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State v. Albert (6/23/95), 899 P 2d 103
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Notice: This opinion is subject to correction
before publication in the Pacific Reporter.
Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907)
264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-5754
Appellant, )
) Superior Court No.
v. ) 4FA-89-3009 CR
)
BENJAMIN ALBERT, ) O P I N I O N
)
Appellee. ) [No. 4225 - June 23,
1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial
District, Fairbanks,
Mary E. Greene, Judge.
Appearances: Marilyn May, Assistant
Attorney General, Anchorage, Charles E.
Cole, Attorney General, Juneau, for
Appellant. Susan Orlansky, Delaney,
Wiles, Hayes, Reitman & Brubaker, Inc.,
Anchorage, for Appellee. Scott A.
Brandt-Erichsen, Assistant Municipal
Attorney, Richard L. McVeigh, Municipal
Attorney, Anchorage, for Amicus Curiae
Municipality of Anchorage.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices,
and Bryner, Justice, pro tem.*
MATTHEWS, Justice.
BRYNER, Justice, pro tem, dissenting,
joined by RABINOWITZ, Justice, as to
parts I, II and III.
In Gideon v. Wainwright, 372 U.S. 335 (1963), the
United States Supreme Court held that in state criminal
prosecutions "counsel must be provided for defendants unable
to employ counsel"because of indigency. 372 U.S. at 340.
Gideon, however, did not address the subject of whether
states could attempt to recover from indigent defendants
some of the costs of providing counsel to them. Currently,
all states and the federal government have some type of cost
recoupment system.1 Consolidated cases presently before
this court challenge Alaska's recoupment system.
Alaska's system is set forth in AS 18.85.120(c),
Alaska Criminal Rule 39, and Alaska Appellate Rule 209(b).
See Appendix A. In brief, AS 18.85.120(c) authorizes the
court, upon a person's criminal conviction, to enter a civil
judgment against "a person for whom counsel is appointed . .
. for services of representation and court costs." It
provides that upon a showing of financial hardship, the
court shall order payment in installments. Remission,
reduction or deferral of the judgment can be ordered. AS
18.85.120(c). Payment is made to the state general fund.
Id. Criminal Rule 39 and Appellate Rule 209(b) set forth
procedures which implement the recoupment system.
Under Criminal Rule 39, when an indigent person
who has been represented by court-appointed counsel is
convicted, the court issues a notice of intent to enter
judgment for the cost of appointed counsel calculated in
accordance with a schedule set out in subsection (d).
Alaska R. Crim. P. 39(c)(1)(A). The scheduled fees are
significantly lower than those charged by private counsel,
ranging downward from the maximum of $5,000 for trial of a
first or second degree murder charge. Upon receipt of a
notice of intent to enter judgment, a defendant may oppose
entry of judgment; if opposition is filed, a hearing may be
held.2 Alaska R. Crim. P. 39(c)(1)(C). The schedule of
fees may be varied "for good cause shown"by either the
prosecuting authority or the defendant, in which case actual
costs and expenses will be assessed. Alaska R. Crim. P.
39(d).
If a recoupment judgment is entered, it has the
same force and effect as a judgment in a civil action,
Alaska R. Crim. P. 39(c)(2)(A), and proceedings to enforce
the judgment are the same as those applicable to civil
judgments.3 The judgment is not enforceable by contempt,
payment of the judgment may not be a condition of the
defendant's probation, and failing to pay the judgment does
not affect the services available to the defendant from
appointed counsel on appeal "or any other phase of a
defendant's case in any way." Alaska R. Crim. P.
39(c)(2)(B).
A defendant does not have the right to be
represented by court-appointed counsel in connection with
proceedings related to the notice of intent to enter the
recoupment judgment, or to the collection of the judgment.
Alaska R. Crim. P. 39(c)(2)(B). On a showing of financial
hardship, the court shall order payment in installments. It
may order remission, reduction or deferral of the unpaid
portion of the judgment. Alaska R. Crim. P. 39(c)(2)(C).
Alaska residents are entitled to an annual
permanent fund dividend.4 AS 43.23.005. Recently the
dividend has been in excess of $900. In recognition of this
income source shared by all Alaskans, Criminal Rule
39(c)(1)(A) authorizes the court to order a convicted
defendant to apply for a permanent fund dividend for every
year in which the defendant qualifies for a dividend until
the judgment is paid in full. A defendant may be held in
contempt of court if the defendant does not comply with this
order. Alaska R. Crim. P. 39(c)(2)(d).
Appellate Rule 209 is similar to Criminal Rule 39.
At the conclusion of appellate procedures, if the conviction
of a defendant who is represented by appointed counsel is
not reversed, the clerk shall serve the defendant with a
notice which sets out the amount of the judgment which may
be entered against the defendant. Alaska R. App. P.
209(b)(6). The amount is calculated according to a schedule
designed to charge substantially less than fees charged by
private counsel for the same services. The fees range
downward from $2,000 for a combined merit and sentence
appeal. Alaska R. App. P. 209(b)(7). The defendant has a
right to oppose entry of the judgment. Alaska R. App. P.
209(b)(6). A judgment entered under Appellate Rule 209,
like a Criminal Rule 39 judgment, is collectible in the same
manner as an ordinary civil judgment. Alaska R. App. P.
209(b)(6).
Recoupment judgments are subject to the exemptions
on execution and garnishment applicable to other civil
judgments as specified in the Alaska Exemption Act, AS
09.38.010-.510. This act is designed to ensure that debtors
can maintain "a certain basic level of economic vitality"
and live "in reasonable comfort." Gutterman v. First Nat'l
Bank of Anchorage, 597 P.2d 969, 970, 972 (Alaska 1979).
The exemptions provided include an exemption of net weekly
earnings of $350 for an individual5 and $550 for a head of
household,6 a homestead exemption of $54,000,7 and
exemptions for motor vehicles ($3,000), trade tools
($2,800), jewelry ($1,000) and household goods ($3,000).8
Unmatured life insurance and annuity contracts are exempt up
to $10,000, and retirement plans are exempt without limit.9
The annual permanent fund dividend is not exempt with
respect to child support, restitution in criminal cases, or
debts owed the state.10
I. PROCEEDINGS BELOW
On May 3, 1993, in State v. George, No. 4FA-S93-
230 Cr. (Alaska Dist. Ct., May 3, 1993), a case in which
court-appointed counsel was defending an indigent, Judge
Charles Pengilly of the District Court for the Fourth
Judicial District, sua sponte declared Criminal Rule 39
unconstitutional.11 Judge Pengilly held that the rule
violates the indigent defendant's rights (1) to counsel
under the Sixth and Fourteenth Amendments to the United
States Constitution and article I, section 11 of the Alaska
Constitution; (2) to a jury trial in civil cases under
article I, section 16 of the Alaska Constitution; and (3) to
equal protection under article I, section 1 of the Alaska
Constitution. The State appealed this order to the superior
court and the appeal was transferred to this court by order
of July 2, 1993.
On June 1, 1993, in State v. Albert, No. 4FA-S89-
3009 Cr. (Alaska Super., June 1, 1993), another case in
which an indigent was defended by court-appointed counsel,
Superior Court Judge Mary Greene declared Criminal Rule 39
unconstitutional for the reasons set forth by Judge Pengilly
in George. The State appealed. Numerous additional cases
followed the same pattern. We ordered that all appeals from
orders declaring Criminal Rule 39 unconstitutional be
consolidated with the Albert appeal, whether they arise from
the district court or the superior court, and designated
Albert as the lead case on appeal. We appointed counsel for
appellees to brief and present oral argument on each of the
three points on which Judge Pengilly relied.
II. RIGHT TO COUNSEL
The Sixth Amendment to the United States
Constitution provides: "In all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance
of counsel for his defense." This right applies to the
states, requiring them to provide counsel for indigent
defendants in criminal cases. Gideon v. Wainwright, 372
U.S. 335 (1963). The Alaska Constitution contains a cognate
provision: "In all criminal prosecutions, the accused shall
have the right . . . to have the assistance of counsel for
his defense." Alaska Const. art. I, 11.
Judge Pengilly ruled that Criminal Rule 39
violates the right to counsel, guaranteed by the Sixth
Amendment and article I, section 11 of the Alaska
Constitution, because it is not "'carefully designed' to
'take into account the ability to pay of a defendant who had
been furnished counsel.'" Decision at 10. Judge Pengilly
distilled the requirement that ability to pay be taken into
account from the only two Supreme Court cases which have
reviewed defense cost recovery systems, James v. Strange,
407 U.S. 128 (1972), and Fuller v. Oregon, 417 U.S. 40
(1974), and from several lower court decisions.
At issue in James was the constitutionality of a
Kansas recoupment statue under which civil judgments were
entered against defendants for the amount expended in their
defense. The recoupment judgment debtors were not accorded
any of the exemptions provided other judgment debtors,
except for a homestead exemption. At the outset the James
court noted that the Kansas system was one of many state
recoupment systems and that such systems differed
significantly in their particular characteristics. In view
of these differences, the Court observed that "any broadside
pronouncement on their general validity would be
inappropriate." Id. at 133. The Court noted that the
district court had invalidated the Kansas law on the basis
that it "'needlessly encourages indigents to do without
counsel and consequently infringes on the right to counsel
as explicated in Gideon v. Wainwright.'" Id. at 134. The
Court approached this rationale with skepticism, observing
that there was no denial of the right to counsel "in the
strictest sense" for "Kansas has enacted laws both to
provide and compensate from public funds counsel for the
indigent." Id. The Court, however, reserved the question
"[w]hether the statutory obligations for repayment
impermissibly deter the exercise of [the right to counsel]."
Id. Instead, noting that the recoupment judgment debtor was
stripped of "the array of protective exemptions Kansas has
erected for other civil judgment debtors"the Court held
that this aspect of the statute violated "the rights of
citizens to equal treatment under the law." Id. at 135,
142. In reaching this conclusion, the Court noted that
recoupment debtors need not be treated in all respects
identically to judgment debtors owing obligations to private
creditors:
We recognize, of course, that the
State's claim to reimbursement may take
precedence, under appropriate
circumstances, over the claims of
private creditors and that enforcement
procedures with respect to judgments
need not be identical. This does not
mean, however, that a State may impose
unduly harsh or discriminatory terms
merely because the obligation is to the
public treasury rather than to a private
creditor.
Id. at 138. The Court concluded:
We thus recognize that state
recoupment statutes may betoken
legitimate state interests. But these
interests are not thwarted by requiring
more even treatment of indigent criminal
defendants with other classes of debtors
to whom the statute itself repeatedly
makes reference. State recoupment laws,
notwithstanding the state interests they
may serve, need not blight in such
discriminatory fashion the hopes of
indigents for self-sufficiency and self-
respect. The statute before us embodies
elements of punitiveness and
discrimination which violate the rights
of citizens to equal treatment under the
law.
Id. at 141-42.
Two years after its decision in James, the United
States Supreme Court revisited the subject of state recoup
ment laws in Fuller, 417 U.S. 40. The Oregon statute at
issue there permitted probation to be conditioned on
repayment of counsel fees. However, repayment could not be
ordered unless the convicted person had, or would have, the
ability to repay, and there were provisions for the
remission of the obligation to repay in cases of manifest
hardship. The Oregon statute also provided that failure to
pay a recoupment order could be punishable as a contempt of
court unless the defendant showed that the failure was not
attributable to an intentional refusal to obey the order of
the court or to a failure on the part of the defendant to
make a good faith effort to pay. Id. at 43 n.5 and 46. The
Court held the Oregon statute to be constitutional,
stressing the fact that the Oregon statute only imposed an
obligation to repay the costs of counsel on those with a
foreseeable ability to meet that obligation. Id. at 52-54.
The Court also noted that the Oregon statute, unlike the
Kansas statute reviewed in James, preserved for the benefit
of the convicted person exemptions normally available to
judgment debtors.
In concluding that the Oregon statute was
constitutional, the Court decided the question which it
reserved in James: whether imposing an obligation to repay
impermissibly deterred the exercise of the right to counsel.
The Court answered this question in the negative,
disapproving of the deterrence rationale enunciated by the
Supreme Court of California in In re Allen, 455 P.2d 143
(Cal. 1969). The Court stated:
[Fuller] asserts that a defendant's
knowledge that he may remain under an
obligation to repay the expenses
incurred in providing him legal
representation might impel him to
decline the services of an appointed
attorney and thus "chill" his
constitutional right to counsel.
This view was articulated by the
Supreme Court of California, in a case
invalidating California's recoupment
legislation, in the following terms:
"[W]e believe that as
knowledge of [the recoupment]
practice has grown and
continues to grow many
indigent defendants will come
to realize that the judge's
offer to supply counsel is not
the gratuitous offer of
assistance that it might
appear to be; that, in the
event the case results in a
grant of probation, one of the
conditions might well be the
reimbursement of the county
for the expense involved.
