Rodrigo Adolpho Amaya v. State Public Defender

• Court: Supreme Court of Iowa
• Decided: June 24, 2022
• Docket: 20-1346
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 20–1346

Submitted March 23, 2022—Filed June 24, 2022 Amended August 31, 2022

STATE PUBLIC DEFENDER,

Petitioner,

vs.

RODRIGO ADOLPHO AMAYA,

Respondent.

Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.

The State Public Defender challenges a trial court order finding Iowa Code

section 815.1 unconstitutional under the Sixth Amendment to the United States

Constitution and granting the defendant’s request for ancillary services at state

expense. WRIT SUSTAINED.

Oxley, J., delivered the opinion of the court, in which Waterman,

Mansfield, McDonald, and McDermott, JJ., joined. Christensen, C.J., filed an

opinion concurring in part and dissenting in part, in which Appel, J., joined.

Appel, J., filed a dissenting opinion. 2

Jeff Wright, State Public Defender, and William Bushell (argued), Assistant

State Public Defender, for the plaintiff.

Benjamin D. Bergmann (argued) and Alexander Smith of Parrish

Kruidenier Dunn Gentry Brown Bergmann & Messamer, L.L.P., Des Moines, for

the defendant.

Thomas J. Miller, Attorney General, and David M. Ranscht (argued) and

Samuel P. Langholz, Assistant Attorneys General, for amicus curiae State of

Iowa. 3

OXLEY, Justice.

An estimated 70%–80% of Iowa criminal defendants are indigent,1 which

means that when they are facing what may be one of the most difficult

circumstances of their lives, they get a court-appointed attorney selected by a

judge unless their family, friends, or others are able to hire a private attorney of

the defendant’s choosing. Once hired, that attorney may need to hire

investigators and experts to help with the defense, but those cost even more

money. In 2019, the Iowa General Assembly enacted Iowa Code section 815.1—

changing the process by which an indigent defendant can obtain state funding

for investigation costs when represented by privately retained counsel. 2019

Iowa Acts ch. 51, § 1 (codified at Iowa Code § 815.1 (2020)). This appeal requires

us to determine whether those changes unconstitutionally pit an indigent

defendant’s right to an attorney of his choosing against his right to services

needed to allow him to put on an adequate defense. We conclude they do not.

I. Factual Background & Proceedings.

Twenty-two-year-old Rodrigo Amaya faces sexual abuse and sexual

exploitation charges after police discovered him and a fifteen-year-old girl in the

backseat of his car in a secluded area of a city park and videos of the girl on his

phone. The court determined Amaya was indigent and appointed the public

defender’s office to represent him. Amaya’s mother was able to pull together

$15,000 and retained Benjamin Bergmann, a private attorney who had

1See Anjela Shutts, President’s Letter, Iowa Law., Feb. 2022, at 5, 5. 4

experience in sexual abuse cases and was conversant in Spanish to better

communicate with Amaya and his family.

Bergmann wanted to hire an investigator and experts to help with Amaya’s

defense, so Amaya filed a motion with the district court requesting funds from

the state to pay for these needed services. Defendants represented by

court-appointed counsel receive reasonably necessary ancillary services such as

investigation services, the cost of transcripts for depositions, and experts as part

of the court appointment. See Iowa Code §§ 815.7 (court-appointed attorneys are

entitled to reasonable fees and expenses), .10A (providing process for court-

appointed attorneys to seek reimbursement of expenses) (2019). Before Iowa

Code section 815.1 was enacted, indigent defendants with privately retained

counsel could seek state funding for those same ancillary services as long as the

defendant showed he was indigent and the court determined the requested

services were reasonably necessary.

Effective July 1, 2019, the Iowa General Assembly passed Iowa Code

section 815.1, which provides a process for determining whether an indigent

defendant who is represented by a privately retained attorney is entitled to have

ancillary services paid by the state. 2019 Iowa Acts ch. 51, § 1 (codified at Iowa

Code § 815.1 (2020)). The district court may grant an application for state funds

for ancillary services if it finds: (1) the defendant is indigent and unable to pay

the costs, (2) the costs are reasonable and necessary for the defendant’s

representation, and (3) the funds available to the retained counsel are

insufficient to cover the requested costs. Iowa Code § 815.1(4)(a)–(c). Amaya 5

challenges the process used to determine that last step—whether the funds paid

to the retained attorney are insufficient to cover the requested costs.

To support the third step of the application process, the retained attorney

must provide the court with information about the financial arrangement of his

representation, including a copy of the fee agreement, the agreed-upon hourly

rate, the amount of the retainer or other money received, the number of hours

worked in the case to date, and the expected or anticipated hours needed to

finish the case. Id. § 815.1(2)(a), (c)–(e). The court then uses a formula that

multiplies the anticipated total hours by an hourly rate. Id. § 815.1(4)(c)(1).

Instead of using the retained attorney’s agreed-upon rate, the formula uses the

statutory contract rate for court-appointed attorneys under Iowa Code section

815.7. Id. § 815.1(4)(c)(1). If that “calculated product” is greater than the amount

available to the retained attorney, the district court can authorize the requested

services at state expense. Id. § 815.1(4)(c)(2). If it is not, the application must be

denied. Id. § 815.1(4). In essence, the statute precludes state payment for

ancillary services for an indigent defendant represented by retained counsel

unless the defendant can show that payments to the retained attorney would not

cover the retained attorney’s time when calculated at the state contract-attorney

rate, regardless of the arrangement between the third party and the retained

counsel.

As a practical matter, this process would not be a big deal if the statutory

contract rate was in the ballpark of the retained attorney’s rate. In other

contexts, attorneys are used to having their rates compared to a lodestar rate. 6

See, e.g., Lee v. State, 906 N.W.2d 186, 197 n.8 (Iowa 2018) (reviewing a statutory

award of fees under the Family and Medical Leave Act and explaining: “The

starting point in determining attorney fees is generally the lodestar. Courts

calculate the lodestar by multiplying the number of hours reasonably expended

by a reasonable hourly rate.” (citations omitted)). At the time Bergmann was

hired, the contract rate was $63 per hour for representing a defendant charged

with Amaya’s crimes (the current rate is $68), a rate declared to be “reasonable

compensation” by the general assembly. See Iowa Code § 815.7(5)–(6).

Bergmann’s agreement with Amaya’s mother charges him out at $300 per hour,

a rate no one suggests is out of line for privately retained criminal defense

attorneys in Des Moines.

Amaya takes issue with the legislature’s characterization of its statutory

contract rates as “reasonable compensation.” In support of his argument, he

offers a recent letter authored by The Iowa State Bar Association president

discussing that it takes the average Iowa lawyer $75 per hour to breakeven, the

state rates are nearly 60% below the federal appointed-attorney contract rate of

$155, and in the last ten years the number of Iowa attorneys willing to contract

with the public defender’s office has been cut in half, from 1,200 attorneys to

now only 650. See Anjela Shutts, President’s Letter, Iowa Law., Feb. 2022, at 5,

5. But no evidence was presented to the district court (including the letter from

the February 2022 issue of The Iowa Lawyer magazine) to support a finding that

$63 per hour is an unreasonable rate. Nor was the district court asked to find

that rate unreasonable. 7

Amaya’s motion for services generally sought funds to cover the costs of

an investigator and depositions but did not request specific amounts.2 Instead,

his motion challenged the constitutionality of section 815.1 under both the

Federal and Iowa Constitutions. He specifically argued that to the extent section

815.1 incorporates the contract rate from section 815.7, it requires private

attorneys to either lower their hourly rate to the $63 contract rate or forego

taking depositions, serving subpoenas, undertaking investigations, and hiring

expert witnesses. Amaya argues that this places indigent defendants who are

able to retain a private attorney through a third-party source in a Hobson’s

choice: he can either keep his counsel of choice but without the needed ancillary

services or he can forego his counsel of choice and accept a court-appointed

attorney to receive the needed services at state expense. Requiring him to give

up one or the other, argued Amaya, violated his constitutional rights.

After objection by the State Public Defender (SPD), who is part of the

application process, see Iowa Code § 815.1(3) (requiring a copy of the application

and attached documents to be submitted to the public defender), Bergmann

provided a copy of his fee agreement with Amaya’s mother, which required a

$15,000 retainer and specified an hourly rate of $300. Bergmann informed the

court he had performed 16.1 hours and estimated that Amaya’s case would

2At the district court hearing on Amaya’s application for state funding for the ancillary services, Amaya’s counsel mentioned two doctors, one who would charge $1,500 and another who would charge $2,000, though it is unclear if he planned to hire one or both of them. Amaya’s counsel did not request a specific amount to cover depositions or any other type of investigators. During the oral argument on appeal, Amaya’s counsel agreed that $5,000 would be on the high side needed to cover typical ancillary services in a case like Amaya’s. 8

require an additional 70 hours of his time through trial. At his hourly rate of

$300, counsel expected his representation to cost $25,830, thereby exceeding

the $15,000 retainer and leaving nothing left to cover the litigation costs.3

However, using the statutory contract rate of $63 per hour, Bergmann’s 86.1

projected hours4 totaled $5,424, leaving $9,576 from the retainer to cover the

requested ancillary services and making Amaya ineligible for state funding for

these costs.

The district court concluded that using the contract rate to determine

whether funds paid to a privately retained attorney were insufficient to cover

reasonable and necessary litigation costs to trigger state funding violated

Amaya’s rights under the Sixth Amendment to the United States Constitution.

