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District Court of Appeal, Third District, California.

Arthur W. HILL and Norman C. Cissna, Petitioners. v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF HUMBOLDT, Respondent.*

Civ. 8594.

Decided: July 28, 1955

Hill & Hill, Eureka, for petitioners. Harold L. Hammond, Dist. Atty., Eureka, and Edmund G. Brown, Atty. Gen., by Doris H. Maier, Deputy Atty. Gen., for respondents.

This is an original proceeding in which petitioners seek a writ directed to the respondent court, commanding it to allow to them reasonable compensation for services rendered and necessary expenses incurred in acting as court-appointed counsel to defend a person charged with the murder of one individual, an assault upon another with intent to commit murder, the kidnaping of both victims while armed with a deadly weapon, and with three prior convictions of felonies.

The petition alleges that petitioner Hill was appointed to represent one Witham in preliminary proceedings before the Judge of the Eureka Judicial District sitting as a magistrate upon a complaint charging him with the commission of the aforementioned crimes; that petitioner Hill made two appearances on behalf of the accused, which included services during the preliminary examination; that the defendant was held to answer and that the petitioners were both assigned to act as counsel for the defendant in the proceedings in the Superior Court; that after the trial and subsequent proceedings in the Superior Court had been concluded, petitioners, basing their application upon affidavits as to the services performed, applied to the Superior Court, under the provisions of Section 987a of the Penal Code, for a determination by that court of reasonable compensation to be paid to them out of county funds for their services and for their necessary expenses.

In their applications each of the petitioners asked the court to fix the sum of $5,000 as such reasonable compensation to be paid to each. The court proceeded upon the applications and ordered that each petitioner was entitled to $500 for compensation and necessary expenses. Thereafter there was filed in this Court a petition for a writ of mandate, whereunder petitioners asked this Court to declare that the allowance made, in view of the services rendered, was not reasonable compensation and that it departed so far from that standard as to amount to an abuse as distinguished from the exercise of discretion in the fixing of the sum allowed. An alternative writ was issued. Issues of fact were raised in the answer of respondent and this Court ordered a reference for the purpose of permitting the parties to produce such evidence as they might desire in support of the factual issues of the petition and the return. The following is a statement of the services rendered by petitioners which are not now in dispute: Petitioner Hill was first appointed during the preliminary proceedings and petitioner Cissna was then appointed and both thereafter represented Witham under such appointment. The judge who tried the cause of People v. Witham and who fixed the fees to be paid petitioners stated during the reference that he believed both Mr. Hill and Mr. Cissna excellently performed their duties as attorneys and officers of the court, that they ably represented the defendant, that they protected his legal rights and did all that could be expected of them as attorneys appointed by the court. Both counsel were experienced attorneys and prominent figures practicing before the bar in their county. They both were established in their profession and enjoyed substantial practices. The following appears as to Hill: It was specifically conceded during the reference that he was a recognized leader of the bar in the vicinage. He had for 20 years maintained a law office in Eureka. He appeared in the preliminary proceedings before the magistrate, making two court appearances. After the filing of the information he appeared with defendant in the Superior Court on his arraignment and upon two other occasions prior to trial. he fully participated in eight full days of trial and one night session lasting until 2:30 A.M. after the cause had been submitted to the jury. He appeared twice in court after trial for the purpose of hearing the report of the probation officer and the pronouncement of judgment. During the trial he prepared and submitted instructions on behalf of defendant. During the preparation for trial he made trips to Hydesville, Alton, Fortuna and Arcata, interviewing witnesses and examining the scene of the alleged crime. He made seven calls and held conferences with the defendant at the county jail. He interviewed numerous witnesses in his office and at Hydesville, Alton, Fortuna and Arcata. He attended to the subpoenaeing of witnesses, including instructing the sheriff as to location of the persons he desired served. He reviewed the transcript of the preliminary examination and of the trial, marking and indexing portions of testimony taken at the trial, as transcribed during the trial at his request. He conducted research in the law relative to the case and therein had the assistance of two attorneys in his office. He made numerous telephone calls and held several consultations with co-counsel Cissna. A partial, but not complete, record of time spent in preparation shows 25 1/2 hours of working time and this excluded time spent in court and time spent in reviewing transcripts. The services of petitioner Cissna need not be recounted in detail since they were much the same, in fact almost identical, save for the preliminary proceedings, as those of Hill. He showed the time consumed in preparation to exceed four days and he spent the same time in court during and after trial as has been related concerning Hill. The record does not show the verdict of the jury, except that it is shown that the death penalty was not inflicted.

In so far as material here, Section 987a of the Penal Code provides:

‘In any case in which counsel is assigned in the superior court to defend a person who is charged therein with crime, or is assigned in a * * * justice court * * *, to represent such a person on a preliminary examination * * *, such counsel, except in a county, or city and county, in which there is a public defender, shall receive a reasonable sum for compensation and for necessary expenses, the amount of which shall be determined by the court, to be paid out of the general fund of the county.’

