Petition for A Writ of Certiorari — Keene v. Jackson County

SUPREME COURT OF THE UNITE IESWAPESEAVER, CLERK

October Term 1970

LEONARD J. KEENE,

ali, hod %

JACKSON COUNTY, OREGON, a

political subdivision of the State of

Oregon, and the STATE OF OREGON

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF OREGON

WILLIAM A. MANSFIELD

Attorney for Petitioner

P.O. Box 1721

129 N. Oakdale, Suite 3

Medford, Oregon 97501

JUSTIN SMITH

| Attorney for Defendant

Jackson County, Oregon

Jackson County Courthouse

Medford, Oregon 97501

LEE JOHNSON

Attorney for Defendant

State of Oregon

Supreme Court Building

~ Salem, Oregon 97310

SEEM BoM aertY mt OO EET Fe ee Ne = em BI

INDEX

PAGE

Opinions ....... 1

Jurisdiction ........ 1

Questions Presented .................----.-..:..0-0-- 2

Constitutional Provisions Involved 2

Statutory Provisions Involved ......... aS

Statement of the Case ................-...-.-.--cse0 4

Reasons for Granting the Writ ............... 5

DONT Be i ciscicsscsiccicccistapwcliccninnh cinnnstibipnlicasiaabiceasaniian 8

NG OD nici ck nnn 12

REE OS Sicieeki Oe eae id

INDEX OF AUTHORITIES

| PAGE

Allison & Hasset, Counsel for the Indigent Defendant

41 Am Jud Soc’y 100 (1957) css... 13

Beaney, The Right to Counsel in American Courts

215-216 (i983). 13

Brownell, Legal Aid in the United States 136-138 (1951)..13

Comment, Attorney & Client - Compensation 46 N Car

L Rev 379 (1968) 13

Dan V. Smith, 13 Wis 585 (1861) 13

Ferguson v. Pottawattamie County, 224 Iowa 516, 278

SN Ie CPO F. cckasicaseicicvecincrnsines 13

Hill v. Superior Court, 46 Cal2d 169, 293 P2d 10, 14

(1956) (dissenting opinion) .................:-:ccscceeeeeseeeeeees 13

Hunter, Slave Labor in the Courts - A Suggested Solu-

tion, 74 Case & Comment 3 (1969) ... walnut cs 13

Johnson and Douglas v. Superior Court, 2: Ariz App

407, 409 P2d 566 (1966) ................cccceccceeceensessceeeses 13

Knox County Council v. State ex rel McCormick, 217

Ind 493, 29 NE 2d 405 (1940) ........ ..13

Note, 49 Cal L Rev 954 (1961); and 107 U Pa L Rev

614 CANIN) cence a ee ts 13

People v. Randolph, 35 Ill 2nd 24, 219 NE 2d 337

” (1966) noted 16 DePaul L Rev 499 CH9GT) cncssscisn 13

State of Oregon v. Apodaca (1969) 87 Adv. Sh. 857

(State v. Apodaca, 252 Or. 345, 449 P2d 445 (1696)..10

State v. Dillon, 346 F. 2d 633 (C. A. 9, 1965) ceecssesssose- 6

State v. Rush, 46 NJ 399, 217 A2d 441 (1966) .............. 13

United States v. Dillon (USCA 9 Cir., 1965), 346 F 2d

633; 7 Am. Jur. 2d, Attorneys at Law, Sec. 207 P

OR ee es ala tae eee 10, 15

STATUTES

ON RG cca a tgs it a 3

BE I okie cbctiamnentodadiunes 3, 9, 15

RO ise ee a 3

1

The petitioner, Leonard J. Keene, prays that a Writ of

Certiorari issue to review the opinion and judgment of the

Court of Appeals of the State of Oregon rendered in these

proceedings on October 2, 1970.

OPINIONS BELOW

The opinion of the Court of Appeals of the State of

Oregon, 91 Or. Adv. Sh. 493, 474 P.2d 777, as yet unre-

ported in the official reporter, appears at Appendix A, infra,

pp. 8-11.

The order of the Supreme Court of the State of Oregon,

denying review of the judgment of said Court of Appeals,

with the dissenting opinion of O’Connell, C.J., 91 Or. Adv.

Sh. 1385, 478 P.2d 393, which order was entered on De-

cember 31, 1970, is as yet unreported in the official reporter,

and appears at Appendix B, pp. 12 - 13.

The opinion of the Circuit Court of the State of Oregon

for the County of Jackson, sustaining the demurrer of de-

fendants to plaintiffs complaint is unreported and appears at

Appendix C, pp. 14-17.

