Hill v. Superior Court ( 1956 )

SPENCE, J.

Petitioners seek a writ of mandate to compel the respondent court to allow “additional compensation to petitioners for services and expenses” while acting as the court-appointed counsel for Ezra Linwood Witham. The petition was originally filed in the District Court of Appeal, which court issued an alternative writ, and ordered a reference to ascertain the facts.

There is no dispute here concerning the essential facts. Petitioners Hill and Cissna were appointed by the respondent court to defend Witham, who was charged with murder, assault with intent to commit murder, and kidnapping. Petitioner Hill had previously represented Witham by court appointment at the preliminary hearing. It is conceded that petitioners were experienced attorneys and prominent members of the bar of their county; and that they ably represented Witham on his trial. The record before us does not show the precise result of the trial. Apparently Witham was convicted but the death sentence was not imposed. Petitioner Hill, who had represented Witham at the preliminary hearing, also acted for him at the arraignment, and during eight days of trial and one night session. In addition it appears that he spent 25% hours in preparation for trial. This time included conferences with Witham and his witnesses, researching legal points, and drawing jury instructions, but did not include time spent in reviewing the transcript. Petitioner Cissna performed somewhat similar services except for the fact that he did not represent Witham at the time of the preliminary hearing.

Following the trial, petitioners applied to the respondent court for reasonable compensation under the provisions of section 987a of the Penal Code. They claimed that an award of $5,000 to each petitioner, or a total of $10,000 for both petitioners, would be reasonable compensation within the meaning of said section. After a hearing, the respondent court found that $500 was a “reasonable sum” to be awarded to each petitioner, or a total of $1,000 for both petitioners, and ordered that amount paid from county funds. Petitioner's then filed their petition for a writ of mandate to compel the allowance of a greater sum.

The demurrer and answer to the petition have raised the question of the availability of the writ of mandate to control the discretion of the respondent court. We have concluded, however, that regardless of the procedural question of whether mandamus would be available in the event of a showing of an abuse of discretion, no such showing has been made here, and therefore the writ must be denied.

At the time involved, the pertinent provisions of section 987a of the Penal Code read as follows:

“In any ease in which counsel is assigned in the superior court to defend a person who is charged therein with crime, . . . such counsel . . . shall receive a reasonable sum for compensation and for necessary expenses, the amount of which shall be determined by the court, . . . .” (Stats. 1951, chap. 1160, § 2.)

The question of whether the respondent court abused its discretion depends upon the meaning of the phrase “reasonable sum” appearing in the above section. It is the theory of petitioners that the total award of $1,000 is so unreasonably small as to constitute an abuse of discretion. Their view of the meaning of the phrase “reasonable sum” is apparently based upon the criteria ordinarily used in determining what constitutes a reasonable fee in a private transaction between counsel and a solvent client. We are of the opinion, however, that such criteria are of but little assistance here, as the transaction is not a private transaction and the client is not a solvent client but one who “is unable to employ counsel.” (Pen. Code, § 987.) As we view the situation, it is essentially one where court-appointed counsel, as officers of the court, perform a public service at public expense. More appropriate criteria, therefore, may be found by considering the amounts deemed proper as compensation for the services of court-appointed counsel in other jurisdictions, and also by considering the compensation paid to public officers generally. Furthermore, section 987a must be read in the light of related statutes, and of the history of the development of the statutory provisions for the payment of compensation to appointed counsel. All of the foregoing factors have a bearing upon the legislative purpose and meaning in enacting the section.

Prior to 1941, there was no statutory provision for the compensation of court-appointed counsel and, in the absence of statute, county funds could not be expended for that purpose. (Rowe v. Yuba County, 17 Cal. 61; Lamont v. Solano County, 49 Cal. 158.) In that year, the Legislature enacted section 987a and provided that boards of supervisors might, by ordinance, provide a “reasonable sum” for such compensation out of public funds, and determine the amount thereof. (Stats. 1941, chap. 451, § 1.) In 1951, the section was amended to provide that court-appointed counsel should receive a “reasonable sum” for their compensation out of public funds, “the amount of which shall be determined by the court.” (Stats. 1951, chap. 1160, § 2.) It is significant that both before the enactment of the section in 1941 and at all times since, section 6068, subdivision (h), of the Business and Professions Code has provided that “It is the duty of an attorney: . . . (h) Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed. ’ ’ Thus the continuing duty of counsel to represent the “defenseless,” regardless of personal considerations, must be kept in mind in measuring the extent of the right which the Legislature intended to confer upon counsel by the use of the phrase “reasonable sum” in section 987a.