The court reasoned:

Although, the Iowa legislature may determine appropriate procedures to implement a constitutional right, those procedures cannot serve to deny access to the constitutional right.

Through section 815.1, the Defendant’s right to auxiliary services at State expense is conditioned on whether the private attorney will accept payment at a rate far below the customary private market. If the defense attorney will not accept lower rates

3At oral argument to our court, Bergmann made the professional statement that in these kinds of cases he generally does not receive compensation beyond the initial retainer, a situation he expected to hold true in Amaya’s case. 4Bergmann also reported to the district court that one associate attorney had already billed 53 hours at $250 per hour and another had billed 5.8 hours at $200. Combined with the 16.1 hours of time by lead counsel, the firm had already billed $19,240 and consumed the $15,000 retainer. Counsel stated there was an outstanding balance owed for the difference. The SPD objected to considering billings for more than the lead attorney, see Iowa Code § 815.1(2)(a) (referring to the number of hours worked by “the attorney,” singular), and the district court and parties considered only lead counsel’s projected total of 86.1 hours for purposes of the statutory calculations. Amaya does not challenge on appeal the district court’s decision to disregard the associates’ hours in determining whether funds are available from the retainer to cover ancillary services, so we do not address whether those additional hours should have been included in the section 815.1(4)(c) calculation. 9

and the Defendant (or family member) cannot afford to pay the private attorney their rate and also pay for auxiliary services, the defendant has two choices: 1) abandon the privately retained counsel and accept court-appointed counsel, at which point the defendant could obtain auxiliary services at state expense or 2) forego the additional auxiliary services.

Additionally, the district court reasoned that using the court-appointed

hourly rate from Iowa Code section 815.7 in the statutory calculation forced

counsel to work at that lower rate, instead of the agreed-upon rate. The district

court severed that portion of the statute, used Amaya’s counsel’s agreed rate of

$300, and concluded that funds available to counsel were in fact insufficient to

cover the requested litigations costs. The district court granted in full Amaya’s

request for investigative services and depositions at state expense.

The SPD filed a notice of appeal from the district court’s order, and we

retained the case.

II. Form of Review.

The parties and the State (as amicus) dispute the proper form of our

review. The SPD argues the district court’s order was a final judgment subject to

direct appeal, relying on Iowa Code § 13B.4(4)(d)(7). The State argues the district

court’s review of an application under section 815.1 is a preclaim determination

not subject to the claim process in section 13B.4, such that the SPD’s appeal

should have been brought pursuant to a writ of certiorari. See Crowell v. State

Pub. Def., 845 N.W.2d 676, 682 (Iowa 2014). Amaya takes no position on the

proper form of review but agrees we can, and should, decide the issues raised.

Although the parties are correct that we can consider the appeal even if

the SPD was not entitled to appeal as a matter of right, see Iowa R. App. P. 6.108 10

(providing that a case initiated under the wrong form of review “shall proceed as

though the proper form of review had been requested”), we nonetheless answer

the question as it will be a recurring issue.

Parties may appeal as a matter of right only from a final judgment. Id. r.

6.102(2). In 2006, the general assembly amended Iowa Code section

13B.4(4)(d)(7), declaring: “The decision of the court following a hearing on the

motion is a final judgment appealable by the state public defender or the

claimant.” 2006 Iowa Acts ch. 1041, § 3 (codified at Iowa Code § 13B.4(4)(d)

(2006)). But what motion? Section 13B.4(4) provides a process for the SPD to

review specific claims for payment of indigent defense costs, providing the

parameters under which the SPD may approve, deny, or reduce the claims. Iowa

Code § 13B.4(4)(c). Paragraph (d) allows a claimant to file a motion with the

district court for review of any claim the SPD denies or reduces. Id. § 13B.4(4)(d).

The district court’s ruling on this motion is the order the general assembly

declared to be a final order immediately appealable as a matter of right in section

13B.4(4)(d)(7).

The decision at issue here is from a motion directly to the district court

under section 815.1 seeking preapproval for state funding of litigation expenses.

See id. § 815.1(1)–(2). It is not the type of decision covered by section

13B.4(4)(d)(7). Indeed, section 815.1 contemplates that once an order for

expenses is granted, the defendant will then use the process identified in section

13B.4(4) to seek payment or reimbursement by submitting a claim pursuant to

section 13B.4(4)(c). See id. § 815.1(7) (directing the retained attorney or claimant 11

for state-funded expenses to “submit a claim for payment in accordance with the

rules of the state public defender”). The plain language of section 13B.4(4)(d)(7)

does not extend to the order at issue in this appeal and is therefore not a final

order.

The SPD is not a party to the underlying case, although by statute it had

a right to, and did, participate in the underlying hearing. A writ of certiorari is

“available to all persons who may show a substantial interest in the matter

challenged.” Crowell, 845 N.W.2d at 683 (emphasis omitted) (quoting Hohl v. Bd.

of Educ., 94 N.W.2d 787, 791 (Iowa 1959)); see also State Pub. Def. v. Iowa Dist.

Ct., 594 N.W.2d 34, 36 (Iowa 1999) (“It has long been established that the proper

mode of review of a trial court’s allowance of fees . . . is by petition to this court

for an original writ of certiorari.”). Since we have concluded the district court’s

order is not a final judgment under section 13B.4, SPD was required to bring an

original action by way of a petition for writ of certiorari. See Iowa R. App. P.

6.107. We treat the notice of appeal as a petition for writ of certiorari, grant the

petition, and proceed to the merits. See id. r. 6.108.

III. Preliminary Matters.

We first address some preliminary matters before getting into the

constitutional issues.

A. Did Section 815.1 Force Amaya’s Retained Attorney to Work for

the Court-Appointed Contract Rate? Amaya brought an as-applied challenge

to the constitutionality of section 815.1, so it is important to understand how

the statutory framework applies specifically to his case. We start with some math 12

to put the parties’ positions into proper context. Amaya argues section 815.1’s

use of section 815.7’s rates forces his retained counsel to work at the $63

court-appointed contract rate even though Amaya’s mother agreed to pay

Bergmann $300 per hour, a conclusion the district court also made. But taking

Bergmann at his word that he does not expect to receive more than the $15,000

retainer, Bergmann is already being paid less than $300 per hour. Bergmann

expected to work a total of 86.1 hours on Amaya’s case. Ignoring the two

associates working on the file, Bergmann’s effective rate is more like $174 per

hour ($15,000 divided by 86.1 hours). The point is that even though Bergmann

charges $300 per hour, in cases where he accepts a retainer from an indigent

defendant’s family even he does not expect to actually receive that rate.

Another math problem is needed to determine Bergmann’s effective rate if

part of the $15,000 retainer is used to cover the requested ancillary services.

Amaya did not ask for a specific amount to cover the investigation and deposition

costs, choosing instead to focus on his constitutional challenge to the statute.

Without a specific requested amount, this math may be a little fuzzy. But at oral

argument, Bergmann agreed that $5,000 would be on the high side of the

amount he would expect to spend for ancillary services in a case like Amaya’s.

Using the retainer to pay the estimated $5,000 would leave $10,000 to cover

Bergmann’s fees. And using the parties’ agreed amount of 86.1 hours as the total

estimated hours for purposes of the statutory formula, Bergmann would still

receive an effective rate of $116 per hour. The point here is that even estimating 13

high, denying state funding for Amaya’s ancillary services would not force

Bergmann to work for the court-appointed contract rate of $63 per hour.

So, for purposes of discussion, the more accurate comparison is

Bergmann’s effective rate of $174 per hour if he is not required to cover ancillary

services out of the retainer and $116 per hour if he is.

B. What Funds Have Been or Are to Be Paid to Amaya’s Retained

Counsel? Amaya challenges the process used to determine the third

requirement of section 815.1, which allows the state to pay for ancillary services

only if the funds available to the retained counsel are insufficient to cover the

requested costs. Iowa Code § 815.1(4)(c). He does not argue with the underlying

premise that if funds available to the retained attorney are sufficient to cover the

ancillary services then state funds should not be used. Rather, he challenges the

process that uses the court-appointed contract rate in making that

determination.

In the fee agreement, Amaya’s mother expressly agreed to pay—either

directly or through reimbursement to Bergmann—the same ancillary services

Amaya seeks to have paid by the state, including deposition expenses, expert

witness fees, and investigators. The fee agreement identified the $15,000

payment as an “initial retainer and expense deposit” and explained that the total

fees and costs may exceed the amount of the deposit, for which Amaya’s mother

agreed to pay.

Where a third party agrees to pay the ancillary services associated with

representing an indigent defendant, the defendant can hardly claim that the 14

state’s refusal to cover those same costs violates his constitutional rights. A

third-party agreement to pay those costs is no different than a third-party

agreement to pay the defendant’s attorney’s fees, which the state is not

constitutionally obligated to pay. See In re Cannady, 600 A.2d 459, 463 (N.J.

1991) (“We recognize that the friends and families of indigent defendants have

the right to engage private counsel. Of course, the State is not required to pay

for counsel of the defendant’s choice at public expense.”). So if the third party

agrees to cover ancillary services as well as the attorney’s fees, there is no

constitutional basis for requiring the state to cover them.

Bergmann’s fee agreement obligates Amaya’s mother to cover the litigation

expenses. Section 815.1 speaks in terms of “moneys paid or to be paid to the

privately retained attorney.” Iowa Code § 815.1(4)(c) (emphasis added). As a

matter of basic contract principles, money owed under a contract would

generally be considered “moneys . . . to be paid.” Id. A straight reading of the

statute could end this case here—Amaya’s mother agreed to cover the costs of

the services sought in Amaya’s motion for state funding so “moneys . . . to be

paid” to Bergmann under the fee agreement are sufficient to pay the requested

services, id., and the statutory requirements are not met even without

considering the challenged formula.