This knowledge is quite likely
to deter or discourage many
defendants from accepting the
offer of counsel despite the
gravity of the need for such
representation as emphasized
by the [Supreme] [C]ourt in
Gideon . . . ."
We have concluded that this
reasoning is wide of the constitutional
mark.
Id. at 51-52 (alterations in original) (quoting Allen, 455
P.2d at 144). In reaching this conclusion, the Court
observed that the burden of paying for counsel is in no
sense unique to the indigent:
We live in a society where the
distribution of legal assistance, like
the distribution of all goods and
services, is generally regulated by the
dynamics of private enterprise. A
defendant in a criminal case who is just
above the line separating the indigent
from the nonindigent must borrow money,
sell off his meager assets, or call upon
his family or friends in order to hire a
lawyer. We cannot say that the
Constitution requires that those only
slightly poorer must remain forever
immune from any obligation to shoulder
the expenses of their legal defenses,
even when they are able to pay without
hardship.
Id. at 53-54.
The dissent of Justice Marshall, joined in by
Justice Brennan, in Fuller, tends to highlight what was
decided in that case. Justice Marshall pointed out that in
Oregon ordinary civil judgment debtors may not be imprisoned
for failing to pay their debts, whereas a recoupment
judgment debtor was subject to imprisonment. This
difference in treatment rendered Oregon's recoupment statute
unconstitutional in Justice Marshall's opinion. Id. at 61.
In view of this conclusion, Justice Marshall declined to
rule on Fuller's argument that "some other defendant's
knowledge that he may have to reimburse the state for
providing him legal representation might impel him to
decline the services of an appointed counsel and thus chill
his Sixth Amendment right to counsel." Id. at 61 n.2.
Justice Marshall observed:
In any event, in my view such a claim
could more appropriately be considered
by this Court in the context of an
actual case involving a defendant who,
unlike petitioner, had refused appointed
counsel and contended that his refusal
was not a knowing and voluntary waiver
of his Sixth Amendment rights because it
was based upon his fear of bearing the
burden of a debt for appointed counsel
or upon his failure to understand the
limitations the State imposes on such a
debt.
Id.
Any effort to summarize the principles of law
established by James and Fuller is best accompanied by the
admonition made by the Court itself in James that given the
wide variety of recoupment statutes, "any broadside
pronouncement on their general validity would be
inappropriate." 407 U.S. at 133. Nonetheless, respect for
the Court, and recognition that its ability to fully expound
on all the law within its jurisdiction is necessarily
limited, require that subordinate courts attempt to
generalize and synthesize legal propositions based on the
Court's opinions. With this in mind, we conclude that James
and Fuller together stand for the following propositions:
Recoupment systems in which the means of collecting defense
costs are significantly more onerous and less protective of
debtors' interests than those available for the collection
of private debts are generally invalid. However, systems
containing the significantly more onerous power to condition
freedom from incarceration on payment of recoupment are not
invalid so long as they contain safeguards designed to
ensure that only those who will be able to pay are required
to pay. Finally, the general "chilling"argument -- that
requiring repayment of defense costs is per se unconstitu
tional because it may deter some indigents from accepting
the services of counsel -- has been rejected.
Although we conclude that James and Fuller do not
require a prior determination of ability to pay in a
recoupment system which treats recoupment judgment debtors
like other civil judgment debtors, a number of cases decided
by lower federal courts and state courts contain broad
language from which such a requirement might be inferred.
Judge Pengilly cited one such case, Simmons v. James, 467 F.
Supp. 1068, 1072-80 (D. Kan. 1979), aff'd sub nom. Olson v.
James, 603 F.2d 150 (10th Cir. 1979). In Simmons, the court
stated as a general requirement that "the court may not
order a convicted defendant to pay unless he 'is or will be
able to pay.'" 467 F. Supp. 1075. However, the actual
statutory scheme under review in Simmons authorized a
recoupment judgment as a condition of probation. Id. at
1070, 1075, 1079. Simmons is thus distinguishable, as
Criminal Rule 39 recoupment judgments are merely civil
judgments, nonpayment of them has no correctional
consequences, and nonpayment does not give rise to contempt
proceedings.
Additional cases cited by appellees which contain
general language that recoupment judgments must be preceded
by a determination of the defendant's ability to pay are
also distinguishable on the same basis as Simmons. For
example, in Fitch v. Belshaw, 581 F. Supp. 273, 275-76 (D.
Or. 1984), the court struck down an Oregon statute which
allowed recoupment judgments to be entered without adequate
procedures to ensure that defendants would be able to repay
without hardship. The statute contained discriminatory
enforcement features which provided that debtors could have
their driver's licenses revoked and were subject to arrest
if they did not pay. Similarly, in State v. Lopez, 853 P.2d
1126, 1129 (Ariz. App. 1993), the Arizona Court of Appeals
stated that failure to first ascertain the defendant's
financial resources and the burden recoupment would place on
the defendant constituted "fundamental error." However, the
trial court in Lopez had made repayment of the recoupment
order a condition of probation. Id. at 1127. Lopez is
distinguishable on another ground as well. The applicable
Arizona rule required prior consideration of a defendant's
ability to pay. Thus, the court had no occasion to rule
that such consideration was constitutionally required.
People v. Amor, 523 P.2d 1173 (Cal. 1974), is
cited by appellees as inferentially standing for the
proposition that recoupment systems are not constitutional
unless they are based on the defendant's ability to pay.
The California court's opinion in Amor, however, does not
contain any general statements that a prior determination of
a defendant's ability to pay is a constitutional
prerequisite to entry of a judgment for recoupment. As in
Lopez, such a statement would have been dicta because the
California statute under review required a determination of
the defendant's present ability to pay prior to entering an
order of recoupment. Amor, 523 P.2d at 1175 n.1.
Moreover, Amor suggests that a prior determination
of ability to pay is not required where a recoupment
judgment is only civil in character and not part of the
"sentencing process." Id. at 1176. The Amor court
distinguished its prior decision, In re Allen, 455 P.2d 143
(Cal. 1969),12 on three grounds. In Allen, (1) there was no
prior determination of the defendant's ability to pay, (2)
there was no warning to the defendant that she might be
liable to pay, and (3) the defendant could have gone to jail
if she had failed to pay as payment was a condition of
probation.13 Id. The court went on to conclude that none
of these grounds were present in Amor. However, the court
indicated that the absence of the latter two grounds would
suffice to render the system constitutional. The court
contrasted Allen with its 1970 case In re Ricky H., 468 P.2d
204 (Cal. 1970), in which there was no prior determination
of an ability to pay (or threat that probation would be
withheld if payment was not made) but there was a warning
that payment would be required:
In In re Ricky H., 468 P.2d 204, we
distinguished the matter there involved
from Allen, saying . . . : "The
considerations which impelled us to
strike down the probation condition in
Allen do not require us to invalidate
section 903.1. Unlike the petitioner in
Allen, petitioner herein [a minor] was
advised in advance that his father could
be charged with the cost of appointed
counsel, and petitioner does not claim
that the fee involved was unreasonable
or excessive. Moreover, in the instant
case no unfair or unnecessary threat was
made to withhold probation or other
privileges unless counsel fees were
reimbursed." The same factors are here
applicable.
Additionally, determination of the
conditions of probation constitutes part
of the sentencing process. In Allen,
therefore, the order directing the
petitioner to reimburse the county for
the cost of counsel fees was made as
part of the sentencing process. As
pointed out by this court in Allen,
"[T]he introduction of budgeting
considerations could well divert or
dilute the attention which the judge
must give to the specific considerations
which the law requires him to have in
mind in the sentencing process." The
determination in the present case,
however, was made only after conclusion
of the criminal proceedings. Hence, any
consideration to "budgeting" would not
have occurred until the sentencing
process had been completed.
Id. at 1176 (citations omitted).
Neither Judge Pengilly nor appellees have referred
us to any cases in which a recoupment system which results
merely in a civil judgment subject to the normal exemptions
applicable generally to civil judgments has been held
unconstitutional, based either on the system's failure to
require an advance determination of ability to pay or on any
other ground. We are aware of two cases in which such
systems have been approved.
In Wicks v. City of Charlottesville, 208 S.E.2d
752, 756-57 (Va. 1974), appeal dismissed for want of a
substantial federal question, 421 U.S. 901 (1975), the
Supreme Court of Virginia upheld Virginia's recoupment
statute against a challenge based on right to counsel
grounds. The statute, Code of Virginia 14.1-184.1,
currently codified as 19.2-163, provided for the automatic
taxation against a convicted defendant of the amount allowed
by the court as payment for the attorney appointed as
defense counsel. The amount so taxed was docketed as a
judgment. The statute did not call for a prior
determination of the defendant's ability to pay. The
Virginia Supreme Court, adverting to the statement in Fuller
that "only those who actually become capable of repaying the
state will ever be obliged to do so,"Wicks, 208 S.E.2d at
756, observed that general exemptions available to civil
debtors were available to debtors under the recoupment
statute and were adequate to protect them from hardship.
The court stated:
It is entirely proper, and a
constitutional requisite, that an
indigent defendant be represented by
court-appointed counsel. However, we
can perceive no valid reason why, if the
defendant is convicted, the cost of such
representation should not be taxed as a
part of the cost of the prosecution,
treated as any other debt and collected
of the convicted defendant at a later
date if and when he becomes able to pay.
The Code of Virginia abounds with
statutes providing debtors, judgment and
otherwise, with exemptions from
execution, attachment, garnishment and
distress. These statutes afford equal
treatment and are adequate to protect
any debtor from hardship, and from
oppression or overreaching by a
creditor. They are not discriminatory
and do not penalize any judgment debtor
of the Commonwealth.
Id. at 756-57 (citations omitted).
Alexander v. Johnson, 742 F.2d 117 (4th Cir.
1984), involved a challenge to the practice of North
Carolina' parole commission which required certain inmates
to make restitution for the costs of court-appointed counsel
as a condition of parole. Of importance to the present case
is what the Fourth Circuit said in dicta concerning North
Carolina's separate statutory system for civil recoupment of
fees. That system, reflected in General Statutes of North
Carolina 7a-455(b), requires the automatic entry of
judgment against a convicted defendant for the costs of
court-appointed counsel. No prior determination of ability
to pay is made. The Fourth Circuit spoke approvingly of
this system, stating:
North Carolina's program for civil
recoupment of fees, though not directly
attacked here, possesses the essential
characteristics of the Oregon system
upheld in Fuller v. Oregon. The legal
obligation to repay the state for the
costs of court-appointed counsel does
not arise until after the defendant has
been found guilty of the charged
offense. To enforce this obligation,
the amount the defendant owes must be
determined in an independent proceeding,
reduced to judgment, and collected
through the same procedures used by
other judgment creditors. Finally, the
defendant is allowed to shelter a
substantial portion of his assets from
attachment if the state executes on its
judgment, and to protect his wages from
garnishment to the extent they are
necessary for his and his family's
support. The combined effect of these
various civil collection protections is
that the defendant will never be forced
to repay the state for court-appointed
counsel as long as he remains
impoverished.
Id. at 125, n.10 (citations omitted).
Thus, there are authorities which have approved
systems like Alaska's, which provide nondiscriminatory
recoupment judgments without a prior determination of the
ability of the defendants to pay. In addition, there are a
number of authorities which have held that no prior
determination of a defendant's ability to pay is required in
systems where jail is a possible consequence of nonpayment,
so long as there is an opportunity to establish inability to
pay before the jail sanction is imposed. In such systems
recoupment judgments may be paid by defendants motivated by
the coercive force of the jail sanction, or they may be
collected involuntarily by other means. Thus, these cases
necessarily reflect the view that a determination of ability
to pay prior to entry of a recoupment judgment is not
constitutionally required.
One such case is State v. Kottenbroch, 319 N.W.2d
465 (N.D. 1982). In this case the trial court deferred
imposition of sentence conditioned on repayment of the
defendant's court-appointed attorney's fees. North Dakota's
recoupment statute did not provide for a prior judicial
determination of an indigent's ability to pay and did not
explicitly permit making payment of recoupment a condition
of a suspended sentence. The North Dakota Supreme Court
held that so conditioning a suspended sentence was within
the general power of the trial court. The court further
held that a prior determination of the defendant's future
ability to pay was not required by Fuller, so long as the
judgment debtor had the opportunity to present an inability
to pay defense before his probation was actually revoked.
Kottenbroch, 319 N.W.2d at 473. In reaching this conclusion
the court stated:
The third argument made by
Kottenbroch is that the North Dakota
recoupment statute is constitutionally
infirm because it does not have the
safeguards of the Oregon statute which
survived constitutional challenge in
Fuller. It is true that the statute in
question does not provide the many safe
guards found in the Oregon statute.
However, our reading of Fuller and James
brings us to the conclusion that a
statute need not provide all the
safeguards of the Oregon statute.
