In Interest of Dunmire

604 P.2d 711, 100 Idaho 697, 1979 Ida. LEXIS 508

• Court: Idaho Supreme Court
• Decided: December 10, 1979
• Docket: 12500
• Status: Published

Opinions

BISTLINE, Justice.

A fourteen year old juvenile was charged with offenses which brought her under the Youth Rehabilitation Act. The child and her mother separately requested counsel. After finding them indigent the court appointed the Public Defender to represent the daughter. The appellants, W. Craig James and Idaho Legal Aid Services, were appointed to represent the mother.

After termination of the proceedings, appellants sought compensation for services rendered-, submitting a statement of fees ($277.32) to the District Court Clerk of Gem County. The magistrate who appointed counsel and heard the matter annotated the fee statement “appearances confirmed” and forwarded it to the district’s administrative judge.

The administrative district judge entered the following order:

“W. CRAIG JAMES and Idaho Legal Aid Services, Inc. having been appointed as counsel for the custodial parent in the above captioned matter; a trial determination of the case having been made; a claim for attorney fees having been timely made pursuant to Idaho Code 16— 1809A, as supported by a sworn statement of fees; ■ and the Court finding that W. CRAIG JAMES and Idaho Legal Aid Services, Inc. are not entitled to attorney fees; now therefore, it is,

“ORDERED that the claim for attorney fees submitted by W. CRAIG JAMES and Idaho Legal Aid Services, Inc. be and the same is hereby denied.”

Two issues are presented. Appellants claim error on the part of the court in holding them not entitled to attorney fees; respondents move to dismiss the appeal as improperly taken “from an extrajudicial ministerial act.” Respondents do not address the issue raised by appellants. We turn first to the motion to dismiss.

Common School District No. 58 v. Lunden, 71 Idaho 486, 233 P.2d 806 (1951), cited by respondents, makes the statement that an appeal does not lie from purely ministerial acts. There is, however, nothing in the opinion in that case which in any way persuades us that the order here was purely ministerial, or even that it was at all ministerial.

While it is true, as pointed out by respondents, that there is no specific statutory provision for judicial review of orders passing on claims for attorney fees in connection with legal services rendered as appointed counsel in Y.R.A. cases, the Third Judicial District apparently has adopted some procedure whereby such claims once verified by the magistrate must gain the approval of the Third District’s administrative judge. It is logical to believe that the respondent judge acted upon some agreement or understanding with the respondent Board of County Commissioners whereby the Board desired his approval of such claims. This is in accord with I.C. § 19-856: when counsel are appointed to represent an indigent criminal defendant, “the court shall prescribe reasonable compensation for him and approve the expenses necessarily incurred by him in the defense of the needy person.” ¹

In Spaulding v. Children’s Home Finding and Aid Society, 89 Idaho 10, 402 P.2d 52 (1965), the Court stated that proceedings involving delinquent children are “quasi criminal in nature.” The Court then noted a Colorado court’s observation that “ ‘the minor may be seized from the custody of its parent to whom the court has confided it and tried for dependency or delinquency.’ ” Id., at 21, 402 P.2d at 59. The legislature has declared it proper that in such quasi-criminal proceedings it may be appropriate to appoint separate counsel for both the indigent child and the indigent mother. Practitioners with experience in this particular field understand the wisdom of appointing separate counsel where there are compelling reasons for so doing. Such is not an issue here, however, where the magistrate’s determination to do so is not under any challenge.

What was said in Spaulding in 1965 remains true today. Y.R.A. proceedings are quasi-criminal in nature, and the right of the involved indigents to counsel cannot be seriously contested. Under the provisions of both I.C. § 1&-1809A of the Y.R.A. and I.C. §§ 19-853(c) and 19-856 of the Criminal Code, respectively the indigent youthful offender (and his parent) and the indigent adult offender are entitled to an order of the court providing legal representation; hence we see no fault on the part of the respondent judge and respondent county in utilizing in both instances the attorney fees claim approval procedure years ago set forth in the Criminal Code and, as amended, still in effect today.² Accordingly, we hold that the district judge acted in a judicial capacity.³

Concomitant with the contention just disposed of, respondents argue that appellants were not parties in the court below in the juvenile proceeding. This is true, but appellants were very much parties in the ensuing compensation proceeding and certainly they were aggrieved by the order holding them not so entitled. Renfro v. Nixon, 55 Idaho 532, 45 P.2d 595 (1935), is ample authority for the proposition that in this jurisdiction an attorney in quest of his fee may be an aggrieved party entitled to appeal. Although that Idaho case eluded respondents, they do cite Rose v. Alaskan Village, Inc., 412 P.2d 503 (Alaska 1966) for the proposition that there are certain cases in which attorneys may seek review of an award or the refusal to give an award of attorney fees, “when the action appealed from is a part of a judicial proceeding below.” (Respondents’ emphasis, not ours.) Holding as we have that the district judge acted judicially, and not in an ex officio manner, respondents’ second ground is without merit,⁴ and the motion to dismiss the appeal is denied.

Turning to the issue which appellants present, and assuming as do appellants that the denial of entitlement to fees was predicated upon appellants’ status as paid legal aid attorneys, we hold that appellants are entitled to compensation. In doing so we acknowledge the benefit of the brief of amicus curiae, Legal Services Corp.

In the United States, the prevailing litigant is ordinarily not entitled to attorney fees in the absence of a statutory provision or enforceable contract. But where Congress has intended that fees be awarded, those fees should be awarded. Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 1621, 44 L.Ed.2d 141 (1975).

