Appeals court to decide public defender fees

Grant County seeks repeal of indigent defense payment order

SPOKANE — A three-judge panel will decide how much eight attorneys are paid for their work as public defenders when a temporary system was set up in Grant County last year.

The Spokane Court of Appeals heard the case Wednesday of the attorneys who were drafted to take indigent clients from mid-February through April 2004.

Grant County Superior Court judges set up a system after the suspension of public defender Thomas Earl in February 2004. Earl's contract with Grant County was terminated that month, according to court records, and he was disbarred in May after being accused of taking improper payments.

The judges set indigent defense rates at 82.5 percent of their usual fee, or $132 to $162 per hour. But Grant County is arguing the funds were excessive, and appropriated without approval of the commissioners who later set up a flat fee of $550 per case with contracted public defenders.

The eight attorneys are seeking payment of a total of approximately $54,000 in fees for representing 24 indigent defendants, but a decision could incite a reaction from additional attorneys seeking payments. Ephrata Attorney Gerald Moberg is representing Grant County in the case, and said the court's ruling could impact more than 100 cases and constitute nearly $220,000 in public defender fees.

The court now has to decide whether to uphold an order paying the attorneys at the judge's rates, or whether to vacate the order and require Grant County to have a visiting judge weigh the issues of the case. Moberg said if the court agrees with the eight attorneys, fees would be awarded with no money allocated to pay them. Moberg said he didn't feel the judges had the authority to determine pay for the conscripted attorneys without first getting a decision from the commissioners.

"There were no funds appropriated for the program instituted by Grant County Superior Court," Moberg argued Wednesday.

But Moses Lake attorney Carl Warring points to approximately $600,000 that was in the county's indigent defense budget when the system was created. Warring was one of the conscripted public defenders, and is arguing the case on behalf of the other seven. He argued Wednesday attorneys should be given reasonable fees for the work they performed.

Warring feels the state does not have a right to appeal the compensation orders, and that the public defenders have a right to the attorneys fees. He told court judges that the county knew of problems in the system in 2003, but said nothing was done until Earl was suspended the next year.

Warring argued in his brief for the appeal that the lack of any public defenders system established a good cause to appoint non-public defender attorneys to represent indigent defendants. He argued that the county commissioners precipitated the constitutional crisis by failing to act in a timely manner.

"The trial court was not left with any other alternative but to acquire the services of additional private bar attorneys in order to keep the court functioning," Warring wrote in appeals court documents.

The two sides also argued over the flat fee for attorneys. Warring argued that such a flat fee is prejudicial, but Moberg said it is unfair to call flat fees inherently wrong because that is how the system works in most counties.

Moberg argued the judges created a program which put constraints on the public budget. He said Wednesday that he knows of no other county in the state paying $132 per hour for indigent defense cases.

Moberg also argued that the judges should have recused themselves and brought in other judges because Grant County judges had already made public opinions indicating how they would rule. Moberg maintains that out-of-county judges should be brought in to hear the 24 cases.

"When a judge has acted as an advocate for any point of law in litigation," Moberg wrote in court documents, "the appearances of fairness rules require recusal."

A written opinion is expected by the court of appeals in the case within the next one to three months.