But that leaves some unanswered and concerning questions about what a

retained attorney requesting state funding must show. By its plain terms, the

statute requires the district court to consider all monies to be received, even if

not yet in hand. But what of monies contractually obligated but not really 15

expected? What collection efforts must an attorney undertake to show that

contractually owing payments are not forthcoming, and therefore not “to be paid”

as contemplated by section 815.1(4)(c)? There are certainly ways a retained

attorney could game the system, but we do not see that as an issue here. In any

event, the district court was not presented with this issue and did not decide it.

We leave for another day the interpretation of this portion of section 815.1(4)(c)

and turn to the constitutional issues raised by this appeal.

IV. Analysis.

“We review constitutional challenges to a statute de novo.” State v.

Thompson, 836 N.W.2d 470, 483 (Iowa 2013) (quoting State v. Seering, 701

N.W.2d 655, 661 (Iowa 2005), superseded by statute on other grounds, 2009 Iowa

Acts ch. 119, § 3 (codified at Iowa Code § 692A.103 (Supp. 2009)), as recognized

in Planned Parenthood of the Heartland, Inc., v. Reynolds, 962 N.W.2d 37, 46

(Iowa 2021)). Statutes “are cloaked with a strong presumption of

constitutionality” and any challenger must prove unconstitutionality “beyond a

reasonable doubt.” State v. Biddle, 652 N.W.2d 191, 200 (Iowa 2002).

A. What Constitutional Protections Support an Indigent Defendant’s

Right to Ancillary Services? This case involves two distinct interests: the right

to counsel of choice and the right to ancillary litigation services (e.g.,

investigators, experts, and depositions) reasonably necessary to put on a

defense. A defendant’s constitutional right to counsel under both the Sixth

Amendment to the United States Constitution and article I, section 10 of the

Iowa Constitution includes the right to counsel of choice, i.e., “the counsel [the 16

defendant] believes to be best,” as long as the defendant does not require counsel

appointed at state expense. United States v. Gonzalez-Lopez, 548 U.S. 140, 144–

46 (2006); see also State v. Smith, 761 N.W.2d 63, 69–70 (Iowa 2009) (construing

article I, section 10 consistent with the similarly worded Sixth Amendment,

which “guarantees the defendant the right to be represented by an otherwise

qualified attorney whom that defendant can afford to hire, or who is willing to

represent the defendant even though he is without funds” (quoting Gonzalez-

Lopez, 548 U.S. at 144)). But that right is not absolute. See, e.g., State v. Miller,

542 N.W.2d 241, 245 (Iowa 1995) (explaining defendant did not have the right to

be represented by unlicensed counsel). The right is more accurately described as

“grant[ing] a defendant ‘a fair opportunity to secure counsel of his own choice.’ ”

Luis v. United States, 578 U.S. 5, 11 (2016) (quoting Powell v. Alabama, 287 U.S.

45, 53 (1932)).

A defendant has no right, for example, to an attorney who is not a member of the bar, or who has a conflict of interest due to a relationship with an opposing party. And an indigent defendant, while entitled to adequate representation, has no right to have the Government pay for his preferred representational choice.

Id. at 11–12 (citations omitted). But as a general matter, as long as Amaya is

able to secure counsel without state funding, he has a constitutionally protected

right to his counsel of choice, which in this case is Bergmann. Id. at 12

(recognizing the right, though limited, is still a fundamental right).

Separately, we have held that an indigent defendant has a right to

reasonably necessary ancillary services paid at state expense, even if the

defendant is represented by counsel retained by a third party. See English v. 17

Missildine, 311 N.W.2d 292, 293–94 (Iowa 1981) (holding the Sixth Amendment

right to effective assistance of counsel included the right to a handwriting expert

at state expense for an indigent defendant with privately retained counsel).

English v. Missildine is at the heart of the parties’ dispute and was the basis for

the district court’s ruling that part of section 815.1 is unconstitutional.

Mark English, an indigent 18-year-old, was charged with theft, and his

mother paid $900 to retain private counsel for him. Id. at 293. However, English’s

mother could not afford to pay for the services of a handwriting expert or the

costs of a court reporter to obtain a transcript of needed depositions, so English

applied for those services at state expense. Id. The parties agreed the pretrial

services were reasonably necessary for defending the case and that there were

no funds available to pay for those services. Id. We prefaced the analysis in

Missildine by explaining, “[T]his is not a case where an accused has rendered

himself impecunious by an unreasonable expenditure of funds to retain private

counsel. Nor is it a case where counsel’s fee should reasonably be expected to

cover investigative services.” Id. at 294 (emphasis added). More on that last

sentence later.

English relied solely on the Sixth Amendment to support his claimed

constitutional entitlement to a state-funded handwriting expert, and we limited

our analysis accordingly. Id. at 293. We recognized that “the right to effective

counsel [for indigent defendants] includes the right to public payment for

reasonably necessary investigative services.” Id. at 293–94 (citing State v.

Williams, 207 N.W.2d 98, 104–05 (Iowa 1973); State v. Hancock, 164 N.W.2d 18

330, 333 (Iowa 1969)). Iowa Code section 815.7, which provided ancillary

services to indigent defendants represented by court-appointed counsel, only

“partially implement[ed] this constitutional right” because “the Constitution

independently mandates judicial recognition of an indigent’s right to necessary

investigative services.” Missildine, 311 N.W.2d at 294 (citing Williams, 207

N.W.2d at 104). We rejected the state’s argument that the defendant’s remedy

was to accept court-appointed counsel, which would entitle him to the requested

services under section 815.7. Id. This remedy merely “beg[ged] the question.” Id.

If . . . the sixth amendment provides authority for furnishing investigative services to indigents at public expense without regard to whether the indigent is represented by counsel at public expense, the fact that indigents represented by counsel at public expense have the same right is not material. It would be strange if the Constitution required the government to furnish both counsel and investigative services in cases where the indigent needs and requests public payment for only investigative services. The State’s theory would impose an unreasonable and unnecessary additional burden on the public treasury.

Id.

The parties question whether Missildine remains good law in light of a

subsequent United States Supreme Court case, Ake v. Oklahoma, 470 U.S. 68

(1985). There, the Supreme Court identified the Fourteenth Amendment’s Due

Process Clause as the source protecting a criminal defendant’s right to state

funding for a psychiatrist deemed necessary to support his insanity defense. See

id. at 76, 86–87. The Supreme Court

has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of 19

fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

Id. at 76. Although a state is not required to “purchase for the indigent defendant

all the assistance that his wealthier counterpart might buy,” the Court held that

“fundamental fairness entitles indigent defendants to ‘an adequate opportunity

to present their claims fairly within the adversary system.’ ” Id. at 77 (quoting

Ross v. Moffitt, 417 U.S. 600, 612 (1974)). Where the defendant’s sanity was “a

significant factor at trial,” the Supreme Court made clear that its “concern is that

the indigent defendant have access to a competent psychiatrist” to help evaluate,

prepare, and present the defense. Id. at 83 (emphasis added). “[A]s in the case of

the provision of counsel,” the Supreme Court left “to the State the decision on

how to implement this right.” Id. Having relied on the Due Process Clause, the

Supreme Court “ha[d] no occasion to consider the applicability of the Equal

Protection Clause, or the Sixth Amendment, in this context.” Id. at 87 n.13.

Although our analysis in Missildine was necessarily limited to the Sixth

Amendment based on the way the case reached us, our reliance on State v.

Williams and State v. Hancock reveals that we recognized a broader

constitutional base for state-funded ancillary services for indigent defendants.

See Missildine, 311 N.W.2d at 293–94 (citing Williams, 207 N.W.2d at 104–05;

Hancock, 164 N.W.2d at 333). In Williams, we explained that an indigent

defendant represented by appointed counsel was entitled to the costs to

reasonably investigate the charges against him at state expense both as a matter

of providing effective assistance of counsel under the Sixth Amendment and 20

article I, section 10 of the Iowa Constitution, and as a matter of providing a fair

trial as required by the due process provisions of the Fourteenth Amendment

and article I, section 9 of the Iowa Constitution. See 207 N.W.2d at 104. In

Hancock, we recognized that “the denial of defendant’s request for a handwriting

analysis has overtones sounding in due process and equal protection of the

laws.” 164 N.W.2d at 333. Our reliance on Williams and Hancock reveals that an

indigent defendant’s right to state-funded ancillary litigation services is

grounded as well in fundamental fairness protected by due process. Ake does

not undermine our holding in Missildine, and we see no reason to retreat from it

here.

B. Does the Section 815.1 Framework Unconstitutionally Pit an

Indigent Defendant’s Right to Counsel of Choice Against His Right to

State-Funded Ancillary Services? Ake makes clear that the right to

state-funded ancillary services is not unconditional. Ake was concerned with

ensuring indigent defendants have an “adequate opportunity” to present their

defense, Ake, 470 U.S. at 77 (quoting Moffitt, 417 U.S. at 612), and that they

have “access to competent” ancillary services when reasonably necessary to that

defense, id. at 83. Ake further left application of the right to ancillary services to

states to administer, id., much the way states ensure a criminal defendant’s right

to representation. So what does a state need to do to ensure an “adequate

opportunity” to present a defense and “access” to reasonably necessary ancillary

services? 21

The same way that an indigent defendant whose family or friends pay for

a private attorney cannot require the state to pay that attorney, see Cannady,

600 A.2d at 463, he likewise cannot require the state to pay for ancillary services

necessary to his defense that are also paid by family members. Recall that we

prefaced our analysis in Missildine by noting it was not “a case where counsel’s

fee should reasonably be expected to cover investigative services.” 311 N.W.2d

at 294. This case picks up where Missildine left off. And section 815.1 is the

general assembly’s answer to that question. Our role is to ensure that answer

does not violate Amaya’s constitutional rights.