JURISDICTION

The Order of the Supreme Court of the State of Oregon

denying petition for review was entered on December 31,

1970. This petition for certiorari was filed less than ninety

(90) days from the date aforesaid. The jurisdiction of this

Court is invoked under 28 U. S. C. 1257(3).

2

QUESTIONS PRESENTED

The plaintiff, an attorney, brought an action against the

State of Oregon and Jackson County, a subdivision thereof, to

recover reasonable attorney fees for the representation of an

indigent accused of a misdemeanor. The questions thereby

arising are:

1. Whether Oregon Revised Statutes, Section 135.330

(1), which authorizes the Court to order payment not

to exceed $25.00 as an indigent defendant’s attorney

fee on a guilty plea and not to exceed $50.00 as at-

torney fee on a not guilty plea contravenes the Due

Process clause of the Fourteenth Amendment to the

Constitution of the United States.

2. Whether Oregon Revised Statutes, Section 135.330

(1), which authorizes the Court to order payment

not to exceed $25.00 as an indigent defendant’s at-

torney fee on a guilty plea and not to exceed $50.00

as an attorney fee on a not guilty plea contravenes the

Equal Protection of the Laws clause of the Fourteenth

Amendment to the Constitution of the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment XIV,

Section 1.

“No State shall . . . deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.”

STATUTORY PROVISIONS INVOLVED

Oregon Revised Statutes, Section 135.320.

“Court appointment of counsel; waiver. If upon

arraignment of a person accused in the circuit court of a

crime against the laws of this State, the person being

arraigned appears without counsel, the court having juris-

diction of the case, in accordance with ORS 133.625,

shall appoint suitable counsel to represent him unless the

person waives counsel and the court approves the waiver.”

Oregon Revised Statutes, Section 135.330 (1) (a) and

135.330 (1) (b).

“Appointed counsel’s fee; expenses; payment of ex-

penses and fee.

(i) Counsel appointed pursuant to ORS 135.320 shall,

if the court so orders, be paid by the county in which the

proceeding is had, for the services rendered in conduct-

ing the defense, fees as set forth in the following schedule,

and the necessary disbursements:

(a) When the actused is charged with a misde-

meanor, and a plea of “guilty” is entered, $25.00.

(b) When the accused is charged with a misde-

meanor, and a plea of “not guilty” is entered, $50.00

per day of trial, but not exceeding two days in any one

OTe Ut i ES ae nae OE. A TE aE te

E

4

STATEMENT OF THE CASE

Plaintiff is an attorney practicing law in Jackson County,

Oregon. Pursuant to state statute he was appointed to repre-

sent an indigent person accused of committing a misdemeanor.

Plaintiff defended the person in the District Court of the State

of Oregon and duly filed with that court an affidavit showing

six hours expended in the representation of the indigent, which

affidavit was accompanied by a motion requesting the court or-

der the County to pay $150.00 as attorney fees.

The State District Court rejected the motion and the sum

of $25.00 was authorized and a draft for that amount was de-

livered to the plaintiff, which draft has not been presented for

payment.

Plaintiff brought an action in the Circuit Court of the

State of Oregon against the State of Oregon and Jackson Coun-

ty, Oregon, to recover the sum of $150.00 as reasonable at-

torney fees for the representation of the indigent person. The

Circuit Court sustained the demurrers of defendants and dis-

missed plaintiffs Complaint on the ground that the statute

setting the fee schedule permits no fees in excess of the ex-

pressed amounts. (A portion of the fee schedule statute pro-

vides additional fees for circumstances involving protracted

litigation and exceptional circumstances, but none of the parties

claim the protracted litigation portion of the statute to be ap-

plicable.) |

Plaintiff appealed to the Court of Appeals of the State

5

of Oregon, which court affirmed the Circuit Court on October

2, 1970. Petition for rehearing to the Court of Appeals was

duly made and denied on October 29, 1970.

Petition for review was duly made to the Supreme Court

of the State of Oregon, which petition was denied on Decem-

ber 31, 1970.

At all levels in the courts of the State of Oregon, plain-

tiff contended, inter alia, that the statutory fee schedule, inso-

far as it limits the court’s power to set attorney fees in court

appointed indigent cases to $25.00 on a guilty plea and $50.00

on a not guilty plea is unconstitutional in that such fees are

not reasonable fees and therefore the Due Process clause and

the Equal Protection clause of the Fourteenth Amendment to

the Constitution of the United States has been infringed.

Although there would seem to be no real issue on the

point, the sum of $25.00 on a guilty plea and the sum of

$50.00 on a not guilty plea are both grossly inadequate. Min-

imum Bar Fee Schedule in Oregon for this type of case would

be $150.00.

