County of Door v. Hayes-Brook

449 N.W.2d 601, 153 Wis. 2d 1, 1990 Wisc. LEXIS 1

• Court: Wisconsin Supreme Court
• Decided: January 3, 1990
• Docket: 88-1689
• Status: Published

Opinions

CALLOW, WILLIAM G., J.

This is an appeal from an order of the Circuit Court for Door County, Judge Dennis C. Luebke. The order commands the Door County Board of Supervisors to pay attorney fees and expenses to Attorney Hayes-Brook for her representation of James D. Newman. The order also holds the Door County Board of Supervisors and its members (hereinafter referred to collectively as the County Board) in contempt of court for failing to comply with a previous court order that also required the payment of these attorney fees and expenses to Attorney Hayes-Brook. The order was stayed pending appeal. This court granted the joint petition to bypass the court of appeals.

The County Board raises two issues in this court: first, whether the circuit court had the authority to compensate Attorney Hayes-Brook, who was appointed by the court to provide representation to James D. Newman, an indigent defendant, at hourly rates in excess of those rates set forth in Supreme Court Rule 81.02 (1988);¹ second, whether the circuit court violated SCR 81.01 (1988) when it set the hourly rates of compensation that James D. Newman's attorney would receive before the appointment of Attorney Hayes-Brook. We conclude that under the facts of this case it was proper for the circuit court to compensate Attorney Hayes-Brook at hourly rates in excess of those rates set forth in SCR 81.02 (1988). We also conclude that it was proper for the circuit court to set the hourly rates of compensation that James D. Newman's attorney would receive before Attorney Hayes-Brook accepted the appointment.²

On May 21, 1987, James D. Newman (Newman), who at the time had criminal charges pending against him, appeared pro se at his indigency hearing. The indi-gency hearing was prompted by a letter from Newman to the circuit court in which Newman stated that he had been unsuccessful in obtaining counsel to help him defend against these charges. Apparently, Newman had been attempting to obtain counsel to represent him for approximately five months, but had been unable to do so because his access to his assets was impeded by bankruptcy proceedings. At the indigency hearing, the circuit court directed Newman to seek representation from the State Public Defender's Office. The circuit court also informed Newman that, in the event that the public defender's office declined to represent him, counsel would be appointed for him, at county expense, according to the hourly rates of compensation set forth in the Supreme Court Rules.

At that point, Newman informed the circuit court that, despite his efforts, he had been unable to obtain an attorney at the rates set forth in the Supreme Court Rules. He insisted that no attorney was willing to take his case for less than seventy-five dollars per hour for in-court work and sixty-five dollars per hour for out-of-court work. Based on these representations, the circuit court authorized eighty dollars per hour for in-court work and seventy dollars per hour for out-of-court work if the public defender's office refused to provide representation.

The public defender's office determined that, under the relevant guidelines, Newman was not eligible for representation by that office. The circuit court had strong reservations about the validity of the guidelines but accepted the public defender's determination that Newman was ineligible under the guidelines as written. The circuit court authorized Newman to obtain counsel to represent him, at the expense of Door county, according to the terms that had been agreed upon earlier — eighty dollars per hour for in-court work and seventy dollars per hour for out-of-court work.

In an order dated June 29, 1987, the circuit court appointed Attorney Hayes-Brook to represent Newman. The order stated that Door county would be obligated to compensate Attorney Hayes-Brook at the rates of eighty dollars per hour for in-court work and seventy dollars per hour for out-of-court work. The order also stated that Door county would pay Attorney Hayes-Brook on a monthly basis for the services she performed.

On August 4, 1987, the circuit court forwarded the first billing statement of Attorney Hayes-Brook to the Door County Clerk of Courts for payment by the County Board. Pursuant to the circuit court's order appointing Attorney Hayes-Brook as Newman's counsel, Door county was charged eighty dollars per hour for in-court work and seventy dollars per hour for out-of-court work.³

In a letter dated September 30, 1987, the Door county clerk/administrative coordinator informed the circuit court that there were no funds in the clerk of court's budget to cover Attorney Hayes-Brook's bill. In addition, the county clerk/administrative coordinator sought an explanation from the circuit court regarding its authority to require Door county to pay for Newman's legal fees and expenses.

In a letter dated October 8, 1987, the circuit court responded to the letter of the county clerk/administrative coordinator as follows:

Circuit courts have the inherent power to appoint counsel for an indigent defendant irrespective of the public defender provisions found elsewhere in state statutes and irrespective of determinations of indi-gency by that agency. It is true that Mr. Newman was found not to be indigent by the public defender's office. It is also true that Mr. Newman has no assets from which to retain counsel. This Court does not agree with the determination of nonindigency made by the public defender's office. I was not going to overturn their determination, however, which would have resulted in an appeal by the public defender's office and delayed trial for an additional nine months to a year. This Court has determined that Mr. Newman is indigent for purposes of these proceedings since all his assets are encumbered and whatever exempt properties he may declare in bankruptcy court are not available to him.