To some extent, section 815.1 follows Justice Uhlenhopp’s special

concurrence in Missildine. Justice Uhlenhopp suggested that before retained

counsel was allowed to seek state funding for ancillary services he should be

required to “account for the use of his private retainer on the basis of the ordinary

and customary charges in the community.” Id. at 295–96 (Uhlenhopp, J.,

concurring specially). Section 815.1 requires counsel to account for the funds,

but in doing so, limits counsel to a statutory rate—the

court-appointed contract rate—to determine counsel’s total expected fees instead

of his agreed-upon rate. If there are funds available to the retained counsel to

cover the ancillary services under the statutory formula, the indigent defendant

has funds available for purposes of the statute and is not entitled to seek state

funding.

We are unaware of any other case involving a constitutional challenge to a

statute like Iowa’s. Some states expressly limit state funding for ancillary 22

services to state-provided attorneys. See, e.g., People v. Thompson, 413 P.3d 306,

316–17 (Colo. App. 2017) (relying on Colorado Supreme Court precedent to

construe Colorado statutes governing the office of the state public defender

collectively to mean that a defendant “only [has] a right to state-funded ancillary

services if the public defender or court-appointed alternate defense counsel

represented him”); State v. Earl, 345 P.3d 1153, 1155 (Utah 2015) (explaining

that Utah’s public defender statute “generally condition[ed] an indigent

defendant’s eligibility for [ancillary services] on the retention of publicly funded

counsel”).

Other state statutes are less explicit, requiring courts to construe whether

the statute limits ancillary services to indigent defendants with court-appointed

counsel or allows payment for indigent defendants with privately retained

counsel. See, e.g., Tran v. Super. Ct., 112 Cal. Rptr. 2d 506, 509–11 (Ct. App.

2001) (considering Cal. Penal Code § 987.9); State v. Wang, 92 A.3d 220, 237–

40 (Conn. 2014) (considering Conn. Gen. Stat. § 51–292); Duke v. State, 856

S.E.2d 250, 256–58 (Ga. 2021) (considering whether Georgia’s Indigent Defense

Act, which allowed the director to contract with outside consultants as necessary

to provide services contemplated by the chapter, applied to services requested

by pro bono counsel); State v. Brown, 134 P.3d 753, 757–60 (N.M. 2006)

(considering whether New Mexico’s Indigent Defense Act, which provides

“necessary services . . . of representation” to “needy persons” applied to pro bono

counsel (omission in original) (quoting N.M. Stat. Ann. § 31–16–3(A))). Where the

statute is not clear, some courts have interpreted their state’s statutes to allow 23

state funding for indigent defendants with retained counsel as a matter of

statutory construction. See, e.g., Cannady, 600 A.2d at 459, 462 (holding that

an indigent defendant whose family paid for a private attorney was entitled to

have the public defender agency pay for an expert witness because “New Jersey’s

policy is to provide counsel for all indigent defendants, not just for indigents

represented by the [Office of the Public Defender]”); State v. Wool, 648 A.2d 655,

658, 660 (Vt. 1994) (holding pro se defendant was entitled to payment of

investigative and expert witness services under Vermont’s Public Defender Act,

explaining that the services are distinct from the state’s obligation to provide

public representation and cannot be conditioned on accepting court-appointed

counsel). Having addressed the right as a statutory matter, these courts did not

address whether the services were required as a constitutional matter.

However, courts facing constitutional challenges to their state’s rules

about ancillary services have been divided over the issue of whether limiting the

ancillary services to only state-provided counsel violates an indigent defendant’s

constitutional rights. The divide turns on the court’s determination of whether

the constitutional right to ancillary services is tethered to, or severable from, the

right to counsel. Courts that conclude the constitutional rights are tethered hold

a state may limit access to state funding for ancillary services to indigent

defendants represented by state-provided counsel. See, e.g., Thompson, 413 P.3d

at 318 (“[A] defendant has no Sixth Amendment right to spend another person’s

money for services rendered by an attorney, even if those funds are the only way

that that defendant will be able to retain the attorney of his choice.” (quoting 24

Caplin & Drysdale, Charted v. United States, 491 U.S. 617, 626 (1989))); Moore

v. State, 889 A.2d 325, 348 (Md. 2005) (“The State satisfied the Due Process

Clause, as interpreted in Ake, by making expert assistance available to Moore

through the [Office of the Public Defender], conditioned on representation by that

agency.”); Earl, 345 P.3d at 1157–58 (recognizing the right to

“government-funded defense resources long guaranteed [i]s an adjunct to the

right to counsel under the Sixth Amendment” and concluding that a defendant

who accepts “the private counsel of her choice . . . has no constitutional right to

defense resources from a secondary source backed by government funding”). We

have already determined that the right to state-funded ancillary services is

distinct from the right to counsel under Ake and Missildine, so we disagree with

those courts’ underlying premise. In any event, Iowa’s statute allows indigent

defendants with retained counsel to receive state funding for ancillary services,

so we are faced with a different issue.

Other courts hold a state’s funding mechanism that limits ancillary

services to court-appointed attorneys is unconstitutional because the rights are

related but distinct under Ake, so bundling the ancillary services with

court-appointed counsel did not satisfy the separate constitutional right. See,

e.g., Wang, 92 A.3d at 231–32 (holding that a self-represented indigent defendant

has a Fourteenth Amendment due process right to publicly funded expert and

investigative services, reasoning that “the due process right articulated in Ake is

not tethered to the right to counsel”); Duke, 856 S.E.2d at 256–57 (holding that

a Georgia statute allowed pro bono attorneys to contract for ancillary services for 25

their indigent clients); id. at 263 (Peterson, J., concurring) (“Ake makes clear that

the availability of funding for ancillary defense services involves a right

independently rooted in the Due Process Clause.”); Brown, 134 P.3d at 759–60

(“That right [to ancillary services] is not contingent upon the appointment of

Department counsel; it is inherent under the state and federal Constitutions.”).

These cases involved pro se or pro bono representation, or cases like Missildine

where there was no question that limited funds provided to counsel would not

also cover needed expert fees. The separate issue of whether funds provided to

the retained counsel could be expected to cover ancillary services was not at

issue.

The case most directly on point that both recognized the right to ancillary

services as severable from the right to counsel as a matter of constitutional law

and also involved paid retained counsel is Tran v. Superior Ct., 112 Cal. Rptr. 2d

506. There, an indigent defendant’s family retained a private attorney to defend

his capital murder case for $300,000. Id. at 507. The agreement expressly

excluded payment of ancillary services, and the retained counsel sought $17,369

in state funding for an investigation, psychological evaluation, interpreter, and

transcriber services.5 Id. at 508. The California Court of Appeal rejected the

district court’s reliance on two out-of-state opinions, including Justice

Uhlenhopp’s concurrence in Missildine, to limit state funding for ancillary

5California Penal Code section 987.9(a) provided: “In the trial of a capital case . . . the indigent defendant, through the defendant’s counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense.” 26

services based on an “ordinary and customary charges” test. Id. at 509–10.6 The

court held that “[r]ote application of an ordinary-and-customary-charges test in

cases where retained counsel seeks public funds for ancillary services is bad

policy, however, and it is contrary to at least the tone of California precedent.”

Id. at 509–12 (discussing California cases holding that access to ancillary

services is afforded to all indigent defendants, not just indigent defendants with

appointed counsel, and holding that a family member’s agreement with retained

counsel that excluded payment of ancillary services precluded the court from

considering the third-party payment of attorney’s fees in determining indigency).

Amaya makes similar arguments in his challenge to section 815.1’s use of

the rates paid to court-appointed contract attorneys to determine his eligibility

for funding, which is $63 per hour for relevant purposes. Amaya claims that this

formula pits his constitutionally protected right to his counsel of choice (when

paid by a third party) against his constitutionally protected right to receive

ancillary services at state expense, placing him in a Hobson’s choice he should

not have to make.

To the extent Amaya argues the statute requires his privately retained

attorney to adjust his compensation rate to the state contract rate if he is going

to receive state funding for his requested investigation and deposition expenses,

Amaya’s argument fails as a factual matter. Remember our math problems? The

statutory scheme reduced Mr. Bergmann’s effective rate of $174 per hour to $116

6The other case, State ex rel. Rojas v. Wilkes, 455 S.E.2d 575, 577 (W. Va. 1995), did not involve constitutional claims but only addressed an indigent defendant’s right to state-funded ancillary services as a statutory matter under West Virginia Code section 29–21–16(e). 27

per hour, so almost double the $63 rate paid to court-appointed contract

attorneys. While Amaya overstates the effect of the statutory scheme, we

nonetheless recognize that it does require Bergmann to work on Amaya’s case

for less than he agreed. The question is whether that statutory scheme burdens

Amaya’s competing constitutional rights to a degree that he is denied one or the

other.

To the extent Amaya argues he is forced to pick either his counsel of choice

or ancillary services needed for his defense, that would be true only if his counsel

refuses to represent Amaya if he is required to cover the ancillary expenses out

of the funds he has been paid. Again, Amaya’s claim fails as a factual matter.