Under the law of the State of Oregon, plaintiff has ex-

hausted his remedies in the Oregon Courts.

REASONS FOR GRANTING THE WRIT

1. The issue presented is of great public importance.

On the merits we would contend that a system which pays

grossly inadequate fees to counsel who are required to serve

6

results in at least some indigent persons not receiving reason-

ably adequate representation. Despite the grand tradition of

the bar to serve well, some attorneys do not do so when they

are not adequately compensated. Those indigent defendants

who draw such counsel are denied due process and in addition

such persons do not receive the soil protection received by

other indigent defendants who are fortunate in drawing indus-

trious counsel or received by persons who have the financial

means to retain counsel. When any segment of the public is

dependent on the “luck of the draw” for the proper protec-

tion of their rights in the criminal courts, the issue is of great

importance to the public.

2. The issue is of great importance to the bar. Although

the bar cannot be generally considered to be downtrodden and

disadvantaged, surely its members are as entitleg% the same

guaranties of government as the public at large. The practice

of forced court appointment with token fees denies each mem-

ber who is appointed the equal protection of the laws. More-

over such a system is practiced unequally among members of

the bar in that the burden is cast unevenly, Hunter, Slave

Labor in the Courts — A Suggested Solution, 74 Case and

Comment 3, 10 (1969).

3. The Federal questions presented herein have not here-

tofore been determined by this Court. Certiorari was denied in

State v. Dillon, 346 F.2d 633 (C.A. 9, 1965), cert. den, 382

US 978, 86 S.Ct. 550, 15 L.ed 2d 469, and in a number of

7

petitions from the courts of the various states.

Respectfully submitted,

WILLIAM A. MANSFIELD

Attorney for Petitioner

8

APPENDIX A

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Department 2

LEONARD J. KEENE,

Appellant

Vv.

JACKSON COUNTY, OREGON a

political subdivision of the State of

Oregon, and the STATE OF OREGON,

Respondents.

x KOK OK Ok

Appeal from Circuit Court, Jackson County.

James M. Main, Judge.

Argued and submitted September 24, 1970.

William A. Mansfield, Medford, argued the cause and

filed the brief for appellant.

J. Bradford Shiley, Jr., Special Assistant to the Attorney

General, Salem, argued the cause for respondents. With him

on the brief were Lee Johnson, Attorney General, and Jacob

B. Tanzer, 3olicitor General, Salem.

Before Schwab, Chief Judge and Langtry and Branch-

field, Judges.

BRANCHFIELD, J.

Affirmed.

Filed this 2nd day of October, 1970.

JOSEPH A. GUIMOND

Deputy Clerk

BRANCHFIELD, J.

Plaintiff appeals from an order of the circuit court dis-

missing the plaintiff’s complaint against county and state,

seeking fees in excess of those provided by statute for plain-

tiff’s ser vices as court-appointed attorney to defend an indigent

on a misdemeanor charge in district court.

The part of ORS 135.330 applicable provides that where

he is appointed to defend a misdemeanor charge the attorney

shall be paid $50 per day for trial, not exceeding two days in

any one case. Subsection (1) (f) of the same statute provides

that in extraordinary circumstances payment in excess of the

limits stated may be allowed if the presiding judge of the cir-

cuit court certifies such is necessary to provide fair compen-

sation for protracted representation.

The circuit judge who heard this case stated the facts

and the rationale of his decision in a manner upon which we

cannot improve:

“In this case plaintiff who is duly licensed to prac-

tice law in the State of Oregon was appointed by the

Court to represent an indigent on a misdemeanor crim-

inal charge and was paid $25 for his services pursuant to

ORS 135.330. Plaintiff in his complaint seeks to recover

the sum of $150 which he alleges to be just compensa-

tion for the services that he rendered. The defendants,

Jackson County, Oregon, and the State of Oregon, have

filed separate demurrers to the plaintiffs complaint in

which both defendants allege that plaintiff’s complaint

does not state a cause of action.

“The parties have filed memoranda in support of

their respective positions and in plaintiff’s memoran-

dum he cites Article I, Section 10, Section 18 and Section

20 of the Constitution of Oregon and contends that un-

10

der these sections the defendants cannot demand his ser-

vices without paying him just compensation therefor. In

addition to citing the sections of the Constitution of Ore-

gon the plaintiff cites the 14th Amendment to the Con-

stitution of the United States. The defendants in support

of their demurrers have cited three cases decided by our

Supreme Court of the State of Oregon, the most recent

case being .hat of State of Oregon v. Apodaca (1969),

87 Adv. Sh. 857. [State v. Apodaca, 252 Or 345, 449

P2d 445 (1969).]

