Petition for Writ of Certiorari — Martin County, Florida v. Robert Makemson and Robert G. Udell Okeechobee County, Florida v. Robert Lee Dennis

Supreme Court, U.S,

FLED

el Os — —

OCT 15 1986

NO. JOSEPH F. SPANIOL, JR.

CLERK

in the

Supreme Court

of the

United States

OCTOBER TERM, 1986

MARTIN COUNTY and OKEECHOBEE COUNTY,

Florida,

Petitioners,

Vs

ROBERT MAKEMSON,

ROBERT LEE DENNIS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI —

TO THE SUPREME COURT OF FLORIDA

ROBERT A. GINSBURG

Dade County Attorney

ERIC K. GRESSMAN

Assistant County Attorney

Counsel of Record

Metro-Dade Center

Suite 2810

111 N.W. 1st Street

Miami, Florida 33128-1993

(305) 375-5151

Counsel for Petitioners

*

QUESTION PRESENTED

Whether, in state criminal proceedings, the

indigent defendants’ Sixth Amendment right

to effective assistance of counsel invalidates a

state statute, imposing limits on the fees of

court-appointed counsel, where

(a) counsel has provided effective

assistance, and

(b) the statutory fee limit is “inflexibility

imposed in cases involving unusual

or extraordinary circumstances” or

is “confiscatory of [counsel’s] time,

energy and talents.”

LIST OF PARTIES

The parties to the proceedings before the Florida

Supreme Court, Case No. 66,780, were the petitioner

Martin County and respondent court-appointed attorneys,

Robert Makemson and Robert G. Udell.

The parties to the other proceeding, Florida Supreme

Court Case No. 66,829, were petitioner Okeechobee

County and respondent court-appointed attorneys, Robert

Lee Dennis, J. Blayne Jennings, John R. Cook, Michael

D. Gelety, Richard D. Kibbey, and Robert G. Udell.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................

— IB ii

TABLE OF AUTHORITIES ................... v

OPINIONS BELOW .......................... 2

„„ e ee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..................... 3

STATEMENT OF THE CASE . 5

RAISING THE FEDERAL QUESTION ......... 9

REASONS FOR GRANTING THE WRIT ....... 11

I. The decisions raise novel and confusing federal

constitutional questions .................. 11

II. The decisions below conflict with this Court's

guiding principles and applications of the Sixth

Amendment right of effective assistance of

e /7⸗7ͥ TT eee ceccccccscces 13

III.

TABLE OF CONTENTS (Continued)

Page

State and federal courts are sharply divided

on the constitutionality of statutory fee limits

on court-appointed counsel for indigent

Ge. iis ob ka vasa cea ET is 16

IV. The resolution of the issues in these cases is

of great importance to state and local

„„ „„ Ka wed's bine ee ses 22

r A hE RRS 25

7 App. 1

iv

TABLE OF AUTHORITIES

CASES: Pages

Ake v. Oklahoma,

470 U.S. . 105 S.Ct. 1087,

r 13, 15

Bias u State,

568 P2d 1260 (Okla. 1977) .................. 21

Britt u North Carolina,

D .. 15

Botts u United States,

413 F.2d 41 (9th Cir. 19689)0)ͥł 19

Dennis v. Okeechobee County,

11 Florida Law Weekly 337

Fla. Supreme Court, July 17, 1986) 2, 6, 16,

23, 24

Dolan v. United States,

351 Fd 671 (Sth Cir. 1965) ᷑ Pee 18, 19

Gideon v. Wainwright,

, T.... 9, 15

Harris u State,

367 So. 2d 524 (Ala. Cr. App. 1978),

writ denied, Ex parte Harris,

e , c tunes cw eusb ede 18

TABLE OF AUTHORITIES (Continued)

CASES Pages

Keene v. Jackson County,

3 Or. App. 551, 474 P.2d 377 (Or. App. 1970),

pet. denied, 257 Or. 335, 478 Pad 393,

cert. denied, 402 U.'S.995 .................. 21

Makemson v. Martin County,

11 Florida Law Weekly 337

(Fla. Supreme Court, July 17, 1986) 2, 5, 16,

23, 24

Martin County v. Makemson,

464 So.2d 1281 (Fla. 4th DCA 1985).......... 2

Miller v. Pleasure,

296 F.2d 283 (2nd Cir. 1961), cert. denied,

r · Cube eset es 19

Morris v. Slappy,

D as ened eebs eeu eas 13, 15

Okeechobee County u Jennings,

473 So.2d 1314 (Fla. 4th DCA 1985).......... 2

People v. Atkinson,

50 III. App. 3d 860, 8 Ill. Dec. 932,

„„ „„ „„ „„ „ 18

People u Randolph,

35 III. 2d 24, 219 N. E. 2d 337 (196600))) 20

vi

TABLE OF AUTHORITIES (Coniinued)