There is no evidence that Bergmann has refused to cover the services out of the

$15,000 retainer. And as we have shown, requiring the ancillary services to be

paid from the retainer still leaves Bergmann with fees at an effective rate of $116

per hour.

The statute does not put Amaya in the place of literally having to choose

between his counsel of choice and state funding for ancillary services as is the

case under statutory schemes that bundle the provision of ancillary services to

state-provided counsel. In People v. Thompson, an indigent defendant with

privately retained counsel was forced to fire his retained counsel and accept

court-appointed counsel to receive needed ancillary services because Colorado’s

system provided funding for ancillary services only for defendants represented

by court-appointed counsel. 413 P.3d at 315–17. The defendant challenged the

system as “plac[ing] [him] on the horns of a constitutional dilemma” because he 28

had to choose between his counsel of choice and the “right to present his defense,

via the ancillary services.” Id. at 316. Here, Amaya can have both his counsel of

choice and state-funded ancillary services, although with limits.

From a constitutional perspective, the real issue presented in this case is

not whether $63 per hour is a reasonable rate but whether denying state-funded

ancillary services if third-party funding could reasonably be expected to cover

both the ancillary services and the attorney’s fees violates either the right to

counsel of choice or to the ancillary services. We could follow the California

court’s lead and look only to the agreement between the attorney and the third

party. But that would not help Amaya since the fee agreement between his

mother and Bergmann included an agreement for his mother to pay for ancillary

services. So the real issue is whether Justice Uhlenhopp was correct that the

Constitution allows the state to require the attorney to account for the third-

party funds and use those funds to cover ancillary services to the extent the

funds provide the retained attorney a reasonable fee, even if that fee is below the

agreed rate.

We agree with Justice Uhlenhopp that funds available to retained counsel

by a third party are relevant to the issue of whether an indigent defendant is

entitled to state funding for ancillary services as a constitutional matter. We have

concluded that the constitutional right to needed ancillary services is distinct

from the constitutional right to counsel, but we have also recognized they are

related. The constitutional right at issue is the right to put on a defense, and the

defendant’s attorney is generally the one who is tasked with that job. Cf. State v. 29

DiFrisco, 804 A.2d 507, 536 (N.J. 2002) (citing Cannady, (which recognized the

right to ancillary services is severable from the right to counsel) but rejecting a

standalone claim for ineffective assistance of an expert because “the deficient

performance that implicates a defendant’s right in that respect is the

performance of counsel who obtained the expert’s examinations or presented the

evidence at trial”). Our holding in Missildine and the Supreme Court’s holding in

Ake recognize that when a state brings its might against a criminal defendant,

the state must provide an indigent defendant with those ancillary services

necessary to defend himself. Yet, the right to state-funded ancillary services is

not absolute, as is the right to state-funded counsel; it is limited to access to

ancillary services reasonably necessary to allow a defendant an adequate

opportunity to put on a defense. See Ake, 470 U.S. at 77, 83.

Ake left to states to determine the best way to provide ancillary services,

similar to the way it provides counsel at state expense. Id. at 83. With respect to

state-funded counsel, the Iowa General Assembly has satisfied that obligation

by creating a public defender’s office, which is supplemented by court-appointed

contract attorneys. Ake made a similar point that when ancillary services are

provided at state expense, an indigent defendant is not entitled to an expert of

his choice, but he is entitled to “access” to necessary ancillary services that give

him an “adequate opportunity” to put on his defense. Ake, 470 U.S. at 77

(quoting Moffitt, 417 U.S. at 612).

To the extent Amaya takes issue with forcing his retained counsel to

reduce his agreed-upon rate to the state contract rate before the state will cover 30

ancillary services, we do not see those limits as materially different from the

limits placed on indigent defendants who receive counsel at state expense. Stated

differently, we do not see how we can declare the procedure in section 815.1 for

determining a reasonable rate unconstitutional without also declaring the use of

the $63 per hour rate unconstitutional for all contract attorneys. The general

assembly has declared that to be a “reasonable” rate. See Iowa Code § 815.7(1),

(5) (declaring that contract attorney “shall be entitled to reasonable

compensation and expenses” and setting that rate at $63 as relevant here).

Our conclusion that the state is constitutionally permitted to consider the

funds available to a retained attorney in determining whether it is required to

provide state funding for ancillary services leads us to reject the California Court

of Appeal’s approach. That court explained its reasoning as follows:

There are at least two problems if private counsel expects every retainer agreement will be scrutinized under a reasonableness test: (1) it would impinge on the ability of the free market economy to set the price for legal services; and (2) it would deter many of the best, most experienced attorneys from taking privately retained cases without charging for ancillary services. In those cases in which the family could not afford the attorney’s fee and the cost of ancillary services, the public would end up paying for both instead of just the ancillary services. Moreover, a reasonableness test would interfere with the principle that, when possible, a defendant should be afforded retained counsel of choice.

Tran, 112 Cal. Rptr. 2d at 510–11. But these are policy issues best left to the

general assembly, not constitutionally-grounded principles we may rely on.

Further, they focus on the attorney’s rights—rights to set their rates and whether

they would be deterred from representing defendants like Amaya. Cf. Simmons

v. State Pub. Def., 791 N.W.2d 69, 87 (Iowa 2010) (explaining, in structural 31

challenge to hard cap on appellate fees for court-appointed counsel, “we focus

not on establishing a system that provides reasonable compensation to a lawyer,

but on one that is designed to provide effective assistance of counsel”). Those

concerns are always at issue when a client seeks the services of an attorney, and

nothing about the Sixth Amendment counsel-of-choice jurisprudence requires

the state to sweeten the pot to help assure a defendant receives his attorney of

choice. See Luis, 578 U.S. at 11 (concluding the right to counsel of choice “grants

‘a defendant a fair opportunity to secure counsel of his own choice’ ” (emphasis

added) (citation omitted) (quoting Powell, 287 U.S. at 53)).

Section 815.1 places limits on an indigent defendant’s entitlement to state

funding for ancillary services needed for his defense, but not unconstitutionally

so, at least not on this record. To the extent Amaya relies on Simmons v. State

Public Defender, there may be a point at which the statutory scheme creates such

a chilling effect on attorneys willing to represent indigent defendants that it

inhibits a defendant’s ability to receive competent representation. See 791

N.W.2d at 87–88 (holding “the plaintiff has shown that if Iowa imposes a hard-

and-fast fee cap of $1500 in all [appellate] cases, such a fee cap would in many

cases substantially undermine the right of indigents to effective assistance of

counsel in criminal proceedings under article I, section 10 of the Iowa

Constitution” based on the detailed record made in the district court, including

a finding that the cap reduced the attorney’s effective rate to $12 per hour). The

general assembly has declared $63 per hour to be “reasonable compensation”

for state-funded contract attorneys. Unless that underlying premise is 32

satisfactorily challenged, tying state funding for ancillary services provided to

retained counsel to that same rate is not a constitutionally impermissible way

for the general assembly to determine whether funds paid to a retained attorney

could be expected to cover requested ancillary services at state expense.

We hold that the state is not constitutionally required to provide ancillary

services to an indigent defendant represented by private counsel if funds

available to the counsel can reasonably be expected to cover the services. As Ake

suggested, the general assembly came up with a process for determining when

that can be expected. That process may chill some private attorneys from

accepting cases like Amaya’s, not unlike the chill caused by paying

court-appointed attorneys only $63 (or $68 under the current rates) per hour.

But policy arguments similar to those made by Amaya and Chief Justice

Christensen’s concurrence in part and dissent in part are for the legislature. As

long as the statutory rate paid to contract attorneys is not itself unconstitutional,

we cannot say the process in section 815.1 relying on that same rate is

constitutionally prohibited.

V. Conclusion.

The district court’s ruling that severed section 815.1(4)(c) from the statute

is reversed. The case is remanded for further proceedings consistent with this

opinion.

WRIT SUSTAINED.

Waterman, Mansfield, McDonald, and McDermott, JJ., join this opinion.

Christensen, C.J., files an opinion concurring in part and dissenting in part, in

which Appel, J., joins. Appel, J., files a dissenting opinion. 33

#20–1346, State v. Amaya

CHRISTENSEN, Chief Justice (concurring in part and dissenting in part).

I disagree with the majority’s resolution of the case because I believe that

a district court cannot consider third-party funds used to hire an attorney for an

indigent defendant in determining whether “counsel’s fee should reasonably be

expected to cover investigative services” or ancillary services7 under English v.

Missildine, 311 N.W.2d 292, 294 (Iowa 1981).8 I would strike the portion of Iowa

Code section 815.1(4)(c) (2019) that requires the court to consider monies paid

or to be paid “on behalf of” the indigent defendant in determining whether

investigative services should be authorized. Therefore, Rodrigo Amaya should be

entitled to the requested investigative services at state expense.