“***TIn the Apodaca case, supra, our Supreme

Court re-affirmed its previous decisions and held that

attorneys fees should not be awarded in the absence of a

statute authorizing such an award and this appears to be

the holding in the vast majority of the jurisdictions which

have passed upon this question. See 21 ALR 3d 819, 828,

830; United States v. Dillon (USCA 9 Cir., 1965), 346

F. 2d 633; 7 Am. Jur. 2d, Attorneys at Law, Section

207, page 167. Many excellent article. have been writ-

ten on this subject, one of which is entitled “Slave La-

bor in Courts” which was written by Robert S. Hunter,

former County and Circuit Judge in, Illinois for Case and

Comment. As indicated in Mr. Hunter’s article the in-

credible increase in crimina) cases in the past few years

has resulted in a sharp increase in the burden placed on

court-appointed attorneys by the courts, especially in

small communities where the number of attorneys have

not increased along with the increase in the number of

criminal cases and what was previously a minor nuisance

has now become an awesome burden for these lawyers.

Mr. Hunter has entitled his article “Slave Labor” as it

is generally considered to be a direct criminal contempt

of ¢ ccurt punishable by a fine or jail sentence or both for

an attorney to refuse to serve at the court’s request.

*** The obligation of attorneys to serve indigents

charged with criminal offenses is an ancient and establish-

ed tradition of the legal profession. An applicant for ad-

mission to practice law is deemed to be aware of the obli-

gation to represent indigents for little or no compensation

and because of this according to the Dillon case, supra,

cannot contend that it is a taking of his services without

just compensation.

11

“k* * Plaintiff was compensated in accordance with

the applicable Oregon statute and this Court cannot award

him more than it is authorized to pay by statute. Plaintiff's

complaint seeks to recover more than is authorized by

statute and it does not state a cause of action.”

Affirmed. ‘

ef

12

APPENDIX B

IN THE SUPREME COURT OF THE

STATE OF OREGON

LEONARD J. KEENE,

Appellant,

v.

JACKSON COUNTY, OREGON, a

political subdivision of the State of

Oregon, and the STATE OF OREGON,

Respondent.

Appeal from Circuit Court, Jackson County.

James M. Main, Judge.

On Petition for Review.

William A. Mansfield, Medford, for Petitioner.

Affirmed by Court of Appeals, October 2, 1970 (91 Adv

Sh 493).

Petition denied December 31, 1970.

O’CONNELL, C. J., dissenting.

Filed this 31st day of December, 1970.

JOSEPH A. GUIMOND

Deputy Clerk

13

O’CONNELL, C. J., dissenting.

I would grant the petition for review in this case. I am

of the opinion that neither this court nor the legislature hac

the constitutional power to require an attorney to defend an

indigent unless the attorney is reasonably compensated for his

service. I shall not at this time set out the reasons which sup-

port this conclusion. See, however, the following references

which lend support to my point of view. Johnson and Doug-

las v. Superior Court, 2 Ariz App 407, 409 P2d 566 (1966),

(but see State v. Superior Court, 2 Ariz App 466, 409 P2d

750 (1966)); Hill v. Superior Court, 46 Cal2d 169, 293 P2d

10, 14 (1956) (dissenting opinion); People v. Randolph, 35

Ill2d 24, 219 NE2d 337 (1966), noted 16 DePaul L Rev

499 (1967); Knox County Council v. State ex rel McCor-

mick, 217 Ind 493, 29 NE2d 405 (1940); Ferguson v. Pot-

tawattamie County, 224 Iowa 516, 278 NW 223 (1938); State

v. Rush, 46 NJ 399, 217 A2d 441 (1966); Dan v. Smith, 13

Wis 585 (1861); Hunter, Slave Labor in the Courts - A

Suggested Solution, 74 Case & Comment 3 (1969); Allison &

Hasset, Counsel for the Indigent Defendant, 41 Am Jud Soc’y

100 (1957); Comment, Attorney and Client - Compensation

of Indigent’s Counsel irl Federa! Post-Conviction Proceedings,

46 N Car L Rev 379 (1968); Note, 49 Cal L Rev 954

(1961); Note 107 U Pa L Rev 812 (1959); see also Beaney,

The Right to Counsel in American Courts 213-216 (1955),

and Brownell, Legal Aid in the United States 136-138 (1951).

(1951).

14

APPENDIX C

IN THE CIRCUIT COURT OF THE STATE OF.

