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People v. Atkinson





APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Compensation to be awarded court appointed counsel in extraordinary circumstances for protracted defense of an indigent charged with a felony is in issue in this appeal.

Karolyn Atkinson was indicted with Ardice Heflin, and charged with murder and conspiracy in connection with the murder of Karolyn Atkinson's husband. Attorney Ellis E. Fuqua, who has practiced in Illinois for more than 27 years, was appointed by the court to defend Karolyn Atkinson. After Mrs. Atkinson's acquittal counsel submitted a bill for fees in the amount of $8662.08. The trial judge found, pursuant to section 113-3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 113-3(c)), then in effect, that "extraordinary circumstances" existed which entitled counsel to payment in excess of the maximum of $250 provided. On recomputation of counsel's bill, the amount due was fixed at $7982.02.

The matter was then transferred to the chief judge of the nineteenth Judicial Circuit whose approval of the excess payments was required by statute. The chief judge concurred in the view of the trial judge that the circumstances were extraordinary and that the litigation was protracted so that the maximum provided in the statute could be exceeded. However, he reduced the compensation to $2766.08. Counsel appeals. The Lake County Bar Association has joined in the appeal on counsel's behalf as amicus curiae with our leave.

Counsel contends that the statute in the admittedly exceptional case before the court authorizes the award of fees sufficient to provide fair compensation and that the amount approved by the chief judge did not constitute fair compensation. He further contends that the order which allowed fees in the amount of 10 to 15% of those which reasonably could have been charged to a financially able defendant was such grossly unfair compensation that it violated the sixth amendment to the Federal Constitution guaranteeing assistance of counsel. The amicus curiae adds the additional contention that the award of fees was in violation of the fourteenth amendment because it denied the appointed attorney the equal protection of the law.

The State responds that under the statute in effect when the order was entered, even in extraordinary circumstances counsel was entitled to only nominal additional compensation and that this measure was in fact exceeded in the order which was finally entered.

The case against Ardice Heflin was severed and tried prior to Karolyn Atkinson's jury trial. There were, however, combined hearings on various motions to suppress evidence and statements. The underlying circumstances, many of which are common to both cases, may be found in People v. Heflin, 40 Ill. App.3d 635 (1976). Fuqua represented Karolyn Atkinson over a period of seven days in connection with the various combined hearings. His staff audited the Heflin trial which lasted seven days. To protect his client, he was instrumental in obtaining a vacation of judgment on the conspiracy count in the Heflin case after judgment had been entered on the jury's finding of guilt on that count as well as one of the murder counts. The trial of Karolyn Atkinson took an additional seven days with a jury verdict being returned on the eighth day. In addition, portions of approximately 63 days were spent by counsel in preparation for trial. The juxtaposition of the two trials resulted in various extraordinary measures taken by counsel which are not required in the usual murder case.

Fuqua's original statement was apparently based on rates ranging from $20 to $60 an hour for Fuqua's noncourt time and $30 to $60 an hour for his in-court time; *fn1 a rate of approximately $10 per hour for noncourt time and $20 an hour for in-court time for one of his office associates; and $3 an hour for all time spent by a second-year law student employed by Fuqua on a part-time basis. The figure of $7982.02 found to be due by the trial judge was based on $15 per hour for court time and $10 per hour for preparation time for all hours spent on the case by Fuqua, his associate, or his law clerk plus $91.08 of itemized expenses plus counsel's office overhead in the amount of $3823.44. (The office overhead figure was computed by dividing Fuqua's share of the overhead, exclusive of the salaries of the associate and the law clerk, by the 185 1/2 hours Fuqua personally spent on the Atkinson case.)

The chief judge disallowed all items approved by the trial judge except for compensation for the time spent by Fuqua personally at a rate of $20 per hour for in-court time and $10 an hour for out-of-court time, totaling $2265. In addition, itemized expenses in the amount of $91.08 were awarded. The chief judge expressly found that both the original statement of attorney's fees and expenses and the recomputation approved by the trial judge were reasonable charges for the services performed but that the statute did not authorize payment for the associate and the law clerk nor appointed counsel's hourly charges as claimed. The chief judge further concluded that the hourly rate included overhead and that this could not be charged as a separate item.