Instead, it only needs to be fashioned
so that it does not invidiously
discriminate between an indigent
defendant who becomes a judgment debtor
by virtue of his retention of a court-
appointed attorney and a non-indigent
defendant or other judgment debtor. Our
recoupment statute, as previously
construed herein, allows an indigent
defendant the same exemptions any other
person is entitled to. Further, as
previously indicated herein, no
probation can be revoked simply because
the probationer is unable to pay the
costs of his court-appointed counsel.
We therefore conclude that North
Dakota's recoupment statute does not
invidiously discriminate between an
indigent defendant and a nonindigent
defendant or other judgment debtor.
Id.
Similarly, in State v. Crawford, 804 P.2d 1385
(Kan. 1991), the defendant was ordered to reimburse the
state for court-appointed counsel as a condition of
probation. In entering this order the trial court did not
consider defendant's financial resources or her ability to
make repayment. Id. at 1390. The Kansas Supreme Court held
that such a determination was not necessary at the time the
recoupment order was entered. Instead, it was sufficient
that the defendant have the opportunity under the Kansas
system to show that she was "not wilfully in default in the
payment at any time." To the same effect is Basaldua v.
State, 558 S.W.2d 2, 7 (Tex. App. 1977).
Based on James and Fuller and the authorities
reviewed above, we are persuaded that Alaska's recoupment
system does not violate the right to counsel guaranteed by
the Sixth Amendment to the United States Constitution.
Recoupment judgments are nondiscriminatory and there are no
correctional consequences if payment is not made. The same
protections against hardship available to civil debtors
provided in the exemption act are available to recoupment
debtors. Moreover, recoupment debtors have the additional
right to petition the court for reduction or remission of a
judgment based on a showing of manifest hardship to the
debtor or members of the debtor's immediate family.
Finally, the debtor is notified at the outset of the
criminal proceedings of the possibility of a recoupment
judgment and given an opportunity to challenge entry of the
judgment before it is entered.
We reach the same conclusion with respect to the
right to counsel expressed in article I, section 11 of the
Alaska Constitution for the same reasons. Appellees argue
that the system "chills"indigents' exercise of this right.
While Fuller rejects this argument for Sixth Amendment
purposes, see 417 U.S. at 51-52, it is appropriate to
address it at greater length with respect to the state
constitutional guarantee.14
The argument that recoupment systems are
unconstitutional because they unduly deter indigents from
using counsel is, in its most basic form, an argument that
recoupment systems are per se unconstitutional.
Theoretically, pricing any service will deter at least some
potential consumers from using that service. Since all
recoupment systems require that at least some indigents pay
for legal services, all carry the risk that some will be
deterred from accepting counsel.
Nonindigents who must pay for counsel may choose
to forego counsel because they believe that the benefits of
counsel's service are outweighed by its costs. The fact
that our market system forces nonindigents to make such a
choice has never been regarded as a deprivation of the right
to counsel, even though the fees incurred in serious felony
cases may exceed all the assets of all but the wealthiest
defendants. An indigent's choice as to whether or not to
accept appointed counsel, given the eventual cost of counsel
under Criminal Rule 39, is not different in kind from the
economic choice which must be made by a nonindigent accused
of crime. There is no principled way to say that the burden
placed on the indigent is unconstitutional while that placed
on the nonindigent is constitutional. This is the rationale
suggested by Fuller, see 417 U.S. at 51-52, and stated by
the California Supreme Court in Amor, 523 P.2d at 1176:
There is no more reason to suppose
that an indigent defendant will refuse
counsel because he may later be ordered
to pay his counsel fees, to the extent
it is determined he has the financial
ability to do so at the conclusion of
the criminal proceedings, than there is
to suppose that some defendants who are
not indigent will refuse counsel because
of an unwillingness to incur a counsel
fee. It is quite possible that a
defendant who would not qualify as an
indigent may have such limited
resources, or restrict himself to such
an extent with respect to the
expenditure of his funds, that the
factor of liability for counsel fees
might prompt him, in a case where
counsel is not required, to enter a
guilty plea in order to save counsel
fees; but if he elects to enter a guilty
plea for that reason, such election,
based largely on economic factors, could
nevertheless not be said to result in
his being deprived of the right to
counsel. The option to be represented
by counsel would have been his, with the
right to give such priority as he wished
to the economic or other factors
involved.
Appellees argue, however, that under Criminal Rule
39 indigents are more likely than nonindigents to reject the
services of counsel because the economic consequences of
accepting counsel are relatively greater than the cost to
nonindigents of hiring counsel:
A middle class defendant may have to
choose between $1000 for a trip to
Hawaii and $1000 to have a lawyer handle
a DWI case. By contrast, an indigent
defendant has to choose between life's
necessities and a lawyer. This is a
fundamentally different situation. What
is a legitimate and noncoercive choice
to require a middle class person to make
may be unfairly coercive when imposed on
an indigent.
We agree that a recoupment system which resulted
in indigents refusing counsel at a significantly higher rate
than nonindigents would be constitutionally suspect. This
could indicate, to use appellees' terms, that the system is
imposing unfairly coercive choices on indigents. However,
no evidence has been presented that this is occurring.15
III. RIGHT TO TRIAL BY JURY
Judge Pengilly concluded that Criminal Rule 39
violates article I, section 16 of the Alaska Constitution,
which provides: "In civil cases where the amount in
controversy exceeds two hundred fifty dollars, the right of
trial by a jury of twelve is preserved to the same extent as
it existed at common law." Appellees defend this
conclusion, arguing that a civil judgment entered under Rule
39 is akin to an action for attorney fees, which was an
action at law, triable to a jury, under the common law.
Therefore, they conclude that Rule 39 violates the right to
a jury trial whenever the judgment is potentially greater
than $250.
We do not consider this question ripe for review.
There is no indication in the record or by the parties that
any of the appellees asked for and was denied a trial by
jury. Rule 39 does not specifically prohibit trial by jury
on Rule 39 claims. Therefore, even if trial by jury is
appropriate, no cause would exist to strike the rule. We
will defer ruling on whether there is a right to trial by
jury in proceedings for judgment in excess of $250 under
Criminal Rule 39 until the issue is properly before us.
IV. EQUAL PROTECTION
Judge Pengilly ruled that Criminal Rule 39
deprives indigents of "equal rights, opportunities, and
protection under the law"as guaranteed them under article
I, section 1 of the Alaska Constitution. Appellees support
and expand this ruling, arguing that the federal right to
equal protection of the law guaranteed by the Fourteenth
Amendment of the United States Constitution is also
violated. Appellees argue in general that Criminal Rule 39
provides "indigents subject to judgments for attorney's fees
. . . [with] a procedure for resolving factual disputes that
has far fewer protections than the procedures available to
more affluent defendants who dispute the fees charged by
their private attorneys." Appellees point out that if an
individual with the resources to hire a private attorney has
a dispute with the attorney, the individual may refuse to
pay and take the attorney to fee arbitration under Alaska
Bar Rules 34-40 or require the attorney to establish the
amount of fees due in court, and that until these procedures
are complete, no judgment is entered. In contrast, under
the procedures established by Criminal Rule 39, the court
initiates the proceeding, judgment is automatic unless the
indigent defendant successfully objects, and a hearing is
not required in all cases.
A. Alaska Equal Protection Analysis
This court has adopted a sliding-scale approach to
equal protection analysis under article I, section 1 of the
Alaska Constitution. State v. Erickson, 574 P.2d 1, 12
(Alaska 1978). Under this approach, we must first determine
what weight to afford the interest impaired by the
challenged enactment. Alaska Pacific Assurance Co. v.
Brown, 687 P.2d 264, 269-70 (Alaska 1984).
Appellees claim that the interest impaired by the
classification created by Rule 39 is the right of indigent
defendants to access to the courts. They rely on Patrick v.
Lynden Transport, Inc., 765 P.2d 1375 (Alaska 1988), in
which this court held that a statute requiring nonresident
plaintiffs to post a bond in order to bring suit in the
state's courts implicated a right of access to the courts
and was an "important"right on Alaska's sliding scale. Id.
at 1379. We therefore subjected the statute to "close
scrutiny."16 The State responds that indigents are not
denied access to the courts, but are only afforded different
procedures, and that therefore Patrick is inapplicable.17
The bond requirement at issue in Patrick imposed
an obstacle to initial entry to the court system. 765 P.2d
at 1377. Absent the resources to post bond, nonresident
plaintiffs could not bring an action in an Alaska court.
Id. In contrast, Criminal Rule 39 does not prevent entry to
the courts for resolving disputes over the reasonableness of
fees. It does, however, provide a different procedure for
the determination of the amount owed and the entry of
judgment than that available to those who retain an attorney
privately. Therefore, the interest impaired by the
classification is the criminal defendant's interest in these
particular procedures. This interest is less important than
Patrick's interest in access to the courts, so lesser
scrutiny is appropriate. This is in accordance with prior
decisions of this court which consider equal protection
challenges to unique procedural matters under a low level of
scrutiny. See Turner Constr. Co. v. Scales, 752 P.2d 467,
471 (Alaska 1988) (analyzing challenge to statute of repose
under fair and substantial relationship test); Keyes v.
Humana Hosp. Alaska, Inc., 750 P.2d 343, 358 (Alaska 1988)
(applying "relatively low level of scrutiny" to equal
protection challenge to mandatory pretrial review of medical
malpractice claims).
On review at the low end of our sliding scale, the
challenged provisions of Criminal Rule 39 need only serve a
legitimate purpose and be fairly and substantially related
to the accomplishment of that purpose. State, Dep't of
Revenue v. Cosio, 858 P.2d 621, 629 (Alaska 1993). It is
clear that the procedures of Rule 39 meet these
requirements.
Although the purpose of requiring reimbursement by
the procedures of Rule 39 is not stated in the rule, the
State contends that the purpose "is to obtain partial
repayment for the cost of defending indigent criminal
defendants." Appellees accept this statement of the general
purpose of the rule "for the purposes of discussion" and
concede that it is probably legitimate. The State further
contends that the purpose of providing only the procedures
of Rule 39 "is to achieve that end [repayment] with
administrative efficiency while protecting the rights of the
criminal defendants."18
We hold that both the general purpose of Rule 39
and the particular reason for providing only limited
procedures are legitimate. Efficient collection is a
legitimate reason for providing different procedures in
different contexts generally, and especially for not
providing indigent defendants with the same procedures
afforded private clients involved in fee disputes. Fee
disputes between a private attorney and client may involve
many issues, including the reasonableness of the hourly fee,
the actual hours expended, the reasonableness of expending
these hours, and interpretation of the contract between the
attorney and the client. In contrast, under Rule 39, the
amount of the fee in most instances will be determined by
the schedule, and the range of possible disputes is quite
narrow. Equally detailed procedures therefore are
unnecessary.
Finally, the means employed by Rule 39 are
substantially related to the purpose of fair but efficient
collection. The procedures of Rule 39 apply only to
individuals who receive appointed counsel and whose
obligation to pay for that counsel is limited and subject
only to a narrow range of possible disputes. This class is
sufficiently differently situated from the class of
individuals obligated to pay for private counsel that
different procedures are appropriate. Moreover, Rule 39
does not prevent more detailed procedures from being
utilized if more complex disputes emerge.
For these reasons, Criminal Rule 39 does not
violate the equal protection guarantee of the Alaska
Constitution.
B. Federal Equal Protection Analysis
The United States Supreme Court has examined equal
protection challenges to recoupment statutes under the
rational relationship test. See Fuller, 417 U.S. at 49
("Our task is merely to determine whether there is 'some
rationality in the nature of the class singled out.'")
(quoting Rinaldi v. Yeager, 384 U.S. 305, 308 (1966));
Strange, 407 U.S. at 140 (stating that requirement of
"rationality" in classification was not met). Although
Strange involved a challenge to a recoupment statute's
denial of execution exemptions and not to the procedures
employed in reaching the judgment, use of the rational
relationship test is proper. There is no suspect class or
fundamental right at issue. Appellees apparently concede
that the rational relationship test is appropriate, arguing
that "Rule 39 has no rational relationship to a legitimate
governmental interest."
As discussed above, the purpose of Rule 39's
classification is legitimate. The means chosen are
rationally related to that end, in that more efficient
procedures are justified by the simplified issues at stake.
See Amor, 523 P.2d at 1180 (holding that recoupment statute
did not violate equal protection despite providing different
procedures than those available to other debtors). Criminal
Rule 39 therefore does not violate the federal
constitutional right to equal protection.
V. CONCLUSION
Criminal Rule 39 does not conflict with the right
to counsel guaranteed by the Sixth Amendment of the United
States Constitution and article I, section 11 of the Alaska
Constitution. Judgments under the rule are civil judgments
subject to the same laws and rules which govern other civil
judgments. They do not have any sentencing or correctional
consequences. The judgments are low compared to the actual
cost of legal services; the exemption act and the remission
power under the rule prevent collection in hardship cases.