We now turn to the consideration of the statutes of other jurisdictions providing for the compensation of court-appointed counsel. Respondent has furnished a compilation of such statutes, and petitioners have not challenged its accuracy. It appears that in 10 states (Arizona, Connecticut, Delaware, Florida, Kentucky, Louisiana, Missouri, South Carolina, Tennessee, and Utah) no provision is made for the compensation of court-appointed counsel in any case. In five states (Massachusetts, Mississippi, New Jersey, North Carolina, and Pennsylvania) no provision is made for such compensation except in homicide cases. In eight states where compensation is allowed (Illinois, Iowa, Kansas, Minnesota, Rhode Island, Texas, Washington, and Wisconsin) a per diem fee for trial days has been fixed by statute, and the average per diem in these states is slightly in excess of $25. The highest such per diem is provided in Minnesota and Wisconsin, where $50 is allowed for each trial day and a lesser amount for each day spent in preparation. (Minn. Stats. 1953, chap. 611.07; Wis. Stats. 1951, § 357.26.) In 15 states where compensation is allowed, no fixed per diem is specified, but the trial court fixes the total fee within the maximum limits permitted, by statute. The maximum amount which may be allowed in homicide cases is higher in some of these states than that allowed in other felony cases, but taking the maximum allowed for the preparation and trial of homicide cases, it appears that the average maximum fee for such cases in these 15 states is $258. New York fixes the highest maximum fee for homicide cases. There the maximum is $1,000 if there is but one appointed counsel and $1,500 if there are two appointed counsel, with a further maximum of $1,000 for expenses. (New York Code of Criminal Procedure, § 308, as amended in 1949.) The next highest maximum is that provided in Pennsylvania, where the maximum is $500. (Purdon’s Pa. Stats, ann., tit. 19, § 784, as amended in 1953.) In computing the above-mentioned average maximum of $258 in the 15 states, the figure of $1,500 has been used as applicable to New York, and the figure of $500 has been used as applicable to Pennsylvania. Obviously, the maximum allowed in the remaining 13 of these 15 states is much lower. (Alabama $100, Code of Alabama 1940, tit. 15, § 318; Arkansas $250, Acts of Arkansas 1953, Act 276; Georgia $150, Georgia Laws, Nov.-Dec. Session 1953, p. 478; Illinois $250, Illinois Rev. Stats. 1953, chap. 38, § 730; Mississippi $150, Miss. Code 1942, § 2505, as amended 1950; Nevada $300, Nev. Compiled Laws, Supp. 1943-1949, § 11357; New Hampshire $150, Rev. Laws, N. H. 1942, chap. 428, § 3; Oklahoma $25, Okla. Stats. 1951, tit. 22, § 1271; Oregon $150, Oregon Rev. Stats. 1953, tit. 14, § 135.330; South Dakota $50, S.D. Code 1939, tit. 34, chap. 34.1901; Virginia, $50, Code of Virginia 1950, tit. 14, § 14-181, as amended in 1954; West Virginia $50, W. Va. Code 1955 anno., chap. 62, § 6190; Wyoming $200, Wyo. Comp. Stats. 1945, § 10-806, as amended in 1951.) It is thus apparent that the states last mentioned have not deemed it appropriate to fix the compensation to be paid to court-appointed counsel from public funds upon the same basis that compensation is fixed in private transactions between counsel and solvent clients. Furthermore, petitioners have not called our attention to any case in which the compensation of court-appointed counsel has been fixed on that basis in any of the states, including the 14 states which, like California, allow such compensation but do not prescribe by statute any fixed per diem or maximum fee. (Colorado, Idaho, Indiana, Maine, Maryland, Massachusetts, Michigan, Montana, Nebraska, New Jersey, North Carolina, Ohio, Rhode Island, and Vermont.)

With respect to the compensation of public officers, it is a matter of common knowledge that the compensation generally paid to district attorneys and public defenders is substantially lower than the amount that would be deemed appropriate for corresponding legal work for private clients. To illustrate, it is only necessary to consider the salary provided at the time for the district attorney of the county in question, and the salary which has since been provided there for the newly created office of public defender. The salary of the district attorney was $9,000 per year, and he was not permitted to engage in private practice. The salary of the public defender is $4,800 per year, and he is permitted to engage in private practice, but he must maintain his office at his own expense for the performance of his public duties.

Petitioners cite the minimum fee schedule adopted by the bar of their county, which prescribes a minimum fee of $750 for representing a defendant charged with murder, and a minimum fee of $250 for representing a defendant charged with any other felony. While such minimum fee schedule may have some bearing in determining appropriate compensation in a private transaction between counsel and a solvent client, such is not the case here. It should be noted in this connection that if the accused had been possessed of $1,000 in cash and had no other obligations, he could not have been deemed to be, in any fair sense of the term, a person “unable to employ counsel” (Pen. Code, § 987); and more particularly in view of the above-mentioned duty imposed upon counsel by section 6068, subdivision (h), of the Business and Professions Code. Is it reasonable to assume that the Legislature intended that the accused who is possessed of $1,000 should be compelled to obtain private counsel out of his own funds, while the accused who is entirely without funds should be entitled to court-appointed counsel who would receive compensation out of public funds in a much greater amount? We believe that the question answers itself.

For the reasons stated, we conclude that the criteria to be used in determining a “reasonable sum” for compensation in this type of ease are not the same as those ordinarily used in fixing fees for services performed as the result of a private transaction between counsel and a solvent client. On the contrary, we believe that it was intended that such compensation should be determined in the light of counsel’s continuing duty to the “defenseless” (Bus. & Prof. Code, § 6068, subd. (h)); and that the more reliable guides for the determination of proper compensation for court-appointed counsel under our statute are to be found by considering the statutory provisions of other jurisdictions for compensation in such cases, and by considering the general level of compensation paid to public officers for performing legal services in the prosecution and defense of criminal proceedings. Giving due consideration to these criteria, it cannot be said that the trial court abused its discretion in awarding the total sum of $1,000 for the services performed by petitioners. While the award of a somewhat greater amount might have been sustained as being within the discretion of the trial court, it seems entirely clear that the sum awarded cannot be declared unreasonable when compared with the amounts deemed appropriate as compensation for like services under like circumstances.

The alternative writ is discharged and the peremptory writ is denied.

Gibson, C. J., Traynor, J., and McComb, J., concurred.

Shenk, J., concurred in the judgment.