OREGON FOR THE COUNTY OF JACKSON

No. 69-1550-L

MEMORANDUM OPINION |

LEONARD J. KEENE,

Plaintiff,

vs.

JACKSON COUNTY, OREGON, a

political subdivision of the State of

Oregon, and THE STATE OF OREGON,

Defendants.

In this case plaintiff who is duly licensed to practice law

in the State of Oregon was appointed by the Court to repre-

sent an indigent on a misdemeanor criminal charge and was

paid $25 for his services pursuant to ORS 135.330. Plaintiff

in his complaint seeks to recover the sum of $150 which he

alleges to be just compensation for the services that he ren-

dered. The defendants, Jackson County, Oregon, and the

State of Oregon, have filed separate demurrers to the plain-

tiff’s complaint in which both defendants allege that plain-

tiff’s complaint does not state a cause of action.

The parties have filed memoranda in support of their re-

spective positions and in plaintiff’s memorandum he cites Ar-

ticle I, Section 10, Section 18 and Section 20 of the Constitu-

tion of Oregon and contends that under these sections the

Sone ee ee nee ere eee aes,

15

defendants cannot demand his services without paying him

just compensation therefor. In addition to citing the sections

of the Constitution of Oregon the plaintiff cites the 14th

Amendment to the Constitution of the United States. The

defendants in support of their demurrers have cited three

cases decided by our Supreme Court of the State of Oregon,

the most recent case being that of State of Oregon v. Apodaca

(1969), 87 Adv. Sh. 857.

The petitioner in the Apodaca case, supra, one Mr. Henig-

son, was appointed as attorney to represent Mr. Apodaca, an

indigent, on charges of kidnapping, assault with intent to rape

and detenticn of a child. The petitioner according to the Su-

preme Court’s decision spent 33 days in trial, 8 other days

away from his office and in addition thereto 212 hours in

trial preparation. The petitioner was allowed the maximum

fee as prescribed by ORS 135.330 which at that time amount-

ed to $450 while a special prosecutor who was appointed by

the County was paid $5,000 for his services. In the Apodaca

case, supra, our Supreme Court re-affirmed its previous de-

cisions and held that attorneys fees should not be awarded in

the absence of a statute authorizing such an award and this

appears to be the holding in the vast majority of the jurisdic-

tions which have passed upon this question. See 21 ALR 3d

819, 828, 830; United States v. Dillon (USCA 9 Cir., 1965),

346 F. 2d 633; 7 Am. Jur. 2d, Attorneys at Law, Section

207, page 167. Many excellent articles have been written on

16

this subject, one of which is entitled “Slave Labor in Courts”

which was written by Robert S. Hunter, former County and

Circuit Judge in Illinois for Case and Comment. As indicated

in Mr. Hunter’s article the incredible increase in criminal

cases in the past few years has resulted in a sharp increase in

the burden placed on court-appointed attorneys by the courts,

especially in small communities where the number of attorneys

have not increased along with the increase in the number of

criminal cases and what was previously a minor nuisance has

now become an awesome burden for these lawyers. Mr. Hunt-

er has entitled his article “Slave Labor” as it is generally con-

sidered to be a direct criminal contempt of court punishable

by a fine or jail sentence or both for an attorney to refuse to

serve at the court’s request. Attached to the United States v.

Dillon case, supra, is a portion of a memorandum filed in op-

position to the petitioner’s request for attorneys fees in which

the author traces the commitment of lawyers to serve upon

court appointment as far back as fifteenth century England.

The Court in that case actually cites a request made as early

as 1292 for the appointment of an attorney for poor folk. The

obligation of attorneys to serve indigents charged with crim-

inal offenses is an ancient and established tradition of the

legal profession. An applicant for admission to practice law

is deemed to be aware of the obligation to represent indigents

for little or no compensation and because of this according to

the Dillon case, supra, cannot contend that it is a taking of

17

his services withouc just compensation.

It is pointed out in the appendix to the Dillon case, supra,

and in the “Slave Labor” article that statutory fees frequent-

ly cover only capital cases. It appears from these articles that

the statutory fees allowed in Oregon far exceed these allowed

in most states. The authors cite such examples as Kansas and

Rhode Island where the statutes allow a maximum of only

$10.00 a day in trial. Plaintiff was compensated in accordance

with the applicable Oregon statute and this Court cannot

award him more than it is authorized to pay by statute. Plain-

tiffs complaint seeks to recover more than is authorized by

statute and it does not state a cause of action.

Counsel for defendants may prepare appropriate orders.

Dated this 25th day of February, 1970.

JAMES M. MAIN

Circuit Judge