At all times material here there was no public defender in Humboldt County. The foregoing legislation enacted in 1951 was amendatory of legislation newly enacted in 1941, by which the legislature worked a departure from the long-existing court practice of appointing counsel to represent indigent defendants without any provision made for compensation. Under this former practice, the attorney served as a part of his public duty under his oath. The legislature in 1941 provided that the board of supervisors might by ordinance provide that in any case in which counsel is assigned in the superior court to defend a person who is charged therein with crime and who is unable to employ counsel, such counsel, upon recommendation of the court or a judge thereof might receive a reasonable sum for compensation and for necessary expenses, the amount of which should be determined by the board. The principal change in the current legislation upon the subject is to vest in the superior court which appointed counsel and heard the cause the power and duty to determine and allow reasonable compensation for services and necessary expenses.

It appears factually that each of the petitioners spent the equivalent of at least 13 full working days preparing and trying the case in the superior court. It appears also that each of them was maintaining an active practice; that each maintained offices in which their practice was conducted; and that Witham, therefore, received the benefits of these practical and necessary aids in the preparation and trial of his cause at the expense of petitioners. In addition, it appears that there was approximately $100 out of pocket money spent by counsel in travel and other expenses. Subtracting this cash expenditure from the amount allowed, we have $900 allowed as reasonable compensation for better than 26 full working days of competent experienced counsel, or approximately a gross compensation of $35 per day. Hill testified that in his civil practice he generally charged and received a retainer fee, plus $150 per day for each day in court or fraction thereof; that for out of court work the fee generally charged and received was at the rate of $20 per working hour; that the retainer fee, depending upon the nature of the case, might be anywhere upward from a minimum of $150. There was testimony of practicing attorneys with offices in Eureka, giving it as their opinion that a reasonable fee in the instant case would be from $3,250 to $5,000 for each petitioner.

Respondent by both demurrer and answer has raised the issue of the availability of mandate in this matter. The assertion is made that mandate will never issue to control the exercise of discretion; that the determining of a reasonable compensation involves discretion and that mandate is, therefore, not available herein. It is true that the exercise of discretion cannot be controlled by mandate, but that is not the basis of the application for the writ here made. The rule relied on parallels the rule in certiorari and in prohibition that error within the scope of jurisdiction cannot be reviewed and that a court is not under a duty to determine a matter in a particular way. Witkin's Calif.Procedure, Vol. 3, page 2530. An exception to the rule, however, is that if discretion has been abused, so that what is done amounts to a refusal to exercise jurisdiction rather than error in the exercise thereof mandate is an applicable remedy if other conditions for the remedy are met. We think all conditions for the remedy are met here if it be assumed that petitioners have shown abuse of discretion to the degree indicated and, therefore, that this Court acted properly when heretofore it overruled respondent's demurrer upon this ground.

It is contended for respondent, here represented by the Attorney General, that a proper construction of the subject legislation would be that it was intended by the legislature to vest entirely and exclusively in the superior court the determination of what sum should be paid and that such determination is final. We think the legislation cannot receive that construction. It is true, as we have said, that throughout the English-speaking world the burden has been laid upon attorneys to give their services freely and without compensation to the indigent in need of them, but the very fact that the practice endured so long demonstrates that the legislature has intended for policy reasons of its own that this practice should be departed from in criminal causes. It is not for us to question the wisdom of that departure. The statute now declares that counsel, appointed to serve, and serving, an indigent charged with crime, shall receive ‘reasonable compensation’ for his services. The phrase is a familiar one and the legislature, many of whose members are lawyers, must have selected the phrase as one reasonably adapted to accomplish the legislative will and to carry out its policy that hereafter attorneys so appointed and serving would be compensated. We see no reason why this familiar phrase should receive any other interpretation than that generally given to it in civil and criminal proceedings where it so frequently appears, or other than it has generally received when, as is usually the case, attorneys perform services for clients under an implied contract that they will be reasonably compensated therefor. We see no justification for an artificial construction of the phrase as used in this legislation, based merely upon the long history of uncompensated service to indigents charged with crime, or to persons having civil rights which they were financially unable to enforce in the courts. To hold otherwise would be to say that the legislature had not at all intended that lawyers should be paid reasonable compensation in such cases, but that they should be paid something more than nothing, which they had theretofore received; that, therefore, an allowance in this case of $1 to each petitioner would have to be accepted by him as ‘reasonable compensation’. It has often been held that the phrase ‘reasonable compensation’ as applied to the services of attorneys is a standard with which the profession and courts are so familiar that the courts may from their knowledge of the meaning of the phrase as applied to a case tried before the court arrive at a sum that will furnish reasonable compensation; and that expert or opinion evidence upon the subject need not be introduced. These things, however, do not argue a right of a court to arbitrarily determine what is a reasonable compensation in a given case. Necessarily, much is left to the discretion of the judge who is to fix reasoanble compensation, but it is a controlled and judicial discretion which has limits so clearly discernible that action above or below the range of discretion can be detected, and when it clearly exists such action constitutes not the use of discretion but the abuse thereof, the refusal to obey a statutory mandate. We think such a case is here presented. When one considers that established, experienced attorneys enjoying substantial practices must maintain, in order to serve their clients, expensive plants and a staff of well-trained assistants, such as clerks, stenographers and the like, it is seen to be doubtful indeed, if not impossible, that such attorneys could unlock their doors in the morning for $35 per day.

The award made by respondent is annulled. The cause is remanded with instructions to rehear the applications of petitioners and redetermine, in view of what has here been said, reasonable compensation for the services rendered by them. Let a peremptory writ of mandate to that effect issue.

VAN DYKE, Presiding Justice.

SCHOTTKY, J., concurs.

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