An advance determination of a defendant's ability to pay is
not required. Although it is to be expected that some
defendants will refuse the services of appointed counsel
rather than incur a Criminal Rule 39 judgment, that is an
economic choice similar to the choice made by a nonindigent
who decides to forego counsel for economic reasons.
We decline to address the right to trial by jury
under Criminal Rule 39 as no appellee has asked for and been
denied trial by jury and the question does not otherwise
affect the constitutionality of the rule.
Criminal Rule 39 also does not violate an indigent
defendant's right to equal protection under the Alaska
Constitution or the Fourteenth Amendment by providing
special procedures for entry of judgment, because these
procedures are substantially related to a legitimate state
interest.
The decisions of the trial courts in the
consolidated cases, finding Criminal Rule 39
unconstitutional, are REVERSED.
APPENDIX A
Alaska Statute 18.85.120(c) provides:
(c) Upon the person's conviction, the court may enter a
judgment that a person for whom counsel is appointed pay for
services of representation and court costs. Enforcement of
a judgment under this subsection may be stayed by the trial
court or the appellate court during the pendency of an
appeal of the person's conviction. Upon a showing of
financial hardship, the court (1) shall allow a person
subject to a judgment entered under this subsection to make
payments under a payment schedule; (2) shall allow a person
subject to a judgment entered under this subsection to
petition the court at any time for remission, reduction, or
deferral of the unpaid portion of the judgment; and (3) may
remit or reduce the balance owing on the judgment or change
the method of payment if the payment would impose manifest
hardship on the person or the person's immediate family.
Payments made under this subsection shall be paid into the
state general fund.
Alaska Criminal Rule 39 provides:
(a) Informing Defendant of Right to Counsel. The court
shall advise a defendant who appears without counsel for
arraignment, change of plea, or trial of the right to be
represented by counsel, and ask if defendant desires the aid
of counsel. The court shall not allow a defendant to
proceed without an attorney unless defendant understands the
benefits of counsel and knowingly waives the right to
counsel.
(b) Appointment of Counsel for Persons Financially Unable
to Employ Counsel.
(1) If defendant desires the aid of counsel but claims a
financial inability to employ counsel, the court or its
designee shall determine whether defendant is an "indigent
person," as defined by statute, by placing defendant under
oath and asking about defendant's financial status, or by
requiring defendant to complete a signed sworn financial
statement. The court shall order defendant to execute a
general waiver authorizing release of income information to
the court. The court may require defendant to attempt to
arrange private representation before the court makes a
final determination on indigency.
(2) Before the court appoints counsel for an indigent
defendant at public expense, the court shall advise
defendant that defendant will be ordered to repay the
prosecuting authority for the cost of appointed counsel, in
accordance with paragraph (d) of this rule, if the defendant
is convicted of an offense. The court may enter such orders
as appear reasonably necessary to prevent defendant from
dissipating assets to avoid payment of this cost.
(3) If the court or its designee determines that
defendant is an "indigent person,"the court shall appoint
counsel pursuant to Administrative Rule 12 and notify
counsel of the appointment.
(4) In the absence of a request by a defendant otherwise
entitled to appointment of counsel, the court shall appoint
counsel unless the court finds that defendant understands
the benefits of counsel and knowingly waives the right to
counsel.
(5) If the trial court denies defendant's request for
appointed counsel, defendant may request review of this
decision by the presiding judge of the judicial district by
filing a motion with the trial court within three days after
the date of notice, as defined in Criminal Rule 32.3(c), of
the denial. The trial court shall forward the motion,
relevant materials from the court file, and a cassette tape
of any relevant proceedings to the presiding judge. The
presiding judge or his or her designee shall issue a
decision within three days of receipt of these materials.
(c) Costs of Appointed Counsel.
(1) Entry of Judgment.
(A) Upon conviction of an offense, revocation of
probation, denial of a motion to withdraw plea, and denial
of a motion brought under Criminal Rule 35.1, the court
shall prepare a notice of intent to enter judgment for the
cost of appointed counsel in accordance with paragraph (d)
of this rule, provide a copy of the notice to defendant, and
order defendant to apply for permanent fund dividends every
year in which the defendant qualifies for a dividend until
the judgment is paid in full.
(B) Defendant may oppose entry of judgment by filing a
written opposition within 10 days after the date of notice,
as defined in Criminal Rule 32.3(c), of the court's intent
to enter judgment. The opposition shall specifically set
out the grounds for opposing entry of judgment. The
prosecuting authority may oppose the amount of the judgment
by filing a written opposition within the same deadline.
(C) If no opposition is filed within the time
specified in section 39(c)(1)(B), the clerk shall enter
judgment against defendant for the amount shown in the
notice. If a timely opposition is filed, the court may set
the matter for a hearing and shall have authority to enter
the judgment.
(D) The judgment must be in writing. A copy of the
judgment shall be mailed to defendant's address of record.
The judgment shall bear interest at the rate specified in AS
09.30.070(a) from the date judgment is entered.
(2) Collection.
(A) The judgment has the same force and effect as a
judgment in a civil action in favor of the prosecuting
authority and is subject to execution.
(B) All proceedings to enforce the judgment shall be
in accordance with the statutes and court rules applicable
to civil judgments. The judgment is not enforceable by
contempt. Payment of the judgment may not be made a
condition of a defendant's probation. Default or failure to
pay the judgment may not affect or reduce the rendering of
services on appeal or any other phase of defendant's case in
any way. A defendant does not have a right to be
represented by appointed counsel in connection with
proceedings under subparagraph 39(c) or any proceedings to
collect the judgment.
(C) Upon a showing of financial hardship, the court
shall allow a defendant subject to a judgment under this
rule to make payments under a repayment schedule. A
defendant may petition the court at any time for remission,
reduction or deferral of the unpaid portion of the judgment.
The court may remit or reduce the balance owing on the
judgment or change the method of payment if payment would
impose manifest hardship on defendant or defendant's
immediate family.
(D) Notwithstanding section 39(c)(2)(B), a defendant
may be held in contempt for failing to comply with an order
under this rule to apply for a permanent fund dividend.
(3) Appeal.
(A) If defendant appeals the conviction, enforcement
of the judgment may be stayed by the trial court or the
appellate court upon such terms as the court deems proper.
(B) If defendant's conviction is reversed, the clerk
shall vacate the judgment and order the prosecuting
authority to repay all sums paid in satisfaction of the
judgment, plus interest at the rate specified in AS
09.30.070(a).
(d) Schedule of Costs. The following schedules govern
the assessment of costs of appointed counsel under paragraph
39(c). If a defendant is convicted of more than one offense
in a single dispositive court proceeding, costs shall be
based on the most serious offense of which the defendant is
convicted. If a defendant is otherwise convicted of more
than one offense, costs shall be separately assessed for
each conviction. For good cause shown, the court may waive
the schedule of costs and assess fees up to the actual cost
of appointed counsel, including actual expenses.
Misdemeanors
Trial $ 500.00
Change of plea 200.00
Post-conviction relief or contested
probation revocation proceedings in
the trial court 250.00
Felonies
-------------------------
------------------------------------------
Class B & C Class A and Murder in the
Unclassified 1st and
2nd
(Except Murder) Degrees
-------------------------------------------------
------------------
Trial $1,500.00 $2,500.00
$5,000.00
Change of plea
after substantive
motion work and
hearing and before
trial commences 1,000.00 1,500.00
2,500.00
Change of plea post-
indictment but prior
to substantive motion
work and hearing 500.00 1,000.00
2,000.00
Change of plea prior
to indictment 250.00 500.00
750.00
Post-conviction relief
or probation revocation
proceeding in trial
court 250.00 500.00
750.00
------------------------------------------------------------
------
(e) Review of Defendant's Financial Condition.
(1) The court may review defendant's financial status at
any time after appointment of counsel to determine (A)
whether defendant continues to be an "indigent person," as
defined by statute; or (B) whether defendant was an
indigent person at the time counsel was appointed.
(2) If the court determines that defendant is no longer
an indigent person, the court may
(A) terminate the appointment; or
(B) continue the appointment and, at the conclusion of
the criminal proceedings against defendant in the trial
court, enter judgment against defendant for the actual cost
of appointed counsel, including actual expenses, from the
date of the change in defendant's financial status through
the conclusion of the trial court proceedings.
(3) If the court determines that defendant was not an
indigent person at the time counsel was appointed, the court
may
(A) terminate the appointment and enter judgment
against defendant for the actual costs of appointed counsel,
including actual expenses, from the date of appointment
through the date of termination; or
(B) continue the appointment and, at the conclusion of
the criminal proceedings against defendant in the trial
court, enter judgment against defendant for the actual cost
of appointed counsel from the date of the appointment
through the conclusion of the trial court proceedings.
(4) A defendant may request review of the court's
decision to terminate the appointment according to the
procedure set out in subparagraph 39(b)(5).
(5) Judgment may be entered against a defendant under
this paragraph regardless of whether the defendant is
convicted of an offense.
Alaska Appellate Rule 209(b) provides:
(1) In criminal matters the trial court shall authorize
appeals at public expense on behalf of defendants who are
"indigent," as defined by statute, in accordance with the
rules and decisions of the appellate courts of Alaska and
where such appeals are required to be provided by state
courts by decisions of the Supreme Court of the United
States. Where an appeal at public expense is authorized by
the trial court, the costs which shall be borne at public
expense include those of providing counsel and of preparing
a transcript and briefs.
(2) After a trial court has authorized an appeal at
public expense, the appellate clerk shall send defendant a
written notice and order, to the address provided under
Appellate Rule 204(b), that
(A) advises defendant that, if defendant's conviction
is not reversed, defendant will be ordered to repay the
prosecuting authority for the cost of appointed appellate
counsel, in accordance with the schedule of costs set out in
subparagraph 209(b)(7); and
(B) orders defendant to apply for permanent fund
dividends every year in which the defendant qualifies for a
dividend until this cost is paid in full.
(3) A defendant authorized to proceed at public expense
in the trial court is presumed to be entitled to proceed at
public expense on appeal.
(4) The action of the trial court in authorizing or
declining to authorize an appeal at public expense is
reviewable by a motion in the appellate court, ancillary to
the appeal.
(5) Counsel appointed to represent a defendant in the
trial court pursuant to Criminal Rule 39 shall remain as
appointed counsel throughout an appeal at public expense
authorized under this paragraph and shall not be permitted
to withdraw except upon the grounds authorized in
Administrative Rule 12. An attorney appointed by the court
under Administrative Rule 12(b)(1)(B) will be permitted to
withdraw upon a showing that either the public defender
agency or the office of public advocacy is able to represent
defendant on appeal. If an appeal is to be taken, trial
counsel will not be permitted to withdraw until the notice
of appeal and the documents required to be filed with the
appeal by Rule 204 have been accepted for filing by the
clerk of the appellate courts.
(6) At the conclusion of the appellate proceeding, the
appellate clerk shall enter judgment against defendant for
the cost of representation on appeal unless defendant's
conviction was reversed by the appellate court. The amount
of the judgment shall be determined by reference to the
schedule in subparagraph 209(b)(7). Before entering
judgment, the clerk shall mail, to the defendant's address
of record, a notice that sets out the amount of the proposed
judgment. Defendant may oppose entry of the judgment by
filing a written opposition within 45 days after the date
shown in the clerk's certificate of distribution on the
notice. The opposition shall specifically set out the
grounds for opposing entry of judgment. The prosecuting
authority may oppose the amount of the judgment by filing a
written opposition within the same deadline. Criminal Rule
39(c)(1)(D) and (c)(2) shall apply to judgments entered
under this subparagraph.
(7) The following schedule governs the cost of
representation on appeal:
Type of Appellate Proceeding Misdemeanor
Felony
Sentence Appeal 250 500
Merit Appeal and Appeals from
Post-Conviction Relief Proceedings 750 1,500
Combined Merit and Sentence Appeal 1,000 2,000
Other Appellate Actions
(Petition for Review, Petition
for Hearing, etc.) 500 1,000
BRYNER, Justice pro tempore, dissenting, joined by
RABINOWITZ, Justice, as to parts I, II and III.
I. INTRODUCTION
I agree with the majority that it is appropriate
for the state to recoup costs for services provided to
indigent defendants by court-appointed counsel. I further
agree that there is nothing impermissible in a recoupment
plan that burdens an indigent defendant with the same
economic choice that a nonindigent defendant must make.