I. Section 815.1 Violates the Right to Effective Counsel Under the Sixth Amendment to the United States Constitution.

A. Application of Missildine. In Missildine, we held that “authority for

the services requested by plaintiff exists under his Sixth Amendment right to

effective representation of counsel. For indigents the right to effective counsel

includes the right to public payment for reasonably necessary investigative

services.” 311 N.W.2d at 293–94. We have since reiterated this principle in

multiple cases. See, e.g., State v. Dahl, 874 N.W.2d 348, 351–52 (Iowa 2016)

7The terms “investigative services” and “ancillary services” are used interchangeably

throughout this opinion. 8I agree with the majority’s analysis in part II that the appropriate form of review is a writ of certiorari. Like the majority, I also remain concerned that the fee agreement between Bergmann and Amaya’s mother obligates her to pay for the investigative services requested in this case. However, the majority proceeds with the constitutional analysis of section 815.1’s statutory formula. Because of the majority’s decision, I also address the constitutional issues. 34

(“[T]he Sixth Amendment to the United States Constitution requires the State to

pay for reasonably necessary defense services for which indigent defendants

demonstrate a need in order to ensure such defendants receive effective

assistance of counsel.”); State v. Walters, 426 N.W.2d 136, 140 (Iowa 1988) (“An

indigent’s right to effective assistance of counsel includes the right to public

payment for reasonably necessary investigative services.”). Nevertheless, an

individual’s right to reasonably necessary investigative services is not absolute

under Missildine, as an indigent defendant is not entitled to public funding for

investigative services if the “accused has rendered himself impecunious by an

unreasonable expenditure of funds to retain private counsel” or if “counsel’s fee

should reasonably be expected to cover investigative services.” Missildine, 311

N.W.2d at 294. Only the second exception is at issue in this case.

Section 815.1 is the general assembly’s attempt to determine whether

private “counsel’s fee should reasonably be expected to cover investigative

services.” Id.; see generally Iowa Code § 815.1. The statute at issue provides that

a court cannot grant an application to authorize investigative services unless

“[t]he represented person is indigent and unable to pay for the costs sought,”

“[t]he costs are reasonable and necessary for the representation of the indigent

person in a case for which counsel could have been appointed,” and “[t]he

moneys paid or to be paid to the privately retained attorney by or on behalf of the

indigent person are insufficient to pay all or a portion of the costs sought to be

paid from state funds.” Id. § 815.1(4)(a)–(c) (emphasis added). 35

The majority explains the section’s statutory formula implements Justice

Uhlenhopp’s special concurrence from Missildine. See 311 N.W.2d at 294–96

(Uhlenhopp, J., concurring specially). Justice Uhlenhopp argued that a

defendant with a private attorney retained through a third party who seeks

public funds for investigative services “must play according to the rules of the

game provided by the General Assembly.” Id. at 295. He believed that privately

retained counsel would have to become court-appointed counsel so that the

court-appointed statutory rate could substitute private counsel’s fee. At the time,

the district court determined the statutory rate based on a variety of factors, id.

(citing Iowa Code § 815.7 (1981)); see Parrish v. Denato, 262 N.W.2d 281, 285

(Iowa 1978) (providing a list of factors to determine an appropriate statutory

rate), and only defendants whose attorneys exhausted the retainer fees under

the statutory rate could access investigative services at state expense, Missildine,

311 N.W.2d at 295. Today’s section 815.1’s statutory formula uses section

815.7’s current court-appointed hourly rates to determine whether an attorney

has exhausted their retainer fee instead of Justice Uhlenhopp’s advocacy for the

court to determine “ordinary and customary charges for like services in the

community” under a previous version of section 815.7. Id. (quoting Iowa Code

§ 815.7 (1981)); see Iowa Code § 815.1, .7 (2019).

But none of the other justices in Missildine joined Justice Uhlenhopp’s

argument to consider third-party funds in determining whether “counsel’s fee

should reasonably be expected to cover investigative services.” Missildine, 311

N.W.2d at 294 (majority opinion). Rather, they held that “the Constitution 36

independently mandates judicial recognition of an indigent’s right to necessary

investigative services.” Id. This is because “[t]he fact that a third person retained

private counsel for [the defendant] does not by itself affect his status as an

indigent.” Id. (citing Schmidt v. Uhlenhopp, 140 N.W.2d 118 (Iowa 1966)). Our

courts have historically recognized that third-party funds are irrelevant to

determining if the defendant is indigent. See Schmidt, 140 N.W.2d at 119–21

(holding that the defendant’s mother’s payment for a private attorney had no

effect as to whether the defendant is indigent); cf. State v. Van Gorder, 184 N.W.

638, 639 (Iowa 1921) (“The fact the [defendant] was able to furnish an appeal

bond, or that his wife has an interest in her father’s estate, or that the [defendant]

has brothers and sisters and other relatives in Allamakee [C]ounty, Iowa, who

had previously come to his aid, is not a sufficient reason why he should be denied

a transcript at the expense of the [state], as he has no legal way of securing any

funds from these sources with which to pay for a transcript.”); State v. Wright,

82 N.W. 1013, 1014 (Iowa 1900) (“While a moral obligation may require relatives

to assist one another in such cases, we know of no legal rule requiring it, where,

as in this case, the defendant is an adult.”).

Missildine then explained that “the sixth amendment provides authority

for furnishing investigative services to indigents at public expense without regard

to whether the indigent is represented by counsel at public expense.” 311 N.W.2d

at 294 (emphasis added). I read this holding to mean that, as a constitutional

matter, the existence of third-party funds are irrelevant in determining whether

an indigent defendant should have access to reasonably necessary investigative 37

services. This reasoning is consistent with other state courts. See State v. Jones,

707 So. 2d 975, 977 (La. 1998) (“The presence of retained counsel, be it from a

collateral source or pro bono, should not work [as] a hardship against an indigent

accused who otherwise would be entitled to State funded auxiliary services. The

determinative question is the defendant’s indigency, not whether he has derived

any assistance from collateral sources.”); State ex rel. Rojas v. Wilkes, 455 S.E.2d

575, 577 (W. Va. 1995) (“We disagree with the respondent’s contention that the

funds with which the petitioner’s family retained private counsel are relevant to

petitioner’s right as an indigent person to have necessary expert assistance

provided at the State’s expense. The petitioner’s family members have no

obligation to finance the petitioner’s defense, and any funds they provide have

no effect on his status as personally indigent.”); see also Brown v. Eighth Jud.

Dist. Ct., 415 P.3d 7, 10–11 (Nev. 2017) (collecting cases). Section 815.1’s

statutory formula has effectively conditioned an indigent’s access to reasonably

necessary services and effective assistance of counsel on irrelevant third-party

funds. That is contrary to Missildine and in violation of the Sixth Amendment to

the United States Constitution.

In finding a violation has occurred under Missildine, I must determine

whether severance of section 815.1 is appropriate. See Westco Agronomy Co. v.

Wollesen, 909 N.W.2d 212, 224 (Iowa 2017) (“Severance is appropriate ‘if it does

not substantially impair legislative purpose, the enactment remains capable of

fulfilling the apparent legislative intent, and the remaining portion of the

enactment can be given effect without the invalid provision.’ ” (quoting Breeden 38

v. Iowa Dep’t of Corr., 887 N.W.2d 602, 608 (Iowa 2016))). While the district court

correctly understood that third-party funds cannot be taken into consideration,

it severed the wrong portion of the statute. Instead of severing the portion of the

formula that required replacing the privately retained attorney fees with section

815.7 rates, I would sever the portion referring to monies paid or to be paid “on

behalf of” the indigent defendant. See Iowa Code § 815.1(4)(c); id. § 815.1(4)(c)(2).

Section 815.1(4)(c) would then logically read: “The moneys paid or to be paid to

the privately retained attorney by the indigent person are insufficient to pay all

or a portion of the costs sought to be paid from state funds.”9

Here, the record shows Amaya has not provided any money or indicated

that he will be able to pay his attorney Benjamin Bergmann or Bergmann’s firm

any money to go toward his defense. Regardless of whether we apply Bergmann’s

contracted rate or statutorily prescribed rate under section 815.7, under my

analysis the monies paid or to be paid by the indigent person are insufficient to

cover the costs. Because both parties agree that the defendant is indigent and

that the investigative services are reasonably necessary, I would have granted

those services at state expense and stopped short of determining whether section

815.7 rates can be used in calculating whether a defendant who hires private

counsel and then cannot pay for reasonably necessary investigative services.

9Subsequently, section 815.1(4)(c)(2) would also read “If the product calculated in subparagraph (1) is greater than the monies paid or to be paid to the attorney by the indigent person, the monies shall be considered insufficient to pay all or a portion of the costs from state funds.” 39

B. Reevaluating the Math. In holding that the statute is constitutional

under this as-applied challenge, the majority offers mathematical illustrations

to provide some perspective on the operation of section 815.1. These illustrations

show that Bergmann does not expect to receive full payment for his contracted

$300 hourly rate with the initial retainer of $15,000. Using only Bergmann’s

projected 86.1 hours and excluding any hours by his associates, the majority

suggests he would earn $174 per hour if ancillary services are not covered from

the initial retainer and $116 per hour if ancillary services are covered from the

initial retainer.

Two other associate attorneys working for Bergmann completed 58.8

hours before the filing of the motion for investigative services. The State Public

Defender’s Office (SPD) objected to the use of any of their hours in the section

815.1 statutory formula because section 815.1 refers to a singular attorney. See

Iowa Code § 815.1(1) (referring to only “a privately retained attorney”), (2)(a)

(requiring the “number of hours of work completed by the attorney to date” as

part of the application for funds). Ultimately, the district court did not include

the associates’ hours because it determined a constitutional violation existed

without them.

