Frederick v. Presque Isle County Circuit Judge , 439 Mich. 1 ( 1991 )

Mallett, J.

We granted leave to determine which government entity is responsible for compensating private attorneys assigned to represent indigent criminal defendants in appealing their convictions. We hold that the counties remain responsible for this cost, and reverse the decision of the Court of Appeals.

FACTS

This dispute arose out of the legal representation in a criminal case in which the plaintiff-appellant, Mr. James A. Frederick, represented a criminal defendant in the appeal of his conviction. Judge Robert Ferguson of the 26th Circuit Court appointed the plaintiff-appellant as the appellate counsel for the indigent defendant, Mr. David Cook, on May 10, 1989. On that same day, the court administrator for the 26th Circuit Court sent Mr. Frederick a form letter, informing him that the court did not intend to compensate him for his services.¹

Mr. Frederick performed various services in his capacity as appellate counsel, and on September 5, 1989, he submitted a bill to the county requesting payment for services and expenses incurred in the amount of $312.15.

The court administrator wrote Mr. Frederick on October 5, 1989, again informing him that the court’s budget did not contain funds to compensate him for his services. She requested that Mr. Frederick inform her of any authority designating who is responsible for paying assigned appellate attorneys.

The plaintiff’s counsel demanded payment in two letters to the court administrator, dated October 12, 1989, and October 17, 1989. Again, payment was refused in a letter which stated that there was no authority designating the county as the governmental entity responsible for compensating assigned appellate counsel.

On March 8, 1990, the plaintiff filed in the Court of Appeals a complaint for superintending control to compel the defendant, the Chief Judge of the 26th Circuit Court, to authorize payment to the plaintiff for his appellate services ordered by the 26th Circuit Court on May 10, 1989. The Court of Appeals dismissed the complaint, finding there was no clear legal duty on the part of the defendant to compensate the plaintiff. 186 Mich App 20; 463 NW2d 438 (1990).

The plaintiff appealed this dismissal, and we granted leave to appeal on November 13, 1990. 437 Mich 856.

I

Neither party disputes the fact that an indigent defendant is entitled to have the assistance of counsel upon an appeal of right, guaranteed by the Fourteenth Amendment of the United States Constitution. See Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963). What is at issue in this case is whether the county is responsible for funding the costs and fees of private attorneys assigned by the court to represent indigent criminal defendants on appeal.²

A

Traditionally, the county has been the primary unit in directing Michigan’s criminal justice system.

[J]udicial circuits are drawn along county lines and counties are required by statute to bear the expenses of certain courtroom facilities ([MCL 600.551] MSA 27A.551), [repealed] circuit court commissioner salaries ([MCL 600.1067] MSA 27A.1067), stenographer’s salaries ([MCL 600.114] MSA 27A.114), juror’s compensation ([MCL 600.1231] MSA 27A.1231), and fees for attorneys appointed by the court to defend persons who cannot procure counsel for themselves ([MCL 775.16] MSA 28.1253). [OAG, 1967-1968, No 4,588, pp 49, 50 (June 12, 1967).]

As early as 1894, this Court addressed the financial obligation of a county as it relates to appellate expenses. In People v Hanifan, 99 Mich 516, 517; 59 NW 611 (1894), the Court stated that it was within the province of the county, rather than the state, to fix an attorney’s compensation for services rendered on appeal. This conclusion was based on Const 1850, art 10, § 10, which granted the county board of supervisors exclusive power to fix the compensation for all services rendered for the county.³

An 1857 statute provided that if an attorney appointed to defend an indigent defendant followed the case to the Supreme Court on appeal, he was entitled to an enlarged compensation.⁴ The Hanifan Court held that neither the trial court nor the appellate court should fix his compensation, but that this should be done by the county board of auditors. Id. at 518.