Finally, I agree that it is legitimate for the court to
establish procedures that ensure "administrative efficiency"
in recouping costs of providing appointed counsel. And I
believe, as does the majority, that the establishment of
such procedures can be accomplished without offending
Albert's constitutional rights to counsel and equal
protection. My major disagreement with the majority centers
narrowly on the majority's conclusion that Rule 39 properly
accomplishes the legitimate purpose it is meant to serve.19
II. ABILITY TO REPAY
After reviewing James v. Strange, 407 U.S. 128
(1972), Fuller v. Oregon, 417 U.S. 40 (1974), and their
progeny, the majority concludes that ability to repay is
essential to a recoupment plan only when the defendant may
be incarcerated for failing to repay. This interpretation
neglects the Alaska Constitution. Even if the federal
constitution does not require that ability to repay be
considered,20 such consideration must be allowed under the
Alaska Constitution.21
In ordinary civil matters, of course, it is
entirely permissible to enter judgment against a debtor
regardless of the debtor's ability to pay. The majority
repeatedly insists that a Rule 39 recoupment judgment has no
"correctional consequences"and may therefore be treated as
an ordinary civil judgment, without considering ability to
repay. This assertion is incorrect. A civil judgment
entered against an indigent defendant who has just been
convicted of a crime can have distinctly different
consequences than one entered against an ordinary debtor:
The indigent defendant who is found
guilty is uniquely disadvantaged. . . .
A criminal conviction usually limits
employment opportunities. This is
especially true where a prison sentence
has been served. It is in the interest
of society and the State that such a
defendant, upon satisfaction of the
criminal penalties imposed, be afforded
a reasonable opportunity of employment,
rehabilitation and return to useful
citizenship.
James v. Strange, 407 U.S. at 139.
The unique impact that a civil judgment can have
on a convicted offender is plainly a "correctional
consequence" in that it directly relates to the sentencing
goal of rehabilitation. This sentencing goal finds express
recognition in our state constitution. "Under Alaska's
Constitution, the principles of reformation and necessity of
protecting the public constitute the touchstones of penal
administration." State v. Chaney, 477 P.2d 441, 444 (Alaska
1970)(footnote omitted). Article I, section 12, of the
Alaska Constitution declares that "Penal administration
shall be based on the principle of reformation and upon the
need for protecting the public."
Multiple goals are encompassed within
these broad constitutional standards.
Within the ambit of this constitutional
phraseology are found the objectives of
rehabilitation of the offender into a
noncriminal member of society, isolation
of the offender from society to prevent
criminal conduct during the period of
confinement, deterrence of the offender
himself after his release from
confinement or other penological
treatment, as well as deterrence of
other members of the community who might
possess tendencies toward criminal
conduct similar to that of the offender,
and community condemnation of the
individual offender, or in other words,
reaffirmation of societal norms for the
purpose of maintaining respect for the
norms themselves.
Chaney, 477 P.2d at 444.
In some cases, entering a recoupment judgment
against a defendant who is unable to repay will actively
interfere with the sentencing goal of rehabilitation. This
is essentially the point that we made in Karr v. State, 686
P.2d 1192 (Alaska 1984), when we rejected an argument for
allowing sentencing courts to order the payment of
restitution as a condition of probation for convicted
offenders who have no foreseeable ability to pay:
If restitution is ordered in an amount
that is clearly impossible for the
offender to pay, the offender's
rehabilitation will be inhibited and not
furthered. If the offender is haled
into court for nonpayment of restitution
. . . or if the offender petitions the
court . . . to avoid this sanction, his
reintegration into society will be
disrupted. Also, an offender might
simply give up and make no payments at
all if the restitution ordered is
clearly impossible to pay. This could
result in the offender's incarceration .
. . or in his fleeing the jurisdiction
to avoid this sanction, neither of which
would further the dual goals behind
restitution.
Id. at 1197 (footnote omitted).22
Although the dangers we adverted to in Karr were
clearly magnified in the context of that case by the
possibility of incarceration as a consequence of nonpayment,
the absence of incarceration as a potential consequence in a
recoupment situation merely reduces the extent of these
dangers; it does not dispel them. In some circumstances, it
will be predictable that the pendency of a judgment for a
sum that would be impossible to pay might be disruptive of a
defendant's reintegration into society and might encourage
the defendant to "simply give up." When a court foresees
this risk and deems rehabilitation to be a prominent
sentencing goal in the case before it, the interests of the
defendant and society alike will be served if the court
forbears entering the recoupment judgment.23
Given the central role of reformation as a
touchstone of penal administration under the Alaska
Constitution, I would hold that our state constitution
forbids a recoupment plan that provides courts no authority
to engage in (and indigent defendants no right to request)
prejudgment consideration of ability to repay.
III. RIGHT TO COUNSEL AND EQUAL PROTECTION
The Sixth Amendment to the United States
Constitution expressly guarantees all persons accused of
crime the right to be assisted by counsel. Gideon v.
Wainwright, 372 U.S. 335 (1963), held the Sixth Amendment's
guarantee to be a fundamental right, applicable to the
states under the Fourteenth Amendment's Due Process Clause;
Gideon further held the Sixth and Fourteenth Amendments to
require states to provide court-appointed counsel upon
request to accused persons who cannot afford to retain their
own attorneys. As with other fundamental rights expressly
secured by the Constitution, an accused's right to the
assistance of counsel must be jealously guarded against
erosion by rule or statute, even if the rule or statute
furthers an otherwise legitimate state interest:
Whatever might be said of Congress'
objectives, they cannot be pursued by
means that needlessly chill the exercise
of basic constitutional rights. The
question is not whether the chilling
effect is "incidental" rather than
intentional; the question is whether
that effect is unnecessary and therefore
excessive.
United States v. Jackson, 390 U.S. 570, 582 (1968)(citations
omitted).
Jackson unambiguously states the standard for
resolving Albert's right-to-counsel claim: whether the
provisions of Rule 39 "needlessly chill the exercise of
[that] basic constitutional right[.]" Id.
Albert's right to appointed counsel is protected
at a second level by the Equal Protection Clause of the
Fourteenth Amendment, which prohibits the irrational
imposition of "harsh conditions on a class of debtors who
were provided counsel as required by the Constitution[.]"
James v. Strange, 407 U.S. at 140-41. Nor can
discriminatory treatment of indigent defendants be justified
by the mere fact that their debt is to the state:
We recognize, of course, that the
State's claim to reimbursement may take
precedence, under appropriate
circumstances, over the claims of
private creditors and that enforcement
procedures with respect to judgments
need not be identical. This does not
mean, however, that a State may impose
unduly harsh or discriminatory terms
merely because the obligation is to the
public treasury rather than to a private
creditor.
Id. at 138 (footnote omitted).24
Criminal Rule 39 must be evaluated in light of
these standards. Rule 39(b) makes all criminal defendants
who are provided court-appointed counsel liable upon
conviction for the cost of representation. This liability
attaches without regard to an individual defendant's
financial ability to repay. The liability automatically
attaches in the form of a civil judgment entered without a
prior request or demand for payment. Upon a defendant's
conviction, the trial court must issue in all cases, sua
sponte, a notice of judgment.
The amount of the judgment is as automatic as its
entry. Under Rule 39(d), the amount of the judgment is not
based on services actually received by the defendant;
rather, it is selected from a menu of fixed fees pegged to
case type and stage at which disposition occurs. The
judgment is entered without the right to a trial -- jury or
nonjury.25 For that matter, the defendant has no right even
to a hearing.26
A convicted defendant who receives the notice and
is capable of filing a written response within ten days of
its issuance may object to it; but the rule does not specify
any ground for objection, and, given the automatic nature of
the judgment, the majority opinion seems to conclude there
is essentially none.27 Along with the notice of judgment,
the trial court must send an order requiring the defendant,
if eligible, to apply for permanent fund dividends "until
the judgment is paid in full." Rule 39(c)(1)(A). This
requirement is imposed upon pain of contempt. Rule
39(c)(2)(D).
Apart from this, the rule requires all defendants
who cannot afford to retain counsel to be warned of the
consequences of requesting court-appointed counsel -- that,
upon conviction, they "will be ordered to repay . . . the
cost of appointed counsel, in accordance with paragraph (d)
of this rule [the fee schedule]." Rule 39(b)(2)(emphasis
added). This warning must be made at the outset of the case
-- "[b]efore the court appoints counsel,"id. -- prior to
any preliminary contact or consultation with counsel. And
the court itself is to deliver the message. Id.
A unique set of problems emerges from Rule 39's
provisions for entry of judgment without the right to a
trial or hearing and its related use of a predetermined
schedule of fees. To sustain its position that these
aspects of Rule 39 do not unnecessarily chill the exercise
of the right to appointed counsel and are not conspicuously
more onerous than collection procedures applied to civil
debtors, the majority points to the obvious difference
between Rule 39 and the recoupment statute found
unconstitutional in James v. Strange.
James involved a Kansas statute that precluded
convicted defendants against whom recoupment judgments were
entered from claiming any of the exemptions commonly allowed
civil judgment debtors. This denial of exemptions applied
only to recoupment judgments for attorney's fees. The
Supreme Court found this provision harsh, discriminatory,
and impermissible.
As the majority in the present case points out,
Alaska's recoupment rule, in contrast, expressly allows
judgment debtors to claim all commonly allowed exemptions.
However, the fact that Rule 39 does not discriminate against
indigent defendants in precisely the manner found
impermissible in James does not make it constitutional.
There are many ways in which a recoupment rule might
arbitrarily "impose . . . harsh conditions on a class of
debtors who were provided counsel as required by the
Constitution[.]" James, 407 U.S. at 140-41. Yet the
majority's scrutiny of Rule 39 proceeds little further than
the aspect focused on by James. The majority fails to
recognize, consider, or justify the other unprecedented
aspects of Rule 39 that work to the unique disadvantage of
indigent criminal defendants who request appointed counsel.
In no other area of Alaska law that I am aware of
is a private or public debtor virtually stripped of the
right to a trial -- or even the right to a hearing -- and
subjected upon ten days' notice to the automatic entry of a
final civil judgment -- all without even the courtesy of a
request or demand for payment. This treatment is unique to
indigent defendants who are subject to Rule 39, and it is
uniquely harsh. Moreover, in no other area of Alaska law
does a recipient of state-provided professional services
become automatically liable to pay a charge based on an
inflexible schedule of arguably arbitrary predetermined
fees, without regard to the professional services actually
rendered in the specific case. Again, the treatment is
unique, and despite the majority's protestations to the
contrary, it is uniquely harsh.
Under Rule 39, the indigent defendant who
contemplates exercising the constitutionally granted right
to appointed counsel is given one choice on a take-it-or-
leave-it basis: accept the automatic entry of a judgment in
the amount stipulated by the fee schedule set forth in Rule
39(d) or waive the right to counsel.
In an effort to justify this arrangement, the
majority repeatedly observes that the fees set by the
schedule are intended to be "significantly lower than those
charged by private counsel[.]" This implicit assumption
that benevolent undercharging occurs is the majority's
keystone to support Rule 39's fee schedule and automatic
judgment provision. The majority in effect says that, since
the fee schedule charges all indigent defendants rates that
are clearly only a fraction of the actual price for similar
services by a private attorney, there is no need to worry
about any individual defendant being charged for services
not actually received, no cause for case-by-case
determination of services actually rendered, and no factual
issue that could conceivably justify a trial or hearing of
right before judgment is entered.
The majority's comparison to private counsel fees,
however, is misdirected, and its assumption of benevolence
is unfounded. Indigent defendants who request appointed
counsel do not receive private counsel of their own choice.
Instead, they are given agency attorneys and contract
defense lawyers who work at a fraction of the cost of
private attorneys. A recoupment plan's only legitimate
purpose lies in reimbursing the state for actual costs
incurred for legal services, "not their equivalent value if
privately obtained." State v. Lopez, 853 P.2d 1126, 1129
(Ariz. App. 1993)(quoting State v. Keswick, 680 P.2d 182,
185 (Ariz. App. 1984)). The court system thus has no
business charging indigent defendants preset rates pegged to
the price, or even a fraction of the price, they would
otherwise pay on the open market for the attorneys of their
own choosing.28
When the rates charged by Rule 39(d) are examined
in light of available statistics reflecting the average cost
the state pays per case for providing public representation
rather than by comparison to supposed fees private attorneys
would charge for providing equivalent services, the seeming
benevolence of the fee schedule quickly evanesces. We are
left with a hazy informational void in which predicting
whether the schedule will overcharge or undercharge any
particular defendant becomes impossible, and in which all
prospective recipients of public representation appear to
stand an appreciable risk of consenting to a judgment that
charges them for more than they will actually receive.
The Alaska Public Defender Agency Fiscal Year 1992
Report appears to contain the most recent readily available
reflection of costs of public representation. The report
indicates that during fiscal year 1992 the average cost to
the Agency of representing its clients amounted to only $453
per case.29 Of the eighteen fee categories listed in the
Rule 39(d) schedule, only four fall below this cost-per-case
figure; the rest surpass it. Three of the four fee
categories that do not exceed the cost-per-case average
entail $250 fees; this is more than half the average cost
incurred by the Agency. The fourth below average fee -- the
least expensive fee that can be charged under the schedule -
- is the $200 charge for a misdemeanor change of plea,
almost half the average cost.
