Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Warren County,
the Hon. Stephen G. Evans, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
On December 7, 1978, a complaint was filed in the circuit court of Warren County charging Richard Cook, the defendant, with the unlawful possession of cannabis in violation of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 704(c)). Bail was set at $1,000 and the defendant posted the required 10% with the clerk of the court to secure his release. (Ill. Rev. Stat. 1977, ch. 38, pars. 110-7(a), (b).) His later motion for the appointment of counsel was allowed when the court found him to be indigent. (Ill. Rev. Stat. 1977, ch. 38, par. 113-3(b).) The defendant's motions to quash the search warrant and to suppress evidence were granted and the People appealed. While the appeal was pending, the defendant moved to recover his bail deposit under the provisions of Supreme Court Rule 604(c) (73 Ill.2d R. 604(c)) and the People countered with a motion which sought reimbursement from the bail deposit for legal services provided the defendant by appointed counsel (Ill. Rev. Stat. 1979, ch. 38, par. 110-7(g)). The appellate court granted the People's motion and directed the trial court to determine "the reasonable value of appointed counsel's services," ordering that "such sum is to be paid to Warren County from the defendant's bail deposit of $100." We granted Cook's petition for leave to appeal under Supreme Court Rule 315 (73 Ill.2d R. 315). The People's appeal in the appellate court from the order suppressing evidence and quashing the warrant has not yet been decided.
The right of an accused to counsel under the sixth amendment cannot be dependent upon ability to pay for an attorney's services. (See Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006; Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792; Griffin v. Illinois (1956), 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585.) There is statutory recognition of this right. As stated in section 113-3(b) of the Code of Criminal Procedure of 1963, "In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender [or other appointed counsel] shall be appointed counsel." Ill. Rev. Stat. 1979, ch. 38, par. 113-3(b).
Another statute, which is the one we must consider here, provides:
"Whenever a defendant who has been admitted to bail utilizes the services of a public defender or other appointed counsel, the amount deposited may be used to reimburse the county funding the legal services." (Ill. Rev. Stat. 1979, ch. 38, par. 110-7(g).)
The defendant contends that this statute is violative of his rights to equal protection and due process under the United States and Illinois constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) and that it is an unconstitutional impairment of his right to counsel (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8).
We will first address the equal protection question of whether any distinction in treatment within the legislative classification, viz. indigent persons for whom counsel has been appointed, is rationally related to a legitimate State interest. See Fuller v. Oregon (1974), 417 U.S. 40, 40 L.Ed.2d 642, 94 S.Ct. 2116. See also Haughton v. Haughton (1979), 76 Ill.2d 439, and cases cited therein.
The People argue that they have a proper interest in the recovery of at least a part of the expense for counsel fees incurred for indigent defendants who have exhibited an ability to pay by posting bail and that section 110-7(g) bears a rational relationship to this effort at reimbursement. The Supreme Court of the United States has recognized there is a legitimate State interest in "replenishing a county treasury from the pockets of those who have directly benefited from county expenditures," but it has done so only when it was demonstrated that the State's actions have not been tainted by an invidious discrimination. Rinaldi v. Yeager (1966), 384 U.S. 305, 309, 16 L.Ed.2d 577, 580, 86 S.Ct. 1497, 1500; see also Fuller v. Oregon (1974), 417 U.S. 40, 53-54, 40 L.Ed.2d 642, 654-55, 94 S.Ct. 2116, 2124-25; James v. Strange (1972), 407 U.S. 128, 141, 32 L.Ed.2d 600, 610-11, 92 S.Ct. 2027, 2034-35.
While the defendant acknowledges that the State may under certain circumstances seek reimbursement, he contends that the statute here, which singles out only those indigent defendants who have posted bail, has no fair and substantial relationship to the overall goal of recoupment. This is because it does not seek recovery from other defendants with appointed counsel who though indigent at the time of appointment may have become financially able to contribute to the cost of their legal defense.
The People's response is not convincing. First, they say that while the statute does not specifically name those indigent defendants who have not posted bail, there is nothing in section 110-7(g) excluding them or prohibiting the People from seeking reimbursement. To include indigents who have been released on their own recognizance or who have been unable or unwilling to post bail would go beyond the language of the statute, which explicitly applies to those "admitted to bail." Too, such indigent defendants would undoubtedly urge that including them would violate this court's holdings specifically prohibiting the recovery of court costs unless provided for by statute. See, e.g., People v. Nicholls (1978), 71 Ill.2d 166, citing Galpin v. City of Chicago (1911), 249 Ill. 554. Thus, all members of the class of indigent defendants represented by appointed counsel would not be similarly treated under the statute.
Second, we do not accept the People's argument that the ability to post bail indicates the defendant's financial ability to pay for the services of appointed counsel. This court has never adopted any presumption (which would be, in this case, an irrebuttable one) that the posting of bail, without more, was a sufficient indicium of ability to pay wholly or partially for legal counsel. Bail may be posted with borrowed funds or by relatives or friends. In cases where the defendant was denied either appointed counsel or a free transcript on appeal solely because he was able to post bail this court has held that such a denial was improper where the court had not first determined that the defendant was in fact indigent. See People v. Pankoff (1978), 70 Ill.2d 69; People ex rel. Baker v. Power (1975), 60 Ill.2d 151; People v. Eggers (1963), 27 Ill.2d 85.
Since a finding that members in a class are not being treated alike does not of itself warrant the conclusion that the statute is unconstitutional, we now turn to the question of whether a rational relationship exists between the legitimate State interest and the statutory scheme set out in section 110-7(g). The Supreme Court in Rinaldi v. Yeager (1966), 384 U.S. 305, 308-09, 16 L.Ed.2d 577, 580, 86 S.Ct. 1497, 1499-1500, stated:
"The Equal Protection Clause * * * imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. `The Constitution does not require things which are different in fact * * * to be treated in law as though they were the same.' Tigner v. Texas, 310 U.S. 141, 147, [84 L.Ed. 1124, 1128, 60 S.Ct. 879, 882]. Hence legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining ...