State Public Defender Vs. Iowa ( 2007 )

IN THE SUPREME COURT OF IOWA
No. 14 / 04-2029
Filed March 9, 2007
STATE PUBLIC DEFENDER,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR
LINN COUNTY,
Defendant.
________________________________________________________________________
Certiorari to the Iowa District Court for Linn County, Susan
Flaherty, Associate Juvenile Judge.
The State Public Defender complains the district court was without
authority to order him to pay fees to a court-appointed attorney
representing a grandparent who intervened in a parental termination
action. WRIT SUSTAINED.
Thomas G. Becker, State Public Defender, and Julie Miller,
Assistant State Public Defender, for plaintiff.
No appearance for defendant.
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STREIT, Justice.
A court-appointed attorney wants to be paid for her work. The
juvenile court appointed counsel for a grandparent in a parental
termination action. Iowa law does not give grandparents a right to
counsel. The State Public Defender refused to pay the attorney for her
work and expenses. The State Public Defender filed a petition for writ of
certiorari after the juvenile court ordered him to pay the attorney.
Because the Iowa Code only permits the State Public Defender to pay an
attorney if the appointment is authorized by statute, the juvenile court
exceeded its authority by ordering the State Public Defender to pay the
attorney. Writ sustained.
I. Facts and Prior Proceedings
Attorney Judith Amsler entered into a Legal Services Contract with
the State Public Defender to provide legal services to indigents. In March
2002, the juvenile court appointed Amsler to represent Mary Snell, the
maternal grandmother and custodian of children involved in a child in
need of assistance action (“CINA”). The children were eventually placed
with other relatives. In May 2003, the State moved to terminate the
parental rights of Snell’s daughter and the children’s fathers. Snell
intervened. The juvenile court appointed Amsler to represent Snell in the
termination proceedings. The juvenile court entered a termination order
and Amsler represented Snell in an unsuccessful appeal. See In re D.H.,
No. 03-2029, 2004 WL 240325 (Iowa Ct. App. Feb. 11, 2004).
In July 2004, Amsler submitted a fee claim of $4,360.48 to the
State Public Defender for attorney fees and expenses incurred in
representing Snell. The State Public Defender paid Amsler $2,802.52. In
his notice of action letter to Amsler, the State Public Defender explained
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he was denying the portions of Amsler’s claim which related to
termination because only parents are entitled to a court-appointed
attorney in a termination action. See Iowa Code § 232.113(1) (2003)
(“[T]he parent identified in the petition shall have the right to counsel
. . . .”). The State Public Defender does not dispute Snell, as the
children’s custodian, was entitled to a court-appointed attorney in the
CINA action. See id. § 232.89(1) (“[T]he parent, guardian, or custodian
identified in the [CINA] petition shall have the right to counsel . . . .”).
Amsler filed an application for review with the juvenile court.
Amsler asserted the State Public Defender “did not challenge the validity
of the appointment order at the time of its issuance.” Moreover, Amsler
argued she acted in “good faith” and that her fees and expenses were
reasonable and necessary in the representation of Snell.
After a hearing on the matter, the juvenile court ruled in favor of
Amsler and ordered the State Public Defender to pay Amsler’s claim “in
its entirety.” In its ruling, the juvenile court noted it was perhaps
without statutory authority to appoint an attorney to represent a party
other than a parent in a termination action. Nonetheless, the juvenile
court found the contract between Amsler and the State Public Defender
required the State Public Defender to pay all “reasonable and necessary
legal services” upon appointment by the court. The juvenile court held
Amsler “was not obligated to review and ascertain the validity of her
Order of appointment, nor was she authorized under contract to expend
time to challenge the very Order that appointed her.”
The State Public Defender filed a petition for writ of certiorari
which we granted. In its brief, the State Public Defender argues (1)
grandparents are not entitled to court-appointed counsel in a
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termination of parental rights case; (2) the juvenile court should not have
considered whether Amsler’s contract with the State Public Defender
entitles her to payment because she did not raise the contract in her
motion for review; (3) Amsler is not entitled to payment under the
contract; and (4) even if the contract requires payment, the State Public
Defender is prohibited from paying costs incurred in an appointment not
authorized by statute. Amsler did not file a brief with this court.
II. Standard of Review
Certiorari is an action at law “where an inferior tribunal . . . is
alleged to have exceeded proper jurisdiction or otherwise acted illegally.”
Iowa R. Civ. P. 1.1401. Our review of the judgment entered by a juvenile
court in a certiorari proceeding is “governed by the rules applicable to
appeals in ordinary actions.” Id. r. 1.1412. Thus, the scope of review is
for errors at law. Fisher v. Chickasaw County, 553 N.W.2d 331, 333
(Iowa 1996) (citing City of Des Moines v. Civil Serv. Comm'n, 540 N.W.2d
52, 55 (Iowa 1995)).
III. Merits
The State Public Defender coordinates the provision of legal
representation for all indigents in Iowa. Iowa Code § 13B.4(1). He is
permitted to contract with attorneys to provide legal services to indigent
persons. Id. § 13B.4(3). A contract attorney must submit claims for
payment to the State Public Defender. Id. § 815.10A(1). Upon review,
the State Public Defender may approve, deny, or reduce the claim for
reasons provided in section 13B.4(4)(c). An attorney disagreeing with the
State Public Defender’s decision may file a motion for review with the
court having jurisdiction over the original appointment. Id. § 13B.4(4)(d).
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In the present case, the State Public Defender refused to pay
Amsler for her work and expenses related to representing Snell in the
termination action. According to the State Public Defender, Amsler’s fees
“are not payable under the law and [her] appointment.” See id.
§ 13B.4(4)(c)(2)(b) (allowing the State Public Defender to deny a claim if it
is not payable as an indigent defense claim under chapter 815); id.
§ 815.10(1) (requiring the court to appoint counsel in a juvenile action
“in which the indigent person is entitled to legal assistance at public
expense”); id. § 815.11 (limiting payments from the indigent defense fund
to certain types of proceedings). The fighting issue before us is whether
the State Public Defender must pay Amsler from the indigent defense
fund.
A. Whether Grandparents are Entitled to Court-Appointed
Attorneys in a Termination Action
Grandparents do not have a statutory right to an attorney in a
termination action. Under section 232.113 of the Iowa Code, only the
parent and child identified in the termination petition have a right to
counsel. Snell was not identified as a parent of the children in the
termination action at issue. Instead, she is the children’s grandparent
who intervened. She plainly was not entitled to court-appointed counsel
under section 232.113.
Moreover, we have never held grandparents have a constitutional
right to an attorney under these circumstances. See State Pub. Defender
v. Iowa Dist. Ct., 721 N.W.2d 570, 574 (Iowa 2006) (explaining “when an
attorney is constitutionally required, the state is obligated to pay the
court-appointed attorney reasonable compensation”). Nor are we asked
here to determine whether such a right exists.
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Nevertheless, in the past we have at least insinuated a court may
have inherent power to appoint an attorney where there is neither a
statutory right nor a constitutional right to such an appointment. See id.
at 573 (stating “[a]lthough the legislature no longer permits guardians ad
litem for parents to be paid from the indigent defense fund, this change
does not prohibit the court from appointing guardians ad litem for
parents”); Larson v. Bennett, 160 N.W.2d 303, 306 (Iowa 1968) (“vesting
in the trial court the discretion of appointing counsel when the facts in a
particular [habeas corpus] case make such appointment desirable”).
However, even if that power exists, which we need not decide here, it
does not carry with it “the power to order the state to compensate
counsel thus appointed.” Maghee v. State, 639 N.W.2d 28, 31 (Iowa
2002). Therefore, the State Public Defender is not required to pay Amsler
simply because the juvenile court appointed her.
B. Whether Amsler’s Contract with the State Public
Defender Entitles her to be Paid for Representing a
Grandparent in a Parental Termination Action
In its ruling, the juvenile court conceded it may have lacked
statutory authority to appoint Amsler. Nonetheless, the court ruled in
Amsler’s favor because it interpreted “the clear terms of the Legal
Services Contract” entitled Amsler to compensation.
The State Public Defender argues the juvenile court should not
have considered the terms of the contract in its ruling because Amsler
did not rely on the contract as her basis for recovery. The Iowa
Administrative Code provides the procedures for seeking review of the
State Public Defender’s decision to deny or reduce a claim. In the motion
for review, the attorney “must set forth each and every ground on which
the attorney intends to rely in challenging the action of the state public
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defender,” Iowa Admin. Code r. 493—12.9(1)(b), and “[t]he court shall
consider only the issues raised in the attorney’s motion.” Id. r. 493—
12.9(2)(d). Amsler did not expressly raise the contract in her motion.
Instead, she appealed to the court’s sense of fairness by noting the State
Public Defender “did not challenge the validity of the appointment order
at the time of its issuance” 1 and claiming she acted in “good faith.”
At the hearing, the juvenile court asked to see the contract
between the State Public Defender and Amsler. The State Public
Defender agreed to fax it to the court. He did not object to the contract
being offered into evidence. Consequently, the State Public Defender did
not preserve this alleged error for our review.
Turning now to the contract, we tend to agree with the juvenile
court the contract allows recovery. The contract states:
2. Services to be Performed by Contractor: Contractor
will provide legal services to indigent persons in criminal,
juvenile, post-conviction, contempt/show cause proceedings,
or proceedings under Iowa Code chapter 229A as assigned
by the Court. . . .