CASES Pages

Powell v. Alabama, |

, ̃ͤ a te 13

Ross u Moffitt,

eo 13, 14

Sanders u State,

276 Ark. 342, 635 8. W.2d 222 (1982) Pe 21

Smith v. State, |

118 N.H. 764, 394 A.2d 834 (1978) ............ 21

State v. Conley,

603 S.W.2d 415 (Ark. 1980o))ʒ/)ỹ 21

State v. Ruiz,

602 S.W.3d 625 (Ark. 1980) ................. 21

State u Rush,

46 N. J. 399, 217 A.2d 441 (1966) .......... 13, 17,

18, 24

State v. Woomer,

277 8 E.2d 696 (S.C. 1981 18

*

United States u Aadal,

282 FSupp. 664 (D.C. S. D. N.Y. 1968) 19

United States u Cronic,

466 U.S. 648 (19840) : 13, 14, 16

vii

TABLE OF AUTHORITIES (Continued)

CASES: Pages

United States v. Dillon,

346 F.2d 633 (9th Cir. 1965077) 18, 19, 20

United States v. Harper,

311 F.Supp. 1072 (D.C. D.C. 1970)............ 19

United States v. Hunter,

385 F.Supp. 358 (D.C. D.C. 197!P]P»——Uꝛ 19

United States v. Perry,

471 F.2d 1069, 1530 U.S. App.D.C. *

EE nee ö 19

Williamson v. Varedman,

674 F.2d 1211 (8th Cir. 1982)................ 20

CONSTITUTIONS AND STATUTES:

Florida Constitution, article II, seetion 8 10 n.2

Florida Constitution, article V. section!!! 10 n.2

Florida Statutes Section 27.5ꝝ8 33833. 3. 5

Florida Statutes Section 925.03. 3, 5, 9,

10 n.2

viii

TABLE OF AUTHORITIES (Continued)

CONSTITUTIONS AND STATUTES: Pages

United States Constitution, Fifth

, ̃ l 11. 12, 22

United States Constitution, Sixth

, . ̃ꝗĩê4.)pr ˖ . 3, 9, 10,

10 n.2, 11, 12,

13, 14, 15, 16,

17, 18, 20, 22,

23, 24

United States Constitution,

Fourteenth Amendment..................... 9, 14,

15, 22

// / 3

MISCELLANEOUS:

Annotation- Validity and Construction of State

Statute or Court Rule Fixing Maximum Fees

for Attorney Appointed to Represent Indigent,”

, 5 17 n.3

Hunter, Slave Labor in the Courts -A Suggested

Solution, 74 Case & Comment 3

„„ „„ „ „ c cw wees 17 n.3

Right of Attorney Appointed by Court for Indigent

Accused To, and Courts Power to Award,

Compensation by Public, in Absence of Statute

or Court Rule, 21 A. L. R. 3d 819 .............. 17 n.3,

NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1986

MARTIN COUNTY and OKEECHOBEE COUNTY,

Florida,

Petitioners,

v8.

ROBERT MAKEM SON.

ROBERT LEE DENNIS, et al.

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Pursuant to this Court’s Rule 19.4, the petitioners,

Martin County and Okeechobee County, Florida, file

this single petition for writ of certiorari to review the

judgments and opinions of the Supreme Court of Florida

involving identical constitutional questions. Both

judgments and opinions were entered in the respective

proceedings on July 17, 1986.

OPINIONS BELOW

The Florida Supreme Court’s opinions and

judgments are attached to the Appendix and informally

reported as Makemson, et al, u Martin County, 11

Florida Law Weekly 337 (Fla. Supreme Court Case No.

66,780, July 17, 1986), and Dennis, et al u Okeechobee

County, 11 Florida Law Weekly 350 (Fla. Supreme Court

Case No. 66,829, July 17, 1986). See, Appendix, pp.

App. 1, 36

The opinion of the Fourth District Court of Appeal

in the Martin County case is reported as Martin County

v. Makemson, 464 So.2d 1281 (Fla. 4th DCA 1985), and

attached to the Appendix hereto. See, Appendix, p.

App. 14. The opinion of the Fourth District Court of

Appeal in the Okeechobee County case is reported as

Okeechobee County v. Jennings, 473 So.2d 1314 (Fla.

4th DCA 1985), and attached to the Appendix hereto.

See, Appendix, p. App. 38

The trial court order in the Circuit Court of the

Nineteenth Judicial Circuit in and for Martin County,

Florida, has not been officially reported but is attached

to the Appendix hereto. See, Appendix, p. App. 30. The

trial court’s original and amended orders of the Circuit

Court of the Nineteenth Judicial Circuit in and for

Okeechobee County, Florida, have not been officially

reported but are attached to the Appendix hereto. See,

Appendix, pp. App. 51, 57

JURISDICTION

On July 17, 1986, the Supreme Court of Florida

entered two opinions invalidating Section 925.036 (1981),

Florida Statutes. This petition was filed within ninety

(90) days of said opinions.

The jurisdiction of this Court to review the decrees

of the Florida Supreme Court is invoked under 28 U.S.C.