To our knowledge the only ruling by the highest court in this state as to compensation that may be awarded in the extraordinary case above the maximum set in the statute is People ex rel. Conn v. Randolph, 35 Ill.2d 24 (1966). The opinion was rendered prior to the inclusion of the extraordinary circumstances exception in the statute. *fn2 However, the Illinois Supreme Court refused on constitutional grounds to apply the strict statutory maximum when there was a showing of severe and undue hardship on appointed counsel who were forced to try a murder case 150 miles from their homes for a period of nine months and who, as sole practitioners, were on the verge of bankruptcy. Following the addition of the extraordinary circumstances exception to the statute, the amended statute was construed in People v. Sims, 131 Ill. App.2d 327, 330-31 (1970). In Sims, the trial court had refused to authorize a fee in excess of the $250 maximum in the statute to court-appointed counsel in a murder case. The appointed counsel was one who had a substantial reputation in the practice of criminal cases and who had devoted 35 hours of court time and 10 hours of out-of-court time. There was a suggestion that a $10,000 fee in private practice would have been reasonable. The appellate court affirmed. In its holding the court analyzed various Federal cases, concluding that the fact that the charge was murder did not constitute an extraordinary circumstance and that the time spent was not unusual for a felony case. It therefore held that the representation could not be considered protracted or extraordinary.

The statute was again construed in People v. Sanders, 58 Ill.2d 196 (1974). In Sanders, attorneys Lizak and Swanson were voluntary members of the defense of prisoners committee of the Chicago Bar Association. They were appointed to represent Sanders in defense of a murder charge. The attorneys claimed to have spent 463 hours in preparation and trial. The trial court refused to award more than the maximum of $250 plus various costs. On appeal the Supreme Court modified the judgment only to the extent of allowing $250 to each attorney. The court noted that the legislature has chosen to limit payments in excess of the maximum to cases involving protracted representation and extraordinary circumstances. It observed that it is only in a clear case of protracted litigation, such as People ex rel. Conn, that the exceptional circumstances are easily recognized. (58 Ill.2d 196, 201.) The court concluded, however, that the Sanders representation did not fall into the exception. Here, of course, both the trial judge and the chief judge have agreed that the litigation did fall within the exception, and this finding has not been questioned. The nature of the fair compensation referred to in the statutory exception thus becomes directly relevant and is not answered by People v. Sanders upon which the State has principally relied. *fn3

The low maximum figure in the statute clearly implies that the legislature has intended limitations on the payment of appointed counsel's attorney fees in the ordinary case. It is therefore clear that in the ordinary case the legislature did not intend that court appointed counsel be fully compensated. There appears to be a fair implication that even in cases within the statutory exception, a fee awarded to court-appointed counsel need not necessarily amount to reasonable and adequate compensation as measured by the fees of attorneys representing paying clients in similar situations. This conclusion, however, does not state a case of unconstitutionality.

• 1 Counsel's argument as it relates to the sixth amendment right to counsel appears to be based on the rationale that insufficient compensation to counsel denies the accused the right to competent counsel and the further reasoning that it results in unconstitutionally shifting the burden of providing representation from the State to the individual attorney. There is some question of counsel's standing to raise the issue of competent counsel. (See People v. Zuniga, 31 Ill.2d 429, 430-31 (1964).) Moreover, no authority has been cited to support counsel's sixth amendment argument on its merits. It appears to us from our research that sixth amendment claims have not been persuasive unless counsel is totally uncompensated (see Bradshaw v. Ball, 487 S.W.2d 294, 298 (Ky. App. 1972)) or unless the bar is required to assume the entire burden of indigent defense for nominal compensation with no provision for a public defender system. (Cf. State ex rel. Partain v. Oakley, 227 S.E.2d 314, 319 (W. Va. 1976).) The claim of violation of sixth amendment rights has been rejected generally in the area of appointed counsel's compensation. (See, e.g., State v. Rush, 46 N.J. 399, 217 A.2d 441, 444, 21 A.L.R.3d 804 (1966); State v. Mempa, 78 Wn.2d 530, 477 P.2d 178, 181-82 (1970); In re Miezlish, 387 Mich. 228, 196 N.W.2d 129, 133-34 (1972).) Under the circumstances of this case we find no violation of the sixth amendment.

• 2 The equal protection argument presented by amicus curiae is also not persuasive under the facts. Such claims have been rejected, absent a showing that the burden of court appointments has been distributed unequally among members of the profession. (See, e.g., State v. Rush, 217 A.2d 441, 446.) Generally, there is no denial of equal protection to lawyers by requiring them to perform a service which is peculiar to their profession. (See Annot., 21 A.L.R.3d 819, 824 (1968).) Here there has been no showing that counsel has been required to bear a disproportionate burden. A comprehensive public defender system is in operation which undertakes defense of most felonies. In fact, counsel has agreed that no records are maintained to evidence the frequency and intervals between appointments of counsel when the public defender is not used. He also states that no inquiry has been made to determine whether the defense of indigents has been borne equally by the lawyers in the circuit. Under these circumstances we conclude that there is no showing that counsel has been deprived of the equal protection of the law.

We then reach the question whether the reduction to $2766.08 by the chief judge amounted to ...

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