Three years later, this Court reaffirmed its earlier Hanifan position that counties were responsible for the expenses of appointed attorneys’ compensation for services rendered on appeal. In De Long v Muskegon Co Bd of Supervisors, 111 Mich 568; 69 NW 1115 (1897), the Court held that an attorney appointed to defend an indigent person charged with a criminal offense was not entitled to compensation from the public for services in appealing a judgment of conviction when he undertook the appeal of his own accord and without a court order. In reaching this conclusion, the De Long Court said:

No attorney can defend a prisoner, and subject the county to pay for such expense, without an order of the court. It is the duty of the circuit judge to examine into the circumstances, and determine whether it is his duty to appoint an attorney to defend at the expense of the county. The order of the circuit court is the sole authority for subjecting the county to the expense of the prisoner’s defense. [2 How Stat] Section 9047 means this, and nothing more .... [Id. at 570. Emphasis added.][⁵]

De Long still stands for the proposition that counties are absolved from their financial obligation of assuming appellate expenses only when an attorney seeks to represent a defendant on appeal without an order from the court. Where an attorney has an order from the court compelling representation of a defendant on appeal, § 9047 subjects the county to the expense of the appeal.

De Long is an 1897 case, decided long before criminal defendants were granted the constitutional right to an appeal. However, De Long remains illustrative. Counties paid appellate attorney fees when the court granted an order allowing the attorney to make an appeal. We believe it follows that counties should continue to pay appellate attorney fees when the constitution in effect grants an order allowing criminal conviction appeals.⁶ Pursuant to the Michigan Constitution and under Administrative Order No. 1989-3, trial courts are under a duty to grant an order assigning appellate counsel for an indigent criminal defendant.⁷ Administrative Order No. 1989-3 requires that assignment and payment of appellate counsel remain a local matter.⁸

In In re Meizlish, 387 Mich 228; 196 NW2d 129 (1972), this Court held that a local court rule which limited the fees the county would pay for assigned counsel did not violate an attorney’s rights under the Due Process and Equal Protection Clauses of the United States or Michigan Constitution. Whether the federal or state constitution requires a public entity to compensate assigned attorneys is not an issue presently before us. Rather, the issue is one of statutory interpretation.⁹

B

While the Appellate Defender Act, MCL 780.711 et seq.; MSA 28.1114(101) et seq., and Administrative Order No. 1989-3 provide for a system of indigent appellate representation that involves private attorneys as well as the State Appellate Defender Office, both are silent as to the payment of these private attorneys. MCL 775.16; MSA 28.1253 is not. It provides that the county treasurer must compensate an attorney for his services in representing an indigent criminal defendant. When an accused is unable to procure counsel

[u]pon proper showing, the chief judge shall appoint ... an attorney to conduct the accused’s examination and to conduct the accused’s defense. The attorney appointed by the court shall be entitled to receive from the county treasurer« . . . reasonable compensation for the services performed. [Emphasis added.]

The defendants in this case argue that the language of MCL 775.16; MSA 28.1253 indicates that the county is responsible for compensating only trial attorneys because the term "accused” only applies to defendants at the trial level. They contend. that the term "accused” does not apply to convicted defendants appealing their conviction. This argument is unpersuasive for several reasons.

First, while the term "accused” does technically apply only to those not yet convicted, its common meaning includes all those being prosecuted, throughout all stages of the criminal process. Indeed, the Michigan Constitution of 1963 uses "accused” in referring to a postconviction defendant: "In every criminal prosecution, the accused shall have ... an appeal as a matter of right . . . .” Const 1963, art 1, § 20 (emphasis added).

Second, when MCL 775.16; MSA 28.1253 was first enacted in 1857, there was no appeal of right; it was solely discretionary with the appellate court. However, the 1963 Constitution provides that every defendant is entitled to an appeal in the Court of Appeals. Const 1963, art 1, § 20. The Fourteenth Amendment of the United States Constitution makes it clear that a state may not grant appellate review in such a way as to discriminate against some convicted defendants because of their poverty. Douglas v California, supra.

Because the appeal is now a right of the defendant, it constitutes a basic and significant part of the accused’s defense. The state’s criminal proceedings against this individual begin at the point of arraignment and continue throughout the appeal of right. Thus, the defense must address each stage of these proceedings.

Third, the county is responsible for providing counsel for indigent suspects who are questioned by the police; at this "Miranda stage” the suspect has not been charged and so is not an "accused.” Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Nonetheless, the county pays for the suspect’s counsel if the suspect requests that an attorney be made available to him.

Furthermore, the term "defense” as used in MCL 775.16; MSA 28.1253 includes all proceedings in which a criminal defendant can assert a defense, including errors made in the trial court. This is so, particularly with proceedings made available to the defendant by right, such as the appeal of right in the Court of Appeals.