§1257(3). A discussion of the raising and the deciding of

the federal questions is contained in the section entitled

“Raising The Federal Question”, infra.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States

Constitution states:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

Florida Statutes, Section 925.036 (1981) reads:

925.036 Appointed counsel; compensation —

(1) An attorney appointed pursuant to s.

[section] 925.035 or s. [section] 27.53 shall, at

the conclusion of the representation, be

compensated at an hourly rate fixed by the

chief judge or senior judge of the circuit in an

amount not to exceed the prevailing hourly

rate for similar representation rendered in the

circuit; however, such compensation shall not

exceed the maximum fee limits established by

this section. In addition, such attorney shall

be reimbursed for expenses reasonably

incurred, including the costs of transcripts

authorized by the court. If the attorney is

representing a defendant charged with more

than one offense in the same case, the attorney

shall be compensated at the rate provided for

the most serious offense for which he

represented the defendant. This section does

not allow stacking of the fee limits established

by this section.

(2) The compensation for representation shall

not exceed the following:

(a) For misdemeanors and juveniles

represented at the trial level: $1,000.

(b) For noncapital, nonlife felonies

represented at the trial level: $2,500.

(c) For life felonies represented at the

trial level $3,000.

(d) For capital cases represented at the

trial level: $3,500.

(e) For representation on appeal: $2,000.

STATEMENT OF THE CASE

A. Statutory scheme

Florida Statutes Chapters 27 and 925 (1981)

governed the appointment of all respondents below.

Chapter 27 of the Florida Statutes creates a public

defender system in which an office of the public defender

is created in each judicial circuit of Florida. Such public

defenders are state employees limited in salary by the

State of Florida.

In cases where defendants have conflicts with the

public defender's office, Florida Statutes Section 27.53

provides two options. Section 27.53(3Xb) empowers the

trial court to appoint a public defender from another

circuit. Section 27.53(3Xa) permits the court to appoint a

private attorney from a list of attorneys who register

their availability “for acceptance of special assignments

without salary to represent indigent defendants.” Fla.

Stat. Section 27.53(2).

Florida Statutes Section 27.53(3) provides that, if

the court appoints a private attorney, he shall be paid

pursuant to Florida Statutes Section 925.036. Section

925.036 provides for maximum fees for a court-appointed

private attorney according to most severe offense

charg d.

B. The Makemson case

In Makemson, the trial court chose to appoint a

private attorney, Robert Makemson as a special public

defender to represent the Defendant, J.B. Parker. J.B.

Parker was charged with murder in the first degree,

armed robbery and kidnapping. Attorney Makemson

5

was appointed on May 16, 1982 and represented the

defendant through sentencing on January 11, 1983.

Three prosecutors, with the assistance of investigators,

tried the case. The trial involved one hundred witnesses

and fifty depositions. After a change of venue,

respondent Makemson spent 64 hours in court in Lake

County, Florida, one hundred and fifty miles from his

home. Respondent Makemson sought compensation for

248.3 hours, which experts valued at a minimum of

$25,000.00.

On April 20, 1983, the trial court held hearings on

respondent Makemson’s Petition for Attorney's Fees.

After hearing testimony of two experts that this was

an exceptional case, the trial judge on May 4, 1983

found Section 925.036, Florida Statutes (1981),

unconstitutional and awarded attorney Makemson

$9,500.00, which was $6,000.00 over the legislative cap.

The trial court’s order found that “Robert Makemson

did an excellent job as trial counsel for Defendant.”

Appendix, p. App. 31. In that order, the trial judge also

appointed Robert G. Udell, respondent, as attorney for

defendant on appeal and set Mr. Udell’s fee at $4,500,

which is $2,500 over the statutory cap. Appendix,

p. App. 32.

C. The Dennis case

In Dennis, V.L. Underhill and eleven others were

charged with violating several provisions of the Florida

Statutes relating to conspiracy, drug trafficking and

arson.

Underhill and several other defendants were

certified as indigent and counsel, respondent attorneys,

were appointed to represent them pursuant to Florida

Statutes Chapter 27. Before the conclusion of the

representation, the Court held a hearing on February

25, 1983 to assess whether or not court-appointed

counsel should receive fees exceeding $2,500.00 each,

the maximum limit for representation in non-capital,

non-life felony cases.

The trial court noted the case involved a list of 130

state witnesses and four thousand pages of state

evidence. The court also found that trafficking controlled

substance and conspiracy to traffick controlled substance

cases involve some of the most complex criminal defense

work. The court estimated a privately retained attorney

would charge a fee between $30,000 and $40,000. Finding

that it would be “extremely unlikely that any competent

lawyer would accept representing a defendant in this

case . . for a fee of twenty five hundred dollars or

less”, the trial judge ruled that court-appointed counsel

should be allowed a maximum of $10,000.00 each for

representation of each defendant.’ See, Appendix, pp.

App. 51-59.