In the present case, I.C. § 16 — 1809A provides a statutory basis for the mandatory award of reasonable attorney fees by the county to court-appointed counsel in Youth Rehabilitation Act proceedings. This intent of the legislature is clearly indicated by similar mandatory language found in other statutes pertaining to juveniles, e. g., Idaho Juvenile Rule 4(b), which states: “Counsel appointed for a child in a Y.R.A. proceeding shall initially receive reasonable compensation from the county . . . .” See Child Protective Act, I.C. § 16-1618 and Idaho Juvenile Rule 4(a). The statute does not distinguish between legal aid and court-appointed private attorneys. If the county is required to pay reasonable fees to court-appointed private counsel, it is also required to pay reasonable fees to legal aid attorneys who are appointed by the court in these proceedings. See Avan v. Municipal Court for Los Angeles Jud. Dist., 62 Cal.2d 630, 43 Cal.Rptr. 835, 401 P.2d 227 (1965). The court in Tofte v. Washington State Department of Social & Health Services, 85 Wash.2d 161, 531 P.2d 808 (1975), citing authority, held the Spokane County Legal Services entitled to attorney fees. In doing so, the court said: “Given the underlying purposes of the fee award provided for in RCW 74.08.080, we see no logical basis upon which to draw a distinction in applicability of the provision between privately retained counsel and SCLS.” 531 P.2d at 810. In State ex rel. McCurdy v. Carney, 172 Ohio St. 175, 174 N.E.2d 253 (1961), the court held that court-appointed attorneys employed by legal aid were entitled to attorney fees even though the fees were paid back into a fund to be administered by a welfare organization. In Rodriguez v. Taylor, 420 F.Supp. 893, 895 (E.D.Pa.1976), the court concluded that Community Legal Services was entitled to attorney fees. In this regard the court said:

“The Act utilizes mandatory language. 29 U.S.C. § 216(b) states: ‘The Court shall . . allow a reasonable attorney’s fee . . . .’ Thus the court would appear to have no discretion to deny such fees. See Wright v. Carrigg, 275 F.2d 448 (4th Cir. 1960). Likewise, it is of no moment that the plaintiff himself may not owe or otherwise be obligated to pay counsel an attorney’s fee, because the statute provides the attorney with a direct interest. .

“There is no logical reason to lessen defendant’s burden simply because an indigent plaintiff obtains representation by an entity such as CLS. The extent of defendant’s liability should not depend upon the ability of plaintiff to hire private counsel. Because CLS is publicly financed, reimbursement to it for the time and effort its attorneys and staff expended in vindicating the rights of plaintiff individually and the plaintiff class is all the more compelling. By awarding reasonable fees to CLS, its limited resources will be increased to expand its present services, or conversely, the same services may be rendered with less expenditure of public funds. In either event the public benefits, and at no greater expense to defendants than if plaintiffs had privately retained an attorney.”

Accord, Townsend v. Edelman, 518 F.2d 116 (7th Cir. 1975); Hairston v. R & R Apartments, 510 F.2d 1090 (7th Cir. 1975).

The order of the district court is reversed with directions that the claim for compensation be reconsidered in light of the views herein expressed.

Costs to appellants.

DONALDSON, C. J., and BAKES, J., concur.

1 . The forerunner to I.C. § 19-856 was I.C.A. 19-1413, as amended in 1937, providing that where counsel were appointed for indigents being tried for felonies, services rendered “must be paid for out of the county treasury, upon order of the judge of the court, such sum as the court may deem reasonable for the services rendered.” From 1864 until 1937, district court representations were statutorily set at ten dollars for misdemeanors, fifty dollars for murder cases, and all other felonies twenty-five dollars.

2 . We see little distinction between a procedure where the court sets the fee and directs payment, and one where the court approves the claim as a prerequisite to approval by the county commissioners. If the legislature in passing I.C. § 16-1809A had in mind something different from the procedure here adopted by the county and district judge, it can be easily rectified by the legislature.

3 . The district judge undoubtedly would rather be thought of as having acted judicially rather than ministerially. For definition of that which is ministerial in nature, Black’s Law Dictionary (5th ed. 1979) at p. 899 states:

“That which is done under the authority of a superior; opposed to judicial. That which involves obedience to instructions, but demands no special discretion, judgment, or skill.”

4 . For other cases which acknowledge standing of attorneys to appeal denial of fees, see Maddrix v. Dize, 153 F.2d 274 (4th Cir. 1946), Collins v. Industrial Comm'n, 12 Ill.2d 200, 145 N.E.2d 622 (1957), Board of Educ. of Community Unit School Dist. 303 v. County Bd., 35 Ill.App.3d 684, 342 N.E.2d 223 (1976), and State v. Lehirondelle, 15 Wash.App. 502, 550 P.2d 33 (1976).

In Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921) unpaid counsel for Mrs. Taylor resisted a motion for dismissal joined in by the plaintiff, Mrs. Taylor, and the defendant, Mr. Taylor. Unpaid counsel sought a continuance of the action so as to obtain an award of fees. Mr. and Mrs. Taylor, of course, were back together. The district court denied the motion for continuance and dismissed the action. The attorneys took the appeal.

This Court entertained the appeal and reversed the dismissal and the denial of the continuance. The opinion of the Court does not reflect any specific challenge raised as to the right of the attorneys to appeal. The statute at that time spoke in terms of “aggrieved parties” having the right of appeal.