The SPD’s proposed interpretation creates practical problems. There is

nothing in the record to indicate that the associates’ hours were unnecessary to

build Amaya’s defense. If the associates could not perform that work, it would 40

have been left to Bergmann to complete that work at a much higher hourly rate.10

Section 815.1(4)(c)(1)’s statutory formula should include hours that are

reasonably necessary to building a defense for purposes of determining whether

ancillary funds are available, regardless of the number of attorneys working on

the case. See id. § 4.1(17) (“Unless otherwise specifically provided by law the

singular includes the plural, and the plural includes the singular.”). Otherwise,

the result is a grossly inaccurate reflection of the true legal work performed in

determining whether the attorney or law firm has exhausted the retainer, i.e.

whether “counsel’s fee should reasonably be expected to cover investigative

services.” Missildine, 311 N.W.2d at 294. Assuming all of the associates’ legal

work was necessary, I would include their hours in calculating total fees.

Based on the section 815(4)(c)(1) formula including the associates’ hours,

Bergmann and the firm could expect to receive an hourly rate of approximately

$10411 if the ancillary services were not used from the retainer and an hourly

rate of $6912 if the ancillary services were used from the retainer. This result

paints a drastically different picture than the one the majority depicts. Even if

we subtract those ancillary services on the high end from the initial retainer,

there is less than ten bucks difference between Bergmann’s calculated hourly

rate of $69 and the 2019 court-appointed hourly rate of $63. See Iowa Code §

10The fee arrangement between Amaya’s mother and Bergmann provides that as lead attorney, Bergmann would work at an hourly rate of $300 while associates would work at an hourly rate of $150 to $300. The district court noted that one associate worked at an hourly rate of $250 and the other worked at an hourly rate of $200. 11$15,000 divided by 144.9 hours. 12$10,000 divided by 144.9 hours. 41

815.7(5). If Bergmann worked sixteen additional hours, his hourly rate would

be $6213, just below the court-appointed hourly rate.

Another fact pattern that could easily occur is if Amaya’s mother had

advanced $1,000 less and the retainer was used for the ancillary services. This

would also result in Bergmann’s hourly rate becoming $62,14 just below the same

court-appointed hourly rate. It is important to note that these calculations do

not consider any necessary overhead charges that must be pulled from the

retainer. Cf. Simmons v. State Pub. Def., 791 N.W.2d 69, 73 (Iowa 2010). Taking

these scenarios into consideration, it is easy to assume that other privately

retained attorneys may be in a situation in which the statute does indeed force

them into a situation where they are working below the contractual rate. Aimee

Kumer, Reconsidering Ake v. Oklahoma: What Ancillary Defense Services Must

States Provide to Indigent Defendants Represented by Private or Pro Bono

Counsel?, 18 Temp. Pol. & C.R. L. Rev. 783, 786 (2009) [hereinafter Kumer]

(“Where defendants are able to retain an attorney or receive assistance from

friends and family in doing so, the likelihood that such attorneys, often

inadequately compensated, will be able to render competent representation is

substantially increased if the attorneys can access state funds for experts and

other services.”). If that is the case, an as-applied challenge would certainly look

different under a section 815.1 analysis.

13$10,000 divided by 160.9 hours. 14$9,000 divided by 144.9 hours. 42

As a policy matter, Missildine also noted that “[i]t would be strange if the

Constitution required the government to furnish both counsel and investigative

services in cases where the indigent needs and requests public payment for only

investigative services.” 311 N.W.2d at 294. Indeed, the result of this case is

strange. Bergmann and his associates have provided at least $9,12815 in legal

fees—a significant amount of money the state did not have to pay because it was

covered by a third party. The practical effect of section 815.1 is that it will likely

“impose an unreasonable and unnecessary additional burden on the public

treasury.” Id.; see State v. Punsalan, 133 P.3d 934, 936 (Wash. 2006) (en banc)

(explaining that providing state-funded investigative services to indigent criminal

defendants with privately funded counsel poses little risk of abuse, supports the

right to choice of counsel, and conserves state resources); Kumer, 18 Temp. Pol.

& C.R. L. Rev. at 786 (“[I]f a state provides funds for necessary ancillary services,

‘it will also encourage more defendants who can pay for counsel themselves or

find others to pay for counsel to access retained counsel and free up state

resources for defender services.’ ” (quoting Edward C. Monahan & James J.

Clark, Ky. Dep’t of Pub. Advoc., Funds for Resources for Indigent Defendants

Represented by Retained Counsel, in Funds for Experts and Resources Manual 45

(Edward C. Monahan ed., 6th ed. 1999–2001))).

15$63 multiplied by 144.9 hours. 43

II. Conclusion.

Using third-party funds to determine whether an indigent defendant

should have access to reasonably necessary investigative services violates the

central holding of Missildine and thus the Sixth Amendment. In determining

whether an indigent defendant with privately retained counsel should have

access to reasonably necessary investigative services, I would sever any reference

to monies paid or to be paid “on behalf of” the indigent defendant. Therefore, I

would affirm the district court.

Appel, J., joins this concurrence in part and dissent in part. 44

APPEL, Justice (dissenting).

I fully join Chief Justice Christensen’s opinion. I write separately to stress

that the decision of the court today does not hold that the general assembly’s

current hourly rates for court-appointed attorneys are consistent with the

protections under article I, section 10 of the Iowa Constitution and the Sixth

Amendment to the United States Constitution. See Simmons v. State Pub. Def.,

791 N.W.2d 69, 76 (Iowa 2010). The majority does not opine on the question of

whether the general assembly’s declared court-appointed hourly rates are, in

fact, “reasonable” and thus consistent with the right to counsel under article I,

section 10 or the Sixth Amendment. That question remains open.

I do note, however, that “the state has an affirmative obligation to establish

a system of indigent defense that is reasonably likely to provide for zealous

advocacy on behalf of the criminal defendant.” Id. Under this obligation, a court-

appointed attorney for an indigent defendant is entitled to reasonable attorney

fees from the state. Id. at 82. Our court has recognized this obligation since the

early 1850s. See Hall v. Washington County, 2 Greene 473, 476 (Iowa 1850)

(“Where an act of service is performed in obedience to direct mandate of statutory

law, under the direction of a tribunal to which the enforcement of that law is

committed, reasonable compensation to the person who performs that service is

a necessary incident; otherwise, the arm of the law will be too short to accomplish

its designs.”). 45

When the “state’s method of providing counsel to indigent defendants does

not adequately ensure effective assistance of counsel[,] [it] is often referred to as

a systemic or structural challenge.” Simmons, 791 N.W.2d at 76. In such

challenges, we are typically concerned with “whether the state has provided an

adequate framework for ensuring that the right to counsel is realized in cases

involving indigent defense.” Id.

One notable theme of structural challenges to indigent defense

compensation systems is the “linkage between compensation and the provision

of effective assistance of counsel.” Id. at 81–82 (collecting cases). We have noted

that the intersection between 815.7’s guarantee of a “ ‘reasonable fee’ and the

constitutional requirements of effective assistance of counsel are related but not

identical.” Id. at 87. However, the level of compensation remains an important

factor in determining whether the structure “substantially undermine[s] the right

of indigents to effective assistance of counsel in criminal proceedings under

article I, section 10.” Id.

“Several principal methods have been used throughout the country for

valuing legal defense services: flat rates for various kinds of cases; fees set by

the court within stated limits; hourly rates; and discretionary fees set by the

courts.” Coonrad v. Van Metre, 362 N.W.2d 197, 203 (Iowa 1985) (en banc)

(Uhlenhopp, J., dissenting). A historical overview of Iowa’s statutes indicates that 46

the general assembly has used several valuation methods over the past 170

years.16

16In light of Hall v. Washington County, the Iowa General Assembly provided compensation for court-appointed attorneys for the defense of indigent persons in 1851. State v. Froah, 263 N.W. 525, 528 (Iowa 1935). This first statute provided flat rates for court-appointed attorneys depending on the type of charge: $25 for the defense of a murder charge, $10 for the defense of other felonies, and $5 for the defense of misdemeanors. Iowa Code § 2561 (1851); see Iowa Code § 4168 (1860) (same). In cases that involved an appeal, the courts could provide an enlarged compensation based on a graduated scale corresponding to the flat rates. Iowa Code § 2562 (1851); see, e.g., Baylies v. Polk County, 12 N.W. 311, 311–12 (Iowa 1882) (providing a rate two-and-a-half times more than the appointed rate after the appeal). In 1873, the Iowa Code was changed to allow the court to fix attorney fees for the defense of murders and felonies but kept a rate of $5 for the defense of misdemeanors. Iowa Code § 3829 (1873). But the 1880 Iowa Code reinstated the same flat rates from 1851. Iowa Code § 3829 (1880); Iowa Code § 3829 (1888) (same as 1880). That flat rate scheme continued until the 1897 Iowa Code, when the general assembly modified the Iowa Code to provide $20 per day for the defense of homicide or other crimes that could be punished by life imprisonment, $10 in total for the defense of other felonies, and provided no provision for misdemeanors. Iowa Code § 5314 (1897). No change occurred in the Iowa Code from 1897 through 1958. Iowa Code § 9375 (1919) (same as 1897); Iowa Code § 13774 (1924) (same); Iowa Code § 13774 (1927) (same); Iowa Code § 13774 (1931) (same); Iowa Code § 13774 (1935) (same); Iowa Code § 13774 (1939) (same); Iowa Code § 775.5 (1946) (same); Iowa Code § 775.5 (1950) (same); Iowa Code § 775.5 (1954) (same); Iowa Code § 775.5 (1958) (same). In 1959, the general assembly finally increased the longstanding flat rates for court- appointed counsel. Furey v. Crawford County, 208 N.W.2d 15, 19 (Iowa 1973) (citing 1959 Iowa Acts ch. 376, § 1 (codified at Iowa Code § 775.5 (1960))). The general assembly increased the flat rate to $50 per day for homicide and life imprisonment cases and $25 in total for other felony cases. Id. It also added a section for $15 in total for indicatable misdemeanors. Id. An exception for each rate existed where the court could provide additional sums if they were “necessary in the interest of justice.” Id. at 19; see 1959 Iowa Acts ch. 376, § 1 (codified at Iowa Code § 775.5 (1960)). “Then in 1965 the legislature enacted . . . [section] 755.5 placing determination of reasonable compensation totally within trial court’s discretion, free from legislative strictures.” Furey, 208 N.W.2d at 19 (citing 1965 Iowa Acts ch. 449, § 1 (codified at Iowa Code § 775.5 (1966))). That system remained in place until 1997. Iowa Code § 775.5 (1971) (same as 1966); Iowa Code § 775.5 (1973) (same); Iowa Code § 775.5 (1975) (same); Iowa Code § 775.5 (1977) (same); 1976 Iowa Acts ch. 1245, § 1507 (codified at Iowa Code § 815.7 (1979)) (adding the requirement that “reasonable compensation which shall be the ordinary and customary charges for like services in the community”); Iowa Code § 815.7 (1981) (same as 1979); Iowa Code § 815.7 (1983) (same); Iowa Code § 815.7 (1985) (same); Iowa Code § 815.7 (1987) (same); Iowa Code § 815.7 (1989) (same); Iowa Code § 815.7 (1991) (same); Iowa Code § 815.7 (1993) (same); Iowa Code § 815.7 (1995) (same). In 1997, the general assembly changed the statute so that the reasonable fee of a court-appointed attorney was capped to what a contract attorney under section 13B.4 would receive, but the determination of a reasonable fee remained with the courts. See Iowa Code § 815.7 (1997); Iowa Code § 815.7 (1999) (same as 1997). In 2000, the general assembly once again took control of the fees for court-appointed attorneys by setting a “reasonable” hourly rate. See 2000 Iowa Acts ch. 1115, § 10 (codified at Iowa Code § 815.7 (2001)). Instead of a flat rate or a daily rate, the general assembly opted for an hourly rate across different categories of crimes. Id. Class “A” felonies received $60 an hour, 47