Admittedly, most of the defendants who receive
public representation fall into one of the four least
expensive fee categories. Thus, the average cost figure
plainly does not suggest that Rule 39(d) routinely
overcharges all or most defendants. But this is not the
point.
Because the average cost-per-case figure falls so
close to the minimum charges that can be assessed under the
schedule and so far below the fees that the schedule charges
for so many of the services routinely provided to indigent
defendants, the cost-per-case datum creates significant
doubt, on a case-by-case basis, as to whether the fee
schedule will overcharge a given defendant. Since the
average cost per case is so low, predicting with any degree
of confidence that most defendants who request appointed
counsel will be undercharged, or that the fee schedule will
accurately reflect services actually to be rendered in a
given case, becomes impossible.30
Even the lowest scheduled fee might represent a
questionable value in many cases. The indigent defendant
charged with a first offense DWI who enters a plea of no
contest after receiving a half-hour to an hour of an
appointed attorney's time and who thereafter receives the
standard first offense sentence may have good reason to ask
whether the $200 preset charge for a misdemeanor change of
plea is in fact a "modest fee"for the services actually
rendered. Yet it would not be surprising to find that this
is a commonplace scenario.31
Hence, the cost-per-case information erodes the
majority's tacit premise that the schedule of predetermined
fees is a benevolent provision which seldom if ever provides
occasion for a reasonable objection. It is crucial to
recall that this presumed benevolence is the sine qua non of
the challenged rule, the essential rationale the majority
relies on to support the multitude of procedural shortcuts
that dot its recoupment plan.
Remove this keystone, and the rationality of the
rule crumbles. Unless the majority opinion can clearly
demonstrate that the fee schedule creates no appreciable
risk of overcharging indigent defendants, how can it justify
a system that automatically enters judgment in the scheduled
amount without the right to trial; a system that grants
minimal relief -- partial remission or time-scheduled
payments -- only upon post-judgment proof of hardship.
Rule 39's fee schedule and its accompanying
procedural shortcuts might be defensible if they were
necessary, but they are in fact wholly unnecessary. Witness
the fact that no similar treatment is accorded any other
class of private or public debtor in Alaska.32 There is no
obvious need to subject indigent defendants to
discriminatory treatment of this kind. The majority's
vague, if not unfounded references to administrative
efficiency hardly demonstrate that such harsh measures are
necessary to recoup costs of public representation. There
is no evidence in the record to support a conclusion that it
would be impractical or inefficient to determine the
reasonable cost of services actually rendered on a case-by-
case basis and to charge convicted defendants this amount.
There is also no evidence or information indicating that the
right to a prejudgment trial or hearing would prove
impractical, inefficient, or unduly burdensome. The
majority asserts that indigents who are forced to ask for
counsel, unlike their nonindigent counterparts who retain
counsel, simply have nothing to litigate. This assertion,
however, is factually unsupported. Its validity has never
been tested; nor can it ever be tested under the current
version of Rule 39, since the rule has been designed to
allow no reasonable opportunity for indigent defendants to
litigate anything of consequence.33
There are other uniquely onerous features of Rule
39 that must be addressed. Foremost are the rule's
provisions requiring the court to order all eligible
defendants against whom a Rule 39 judgment will be entered
to apply for permanent fund dividends and authorizing
contempt proceedings for noncompliance with this order. See
Criminal Rule 39(c)(1)(A) & (2)(D). The majority points to
no other area of Alaska law in which recipients of public or
private services become automatically liable for the entry
of court orders enforceable by contempt that require them to
apply for permanent fund dividend payments until their debts
are satisfied. The majority also makes no effort to justify
this unique aspect of the rule, which is not only harsh and
unnecessary, but also economically illogical.34
Because the threat to strip indigent defendants of
permanent fund dividends upon pain of contempt serves no
necessary or even useful function, its only predictable
effect will be to discourage legitimate requests for
appointed counsel. When these provisions are made known to
a prospective recipient of appointed counsel who must decide
whether to request an attorney, they will almost inevitably
be understood as a threat. This is particularly true, and
particularly offensive, given that the threat is apt to come
directly from a judge -- the official specifically charged
by the rule with informing defendants of their duty to repay
under Rule 39. Rule 39(b)(2).35
Yet another discriminatory, potentially coercive,
and entirely unnecessary aspect of Rule 39 lies in its
requirement that the process of advising indigent defendants
of their duty to repay under Rule 39 be inserted into the
indigent defendant's first courtroom appearance.
Rule 39 currently requires that, as a precondition
of seeing an attorney, the indigent defendant must in effect
make a binding commitment to become a judgment debtor in
accordance with the detailed provisions of the recoupment
rule. Because the rule calls for the choice as to appointed
counsel to be presented to the defendant in open court at
the first appearance, the indigent defendant, once advised
of Rule 39, may have only moments to absorb the information,
to reflect, and to decide -- often under the impatient gaze
of a judge in a courtroom crowded with spectators, guards,
and other defendants awaiting the call of their own cases.
And for the vast majority of indigent defendants -- those
charged with misdemeanors -- this decision must be made at
virtually the same time as the decision on the plea to be
entered. The rule thus inextricably entwines the demand for
immediate, binding acquiescence to the entry of a Rule 39
judgment for attorney's fees, not only with the choice of
requesting appointed counsel, but also with the already
difficult, confusing, and stressful choice of how to plead.
Rule 39 makes no provision for the indigent
defendant who contemplates requesting appointed counsel to
consult with prospective counsel about the professional
services that may be rendered, the benefits of
representation, the potential merit of the charges, or the
risks of self-representation. The rule seemingly makes even
the most preliminary access to the advice of counsel
contingent on an immediate on-record commitment to the entry
of a judgment for fees in accordance with the schedule set
out in Rule 39(d).
In contrast, the nonindigent defendant will
normally have the ability to choose between retaining and
waiving counsel after the defendant has already consulted
with counsel about the potential benefits and detriments of
these options, and frequently after having consulted about
the potential merits of the case. Nothing in the rule, or
in the schedule of fees included therein, extends to
indigent defendants any right to the type of referral and
initial consultation that are available as a matter of
course through the Alaska Bar Association to nonindigent
defendants.
Indigent and nonindigent defendants alike can
properly be confronted with the economic choice of whether
legal representation is worthwhile. As a practical matter,
however, nonindigents can make this choice after consulting
counsel and reflecting on their options. Rule 39 should put
indigent defendants on an equal footing. Rule 39(b)(1)
requires that defendants who make a request for appointed
counsel during their first court appearance be screened to
establish their financial eligibility therefor. The
screening process is typically conducted by a designee of
the court and occurs after the initial court proceeding has
been concluded. There is no apparent reason why the process
of advising defendants of their duty to pay the costs of
appointed counsel could not similarly be deferred until
after a preliminary request for counsel has been made.
A final unique and uniquely troubling aspect of
Rule 39 inheres in the provision of the rule calling for the
court system itself to take charge of the entire process of
collecting a state debt. Under the rule, the responsibility
for initiating the action and for its prosecution is placed
in the hands of the court, together with the responsibility
for adjudication, for the entry of judgment, and for
enforcing the judgment once entered. Normally, of course,
the Department of Law is responsible for initiating and
prosecuting actions for state debt; the courts adjudicate
and enter judgment. I can think of no other situation in
which the entire menu of collecting a debt, from soup to
nuts, is heaped onto the court system's plate.
This unique aspect of the rule is troubling
because of the appearance it creates. For it inevitably
tends to foster the appearance of conflict; it thereby
compromises the court's ability to hold itself out as
neutral arbiter of justice. In Public Defender Agency v.
Superior Court, 534 P.2d 947 (Alaska 1975), the Department
of Law suggested that the court system itself, through the
court trustee, take responsibility for prosecuting contempt
actions. This court rejected the suggestion:
A well established principle of law
is that the court may not combine
prosecutorial and judicial functions.
Although this precept most often arises
in the criminal context, it is equally
applicable in the civil area where the
conflict of interest and the combination
of functions is as readily apparent.
For this reason, it would be unwise if
not unconstitutional, as a violation of
the doctrine of separation of powers, to
charge the court trustee with the duty
to prosecute contempt actions.
Id. at 951-52 (citations and footnote omitted).
Here, too, there is a "readily apparent"conflict
in the court system taking charge of the prosecution and
adjudication of debts for appointed counsel. When viewed
through the eyes of an indigent defendant at an arraignment,
this conflict may appear to infect, not only the court's
neutrality with respect to adjudication of recoupment
issues, but also its neutrality with respect to the criminal
charges that provide occasion for attorney's fees to arise.
This feature of Rule 39, too, is unnecessary.
Surely it is not indispensable to an administratively
efficient recoupment plan that the court system itself
initiate and prosecute all recoupment actions; just as
surely the Department of Law can be entrusted, as it is in
other matters of public debt, with this job.
Many indigent defendants who arrive in court for
their first appearance are already suspicious of the court
system's ability to dispense justice. These suspicions can
only be confirmed when the defendants learn, not only that
they will be required to repay the state for court-appointed
counsel, but that the court itself will prosecute the case
against them if they fail. The confirmation, in turn, may
quickly lead to a waiver of counsel that is born of
frustration and hopelessness.
I must emphasize that, for purposes of determining
whether Rule 39 violates Albert's constitutional right to
counsel, the threat of enforcing this kind of a recoupment
plan against a prospective recipient of appointed counsel is
as significant as its actual enforcement. As I indicated at
the outset, I find nothing impermissible in presenting the
indigent defendant with the same economic choice as to
representation as the nonindigent defendant must make. But
I find little similarity, in kind or circumstance, between
the economic choice the nonindigent makes and the choice
presented to an indigent defendant under Rule 39.
Imagine a criminal justice system that allowed a
defendant who could afford to hire an attorney the right to
consult with and retain counsel only if the defendant made
an express request for counsel in open court after being
told, by the judge personally, that counsel could be
retained only in accordance with a predetermined schedule
which arbitrarily pegged fees to the number and kind of
proceedings the defendant engaged in; that upon convicting
the defendant the court would automatically enter a civil
judgment for the scheduled amount of fees and would
automatically order the defendant, upon pain of contempt, to
apply for permanent fund dividend payments until the
judgment was satisfied in full; and that, although the
defendant could file an objection within ten days of notice
of entry of judgment and the court would have discretion to
hold a hearing upon receipt of the objection, there would be
no right to a trial or a hearing as to the judgment's entry.
To be sure, this imaginary system would not long
survive if an attempt were made to foist it on paying
defendants. And the reason it would not survive is
precisely that the paying defendant in our imaginary system
would obviously face a choice that is patently "different in
kind from the economic choice" that the same paying
defendant faces in deciding whether to retain counsel under
our current system. Yet the choice presented to the
nonindigent defendant in our hypothetical situation is
essentially the same choice that Rule 39 now foists on the
indigent defendant who cannot afford to retain an attorney
and must decide whether to request appointed counsel.
Because this choice is profoundly "different in kind from
the economic choice which must be made by a nonindigent
accused of crime,"there is compelling reason to ask whether
subjecting defendants to the potentially chilling effect of
such disparate treatment is actually necessary.
Under the test of United States v. Jackson, 390
U.S. at 582, the pertinent question for purposes of
determining whether Rule 39 violates Albert's right to
counsel is whether the choices facing indigent defendants
under the rule "needlessly chill the exercise of [the] basic
constitutional right [to counsel]." In other words, whether
they are "unnecessary and therefore excessive." Id. And,
under the equal protection test described in James v.
Strange, 407 U.S. at 138-39, it is pertinent to inquire
whether the state has "impose[d] unduly harsh or
discriminatory terms merely because the obligation is to the
public treasury rather than to a private creditor[,]" and
whether "[t]he indigent defendant . . . is uniquely
disadvantaged in terms of the practical operation of the
[rule]."
Most indigent defendants haled into court on
criminal charges will have enough economic savvy to
understand that Rule 39's method of debt collection is not
mainstream -- that it is not the conventional way we go
about organizing and enforcing relationships between
creditors and debtors in our American legal and social
systems. It is thus not unreasonable to expect that many
indigent defendants will sense palpable unfairness when
confronted in open court by a judge who conditions their
access to counsel upon the nonnegotiable demand that they
assent without significant procedural recourse to the entry
of an adverse judgment for attorney's fees in a
predetermined amount which bears no perceptible relationship
to the value of services that may actually be rendered. It
seems quite reasonable to expect many indigent defendants in
these circumstances to be discouraged from requesting
counsel. Indeed, a more intimidating and coercive setting -
- one less conducive to a knowing, reasoned and voluntary
choice as to the exercise of the right to appointed counsel
-- would be difficult to design. It escapes me how the
majority can conclude that the procedural setting prescribed
by Rule 39 is not coercive; that it does not discourage the
exercise of the constitutionally secured right to counsel,
but rather entails a choice "no different in kind from the
economic choice which must be made by a nonindigent accused
of crime."