Black’s Law Dictionary (5th ed), p 377, defines "defend” as "[t]o contest and endeavor to defeat a claim . . . made against one in a court of justice.” An appellate attorney attempts to contest and defeat a claim as much as a trial attorney does. As a California court noted:

An appeal is merely a continuation of the earlier proceedings . . . under the common and usual meaning of the word "defend,” that assigned counsel in the appellate department ... is "defending” his client .... [Marks v Los Angeles Co Superior Court, 245 Cal App 2d 779, 783; 54 Cal Rptr 169 (1966).][¹⁰]

C

The parties point to other statutory positions to support their respective positions, and we address each separately. MCL 775.17; MSA 28.1254 states that an attorney cannot be forced to make an appeal to the Supreme Court. This case does not involve the discretionary appeal to the Supreme Court, but rather only involves paying the costs and fees of an indigent defendant’s appeal of right. Further, at the time of its enactment there was only the discretionary appeal to the Supreme Court. There was no Court of Appeals nor an appeal of right. Thus, this statute does not provide for payment of an assigned appellate attorney.

The defendant argues that unless trial counsel is the one to provide appellate services, MCL 775.18; MSA 28.1255 prohibits two attorneys from receiving compensation in one case.¹¹ We disagree with this construction of § 18. The plain meaning of this statute is to prevent two attorneys from collecting funds for performing identical and repetitive services. Otherwise, if one attorney began the trial, but had to withdraw for whatever reason, certainly it cannot be argued that substitute counsel could not receive compensation. Assigned appellate counsel are, in one sense, substitute counsel on appeal. They take over where the trial counsel ended. Assigned appellate counsel do not receive compensation for services already performed by the trial counsel, and thus do not violate MCL 775.18; MSA 28.1255.¹²

Further, under MCL 49.159(1); MSA 5.757(1), the county rather than the state pays the prosecuting attorney, including the prosecution on appeal. MCL 49.159(1); MSA 5.757(1) provides:

The prosecuting attorney shall receive compensation for his or her services, as the county board of commissioners, by an annual salary or otherwise, orders and directs. [Emphasis added.]

Prosecutors and defense attorneys are adversaries, but both perform similar functions for their respective clients. That prosecutors are more popular than defendants is not enough reason for a county to abandon certain costs to the state.

Nor does MCL 600.9947; MSA 27A.9947 support the contention that the Legislature intended that the state would assume the responsibility for paying assigned appellate attorneys. Section 9947 provides:

(1) The legislature shall appropriate sufficient funds in order to fund:

(e) At least 100% of all court operational expenses in the state fiscal year beginning October 1, 1988.

Section 9947 manifests the Legislature’s intention to reorganize the court system; the subsections of § 9947 "at most, merely express an intention of the Legislature with regard to appropriations which will be made in future years.” OAG, 1983-1984, No 6,125, pp 38, 40 (February 10, 1983). This intention, however, is not binding on subsequent Legislatures:

[A]ny provision that does not take initial effect, during the ensuing fiscal year is intended to function only as an authorization — an intention to appropriate. [Oakland Schools Bd of Ed v Superintendent of Public Instruction, 392 Mich 613, 620; 221 NW2d 345 (1974).]

One legislature cannot limit the power of successor legislatures to appropriate funds. Harsha v Detroit, 261 Mich 586, 590; 246 NW 849 (1933); Atlas v Wayne Co Bd of Auditors, 281 Mich 596; 275 NW 507 (1937). Because § 9947 was enacted in 1980 and became effective on September 1, 1981, it cannot bind the Legislature with regard to 1988 appropriations. Therefore, the promise or intention expressed in MCL 600.9947; MSA 27A.9947 is not binding and cannot compel the state to assume the responsibility for paying the fees of assigned appellate attorneys.¹³

II

Under MCR 3.302, a complaint for superintending control may be filed when there is no other adequate remedy. In this case, the plaintiff could not appeal the circuit court’s decision because that decision was not an order of the circuit court, but rather a letter submitted by the court’s administrator. The circuit court issued no judgment or order which the plaintiff could appeal, and thus a complaint for superintending control was proper.

