Gibson v. State Public Defender

454 N.W.2d 46, 154 Wis. 2d 809, 1990 Wisc. App. LEXIS 140
CourtCourt of Appeals of Wisconsin
DecidedFebruary 22, 1990
Docket88-2178
StatusPublished
Cited by3 cases

This text of 454 N.W.2d 46 (Gibson v. State Public Defender) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibson v. State Public Defender, 454 N.W.2d 46, 154 Wis. 2d 809, 1990 Wisc. App. LEXIS 140 (Wis. Ct. App. 1990).

Opinions

DYKMAN, J.

This is a ch. 227, Stats., review of a decision by State Public Defender Board (Board). The Board sustained the State Public Defender's decision to reduce the number of out-of-court hours attorney John Gibson had billed to the State Public Defender for defending an indigent defendant. The issue is whether the Board's conclusions are reasonable and its findings [811]*811are supported by substantial evidence. We conclude they are. Accordingly, we affirm.

BACKGROUND

Gibson contracted with the State Public Defender to represent Walter Anchico, an indigent defendant charged with second-degree sexual assault. According to the State Public Defender's files, the case was opened February 28, 1986 and was closed January 6, 1987. The trial was originally scheduled for March 24, 1986, was rescheduled to June 15, 1986, and finally began on September 16, 1986. Anchico was convicted after a three-day jury trial. He was sentenced on January 6, 1987.

Gibson billed the State Public Defender $15,849.66, claiming compensation for 38.9 in-court hours and 422.3 out-of-court hours. The bill was accompanied by a seventeen-page document, indicating the character of the services Gibson rendered and the amount of the time spent on each service. The State Public Defender reviewed Gibson's bill and paid him a total of $9,923.05, reducing his out-of-court hours to 245.2. Included with the payment was a form entitled "Explanation of Private Attorney Bill Reduction," indicating the reasons for the bill reduction. Two reasons were indicated for the reduction, only one of which is relevant to this appeal:

Attorney time was billed in excess of what the agency considered reasonable on this case. Reducing a bill is always a difficult action to take and may be necessary even where time is accurately billed. The reductions do not reflect criticism of the attorney's dedication, but rather acknowledge the limits of the state's ability to pay.

[812]*812Gibson sought review of the State Public Defender's decision by the Board. See sec. 977.08(4), Stats.;1 and Wis. Adm. Code, sec. SPD 4.03(3). Gibson and Marcus Johnson, Trial Division Chief Officer for the State Public Defender, appeared before the Board. Johnson and Gibson were each allowed thirty minutes for oral arguments, and both presented documentary evidence.

The Board sustained the State Public Defender's decision, concluding that Gibson's original bill was unreasonable because the out-of-court hours were excessive, the amount and character of the services rendered were excessive, and the billing exceeded the customary charges for a case of this nature. Gibson sought judicial review, and the circuit court affirmed the Board's decision. He appeals.

SCOPE OF REVIEW

We review the Board's findings, conclusions, and decision independently of the circuit court. Doersching v. Funeral Directors, 138 Wis. 2d 312, 322, 405 N.W.2d 781, 785 (Ct. App. 1987). The scope of our review is defined in sec. 227.57, Stats.

We will set aside or modify an agency action if the agency has erroneously interpreted a provision of law. Sec. 227.57(5), Stats. We may not substitute our judg[813]*813ment for that of the agency regarding the weight of the evidence on any disputed finding of fact. However, if the agency's action depends on a finding of fact not supported by substantial evidence in the record, we must set aside the action and remand the case to the agency. Sec. 227.57(6).

The substantial evidence test is met if the evidence and the inferences from that evidence are such that a reasonable person might have made the same finding the agency did. Bucyrus-Erie Co. v. ILHR Department, 90 Wis. 2d 408, 418, 280 N.W.2d 142, 147 (1979). Substantial evidence may support conflicting findings. If it does, we must accept the agency's choice, notwithstanding the reasonableness of contrary findings. Robertson Transport Co. v. Public Serv. Comm., 39 Wis. 2d 653, 658, 159 N.W.2d 636, 638 (1968).

DISCUSSION

This is the first case on the reasonableness of an appointed counsel's fees since the legislature created the State Public Defender Board to review attorney fee determinations by the State Public Defender. See 1977 Wis. Laws, ch. 29, sec. 1600, creating ch. 977, Stats. (1977), effective July 1,1977. Prior to that time, the trial court was responsible for determining the reasonableness of an appointed counsel's fees. State v. Sidney, 66 Wis. 2d 602, 225 N.W.2d 438 (1975).

In Sidney, the supreme court listed several factors a trial court should consider in determining the reasonableness of an appointed counsel's fees. These factors included,

the amount and character of the services rendered, the labor, the time, and trouble involved, the charac[814]*814ter and importance of the litigation, the amount of money or value of the property affected, the professional skill and experience called for, and the standing of the attorney in his profession.

Id. at 607, 225 N.W.2d at 441 (quoting Touchett v. E Z Paintr Corp., 14 Wis. 2d 479, 488, 111 N.W.2d 419, 423 (1961)); see also SCR 20:1.5 (setting forth factors to consider in determining the reasonableness of attorney fees). While Sidney does not control here, its analysis is relevant to our inquiry. We will look to the Sidney factors in reviewing the Board's decision.

At the hehring before the Board, Marcus Johnson explained why the State Public Defender reduced the number of out-of-court hours. According to Johnson, Gibson's out-of-court hours were excessive given that Anchico was charged with a single count of second-degree sexual assault,2 that the trial lasted three days, and that Gibson had twenty-seven years of experience practicing law in Wisconsin. Johnson concluded from his review of Gibson's bill that Gibson's out-of-court hours were excessive primarily in four areas: client consultation, trial preparation for the first trial date, trial preparation for the second trial date, and postconviction activity.

Based on his four years of experience reviewing bills submitted to the State Public Defender, Johnson stated that the number of hours spent in court could be used to judge the reasonableness of the out-of-court hours billed.3 In a case like the Anchico case, the average ratio [815]*815of out-of-court to in-court hours ranges from 2-to-l to 4-to-1. To illustrate the hours ratio, Johnson discussed two cases, the bills from which he had recently reviewed. In the first case, the defendant had been charged with first degree murder, possession of a weapon by a felon, armed robbery, and arson. There the hours ratio was 2-to-l. In the second case, the defendant was charged with arson, a class B Felony. There the hours ratio was 3-to-l. In contrast, Gibson's bill reflected a 10-to-l hours ratio, and he was compensated based on a 6-to-l hours ratio.4

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Gibson v. State Public Defender
454 N.W.2d 46 (Court of Appeals of Wisconsin, 1990)

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Bluebook (online)
454 N.W.2d 46, 154 Wis. 2d 809, 1990 Wisc. App. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-state-public-defender-wisctapp-1990.