The majority's effort to skirt the discriminatory
nature and chilling effect of these provisions verges on the
paradoxical. The majority holds that the question of
chilling is not ripe, since Albert has not proved a chilling
effect.36 At issue, however, is Rule 39's potential for
chilling the exercise of the right to counsel. To prevail,
Albert need not allege that he was in fact chilled; nor must
he demonstrate that others have been. United States v.
Jackson, for example, considered a federal kidnapping
statute under which the death penalty could be applied only
in the case of a defendant who requested a jury trial. The
Supreme Court invalidated the death penalty provision,
holding that it violated the constitutionally protected
right to a jury trial by unnecessarily chilling the exercise
of that right. 390 U.S. at 570. The Court issued this
ruling even though the defendants had not personally been
chilled from exercising the right to a jury trial -- in
fact, they had not yet been tried and had apparently
produced no evidence establishing that others had been
chilled. See id., 390 U.S. at 571.
Likewise, in City of Anchorage v. Scavenius, 539
P.2d 1169 (Alaska 1975), this court was asked to construe
Civil Rule 72(k) to allow an award of attorney's fees
against an unsuccessful landowner in a condemnation case.
In rejecting the proposed interpretation, this court relied
in large part on the potential chilling effect that such an
interpretation might have on the property owner's
willingness to assert the constitutional right to just
compensation for the condemned property.37 This court
expressed no reluctance to consider the chilling effect
issue on a purely predictive basis.
For constitutional purposes, the relevant inquiry
is how many potential recipients of appointed counsel have
not been immune to the chilling treatment they received in
the courtroom; how many have declined to make an in-court
request for appointed counsel due to the uniquely
intimidating nature of Rule 39. There are no statistics to
illuminate this issue; the court system has failed to keep
them. Given this failure, it is at once unfair to fault
Albert for his inability to prove Rule 39's chilling effect
and anomalous to expect that anyone will ever be able to
offer such proof. I would find Rule 39 violative of the
constitutionally guaranteed rights to counsel and to equal
protection.
IV. NONCONSTITUTIONAL DISPOSITION
The majority's treatment of Albert's
constitutional claims is incomplete and based on flawed
assumptions; the correct resolution of Albert's claims is
far less certain than the majority opinion asserts. Even if
Rule 39 were constitutional, however, I would disagree with
the majority's decision to dispose of Albert's case on
constitutional grounds. Although my dissent necessarily
addresses and responds to the majority's treatment of the
constitutional issues, I would have preferred to reach a
nonconstitutional disposition in this case. There is, in my
view, good reason do so.
The majority's constitutional analysis breaks new
legal ground and is, at best, shaky. At worst, it is both
wrong and wrongful. Yet the constitutional issues debated
by the parties in this case revolve exclusively around a
rule that the court itself has drafted and is free to alter
-- a rule that can readily be amended, at no cost to its
efficacy, to avoid the serious and substantial concerns
Albert voices. Given that the amendment of Rule 39 to avoid
potential constitutional difficulty appears to offer a
practical, straightforward, and easily accomplished
alternative disposition in the present case, I find the
majority's enthusiastic exploration of new constitutional
terrain difficult to justify.
Particularly incongruous is the majority's
endorsement of the rule, as is, by a narrowly exegetic
application of low-level equal protection scrutiny. The
minimal scrutiny that courts traditionally give to
legislative enactments is born of the separation of powers
doctrine. It reflects that the judicial branch cannot usurp
the powers exercised by co-equal branches of government and
that great deference must therefore be given in reviewing
the legitimacy of laws subjecting differing groups to
disparate treatment.
Transposed to the present context, in which the
court reviews a rule of its own creation, the traditional
rationale for minimal scrutiny in an equal protection case
makes little sense at all: the court owes no deference to
its own rule-making decisions and is free to alter its rules
if it believes they ought to be changed. The question at
the heart of this case is not whether the court must,
through a process of deferential review, uphold an enactment
of the legislative branch. Rather, because the challenged
provision is the court's own rule, the fundamental question
is one of policy: namely, is it desirable to perpetuate Rule
39 in its current form? This is another issue that the
majority refuses to acknowledge or address.
The majority does not deny that Albert may suffer
adverse effects from the inequities built into Rule 39, but
says only that his interest in equal treatment is not very
important. And the majority does not defend the rule's
procedural shortcuts as necessary or unavoidable but says
only that they constitute a minimally rational way of
efficiently collecting Albert's money. Accepting arguendo
the dubious proposition that this is a sufficient resolution
of Albert's equal protection claim, I fail to see how the
majority's view does anything to resolve the more
fundamental question of why the court would want to
perpetuate a rule whose disparate treatment of indigent
defendants is unnecessary and only minimally rational.
That Rule 39 may be minimally adequate to pass
constitutional muster under low-level scrutiny says very
little. If this is all that can be said in defense of the
rule, it is not enough. When a right as fundamental as the
constitutional right to counsel is at stake, the court's
rule-making obligations require a better justification or a
better rule.
V. CONCLUSION
I would hold that the Alaska Constitution requires
that courts be given discretion to consider an indigent
defendant's ability to repay as a factor in determining
whether to enter a recoupment judgment. Beyond that, I
would revise Rule 39 along the other lines suggested in this
dissent.38 I would adopt these changes, not because they are
all constitutionally necessary, but to avoid the risk of
violating the constitution -- a risk that, in my view, can
be avoided without significant sacrifice to the state's
interest in recoupment or the court system's need for
administrative efficiency.
"It is a well established principle governing the
prudent exercise of this Court's jurisdiction that normally
the Court will not decide a constitutional question if there
is some other ground upon which to dispose of the case."
Escambia County v. McMillan, 466 U.S. 48, 51 (1984); see
also Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347
(1936)(Brandeis, J., concurring); Deubelbeiss v. Commercial
Fisheries Entry Comm'n, 689 P.2d 487, 491 (Alaska
1984)(Compton, J., concurring). The majority opinion
disregards this fundamental precept by unnecessarily
deciding close and difficult questions of constitutional law
that arise from a poorly considered rule of the court's own
creation. The court should give thought to amending
Criminal Rule 39 to avoid the constitutional problems the
rule creates.
Faced with the choice between amending a
marginally defensible rule to avoid potential constitutional
difficulties and upholding it by a chancy application of
constitutional doctrine, I would opt for the "prudent
exercise"of avoiding the constitutional issues and amending
the rule. Escambia County v. McMillan, 466 U.S. at 51.
Accordingly, I dissent.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 Robert L. Spangenberg, et al., Containing the
Costs of Indigent Defense Programs: Eligibility, Screening
and Cost Recovery Programs 33 & Appendix A (1986).
2Although the rule is silent as to the circumstances under
which a hearing must be held when opposition is filed, our
cases generally indicate the necessity for an evidentiary
hearing in any case in which there are factual disputes on
material issues. See, e.g., Douglas v. State, Dep't of
Revenue, 880 P.2d 113, 117 (Alaska 1994); Perry v. Newkirk,
871 P.2d 1150, 1156 (Alaska 1994); Murray v. Murray, 856
P.2d 463, 466-67 (Alaska 1993); Adrian v. Adrian, 838 P.2d
808, 812 (Alaska 1992); Epperson v. Epperson, 835 P.2d 451,
453 (Alaska 1992); Carter v. Brodrick, 816 P.2d 202, 204-205
(Alaska 1991); Smith v. State, Dep't of Revenue, 790 P.2d
1352, 1353 (Alaska 1990); Robbins v. Robbins, 647 P.2d 589,
592 (Alaska 1982). This precept applies to Criminal Rule
39(c) as well.
3These judgments, like other civil judgments entered by
Alaska lower courts, are appealable as a matter of right.
AS 22.05.010; Appellate Rule 202(a), 602(a)(1); cf., K&L
Distributors v. Murkowski, 486 P.2d 351 (Alaska 1971)
(supreme court has constitutional duty to review agency
action even where such review is prohibited by statute).
4 Convicted felons are not entitled to the dividend
during any year in which they are incarcerated as a result
of their conviction. AS 43.23.005(d).
5 AS 09.38.030(a).
6 AS 09.38.050(b).
7 AS 09.38.010.
8 AS 09.38.020(a), (b), (c), (e).
9 AS 09.38.025, AS 09.38.017.
10 AS 43.23.065(b).
11 For convenience we follow the parties' practice of
using "Criminal Rule 39"to refer not only to the provisions
of the rule but to the other elements of our recoupment
system.
12 In re Allen was relied on by Judge Pengilly. Its
rationale was rejected by the United States Supreme Court in
Fuller. 417 U.S. at 51-52.
13The Amor court stated:
Allen, however, is distinguishable from
the present case. In Allen, there is
justification for concluding that the
petitioner would have been penalized for
exercising a constitutional right,
because not only would she have been
liable for payment of the entire fee
paid to counsel for representing her,
without a finding that she had the
financial
ability to make payment and with no warning that she might
be held so liable, but she could have been imprisoned if she
failed to pay the fee, payment thereof being one of the
conditions of her probation.
523 P.2d at 1175-76.
14 The right to counsel under the Alaska Constitution
is more expansive in some of its applications than the
corresponding right under the Sixth Amendment to the United
States Constitution. Resek v. State, 706 P.2d 288, 291 n.11
(Alaska 1985).
15Court rules, like statutes and regulations, are
presumptively constitutional and the burden of proving
unconstitutionality is on the party challenging them.
Anchorage v. Anchorage Police Dep't Employees Ass'n, 839
P.2d 1080, 1083 (Alaska 1992); Citizens for the Preservation
of Kenai River v. Sheffield, 758 P.2d 624, 625 (Alaska
1988); Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska
1979).
16 Appellees also argue that heightened scrutiny is
required because Rule 39 discriminates against not only the
poor but also against racial and ethnic minorities, because
they are disproportionately represented among both the poor
and the criminally convicted. This argument is without
merit. Rule 39's civil judgment procedures apply only to
those who use appointed counsel and are convicted. The fact
that this class is uniformly poor and possibly
disproportionally minority is incidental to the bases for
the classification: use of the service and conviction of a
crime.
17 The State characterizes the interest involved as a
money judgment and relies on this court's holding in State
v. Anthony, 810 P.2d 155, 157 (Alaska 1991), that only
minimum scrutiny is required in reviewing statutes which
affect an individual's right to a permanent fund dividend.
Appellees' equal protection challenge focuses on the
procedures by which a judgment is obtained, not on the
judgment itself. The interest implicated, therefore, is not
an indigent defendant's interest in the money she might lose
through the judgment, but in the safeguards afforded her
with respect to the judgment. The fact that these
safeguards only protect against an economic loss, however,
is one factor in weighing their importance. See, e.g.,
Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 359
(Alaska 1988) ("Access to the courts is not an independent
right"; its importance is dependent on the rights which are
sought to be protected through such access).
18 Appellees apparently agree that this is the
purpose for the limited procedures of Rule 39, as they
state: "Rule 39 is a streamlined system, obviously intended
to maximize revenue while minimizing administrative
expenses."
19 This appeal arises in the procedural context
of Criminal Rule 39, but the issues decided by the court
have equal bearing on the related provisions of Appellate
Rule 209. The references to Criminal Rule 39 in this
dissent are meant to encompass Appellate Rule 209 as well.
20 I am not as confident as is the majority that
the federal constitution permits a recoupment plan that
precludes any prejudgment consideration of ability to repay
as a relevant factor in determining whether and in what
amount judgment should be entered. Given my conclusion that
such consideration is required under the Alaska
Constitution, I do not address the point.
21 Shagloak v. State, 597 P.2d 142, 144 n.14
(Alaska 1979)(holding that the Alaska Constitution may
provide broader safeguards than the parallel provisions of
its federal counterpart); see also Breese v. Smith, 501 P.2d
159, 167 (Alaska
1972).
22 In this regard, there is a certain irony in
the majority's reliance on cases holding that repayment may
be imposed as a condition of probation regardless of ability
to repay, as long as probation cannot be revoked when
failure to repay results from financial inability. See,
e.g., State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982);
State v. Crawford, 804 P.2d 1385 (Kan. 1991). For the
reasoning of these cases is precisely the reasoning this
court rejected in Karr. These cases are also readily
distinguishable on a more substantive ground. If the
sentencing courts in Kottenbroch and Crawford believed that
a condition of probation requiring repayment would interfere
with a defendant's rehabilitation, the courts were under no
obligation to order repayment as a condition of probation
and presumably would not have done so. The sentencing
courts thus had exactly the scope of discretion that I would
hold to be required under the Alaska Constitution: the
discretion to consider a defendant's ability to repay prior
to entering a recoupment judgment.
