stated: "I certainly have authority to order the appointment of counsel, and I will grant the request for appointment of counsel. But I feel I do not have the authority to order it to be a charge. If you want to test this by writ, I would welcome you to do so because I think this man ought to have an attorney. If there are any other findings that would facilitate that, I would be glad to accommodate the defendant.... Maybe you two, you know how I am ruling, could design an order that maybe both of you can agree on."

The trial court's "Order Denying Appointment and Compensation of Counsel" incorporated findings that Yarbrough was an indigent prisoner, that he had been served with process as a defendant in a civil action, that the litigation was not spurious and could affect his interests, that the county's contract with defense counsel in the criminal matter did not provide for representation in civil cases, and that the case would involve extensive legal work and investigation which would burden any attorney appointed by the court. The civil action has been stayed as to Yarbrough.

Yarbrough seeks a writ of mandate to compel the trial court to appoint counsel and to provide reasonable compensation to such counsel.

II. PAYNE AND THE RIGHT TO ACCESS

In Payne, after concluding that no state interest could be advanced in support of denial of access to the courts (17 Cal.3d at pp. 919-922, 132 Cal.Rptr. 405, 553 P.2d 565), the court addressed the particular remedies that were available to secure the right. One possible solution--to accord prisoners the right to a personal appearance--was discounted as not feasible so long as prisoners are denied the access to free legal services accorded to other indigents and are thus unable to prepare a propria persona defense. Another solution--to defer trial of action until the prisoner's release--was approved, bounded only by...