The circuit court stated that its authority to require Door county to pay for Newman's representation was derived from sec. 753.19, Stats., and Contempt in State v. Lehman, 137 Wis. 2d 65, 403 N.W.2d 438 (1987).⁴

In a letter dated October 22,1987, the Door County Corporation Counsel informed the circuit court that he would advise the County Board that the appointment of Attorney Hayes-Brook was proper and was within the court's inherent power, and that Door county was obligated to pay the legal fees and expenses of Attorney Hayes-Brook.⁵ However, the corporation counsel questioned the circuit court’s authority to set hourly rates of compensation for Attorney Hayes-Brook in excess of the rates mandated by SCR 81.02 (1988). The corporation counsel thus requested the circuit court to consider conforming Attorney Hayes-Brook's hourly rates of compensation to the rates set forth in SCR 81.02 (1988).

The County Board passed a resolution on October 27, 1987, that authorized compensation for the services detailed in the first billing statements. The total compensation figure was calculated using rates of eighty dollars per hour for in-court work and seventy dollars per hour for out-of-court work. However, the corporation counsel informed Attorney Hayes-Brook that, in making the payment at these rates, Door county was not waiving its right to challenge the part of the appointment order providing for compensation in excess of the SCR 81.02 (1988) rates.

During her representation of Newman, Attorney Hayes-Brook submitted additional billing statements to the circuit court. On February 15,1988, the circuit court ordered Door county to pay the amount owed under those additional billing statements.⁶ Instead of paying that amount, the County Board adopted a resolution on February 23,1988, that authorized payment of all fees of Attorney Hayes-Brook at the rates set forth in SCR 81.02 (1988). The difference between the court-ordered amount in the billing statements and the amount the County Board paid is $21,985.00; this amount remains unpaid.

Attorney Hayes-Brook apparently filed a remedial contempt motion in an attempt to recover the amount owed under the rates that the circuit court had ordered. On March 18, 1988, a hearing was held on this motion. At the beginning of the hearing, the County Board stipulated to a number of issues it considered extraneous, making the sole issue whether the circuit court had the authority to set hourly rates of compensation in excess of the rates set forth in SCR 81.02 (1988). ⁷

After both parties were heard on the motion, the circuit court upheld its earlier decision to set Attorney Hayes-Brook's hourly rates of compensation at rates in excess of those mandated by SCR 81.02 (1988). The circuit court emphasized its constitutional responsibility to appoint counsel for indigent defendants. The circuit court also emphasized that, due to the unique and complicated nature of Newman's case, Newman was unable to find counsel willing to represent him at the rates set forth in SCR 81.02 (1988). Exceeding the hourly rates set forth in SCR 81.02 (1988) was necessary, the circuit court concluded, in order to satisfy both the court's responsibility to indigent defendants and the state's interest in having Newman's case resolved without great delay.

In an order dated August 11, 1988, the circuit court held the County Board and all but two of its individual members in contempt of court for failing to comply with the previous order regarding the payment of Attorney Hayes-Brook's fees and expenses. The order also required the County Board to compensate Attorney Hayes-Brook for her representation of Newman at the previously-ordered rates of eighty dollars per hour for in-court time and seventy dollars per hour for out-of-court time. The order was stayed pending the outcome of this appeal.

The first issue we address is whether the circuit court had the authority to compensate Attorney Hayes-Brook, who was appointed by the circuit court to provide representation to Newman, an indigent defendant, at hourly rates in excess of those rates set forth in SCR 81.02 (1988). The County Board argues that the use of the word "shall" in SCR 81.01 and 81.02 (1988) means that the provisions of these rules are mandatory. According to the County Board, because these rules are mandatory, the circuit court was required to set Attorney Hayes-Brook's hourly rates of compensation at the rates set forth in SCR 81.02 (1988).

Although the County Board relies on both SCR 81.01 and 81.02 (1988), an examination of the language of these two rules shows that only SCR 81.02 is involved in this case:

SCR 81.01 Compensation of attorneys appointed by court. Notwithstanding any provision of the statutes, in all cases where the statutes fix a fee and provide for the payment of expenses of an attorney to he appointed by the court to perform certain designated duties, the court appointing the attorney, after the services of the attorney have been performed and the disbursements incurred, shall fix the amount of his or her compensation for the services and provide for repayment of disbursements in such sum as the supreme court has specified in SCR 81.02. (Emphasis added.)