23 In many -- perhaps most -- cases, the entry
of a judgment for costs of appointed counsel against a
convicted defendant will have little or no tendency to
interfere with rehabilitation, regardless of the defendant's
ability to pay. Indeed, even as to
a defendant who has no foreseeable ability to repay, a
judgment requiring payment of fees for appointed counsel
might in some cases have a salutary effect by inculcating in
the defendant a sense of responsibility. This is
particularly likely to be true under a recoupment rule like
Rule 39, which, even in its current form, allows the
defendant to claim all normally applicable civil exemptions
and to obtain post-judgment relief through a showing of
financial hardship. When a judgment for attorney's fees
would have no foreseeable negative effect on rehabilitation,
I can see no reason to disallow the entry of such a
judgment, even against an indigent defendant who has no
foreseeable ability to pay. The treatment in such cases
would be identical to treatment accorded ordinary civil
debtors.
24 In practice, any attempt to distinguish
between James' equal protection analysis and Jackson's
unnecessary chilling effect test may involve more form than
substance. Given the fundamental nature of the right to
counsel and the liberty interest implicated by the needless
discouragement of the exercise of the right to counsel, a
constitutional challenge to a recoupment plan essentially
calls into question the basic fairness of the challenged
provision. In this situation, regardless of whether the
challenge asserts a violation of equal protection or a
direct violation of the right to counsel, "the issue cannot
be resolved by resort to easy slogans or pigeonhole
analysis, but rather requires a careful inquiry into such
factors as 'the nature of the individual interest affected,
the rationality of the connection between legislative means
and purpose, [and] the existence of alternative means for
effectuating the purpose[.]'" Bearden v. Georgia, 461 U.S.
660, 666-67 (1983)(quoting Williams v. Illinois, 399 U.S.
235, 260 (1970)).
25 The majority sidesteps Albert's claim that
Rule 39 violates his right to a jury trial by noting that
the rule does not expressly preclude a jury trial and that
Albert has not requested one. I am tempted to ask how the
rule's silence on the right to a jury trial can plausibly be
construed to leave the door open to a request when the rule
makes no provision for any trial at all. I agree with the
majority that Albert's jury trial claim need not be
considered. I reach this conclusion, however, because it
seems clear that the issue is subsumed by the greater
problem of Rule 39's failure to provide for any form of
trial or hearing of right.
26 Rule 39(c)(1)(C) states that "[i]f a timely
opposition is filed, the court may set the matter for a
hearing and shall have authority to enter the judgment."
The plain language of the rule seemingly makes the hearing
discretionary and vests the court with authority to enter
judgment regardless of whether a hearing is held. The rule
also appears to create no right to any appeal from the entry
of judgment. The majority for the first time today
construes the rule to require a hearing in any case in which
there is a factual dispute on a material issue and to allow
appeals as a matter of course. In the context of Rule 39,
however, it is unclear what a defendant must do to create a
factual dispute on a material issue; it is also unclear how
a defendant should pursue an appeal, particularly when the
recoupment judgment is entered under Appellate Rule 209 by
an appellate court. In any event, experience strongly
suggests that the majority's interpretation of the rule has
not been widely understood. In the years since its
adoption, Rule 39 evidentiary hearings have apparently
rarely been conducted by trial courts in disputed cases, and
I am aware of no attempts to appeal adverse trial court
rulings. While the court's current interpretation of the
rule may have a salutary effect as
to future indigent defendants, it comes too late for
litigants who, like Albert, have proceeded through the
system before this court's clarifying interpretation.
Moreover, future generations of indigent defendants deciding
whether to request court-appointed counsel will read the
rule (without the assistance of counsel) as it is actually
written, not as it has now been interpreted by this court.
If the majority agrees that the rule could benefit from
clarification, then the clarification should come in the
form of an amendment, rather than an opinion interpreting
the current version of the rule.
27 Upon a showing of financial hardship, a
defendant may secure permission to make periodic payments or
may obtain remission, reduction or deferral. Rule
39(c)(2)(C). But these are post-judgment remedies: they are
available only to a defendant who is "subject to a judgment"
and only cover "the unpaid portion of the judgment." Id.
28 Comparing an indigent defendant's overall
situation with respect to representation to that of a
nonindigent defendant's is fruitful in this regard. A
nonindigent defendant who seeks to retain counsel will of
course frequently encounter private attorneys who demand
fixed-sum fees without regard to services actually to be
rendered. But in the private setting, the defendant is free
to negotiate with counsel and to shop for an attorney with
a more favorable price or better terms. Moreover, the
nonindigent defendant will have the ability to choose
between retaining and waiving counsel after consulting with
counsel about the potential benefits and detriments of these
options, and frequently about the potential merits of the
case. A nonindigent defendant who retains counsel and does
not receive money's worth will have mandatory arbitration
available; and before any judgment can be entered for
nonpayment of fees, the defendant will be entitled to the
full panoply of procedural and substantive rights that
attach in all civil cases. And if a marginally situated
defendant -- one who falls on the financial borderline where
the economic choice of retaining counsel is the most
difficult -- negotiates with private counsel and finds that
fees or terms are too exorbitant, waiver of counsel is not
the only available option. If all else fails, the defendant
may as a last resort request -- and will often be granted
-- court-appointed counsel.
29 1992 Alaska Pub. Defender Agency Fiscal Year
Rep. at 12. There is no information to indicate that cost-
per-case figures for the Public Defender Agency have altered
significantly since fiscal year 1992. Likewise, while I
have found no readily available reports of per-case cost for
conflict representation by the Office of Public Advocacy and
its contractors, there is little reason to believe that any
cost difference would be significant for present purposes.
30 The fee schedule set forth in Appellate Rule
209(b)(7) for appellate representation raises even greater
concerns. Of eight categories of appellate representation,
only one -- misdemeanor sentence appeals -- entails a charge
below the Public Defender Agency's average cost per case.
Although it may be safe to speculate that a majority of
trial court cases fall into the minimum fee category of
Criminal Rule 39(d) -- thereby making it unlikely that the
schedule routinely overcharges most defendants at the trial
level -- it seems equally safe to speculate that only a
minute segment of appellate cases are misdemeanor sentence
appeals falling into the lowest fee category of Appellate
Rule 209(b)(7). Hence, to receive appointed counsel on
appeal, all but the exceptional appellant is routinely
required to pay more than the average per-case cost of
representation.
31 I certainly do not mean to disparage the
level of representation provided by appointed counsel or to
suggest that
indigent defendants are systematically underrepresented by
agencies such as the Public Defender Agency or the Office of
Public Advocacy. That agency defense attorneys may
frequently be capable of handling cases expeditiously and at
low cost reflects the high degree of expertise that they
develop in their practice and the efficiency of scale
realized by their agencies in handling large volumes of
similar cases.
32 Although the majority's opinion compares Rule
39 only to treatment accorded private debtors, the Court in
James v. Strange
deemed it germane to compare differences between a
recoupment plan's treatment of indigent defendants and the
treatment accorded other classes of state debtors:
It may be argued that an indigent
accused, for whom the State has provided
counsel, is in a different class with
respect to collection of his
indebtedness than a judgment creditor
whose obligation arose from a private
transaction. But other Kansas statutes
providing for recoupment of public
assistance to indigents do not include
the severe provisions imposed on
indigent defendants in this case.
James v. Strange, 407 U.S. at 137.
33 In this regard, it seems symptomatic of the
rule's design that this appeal arose from two cases in which
superior court judges thought it necessary to address the
constitutionality of Rule 39 sua sponte. Given the rule's
conscious objective of achieving "administrative efficiency"
by eliminating virtually all opportunity for challenging its
provisions, the superior court's decision to address the
constitutional issues sua sponte is
entirely defensible.
34 A banker who did business in this manner
would find survival difficult. As both the state and the
majority opinion acknowledge, recoupment judgments will most
frequently be entered in amounts significantly lower than
the permanent fund dividend, which in past years has hovered
just below the thousand dollar mark. Assuming that a
defendant against whom a Rule 39 judgment has been entered
fails to apply for a permanent fund dividend, the state is
deprived of nothing it does not already have: the debt
remains in effect, accruing interest and subject to
execution; the state retains forever the near-thousand-
dollar dividend it would
otherwise have paid out. In contrast, when the state
coerces the same defendant to apply for the permanent fund
dividend, it expends the full amount of the dividend. The
state can collect back from the defendant (or sign over to
itself) a portion of the dividend (its own money that it
just insisted on giving out) equivalent to the amount owed
by the defendant, but the defendant will pocket the rest.
At a maximum, the defendant returns to the state the entire
dividend the state just paid. The recycled money does not
go to repay counsel; it merely shifts from the state's
permanent fund to its general fund. The state pays out of
pocket the administrative costs of disbursing the dividend,
and, in collecting the money back, it must cancel a
preexisting debt that it might otherwise have eventually
collected with funds not its own. In short, Rule
39(c)(1)(A) and (2)(D) make no sense at all unless the
majority perceives some benefit in removing money from the
state's permanent fund (where it is available for direct
distribution to Alaska citizens), giving most to a convicted
defendant who would not otherwise have asked for it, and
depositing the fractional remainder in the general fund
(where it becomes available to be spent at the pleasure of
the legislature).
35 Rule 39(b)(2) does not expressly require the
court to advise prospective recipients of appointed counsel
that they will be ordered to apply for permanent fund
dividends and prosecuted for contempt if they fail to do so,
but the rule does provide that, "[b]efore the court appoints
counsel for an indigent defendant .
. . , the court shall advise defendant that defendant will
be ordered to repay . . . in accordance with paragraph (d)
of this rule[.]" It seems likely that, in providing the
advisement required by this provision, many judges will
attempt to give defendants a capsule explanation of Rule 39,
including its permanent fund provisions.
It is noteworthy that threats of future
prosecution can have an especially chilling effect when
communicated by a judge during a courtroom proceeding. Such
threats have been found constitutionally offensive when
directed without case-specific justification to a
participant in a criminal case who must decide upon a future
course of action. Cf. Webb v. Texas, 409 U.S. 95 (1972)(due
process violated when a trial judge gratuitously singled out
a prospective defense witness for an unnecessarily harsh
admonition on the dangers of perjury, whereupon witness
failed to testify).
36 The state cites court system statistics
purportedly showing that virtually none of the potentially
indigent defendants interviewed by Pretrial Services refused
counsel because of Criminal Rule 39. These statistics shed
no light on what percentage of potentially indigent
defendants actually refuse counsel because of Rule 39.
Pretrial Services typically interviews defendants referred
from the courtroom who have already been through their
initial appearances, have been advised of Rule 39, and have
nonetheless requested counsel. Defendants who reach the
door of Pretrial Services have been pre-chilled and have
shown themselves immune. If anything, the Pretrial Services
statistics prove too much: by showing that virtually no
prospective recipients of appointed counsel decline
representation based on Rule 39 at the Pretrial Services
level, the statistics arguably demonstrate the efficacy of
the rule's chilling effect in the courtroom setting.
Apparently, virtually no defendant capable of being deterred
by Rule 39 is left undeterred by the open court advisement.
37 Specifically, this court held:
To place the property owner in the
position of having to risk payment of
often substantial expenses incurred by
the condemning authority for expert
witnesses, other costs and attorney's
fees, as well as his own expenses in
order to secure even an initial
adjudication of the amount to which he
is entitled, would so chill the right to secure just
compensation as to nullify the effectiveness of the
constitutional provisions. Faced with the choice of incur
ring such expenses, many property owners would feel
compelled to give up their right to seek adjudication of the
amount of compensation to which they would be entitled and
would accept any amount tendered by the condemnor.
Id. at 1175.
38 Specifically, I would revise the existing
rule:
1) by eliminating the rule's fee schedule and
requiring payment based on the cost of services actually
rendered;
2) by requiring a consideration of ability to pay
prior to entry of judgment and by allowing the court, in its
discretion, to refrain from entering judgment when the
entry of judgment against a defendant who has no foreseeable
ability to pay would defeat the goal of rehabilitation;
3) by providing for a prejudgment hearing as a
matter of right to determine both the reasonable amount to
be charged for services rendered and ability to pay, and by
providing that in contested cases the initiation and
prosecution of recoupment actions be within the
responsibility and discretion of the Department of Law;
4) by eliminating the requirement that defendants
be ordered to apply for permanent fund dividend payments and
the related provision allowing defendants to be prosecuted
for contempt
if they fail to do so;
5) by removing the process of advising the
defendant of the need to repay under Rule 39 from the
courtroom setting and making it a part of the post-request,
out-of-court financial screening process, see Rule 39(b)(1);
and
6) by providing defendants who have been informed
of the duty to repay under Rule 39 the opportunity for a
preliminary consultation with appointed counsel before
deciding on the issue of waiving the right to appointed
counsel, and by requiring that defendants be informed of
this opportunity.
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