D. Appellate rulings in Makemson and Dennis

Petitioners, Martin and Okeechobee Counties,

sought relief in the Fourth District Court of Appeal of

Florida. On March 6, 1985, the Fourth District quashed

both trial courts’ orders because of long-standing Florida

precedent holding the fees to be mandatory. See,

Appendix, pp. App. 14, 38. Because the Fourth District

felt the statutory maximums unfair in some cases, it

certified four questions to the Florida Supreme Court

as follows:

‘Said fee would be reduced by $5,000.00 in cases of multiple

representation.

I. [Is the statute] unconstitutional on its

face as an interference with the inherent

authority of the court to enter such orders as

are necessary to carry out its constitutional

authority?

II. If the answer to the first question is

negative, could the statute be held

unconstitutional as applied to exceptional

circumstances or does the trial court have the

inherent authority, in the alternative, to award a

greater fee for trial and appeal than the

statutory maximum in the extraordinary case?

III. If the answer to the second question

is affirmative, should the trial court have

awarded an attorney’s fee above the statutory

maximum for proceedings at the trial level,

given the facts presented to it by trial counsel

by his petition and testimony?

IV. If the answer to the second question

is affirmative, should the trial court have

awarded an attorney’s fee above the statutory

maximum for proceedings at the appellate level

before the services were rendered and with

the facts known to it at the time of the award?

In answering the first question, the Supreme Court

of Florida on July 17, 1986 issued two opinions holding

the Florida Legislature’s limit on court-appointed

attorney's fees constitutional on its face. However,

responding to the second certified question, the Florida

Supreme Court found the statutory fee limits

unconstitutional under the Sixth Amendment as applied

to extraordinary or unusual circumstances. The Florida

Supreme Court answered the last two certified questions

in the affirmative and thus upheld the trial courts’

finding that respondents should be paid in excess of

statutory maximums. See, Appendix, pp. App. 1, 36.

RAISING THE FEDERAL QUESTION

In both cases below, the Florida Supreme Court

answered identical certified questions from the Fourth

District Court of Appeal: is Fla. Stat. 925.036

“unconstitutional on its face” or “unconstitutional as

applied to exceptional circumstances.” These certified

questions did not specify whether they related to the

federal or state constitution, nor did they specify any

particular constitutional provision upon which they were

based.

In both cases, briefs submitted by the parties and

amici made express reference to the Sixth Amendment.

For example, respondent Dennis’s brief before the

Florida Supreme Court at page 8 states: “[njor. . . can

there be any doubt under Gideon u Wainwright and

Argersinger v. Hamlin that the trial courts have an

absolute ‘jurisdictional’ duty to provide counsel for the

indigent criminal defendants of the state of Florida in

order to comply with the Sixth and Fourteenth

Amendments to the Constitution of the United States

itself.” The amicus brief of Metropolitan Dade County

in Makemson, on page 13, maintains that the Florida

Supreme Court “has stated the only conceivable ground

for declaring Section 925.036 unconstitutional is on the

basis of the sixth amendment

In finding that Fla. Stat. 925.036 “unconstitutional

as applied to exceptional circumstances,” the Florida

Supreme Court expressly held “that the statutory

maximum fees, as inflexibly imposed in cases involving

unusual or extraofdinary circumstances, interfere with

the defendant's sixth amendment right ‘to have the

assistance of counsel for his defence.” See, Appendix,

p. App. 6, infra. No other federal provision was cited in

support of that holding. Nor did the Florida court refer

to or rely upon any provision in the Florida constitution

in reaching that conclusion.’

Therefore, there can be no question that the

decisions of the Florida Supreme Court rested entirely

upon the Sixth mendment to the United States

Constitution and that federal constitutional questions

were raised and decided in the proceedings below.

*The Florida Supreme Court further stated that Section 925.036

as interpreted so as to interfere with the Sixth Amendment right

to counsel, “impermissibly encroaches upon a sensitive area of

judicial concern, and therefore violates article V, section 1, and

article II, section 3 of the Florida Constitution.” See, Appendix, p.

App. 6, infra. Those provisions of the Florida Constitution merely

establish the three branches of the state government and create

the state courts. But such provisions are obviously not the basis of

holding the statute invalid under the Sixth Amendment. The

court refers to these state constitutional provisions merely to

show one of the consequences of applying the statute in

contravention of the Sixth Amendment.

10

REASONS FOR GRANTING THE WRIT

I

THE DECISIONS RAISE NOVEL AND

CONFUSING FEDERAL CONSTITUTIONAL

QUESTIONS.

In ruling the Florida counsel fee limitation

impermissibly intrudes upon the Sixth Amendment

rights of indigent defendants, the Florida Supreme

Court has created a questionable and confusing

precedent of historic importance.

Never before has there been such an admixture of

conceptual oranges and apples. By what constitutional

token can it be said that a criminal defendant’s Sixth

Amendment right to effective representation is

dependent upon counsel's ability to obtain a substantial

or non-confiscatory fee for effective services rendered?

