State v. Bryant

324 So. 2d 389
Supreme Court of Louisiana·Decided December 8, 1975·No. 56854·Published·Cited by 21 cases

Opinion

324 So.2d 389 (1975)

STATE of Louisiana
v.
Osby BRYANT, Jr., et al.

No. 56854.

Supreme Court of Louisiana.

December 8, 1975.
Rehearing Denied January 16, 1976.

Billy R. Pesnell, John M. Madison, Jr., Sidney B. Galloway, Samuel P. Love, Jr., Shreveport, for defendants-relators.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., for plaintiff-respondent.

DIXON, Justice.

We granted writs in this case because it involved the same subject matter as that in several applications from another district in which conflicting rulings had been made.

Defendants, Osby Bryant, Jr., Billy George Payton, Willie Marie Washington *390 and Leona Sadler, were charged with murder in an affidavit filed by the district attorney. The district judge appointed a lawyer to represent each defendant. Following the indictment of the defendants the lawyers appointed to represent them filed, on their own behalf and on behalf of the defendants, a motion to stay the prosecution and revoke the appointments, or, in the alternative, to order the State of Louisiana to pay the lawyers reasonable compensation for services to be rendered.

After a hearing on the motion it was denied, the court finding no merit in the principal demands and finding the alternative demands for compensation premature.

The motion argues that the Louisiana indigent defender board statute (R.S. 15:141, whose source was Act 366 of 1966) does not comply with Art. I, § 13 of the La. Const.; that defendants are deprived of their rights to effective assistance of counsel as guaranteed by Art. I, §§ 2 and 13 of the La. Const. of 1974 and the Fifth and Fourteenth Amendments of the Constitution of the United States; and that the lawyers are deprived of their rights to reasonable compensation under Art. I, § 13 of the La. Const. of 1974, which constitutes a taking of their property, involuntary servitude and a deprivation of equal protection in violation of the United States and Louisiana Constitutions.

Relator Madison argued that, although he has volunteered to serve on the panel of attorneys on the indigent defender board, he believes it is unable to pay him reasonable compensation.

I

The last argument can be disposed of first. The hearing on the motion developed the fact that the Caddo Parish Police Jury had never refused to pay any bill approved by the indigent defender board and the district court. There is no evidence which indicates that Mr. Madison will not be paid.

II

Further, there was no showing on the hearing of any possibility that these defendants will not be effectively represented by counsel skilled in the profession.

III Next, we find it unnecessary to treat relators' contention that uncompensated lawyers are deprived of property without due process and equal protection and are forced into involuntary servitude because, in brief, relators admit that the traditional and majority view does not support them (see State v. Clifton, 247 La. 495, 172 So.2d 657 (1965); Annotation, 21 A.L.R.3d 819. Relators contend, however, that changed conditions increase the confiscatory nature of the appointments.

First, we do not find that any of these relators will be uncompensated. One is on the volunteer panel, and there is no rule or provision obstructing his payment. The other three contend they will not be paid because, as developed on the hearing, the First Judicial District Court as a rule and practice does not certify for payment the services of lawyers not on the list of volunteers. At one time, when appointments were not so numerous, there might have been a valid reason for some such provision. However, when the need for appointed lawyers far exceeds the number of volunteers on the panel, the rule should be revised. The court has the inherent power to make appointments of lawyers not on the volunteer panel, and this power is specifically recognized in R.S. 15:141(G) and (I). R.S. 15:141 does not limit payment to appointed lawyers who are on the volunteer panel. If the district court should deny compensation to lawyers because they are not on the volunteer panel, this court will be open to receive and consider a proper application for relief. (Here, the district court has simply denied relators' claim because it is premature, no *391 services having yet been rendered in the case).

As for changing conditions, this court knows of the increase in crime, the increasing difficulty of criminal practice, the necessity of appointing lawyers in misdemeanor cases as well as in felony cases, and can imagine the burden on some lawyers if the load is inequitably distributed. We also have firsthand knowledge of the tremendous increase in the number of lawyers in Louisiana and probably in Caddo Parish in the last few years. We are aware, in addition, that we seldom encounter, as appointed counsel, lawyers who are employed full-time by business enterprises or governmental agencies, or whose practice seldom carries them to the criminal courts. Relators, however, complain only that it is the bar, generally, which bears an inordinate proportion of society's obligation; they do not complain that the individual lawyers before us are the victims of discrimination in appointment. Consequently, even if relators were not to be compensated, the record before us would not support a finding that changed conditions require the adoption of the proposition that forcing uncompensated lawyers to serve as counsel for indigents amounts to deprivation of property without due process, nor involuntary servitude.

IV

Relators' principal argument is that existing legislation does not meet the constitutional requirements of Art. I, § 13 of the La. Const. for 1974:

"When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents."

The core of the argument is that the legislation for appointing and paying lawyers for indigents is not uniform.

At the outset, we note that, in the absence of any legislation, and regardless of any provision which might be in the Louisiana Constitution, the United States Constitution and decisions of the United States Supreme Court (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)), would require the appointment of counsel for indigents accused of crime. We do not consider as seriously made the suggestion that we stay the prosecution until further legislative action.

In demonstrating the lack of uniformity of existing legislation, relators point out R.S. 15:141, 142, 143, 145 and 868.

Only R.S. 15:145 was enacted subsequent to the effective date of the Constitution of 1974. R.S. 15:141 w

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