SCR 81.02 Compensation. (1) Attorneys appointed by any court to provide legal services for that court, for judges sued in their official capacity, for indigents and for boards, commissions and committees appointed by the supreme court shall be compensated at the following rates:

(a) Court time, $50 per hour.

(b) Office time, $35 per hour.

(c) Travel time outside the county in which the attorney's principal office is located, $25 per hour.

(Emphasis added.)

It is evident from the language of these rules that SCR 81.01 (1988) applies only when the statutes "fix a fee and provide for the payment of expenses of an attorney to be appointed by the court." In Romasko v. City of Milwaukee, 108 Wis. 2d 32, 321 N.W.2d 123 (1982), this court gavp a broad definition to the phrase "fix a fee":

We do not so narrowly construe fixing a fee as to mean that the fee is to be fixed in any particular statute or in a particular monetary amount. If that were true, [SCR 81.01] would be meaningless, for no statute which has been brought to our attention fixes an attorney's fee in a stipulated amount.

Id. at 41. This court concluded that SCR 81.01 (1988) was applicable to a demand for payment of attorney fees when a statute provided that the fees of a court-appointed attorney should be paid, even though the statute did not fix the fee in a particular amount. Id.

In this case, the parties have not cited, and this court has not found, a statute that requires the payment of Attorney Hayes-Brook's fees. Because no such statute can be found, SCR 81.01 (1988) is inapplicable.

Although SCR 81.01 (1988) is inapplicable, SCR 81.02 (1988) applies generally to the situation in which a court appoints counsel without any statutory authority for that appointment. More specifically, SCR 81.02 (1988) applies where no statute requires the appointment of counsel and where such counsel provides legal services for the appointing court, for judges sued in their official capacity, for indigents, and for boards, commissions, and committees appointed by the supreme court. See SCR 81.02 (1988). As has been shown, the circuit court had no statutory authority for Attorney Hayes-Brook's appointment. Rather, the circuit court made the appointment pursuant to its constitutional obligation to provide counsel, at county expense, to an indigent accused of a crime. See, e.g., Carpenter v. County of Dane, 9 Wis. 249 (*274) (1859). In cases such as this one, where the statutes are silent with respect to the appointment of counsel, the appointment is properly viewed as having been made under SCR 81.02 (1988) as long as counsel provides services to one of the entities detailed in that rule. Of course, Attorney Hayes-Brook provided services to one of the entities detailed in SCR 81.02 (1988) — an indigent.

Having decided that this case is properly viewed as involving only SCR 81.02 (1988), we now address the County Board's argument that this rule's compensation rates are mandatory. The County Board relies on SCR 99.01(14) (1988) to support its construction of SCR 81.02 (1988) as mandatory. SCR 99.01(14) (1988), which states that the use of the word "shall" means that an action is mandatory unless a mandatory construction would undercut the manifest intent of the supreme court, provides as follows:

SCR 99.01 Construction of rules; guidelines. In construing the rules of the Wisconsin supreme court, the following guidelines shall be observed unless the construction would produce a result inconsistent with the manifest intent of the supreme court:

(14) Mandatory or Permissive Actions. The use of "shall" means an action is mandatory. The use of "may" means an action is permissive.

Thus, according to the provisions governing the construction of our own rules, the hourly rates of SCR 81.02 (1988) are mandatory unless a mandatory construction would produce a result inconsistent with our manifest intent.

We find that a mandatory construction of the word "shall" as it is used in SCR 81.02 (1988) would not produce a result that is inconsistent with our manifest intent. Again, SCR 81.02 (1988) provides, in part, that "[attorneys appointed by any court to provide legal services ... for indigents . . . shall be compensated at the following rates . . .." Undoubtedly, in creating this rule, this court could have stated that courts were free to set reasonable compensation or that the hourly rates were to serve as mere guidelines. Instead, we set forth, with specificity, the compensation rates for court-appointed counsel and stated that such counsel shall be compensated at those rates. Under these circumstances, our use of the word "shall" in SCR 81.02 (1988) shows that we intended this rule's compensation rates to be mandatory.

Even though the hourly rates of compensation set forth in SCR 81.02 (1988) are mandatory, we find that it was proper for the circuit court to exceed these mandatory rates in setting Attorney Hayes-Brook's hourly rates of compensation. As the record makes clear, no attorney was willing to take Newman's complicated case at the rates set forth in SCR 81.02 (1988). Yet, the circuit court had an obligation to accommodate the constitutional requirement that an indigent defendant be afforded the assistance of counsel in a criminal prosecution. Carpenter v. County of Dane, 9 Wis. at 251; Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). In such extraordinary circumstances, it was necessary for the mandatory hourly rates of SCR 81.02 (1988) to yield to the constitutional requirement that Newman have representation.