Does that mean that all lawyers skilled in criminal

defense work are constitutionally protected in refusing

to supply Sixth Amendment needs of indigent

defendants whenever the fee awards are deemed

inadequate, either by counsel or the trial judge? What

has happened to counsel’s professional obligation

respecting pro bono representation?

If, as the Florida court states (see, Appendix, p.

App. 13), a statutory fee limit may be so inadequate in a

given case as to be “confiscatory as to his or her time,

energy and talents,” the Fifth Amendment’s “taking

clause” is implicated. Do we therefore establish a Fifth

Amendment right of court-appointed attorneys to

receive what a trial judge considers to be adequate,

11

non-confiscatory compensation? Would such a right

spring from the Fifth Amendment or the Sixth

Amendment or both?

If, as the court below holds (see, Appendix, p. App.

13), the determination of this confiscatory factor is to

be left to the discretion and inherent power of trial

judges, still more problems arise. What are the

guidelines for exercising this discretion in administering

this unique constitutional right of counsel? The only

answer supplied by the court below is to tell the trial

judges to use their best judgment and inherent power

only in “cases involving extaordinary circumstances

and unusual representation.” Appendix, p. App. 1. Such a

flexible guideline not only lacks precision but also leaves

the matter entirely to the trial judge’s discretion. The

court does not indicate that the trial judge is to give

any weight to the financial ability of the county or

other governmental unit responsible for underwriting

the costs of supplying court-appointed counsel.

Finally, does the decision mean that the states and

counties are subject to federal constitutional control as

to the amount they must pay to court-appointed counsel

for indigents? This may well implicate serious problems

of Federalism. Have state legislatures lost all power to

set maximum fees for court-appointed counsel? Does

the decision below mandate that the federal

constitutional obligation to pay non-confiscatory

compensation for court-appointed counsel is to be borne

by counties rather than states, as is the situation in

Florida and many other states?

12

II

THE DECISIONS BELOW CONFLICT WITH

THIS COURT'S GUIDING PRINCIPLES AND

APPLICATIONS OF THE SIXTH AMEND-

MENT RIGHT OF EFFECTIVE ASSISTANCE

OF COUNSEL.

The Florida Supreme Court ignored the seminal

rulings of this Court in Powell u Alabama, 287 US. 45

(1932), United States v. Cronic, 466 U.S. 648 (1984), Ross

u Moffitt, 417 U.S. 600 (1974), Ake u Oklahoma, 470

US. __, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and

Morris-v. Slappy, 461 U.S. 1 (1983).

Powell v. Alabama, supra, found that attorneys as

officers of the court are “bound to render service when

required by” such an appointment. Attorneys’ obligatory

service in cases where counsel is constitutionally

required is sufficient to ensure effective assistance of

counsel without the need to override fee limits imposed

by a state legislature. The New Jersey Supreme Court,

noting that although the United States Supreme Court

in Powell did not specifically state that attorneys are

obligated to provide constitutionally required counsel

without compensation, found that “the context makes

it clear that uncompensated service was in mind [in

Powell.” State u Rush, 46 N. J. 399, 217 A.2d 441 (1966).

The New Jersey Supreme Court found that “Powell did

assume that, if attorneys as officers of the Court were

called to serve without pay, no constitutional restraint

stood in the way.” Rush, supra, 46 N.J., at 408; 217 A.2d,

at 446.

13

Despite the clear implication of Powell, the Florida

Supreme Court without analyzing federal precedent

found that the right to effective assistance of counsel

was violated by a strict application in extraordinary or

unusual cases of the legislative limit on court-appointed

attorney's fees. The Florida Supreme Court cleariy

sought to relieve accused indigents of the external

“restraint” upon their counsel’s fee. In so interpreting

the Sixth Amendment guarantees to prohibit such

restraints on court-appointed fees, the Florida Supreme

Court ignored the dictates of United States v. Cronic,

supra. Cronic found that a presumption of prejudice

was not justified when counsel is subject to external

restraints on his performance, such as granting an attorney

only 25 days to prepare for trial. Indeed, a restriction

on a fee awarded at the conclusion of the case is even

more external than a twenty-five day limit on preparation.

Such a fee is only awarded at the end of the proceedings

and has nothing to do with the ability of counsel to

advocate, prepare or obtain experts or witnesses. Nothing

connected with a criminal case is more external than

the fee awarded after the case is concluded. The attorney

is ethically precluded from limiting his time and resources

to a case simply because of the prospect of a small fee.

The Florida Supreme Court sought under the guise

of thé constitutional right to effective assistance of

counsel to rectify the disparity in fees between indigent

and wealthy clients. However, such infusion of public

policy cannot be derived from the Sixth or Fourteenth

Amendments. Ross v. Moffitt, supra, held that the fact

that a particular service might benefit indigent defendants

does not mean such a service is constitutionally required.

The Ross Court found the state had no “duty to duplicate

the legal arsenal that may be privately retained by a

14

criminal defendant . . but only to assure the indigent

defendant an adequate opportunity to present his claims

fairly. . .” Ross, supra, at 616. See also, Britt u North

Carolina, 404 U.S. 226 (1971) (upholding state court’s

refusal to grant defendant a transcript of the first

mistried case).

