Court upholds public defender payments

Opinion rules drafted attorneys should be paid judges' rates

GRANT COUNTY — Grant County must pay judges' rates to eight central Washington attorneys who were drafted as public defenders during a two and a half month period in 2004.

The Spokane-based Court of Appeals in a written opinion last week upheld the trial court's ruling to pay the attorneys at a rate of 82.5 percent of their normal hourly pay to represent indigent clients after the contract of public defender Tom Earl was terminated by the county in February 2004.

The appeals court said in its 14-page written opinion that the trial court had a constitutional authority to appoint and compensate the counsel in the absence of any available public defenders, and the absence of any public defender was emergency enough for the judges to appoint and compensate the attorneys.

"I thought the opinion was dead on with just about everything we said," said Moses Lake attorney Carl Warring, who represented the eight conscripted public defenders in the appeal.

Grant County Superior Court judges set up a temporary system for public defense after the suspension of Earl. Earl's contract was terminated in February of 2004; he was disbarred in May of that year after being accused of taking improper payments, according to court records.

The ruling directly impacts eight attorneys and approximately $54,000 in payments for 24 cases, but attorney for Grant County Gerald Moberg said in December the ruling could impact more than 100 cases and nearly $200,000 in public defender fees from cases awaiting the decision.

Moberg was unavailable for comment this week, but said in December that the judges didn't have the authority to decide the pay for the drafted attorneys without action first being taken by the commissioners.

Warring, who himself took on about a dozen cases during the period, said the opinion was reiterating orders of the superior court judges. Warring and Moberg each argued the case in front of the appeals court in December.

Judges set indigent defense rates at 82.5 percent of their usual fee, or between $132-$180 per hour. Grant County had argued the fees were excessive, and appropriated without legislative approval of the commissioners. The commissioners later set up a flat fee of $550 per case with contract public defenders, and the county had argued the costs should be limited to that flat fee.

The appeals court ruled that the court considered all the pertinent factors when making the determinations for compensation of the attorneys. "In doing so, the trial court showed appropriate concern for the financial survival of the private attorneys who were conscripted to take the multiple criminal cases," the opinion stated.

Warring in his arguments pointed to approximately $600,000 that was appropriated in the county's indigent defense budget. The appeals court concurred the appropriation was correct, noting the county had specifically earmarked the money to compensate public defenders.

The county had argued the 82.5 percent rate apportioned by the trial judges was considerably higher than in neighboring counties. But the opinion stated the other counties were not facing the emergency which existed in Grant County.

"Because there is clear, cogent, and convincing proof that the appointment and compensation of appointed counsel was reasonably necessary for the holding of court, the administration of justice, and the fulfillment of constitutional duties, the trial court was within its inherent power to award compensation to appointed counsel," the opinion stated.

The opinion stated courts must limit their ventures into legislative issues, but separation of powers also allows the judiciary be able to insure its own survival when insufficient funds are provided to it by the other branches.

"Even assuming that there was no appropriation of funds to compensate appointed counsel, the court was acting within constitutional authority in making these awards," the opinion stated, observing the judicial function can sometimes extend beyond the determination of questions in a controversy to include items necessary to carry out its constitutional mandate.

In hearing the case, the appeals court decided to uphold the order to pay the attorneys. The court also ruled the judges did not abuse their discretion in denying motions to recuse themselves, and said in the opinion the motions for recusal were not issued with enough time for opposing counsels to prepare responses.

The county has 30 days to file a petition for discretionary review to the state supreme court, or to pay the money owed to the eight attorneys.

"We're of course really happy that the appellate court addressed the issues of the existing law and enforced them," Warring said.