We have previously raised concerns about the strict adherence to a fixed

hourly rate when our district courts defaulted to suggested hourly rates between

1965 to 1997. “Adherence to a fixed hourly rate, especially if it is low, is a step

backwards and defeats the purpose of section 815.7.” Id. at 201 (Schultz, J.,

concurring specially).

Although we recognize the convenience of a fixed rate of compensation based on time expended, a rigid adherence to that method of valuation ignores the other factors which must be considered in determining reasonable compensation. True uniformity in compensation can be achieved only when all of the variables affecting reasonableness are considered.

Hulse v. Wifvat, 306 N.W.2d 707, 712 (Iowa 1981) (en banc). “Flat hourly rates

do not take into account such factors as the difficulty of issues, the responsibility

assumed, and the experience of the attorney.” Coonrad, 362 N.W.2d at 201.

These variations include “the nature and extent of the service, the amount

involved (or, as here, the possible punishment involved), the difficulty of handling

and importance of issues, responsibility assumed and the results obtained, as

well as the standing and experience of the attorney in the profession should be

class “B” felonies received $55 an hour, and all other cases were at $50 an hour. Id. That rate has slowly crawled upward over the past twenty years. 2006 Iowa Acts ch. 1166, § 9 (codified at Iowa Code § 815.7 (2007)) (providing for appointments made after July 1, 2006, $65 an hour for class “A” felonies, $60 an hour for all other felonies and misdemeanors, $55 an hour for all other cases); 2007 Iowa Acts ch. 213, § 25 (codified at Iowa Code § 815.7(4) (2008)) (providing for appointments made after July 1, 2007, $70 an hour for class “A” felonies, $65 an hour for class “B” felonies, $60 an hour for all other cases); 2019 Iowa Acts ch. 163, § 35 (codified at Iowa Code § 815.7(5) (2020)) (providing for appointments made after July 1, 2019, $73 an hour for class “A” felonies, $68 an hour for class “B” felonies, $63 an hour for all other cases); 2021 Iowa Acts ch. 166, § 24 (codified at Iowa Code § 815.7(6) (2022)) (providing for appointments made after July 1, 2021, $76 an hour for class “A” felonies, $71 an hour for class “B” felonies, $66 an hour for all other cases). On June 17, 2022, shortly before this opinion was filed, House Bill 2559 was signed into law by the Governor. H.F. 2559, 89th G.A., Reg. Sess. § 21 (Iowa 2022). This bill minimally increases the hourly rates for court-appointed attorneys yet again (raising rates by two dollars in each category). See id. 48

considered.” Parrish v. Denato, 262 N.W.2d 281, 285 (Iowa 1978) (quoting Gabel

v. Gabel, 117 N.W.2d 501, 503 (Iowa 1962)). These variations are particularly

true in evaluating the going rates for privately retained criminal counsel such as

the defense counsel for Rodrigo Amaya in this case.

Moreover, statutorily imposed hourly rates typically do not adjust for the

basic principle of inflation. For example, for class “A” felonies, the general

assembly declared $60 as a reasonable hourly rate in 1999,17 and $76 as a

reasonable hourly rate in 2022.18 But $60 in 1999 is worth around $105 in

2022.19 The current hourly rate of $76 does not come close to that amount. So,

assuming that the general assembly’s declaration of hourly rates for 1999 was

reasonable in 1999, one might question whether the general assembly’s current

hourly rates are reasonable for 2022. See Smith v. State, 394 A.2d 834, 838 (N.H.

1978) (“Yet, inflation alone has reduced the hourly rates . . . . There can be no

question that by limiting an attorney’s compensation . . . the State has

transferred a major part of its own burden onto the shoulders of the New

Hampshire bar” (emphasis added) (citation omitted)).

The general assembly can set rates for court-appointed attorneys

representing indigent defendants. Samuels v. County of Dubuque, 13 Iowa 536,

171999 Iowa Acts ch. 135, § 26 (codified at Iowa Code § 815.7 (2001)) (“For appointments made on or after July 1, 1999, the reasonable compensation shall be calculated on the basis of sixty dollars per hour for class ‘A’ felonies . . . .”). 182021 Iowa Acts ch. 166, § 24 (codified at Iowa Code § 815.7(6) (2022)) (“For

appointments made on or after July 1, 2021, the reasonable compensation shall be calculated on the basis of seventy-six dollars per hour for class ‘A’ felonies . . . .”). 19See $60 in 1999 is Worth $105.27 Today, CPI Inflation Calculator, https://www.officialdata.org/us/inflation/1999?amount=60 [https://perma.cc/SV7A-W7ZA] (last visited June 21, 2022). 49

537–38 (1862). But what these fee-setting statutes cannot do is “have a

substantial chilling effect on the constitutional rights of criminal defendants.”

Simmons, 791 N.W.2d at 85. We mapped out the negative effects of a hard cap

for court-appointed attorneys in Simmons v. State Public Defender. Id. at 87–88.

These negative effects included restricting the pool of attorneys willing to

represent indigent defendants, the level of quality of attorneys, and pitting the

attorney’s economic interests against the client’s interest. Id. at 88. These

concerns apply just as much to fixed hourly rates.

But as the majority properly observed, we are not currently in a position

to analyze whether the hourly rate is low enough to create a structural violation

of article I, section 10 of the Iowa Constitution, or the Sixth Amendment to the

United States Constitution. Any claim that fee payments amount to a structural

error must await a direct attack supported by a detailed record which could

include, among other things, the current caseloads of court-appointed attorneys,

recommended ethical standards for court-appointed attorneys, relevant

overhead charges (including mileage), the effect of the hourly cap under Iowa

Administrative Code rule 493—12.6(4) (2021), the performance of attorneys

engaging in representation through court appointment, and reasonable rates

among criminal attorneys practicing in Iowa.

In my view, the judiciary has the responsibility to ensure that criminal

defendants are adequately represented. Adhering to that premise, some courts

have indicated that courts could order increased funding or increased

compensation for indigent defense in lieu of legislative actions. See State v. 50

Quitman County, 807 So. 2d 401, 409–10 (Miss. 2001) (en banc) (“Though

questions of [allocating funds for indigent defense] are traditionally legislative

affairs, this Court has recognized that where the Legislature fails to act, the

courts have the authority and the duty to intervene.”); State v. Lynch, 796 P.2d

1150, 1161 (Okla. 1990) (“Although we invite legislative attention to this

problem, in the interim, we must establish guides which will apply uniformly

without either violating due process rights or granting constitutional

immunites.”). A significant body of academic commentary has arisen supporting

structural litigation. See Cara H. Drinan, The Third Generation of Indigent

Defense Litigation, 33 N.Y.U. Rev. L. & Soc. Change 427, 432–39 (2009)

(describing efforts made on the state level to employ a new model of structural

litigation to address the issue of indigent defense representation); see generally

Note, Gideon’s Promise Unfulfilled: The Need for Litigated Reform of Indigent

Defense, 113 Harv. L. Rev. 2062 (2000) (same); Rodger Citron, (Un)Luckey v.

Miller: The Case for a Structural Injunction to Improve Indigent Defense Services,

101 Yale L.J. 481 (1991) (same). And, as experts, we know that the fee levels for

indigent defense are very low. See State v. See, 387 N.W.2d 583, 586 (Iowa 1986).

But because of the narrow nature of the claim and the facts presented, this case

is not the vehicle to consider structural reform.