In Ake u Oklahoma, supra, this Court noted that

the state need not purchase all assitance wealthier

counterparts might buy. In limiting the state’s obligation

under the due process clause to provide assistance of

one competent psychiatrist, Ake found the state could

provide that psychiatrist as it saw fit. Defendant's

constitutional rights did not extend to choosing a

psychiatrist of his personal liking or receiving funds to

hire his own psychiatrist. Gideon u Wainwright, 372

US. 335 (1963), and its progeny, contrary to the misguided

expansion by the Florida Supreme Court, requires only

appointment of competent counsel. The state of Florida

has provided pursuant to Florida Statutes, Chapters 27

and 925, a mechanism for appointing competent counsel

in all cases. The Sixth and Fourteenth Amendments do

not require any particular mechanisms for such

appointments, even in extraordinary cases.

In effect, the Florida Supreme Court by raising

the fee for court-appointed attorneys in extraordinary

or unusual cases found that the Sixth Amendment

guarantees not only competent representation, which

undoubtedly occurred in the cases at bar, but also a

meaningful attorney-client relationship. The Florida

Supreme Court’s reasoning directly conflicts with Morris

u Slappy, supra. Slappy held that the Sixth Amendment

guarantees only competent representation, not a

meaningful attorney-client relationship.

15

The genesis of the Florida Supreme Court's

unauthorized expansion of Gideon is its failure to analyze

the factors which determine if a state restriction is

violative of Sixth Amendment guarantees. The Florida

Supreme Court found, without a record of any

incompetent assistance of counsel, that restricting a

fee in extraordinary criminal cases is per se

unconstitutional. In so doing, the Florida Supreme Court

ignored Cronic which provides the correct analytical

framework for determining per se Sixth Amendment

violations. A presumption of such a violation, Cronic

held, was justified only where the circumstances are so

likely to prejudice accused that the restriction amounts

to a breakdown in the adversary process. There is no

record of any breakdown in the adversary process from

imposition of fee limits in extraordinary cases. In the

cases at bar, no attorney was thwarted in his efforts to

advocate effectively. Makemson and Dennis thus run

afoul of Cronic in creating a presumption without a

finding or a record of a breakdown in the adversary

process.

III

STATE AND FEDERAL COURTS ARE

SHARPLY DIVIDED ON THE CONSTITU-

TIONALITY OF STATUTORY FEE LIMITS

ON COURT-APPOINTED COUNSEL FOR

INDIGENT DEFENDANTS.

A conflicting array of state and federal decisions

have led to Balkanization of the law on the

constitutionality of court-appointed fee limits.

Annotations and articles emphasize the diversity in

16

the interpretation of the constitutionality of statutes

limiting court-appointed attorney’s fees.’

Federal cases and twenty states have found that

court-appointed counsel has no right to fees in absence

of statutory authority. See, cases cited in 21 A.L.R 3d,

at 822-23. Courts in five other states, including Florida,

have found for various reasons that court-appointed

attorneys are entitled to compensation without express

provision for payment in a statute or court rule. See,

cases cited in 21 A.L.R. 3d, at 830.

Directly in conflict are the interpretations of the

instant cases and the highest court of New Jersey. In

State u Rush, 46 N.J. 399, 217 A.2d 441 (1966), the

Supreme Court of New Jersey rejected the argument

that a court-appointed attorney's right to compensation

arose because an attorney, if unpaid, could not perform

in a manner to satisfy the constitutional guarantee of

effective assistance of counsel.

In an intricate analysis of the Sixth Amendment,

the Rush court found no Sixth Amendment violation

springing from the failure to pay court-appointed

counsel. Rush, 46 N.J., at 405-07; 217 A.2d, at 444-45.

The New Jersey Supreme Court knew “of no data to

support a claim that an assigned attorney fails or shirks

in the least the full measure of an attorney’s obligation

Annotation Validity and Construction of State Statute or

Court Rule Fixing Maximum Fees for Attorney Appointed to

Represent Indigent,” 3 A.L.R. 4th 576; Right of Attorney Appointed

by Court for Indigent Accused To, and Courts Power to Award,

Compensation by Public, in Absence of Statute or Court Rule, 21

A.L.R. 3d 819; Hunter, Slave Labor in the Courts—A Suggested

Solution, 74 Case & Comment 3 (July-August 1969).

17 7

to a client. . [a] lawyer need no motivation beyond

his sense of duty and his pride.” Rush, * 46 N. J., at

405-06; 217 A. 2d, at 444.

In Alabama, the denial of a motion for funds for

payment of counsel is not a denial of due process where

defendant had competent counsel, availability of experts

and subpoenas. Harris u State, 367 So. 2d 524 (Ala. Cr,

App. 1978), writ denied, Ex parte Harris, 367 So. 2d

534. See also, People v. Atkinson, 50 Ill. App. 3d 860, 8

Ill. Dec. 932, 366 N.E.2d 94 (1977) (held that reduced fee

award was not so unfair that it violated defendant’s

Sixth Amendment rights and questioned whether

competent court-appointed counsel had standing to raise

a Sixth Amendment question).