The standard for issuing a writ of superintending control is to determine whether the lower court failed to perform a clear legal duty. People v Flint Municipal Judge, 383 Mich 429; 175 NW2d 750 (1970). Because we determine that our common law and MCL 775.16; MSA 28.1253 clearly establish the county’s responsibility for paying assigned appellate attorneys, under Administrative Order No. 1989-3, the Chief Judge of the 26th Circuit Court has a clear legal duty to order the county’s compensation of assigned appellate attorneys. Because the chief judge failed to perform this duty in this case, we hold that the Court of Appeals should have granted the writ for superintending control.

CONCLUSION

All courts in this state are part of Michigan’s one court of justice, Const 1963, art 6, § 1. However, the Legislature retains power over - the county and may delegate to the local governments certain powers. See, e.g., Alan v Wayne Co, 388 Mich 210; 200 NW2d 628 (1972); Wright v Bartz, 339 Mich 55; 62 NW2d 458 (1954); Const 1963, art 7, § 1. In MCL 775.16; MSA 28.1253, the Legislature did just that. It directed the chief judge of the circuit court to appoint an attorney to represent an indigent defendant’s defense, and directed the county to pay for such services.

We reverse the decision of the Court of Appeals, and direct the Chief Judge of the 26th Circuit Court to enforce payment for plaintiff’s services.

Cavanagh, C.J., and Levin and Brickley, JJ., concurred with Mallett, J.

1 The relevant text of the letter follows:

[P]ursuant to Administrative Order 1989-3, an order of this Court has been entered appointing you Defendant’s counsel on appeal and pursuant to statute a trial transcript shall be provided.

Our budget does not presently contain funds to compensate you for your service nor am I aware of any statutory authority designating a governmental entity to make payment in this regard.

2 The total costs and fees for the state in 1989 was approximately $1,673,000. Almost sixty percent was attributable to the Wayne, Macomb, and Oakland Circuit Courts and the Detroit Recorder’s Court.

3 This provision is now found at Const 1963, art 7, § 9. The revised provision vests the county with the exclusive power to fix the compensation of county officers.

4 The 1857 Legislature recognized the need to compensate counsel for work in cases wherein counsel pursued appellate review to the Supreme Court. 1857 PA 109, §2, which has been consistently reenacted, now appears as MCL 775.17; MSA 28.1254, which provides:

An attorney shall not, in such case, be compelled to follow a case into another county or into the supreme court, but if he does so, may recover an enlarged compensation to be fixed by the court.

5 Section 9047 is the citation of 1857 PA 109, §2, the statutory predecessor of MCL 775.17; MSA 28.1254, one of the relevant statutory provisions in this case.

6 Const 1963, art 1, § 20 grants to a criminal defendant an appeal as a matter of right.

7 Under Administrative Order No. 1989-3(5)(b)(iv), the local designating authority or chief judge of the circuit may sanction an attorney who refuses an assignment without cause, by rotating that attorney’s name to the bottom of the roster.

8 Indeed, some members of this Court were concerned about costs to be borne by local governments:

Nor has there been any independent examination of those states that have such a system to determine the fiscal implications for local governments which will bear the cost of the system. [Administrative Order No. 1989-3, 432 Mich cxxviii, Boyle, J., dissenting.]

9 In Meizlish, the court rule awarded a maximum of $50, which was paid attorney Meizlish. The Court held that "in general, the court rule does provide reasonable compensation for court appointed attorneys for indigents.” 387 Mich 235-236. Thus, the issue before the Court was not whether assigned attorneys could be paid no compensation, but rather whether $50 was generally reasonable, and not arbitrary and capricious so as to violate the attorney’s rights to due process and equal protection.

While we decline to discuss these constitutional issues, we do note that, in light of MCL 775.16; MSA 28.1253 as interpreted by us today and Administrative Order No. 1989-3, paying assigned appellate attorneys no fees is not reasonable.

10 See also Powell v United States, 60 F Supp 433, 439 (ED Va, 1945), aff’d 152 F2d 228 (CA 4,1945), aff’d 330 US 238 (1947).

11 Only one attorney in any one case shall receive the compensation above contemplated ....

12 As amicus curiae Michigan Appellate Assigned Counsel System informed us, in most instances indigent defendants are provided with a new attorney on appeal. However, if the defendant prefers that his trial attorney perform appellate services and the trial attorney agrees, the defendant may waive new counsel. Administrative Order No. 1989-3(12).

13 Since the outcome of this case between these parties would not be affected by Const 1963, art 9, § 29, we do not address that question.