3. Compensation: Contractor will be paid for reasonable
and necessary legal services performed by Contractor under
this Contract, pursuant to administrative rule adopted by
the State Public Defender. In addition to this compensation,
expenses . . . will be paid to the extent specified by
administrative rule adopted by the State Public Defender.
The contract does not specifically address the consequences of a court
appointing Amsler where there is no statutory authority for the
appointment. A legitimate reading of the contract requires Amsler to be
paid simply if she is appointed by the court. Although the contract
requires Amsler to “comply with all applicable federal, state and local
1The State Public Defender’s failure to object at the time of appointment is
irrelevant to any claim of waiver because he was not aware of the appointment until he
received Amsler’s claim for fees.
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laws,” the State Public Defender fails to specify what law, if any, Amsler
violated by accepting the appointment to represent Snell in the
termination action.
C. Whether the State Public Defender is Permitted to Pay
Costs Incurred in an Appointment not Authorized by
Statute
Our inquiry does not end with the contract. Iowa Code section
815.11 expressly limits the types of court appointments for which costs
incurred may be paid from the indigent defense fund.
Costs incurred under chapter 229A, 665, or 822, or section
232.141, subsection 3, paragraph "c", or section 814.9,
814.10, 814.11, 815.4, 815.5, 815.7, 815.10, or 908.11 on
behalf of an indigent shall be paid from [the indigent defense
fund].
Iowa Code § 815.11. If the representation does not fall into one of these
enumerated sections or chapters, the “costs incurred . . . are not
payable” from the fund. Id.
There are only two sections which could possibly apply to an
attorney appointed to represent a non-parent in a termination case.
Section 815.10(1) requires a court to appoint an attorney “to represent
an indigent person . . . [in a] juvenile action in which the indigent person
is entitled to legal representation at public expense.” (Emphasis added.)
Here, the termination was a juvenile action but Snell was not entitled to
an attorney. At best, the juvenile court had discretion to appoint an
attorney for Snell.
The more difficult question is whether section 232.141(3)(c) allows
Amsler to be paid out of the indigent defense fund. Section 232.141(3)(c)
states “[c]osts incurred for compensation of an attorney appointed by the
court to serve as counsel to any party [in a juvenile action] . . . shall be
paid in accordance with sections 13B.4 and 815.7.” (Emphasis added.)
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At first blush, this provision seems to apply to the present
circumstances. Amsler was appointed to represent a party in a juvenile
action, albeit an intervening party. However, we find it unlikely the
legislature contemplated intervening parties in a termination action when
it used the word “party” in this context. Mason v. Schweizer Aircraft
Corp., 653 N.W.2d 543, 548 (Iowa 2002) (“In attempting to ascertain
legislative intent, we look not only to the words used, ‘but also to the
context within which they appear.’ ”). Section 232.113 entitles only the
original parties to counsel—that is the parent and child identified in the
termination petition. If we interpreted section 232.141 to include
attorneys representing intervening parties, then the State Public
Defender would be required to pay any attorney appointed at the
inclination of the court. We do not believe the legislature envisioned
unending and unknown liability at the public expense. Although we are
hesitant to resort to rules of statutory construction where statutory
words have ordinary and commonly understood meaning, we will if a
literal reading of the statute “‘leads to injustice, absurdity, or
contradiction.’” Woodbury County v. City of Sioux City, 475 N.W.2d 203,
205 (Iowa 1991) (quoting State v. Perry, 440 N.W.2d 389, 391 (Iowa
1989)). It is ridiculous to assume the legislature who specified only
certain people are entitled to counsel in one provision intended other
people not mentioned to also receive court-appointed counsel at public
expense. Therefore, we interpret “party” in section 232.141(3)(c) to mean
original party. Since section 232.141(3)(c) does not pertain to Amsler’s
appointment, section 815.11 prohibits the State Public Defender from
paying Amsler.
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We do not, nor are we asked to, rule on the State’s obligation to
pay an attorney appointed to represent a party where there is no
statutory authorization or constitutional duty to make the appointment.
We merely rule the State Public Defender is not permitted to pay Amsler
out of the indigent defense fund. See State Pub. Defender, 721 N.W.2d at
574 (explaining the statutory mechanism to submit a claim to be paid
from the general fund).
IV. Conclusion
The juvenile court appointed Amsler to represent an intervening
grandparent in a termination action. Grandparents do not have a
statutory right to court-appointed counsel under these circumstances.
Although a fair interpretation of Amsler’s contract with the State Public
Defender permits payment, he is nevertheless prohibited from paying for
costs incurred in an appointment lacking statutory authority. Thus, the
State Public Defender properly denied Amsler’s claim. We sympathize
with Amsler and commend her for representing indigents in need of legal
assistance. Nevertheless, the juvenile court exceeded its authority by
ordering the State Public Defender to pay Amsler for her work and
expenses.
WRIT SUSTAINED.