In Atkinson, the Illinois court found the Sixth

Amendment claim unpersuasive unless counsel were

totally uncompensated or unless the bar was required

to assume the entire burden of indigent defense with

no provision for a public defender system. Florida, with

an extensive public defender office in each circuit and

provision for paying court-appointed counsel, hardly

fits even Atkinson's expanded view of a Sixth

Amendment violation. State v. Woomer, 277 S.E.2d 696

(S.C. 1981), held that the limit in a death penalty statute

on expenditures for skilled services for an indigent

defendant did not violate due process or e qual protection.

Federal courts and the majority of states hold that,

in absence of statutory authority, a court-appointed

attorney is not entitled to fees and that failure to

provide for fees does not violate any constitutional

provision. See, Dolan u United States, 351 F.2d 671 (5th

Cir. 1965); United States u Dillon, 346 F.2d 633 (9th Cir.

18

Cir. 1965); United States u Dillon, 346 F.2d 633 (9th Cir.

1965); Miller u Pleasure, 296 F.2d 283 (2d Cir. 1961),

cert. denied, 370 U.S. 964; Annotation—Right of

Attorney Appointed by Court for Indigent Accused to,

and Courts Power to Award, Compensation By Public

In Absence of Statute or Court Rule, 21 A.L.R. 3d 819,

822-24.

In United States u Perry, 471 F.2d 1069, 153 U.S.

App. D.C. 101 (D.C. Cir. 1972), the Circuit Court held

that services rendered by court-appointed counsel for

an indigent defendant prior to the effective date of the

Criminal Justice Act of 1966 are non-compensable. Botts

u United States, 413 F.2d 41 (9th Cir. 1969), held that

other than as provided by the Criminal Justice Act, an

attorney appointed for an indigent criminal defendant

by a federal court is not entitled to compensation from

the United States. Accord, Dolan, supra. The federal

district courts have strictly interpreted the limits on

court-appointed fees imposed by the Criminal Justice

Act. United States u Hunter, 385 F.Supp. 358 (D.C.

D.C. 1974) (any guidelines for excess compensation for

court-appointed attorneys must be consistent with the

Criminal Justice Act and legislative will); United States

u Harper, 311 F.Supp. 1072 (D.C. D.C. 1970) (Criminal

Justice Act is not designed to provide full compensation

to counsel); United States u Aadal, 282 F.Supp. 664

(D.C. S.D. N.Y. 1968) (compensation under Criminal

Justice Act of 1964 allows payment of only one of two

court-appointed counsel for defendant).

Federal courts, unlike the Supreme Court of Florida

herein, rejected the contention that at a certain point

an attorney’s uncompensated services to an indigent is

a constitutional “taking” or confiscatory. Dillon, supra,

at 638, noting that it spoke for the vast majority of

19

courts passing on the question of the right to fees

outside statutory authority, held:

An applicant for admission to practice law may

justly be deemed to be aware of the traditions

of the profession which he is joining, and to

know that one of these traditions is that a

lawyer is an officer of the court obligated to

represent indigents for little or no

compensation upon court order. Thus, the

lawyer has consented to, and assumed, this

obligation and when he is called upon to fulfill

it, he cannot contend that it is a “taking of his

services.”

Under Dillon, and a majority of jurisdictions, no attorney

can claim his service to poor criminal defendants is

confiscatory under the federal constitution. Yet, the

Florida Supreme Court held that if an attorney’s services

are confiscatory, then the trial court, to ensure effective

assistance of counsel, may at the conclusion of the case

award fees exceeding statutory maximums. The Florida

Supreme Court’s conclusion is in conflict with Dillon

and Williamson v. Varedman, 674 F.2d 1211 (8th Cir.

1982), holding an attorney can be constitutionally

compelled to represent an indigent.

A few state courts conclude for various reasons

that statutory fee maximums can be exceeded in

extraordinary circumstances. Without passing directly

on the Sixth Amendment, People u Randolph, 35 III. 2d

24, 219 N.E.2d 337 (1966), held statutory fee limits on

court-appointed attorneys unconstitutional as applied

to the particular factual circumstances. Randolph

concluded the fee limits intruded upon the trial court’s

20

inherent power. Some other state court decisions, while

failing to base their reasoning on the Sixth Amendment,

are also in accord with the instant decisions. Smith v.

State, 118 N.H. 764, 394 A.2d 834, (1978) (holding fee

limits were an unconstitutional intrusion upon separation

of powers); Bias u State, 568 Pad 1269 1 1977)

(finding an attorney should be reimbursed for

extraordinary expenses).

The majority of states, however, reject any claim

that statutory fee limits violate constitutional guarantees.

