Levenson v. Lippman

827 N.E.2d 259, 4 N.Y.3d 280, 794 N.Y.S.2d 276, 2005 N.Y. LEXIS 139
New York Court of Appeals·Decided February 15, 2005·Published·Cited by 11 cases

Opinions

OPINION OF THE COURT

Per Curiam.

The issue presented in this appeal is whether the Chief Administrative Judge acted within the authority granted him by the New York State Constitution when he amended section [285]*285127.2 (b) of the Rules of the Chief Administrator of the Courts (22 NYCRR 127.2 [b]). As amended, the rule permits an administrative judge to review an order of a trial judge setting an award of compensation in excess of the statutory limits set forth in section 722-b of the County Law. We conclude that the Chief Administrative Judge acted within his authority and declare that section 127.2 (b) is valid.

Article 18-B of the County Law requires all counties to maintain a plan to provide counsel to individuals charged with a crime or who are otherwise statutorily entitled to representation (County Law § 722). One manner in which a county may furnish representation is through a bar association plan in which the services of private counsel are rotated and coordinated by an administrator (the Assigned Counsel Plan) (County Law § 722 [3]). Section 722-b of the County Law governs the compensation rates for attorneys who participate in the Assigned Counsel Plan. During the period relevant to this case, County Law § 722-b provided that attorneys participating in the Assigned Counsel Plan be compensated at a rate not to exceed $25 per hour for work performed outside of court and $40 per hour for work performed in court, plus reasonable expenses. The provision further imposed a cap of $800 for misdemeanor cases and $1,200 for felony cases and all appellate matters.1 However, upon application to the court, compensation in excess of these statutory limits could be paid upon a showing of “extraordinary circumstances.” (County Law § 722-b [3].)

These assigned counsel rates, in effect since 1986, have worked a hardship upon the assigned counsel system as the number of attorneys willing to participate in the program severely decreased because the fees were inadequate. At the same time, the number of individuals in need of assigned representation increased, causing many trial courts to struggle to find attorneys willing to represent indigent defendants in criminal proceedings. There arose a growing concern that the lack of attorneys available to represent indigent criminal defendants threatened to deny such individuals their federal and state constitutional rights. To alleviate the problem, a number of trial [286] judges authorized enhanced compensation awards for assigned counsel. These judges concluded that the loss of attorneys from the assigned counsel panels due to the existing rate structure constituted an extraordinary circumstance justifying an enhanced hourly rate to ensure the availability of qualified attorneys to provide constitutionally required representation.

This practice prompted protests from localities responsible for paying these enhanced awards. There was, however no mechanism to review these enhanced awards, either judicially or administratively. In 2001, after consulting with the Administrative Board of the Courts, the Chief Administrative Judge amended section 127.2 to vest the power to review these awards with the appropriate administrative judge. Specifically, the Chief Administrative Judge amended section 127.2 (b) to give administrative judges the power to review enhanced awards, with or without application, and to modify an award “if it is found that the award reflects an abuse of discretion by the trial judge.”2

Plaintiffs Leonard Levenson, Richard A. Siracusa and James H. Tatem are all criminal defense attorneys who participate in the Assigned Counsel Plan, Felony Panel for the County of New York, representing indigent defendants in criminal proceedings. As relevant here, plaintiffs were appointed to represent indigent defendants in five separate criminal proceedings. In each of the underlying proceedings, plaintiffs submitted applications to the presiding trial judge requesting compensation in excess of the statutory limit, and in each instance the respective trial judge determined that extraordinary circumstances warranted an upward departure from the statutory rates. One Justice ordered compensation for Levenson at an hourly rate of $75 for work performed in and out of court, for an aggregate compensation of $10,462.50. Upon Levenson’s application in a separate trial, another Justice ordered that Levenson be compensated at an hourly rate of $65 for in court work and $25 for out of court work, totaling $4,007.50. Similarly, a Justice ordered that Siracusa be paid an hourly rate of $75, for a total of $4,875. Tatem’s application for compensation in one case resulted in a Justice ordering that he be paid at a rate of $75 per hour, for a [287] total of $2,118.75. Pursuant to an application in a separate case, another Justice ordered that Tatem be compensated at a rate of $75 per hour, for an aggregate of $3,488.35.

In each case, the Director of the Assigned Counsel Plan submitted a request for review of the enhanced fee awards to Administrative Judge Micki A. Scherer, whom the Chief Administrative Judge appointed pursuant to section 127.2 (b) to review such excess compensation awards in the Supreme Court, Criminal Term, First Judicial District. Judge Scherer modified each enhanced award by reducing the compensation to the maximum rates set forth in County Law § 722-b.

In January 2002, plaintiffs Siracusa and Tatem commenced a declaratory judgment action against defendants Jonathan Lippman, in his official capacity as Chief Administrative Judge of the Courts, Judge Scherer and the New York State Office of Court Administration challenging the constitutionality of section 127.2 (b). In May 2002, plaintiff Levenson brought a similar action, which was subsequently consolidated with the Siracusa/Tatem action pursuant to a stipulation. Plaintiffs, in their respective complaints, asserted that section 127.2 (b) “unconstitutionally permitted the establishment of an appellate court by delegating the power to review a trial court’s order to” an administrative judge.

Ruling on plaintiffs’ declaratory judgment action, Supreme Court declared that (1) in amending section 127.2 (b), the Chief Administrative Judge did not exceed the authority granted to him by the New York Constitution and the New York Legislature; (2) section 127.2 (b) is neither invalid nor unconstitutional; and (3) Judge Scherer’s orders modifying the awards of compensation granted by the trial judges are valid. Rejecting plaintiffs’ argument that the trial courts’ exercise of discretion in the award of enhanced compensation fees was not subject to review, the court, relying on Matter of Werfel v Agresta (36 NY2d 624 [1975]) and Matter of Director of Assigned Counsel Plan of City of N.Y. (Bodek) (87 NY2d 191 [1995]), stated that “compensation awarded to assigned counsel is not reviewable by the appellate courts, but can only be reviewed on an administrative level.” The court also concluded that section 127.2 (b) was validly amended pursuant to the power conferred upon the Chief Administrative Judge by article VI, § 28 (b) of the Constitution to “adopt administrative rules for the efficient and orderly transaction of business in the trial courts,” as delegated by the Chief Judge in 22 NYCRR 80.1 (b) (6).

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Levenson v. Lippman, 827 N.E.2d 259, 4 N.Y.3d 280, 794 N.Y.S.2d 276, 2005 N.Y. LEXIS 139 (N.Y. 2005).

827 N.E.2d 259 (Levenson v. Lippman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Levenson v. Lippman
827 N.E.2d 259 (New York Court of Appeals, 2005)