The second issue raised by the County Board is whether the circuit court violated SCR 81.01 (1988) when it set the hourly rates of compensation Newman's attorney would receive before the appointment of Attorney Hayes-Brook. The County Board cites the following language of SCR 81.01 (1988) in support of its argument that this rule was violated:

[T]he court . . . after the services of the attorney have been performed . . . shall fix the amount of his or her compensation ... in such sum as the supreme court has specified in SCR 81.02.

We have already stated that this case involves SCR 81.02 (1988), not SCR 81.01. In any event, we interpret SCR 81.01 and 81.02 as allowing a court to set the hourly rates of compensation prior to counsel's appointment; under SCR 81.01 (1988) and 81.02 (1988) a court is not permitted to set the total amount of compensation counsel is to receive before any services have been rendered. In this case, the circuit court did nothing to the contrary. Because Newman had been unable to obtain counsel at the rates mandated by SCR 81.02 (1988), the circuit court merely set the hourly rates of compensation Newman's attorney would receive in excess of those mandated rates before Attorney Hayes-Brook accepted the appointment. The circuit court did not set the total amount of compensation before Attorney Hayes-Brook performed any services.

We therefore hold that it was proper for the circuit court to compensate Attorney Hayes-Brook at hourly rates in excess of those rates mandated by SCR 81.02 (1988) to accommodate the constitutional requirement that an indigent defendant be afforded the assistance of counsel in a criminal prosecution. We also hold that it was proper for the circuit court to set the hourly rates of compensation Newman's attorney would receive before Attorney Hayes-Brook accepted the appointment. In light of this holding, we affirm the circuit court's order to the County Board to pay Attorney Hayes-Brook the total amount of fees and expenses set by the court. We grant the County Board ninety days from the date of this decision to purge the contempt order.

By the Court. — The order of the circuit court is modified and, as modified, is affirmed.

1 The rule that governs this case, SCR 81.02 (1988), has been amended. The amended version of SCR 81.02 (SCR 81.02 (1989)), which took effect January 1, 1989, provides, in part, as follows:

Compensation. (1) Attorneys appointed by any court to provide legal services ... for indigents . . . shall be compensated at the rate of $60 per hour or a higher rate set by the appointing authority. The supreme court shall review the specified rate of compensation every two years. (Emphasis added.)

2 As a result of our holding, it is unnecessary to address Attorney Hayes-Brook's argument that the County Board is estopped from disputing the hourly rates used to calculate her fees.

3 In addition, Attorney Hayes-Brook was compensated at a rate of thirty-five dollars per hour for her travel time outside Door county.'

4 In Lehman, after commenting on the long-standing duty of Wisconsin courts to provide representation to indigent defendants and the obligation of the county to pay for such representation, this court concluded that "when the State Public Defender's Office declines to act . . . this cost may be imposed on the county" under sec. 753.19, Stats. Lehman, 137 Wis. 2d at 83, 85.

5 This court recognized in State ex rel. Fitas v. Milwaukee County, 65 Wis. 2d 130, 134, 221 N.W.2d 902 (1974), that "[i]t is within the inherent power of the courts to appoint counsel for the representation of indigents."

6 Apparently, at this point, Newman's trial was over and Attorney Hayes-Brook was no longer providing services to him, although she continued as his counsel until appellate counsel was found.

7 These are the items to which the County Board stipulated: that Newman's case was extraordinary and difficult and that the circuit court acted properly and reasonably in appointing counsel for Newman; that the decision to appoint counsel in this case was based upon a determination that the needs of the trial court, not the defendant, would be best served by doing so; that the trial court has the authority and inherent power to appoint counsel whenever in the exercise of its discretion it deems such action necessary and can do so in cases where the public defender declines to act; that the county is liable for the payment of attorney fees and costs incurred as a result of the court appointing counsel for an indigent; that the appointing court, not the county, fixes the amount of attorney fees because the court is in the best position to observe the appointed attorney; that an ex parte order to the board is an appropriate procedure to obtain payment from the county; that Attorney Hayes-Brook acted in good faith and was not derelict in the performance of her duties; that the hours billed and expenses were reasonable in this case; that there is no claim that the compensation should be reduced below the maximum rate set by SCR 81.02; that this case presented extraordinary circumstances; and that the integrity of Attorney Hayes-Brook is not challenged, [footnote continued]

[footnote continued] These stipulations were in substance made at oral argument in this court.