In Keene u Jackson County, 3 Or. App. 551, 474 P2d

777 (Or. App. 1970), pet. denied, 257 Or. 335, 478 Pad

393, cert. denied, 402 U.S. 995, the court rejected the

constitutional argument that the state and county could

not demand an attorney's services to represent indigents

without paying just compensation. The Arkansas Supreme

Court found that statutory fee limits on court-appointed

attorneys in criminal cases were not takings under the

due process clause, even though the maximum fee was

inadequate compensation. State u Ruiz, 602 S.E. 3d. 625

(Ark. 1980). Sanders u State, 276 Ark. 342, 635 S. W 2d

222 (1982), found reduction of a reasonable $4,625 attorney

fee to the statutory maximum in a criminal case proper.

Accord, State u Conley, 603 S.W.2d 415 (Ark. 1980)

(reversing trial court’s award above statutory fee limit

for court-appointed counse)).

The instant cases are thus in conflict with the

majority view of state courts as well as rulings in federal

jurisdictions. This confusing array of decisions and

constitutional rationale is ripe for resultion by this

Court.

21

IV

THE RESOLUTION OF THE ISSUES IN.

THESE CASES IS OF GREAT IMPORTANCE

TO STATE AND LOCAL GOVERNMENTS.

This Court should grant certiorari to resolve the

conflicting interpretations of the Fifth, Sixth and

Fourteenth Amendments as they apply to statutes and

rules limiting fees for court-appointed attorneys for

indigent defendants. The burden upon the states of

providing court-appointed attorneys should not vary

according to a particular state’s interpretation of the

Fifth or Sixth Amendments of the United States

Constitution. Such important constitutional questions

have far-reaching effects on state and county budgets.

During fiscal year 1986, Dade County, Florida, spent

$4,452,000 just on fees for private attorneys appointed

under Chapters 27 and 925. The smaller Martin County

spent $63,508.39 on attorney’s fees and costs in all

criminal cases except those involving capital offenses.

From June 1982 to June 1986, $41,202.00 was spent in

Martin County on court-appointed attorney’s fees and

costs in capital cases. In Okeechobee County, $42,000

was projected for 1986-87 for attorney's fees and costs

for indigent defense.

Of course, all such projections must be revised

substantially upward. Already, another trial judge has

ordered Okeechobee County to pay $10,000.00 for court-

appointed attorney’s representation in one case.

Requests for fees in Dade County have exceeded

$30,000.00 and, in several cases, judges have awarded

22

fees in excess of the statutory cap in less than three

months after Dennis and Makemson.

Following Dennis and Makemson, trial judges in

Florida may increasingly award fees exceeding the

statutory cap, because of the increasing length and

complexity of criminal] defense work. The increasing

drug use and sale in Florida could very easily make

“extraordinary” or “unusual” cases commonplace. In

one year in Dade County, fees paid court-appointed

private attorneys increased by $654,347.00. The

resolution of the constitutionality of Florida Statutes,

Section 925.036 (1981), is of critical importance to the

limited treasuries of states and counties. In Florida

alone the resolution of this question is of great

importance especially to small localities, such as

Okeechobee County and Martin County. Statutory fee

limits are not designed to protect counties in ordinary

cases. Rather, it is the extraordinary case that has the

potential of severely limiting or even eliminating vital

County revenues.

This Court should not sanction the draining of

state and local budgets according to the misguided and

questionable interpretation of the United States

Constitution by the Florida Supreme Court. Millions of

dollars are expended in the states for indigent defense.

If the Sixth Amendment prohibits state legislatures

from limiting to some degree the drain on the treasury

from court-appointed attorney's fees, state and county

revenues will be at the whim of trial judges with the

limited view of the cases before them. The states’

legislatures and county boards can no longer accurately

project how much to budget for various county services.

Such a tremendous loss of vital government revenue

23

should not be summarily disposed of by an assertion,

without support, that the Sixth Amendment commands

fees in excess of any limit.

The Florida Supreme Court’s decisions in

Makemson and Dennis were in some ways unique in

that they extended the Sixth Amendment to include a

right to have one’s counsel have the prospect of an

unlimited fe. Such a contention was rejected by the

New Jersey Supreme Court in Rush, supra. It is crucial

that this Court resolve any ambiguity in its decisions

as to the distribution between the bar and citizens of

the state or localities of the burden of providing adequate

counsel to indigent defendants. The debates within bar

associations illustrate that the notion that an attorney

is obligated to provide services pro bono is not

completely accepted. The law should be uniform as to

whether the United States Constitution commands that

attorneys be paid in excess of statutory limit for services

rendered an indigent.

CONCLUSION

For the foregoing reasons, the petitioners request

the writ of certiorari be granted.

Respectfully submitted,

ROBERT A. GINSBURG

Dade County Attorney

ERIC K. GRESSMAN

Assistant County Attorney

Counsel of Record

Metro-Dade Center

Suite 2810

111 N.W. Ist Street

Miami, Florida 33128-1993

(305) 375-5151

Counsel for Petitioners