To his Excellency the Governor and the Honorable Council:
The undersigned Justices of the Supreme Court submit the following answer to the questions contained in your resolution filed August 4, 1969 relating to Laws of 1969, chapters 367, 368.
Your questions all relate to a footnote to the appropriation for the payment of counsel for indigent defendants in the fiscal years ending June 30, 1970 and June 30, 1971. This footnote reads as follows: “Those persons requiring court appointment of counsel shall be personally responsible for payment of 10% of the legal fees. Providing however; that said person shall pay a minimum of $5 and shall not be responsible for payment in excess of $20.”
Prior to the enactment of RSA ch. 604-A (supp) in 1965, counsel appointed to defend indigent persons were compensated by the county in which the case was brought. RSA ch. 604. Following the decision in Gideon v. Wainwright, 372 U. S. 335 holding that the Sixth Amendment to the Federal Constitution guaranteed the right to counsel to an indigent accused of a felony, the Judicial Council recommended the adoption of RSA ch. 604-A (supp) which extended the right to counsel to all cases but petty offenses and transferred to the State the cost of counsel.
*511See 10th Report of N. H. Judicial Council, p. 18-27 (1964).
This statute resembles in its structure the federal act. 18 U. S. C. s. 3006A. Both provide limitations upon the amount payable to counsel and contemplate that attorneys representing indigents will not be compensated at the amounts they would receive under private retainers. The bar of New Hampshire may well take pride in the willingness with which able and experienced counsel have represented indigent defendants over the years at considerable financial sacrifice.
It has not seemed illogical to either courts or legislators that a defendant who has or acquires the ability to pay his attorney should do so. The difficulty lies in making such reimbursement provisions in a manner that does not violate constitutional requirements. For example in Rinaldi v. Yeager, 384 U. S. 305 the Supreme Court declared that a New Jersey statute requiring a defendant who was convicted and sentenced to prison to pay the cost of an appeal transcript out of his prison wages was unconstitutional. Since the statute required only persons sentenced to prison to pay and required no payment from a person fined or placed on probation it violated the Equal Protection Clause of the 14th Amendment. See Comment 67 Mich. L. Rev. 1404. Cf. In re Allen, 455 P. 2d 143 (Cal.).
Effective November 16, 1966 Article 15th, Part I of the New Hampshire Constitution was amended by adding at the end of the Article the following language: “Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown; this right he is at liberty to waive, but only after the matter has been thoroughly explained by the court. ”
In our opinion the footnote to the appropriation bill conflicts with the language of this amendment. RSA 604-A:3 (supp) permits the court to assign counsel to a defendant who lacks sufficient funds to employ counsel and to require such defendant to pay such part of the cost as his funds permit. RSA 604-A:9 (supp) permits the court to require repayment as a condition of probation. RSA 604-A:4 & 5 (supp) as amended by chapter 364 of the Laws of 1969 limits the compensation with definite dollar limits in each court and requires review by the court of the charges. We take judicial notice that some judges have required repayment of counsel fees as a condition of probation *512and note that RSA 604-A:9 (supp) added by Laws 1969, ch. 475 gives statutory authority to this practice. If the footnote were addressed only to the indigent who has or will acquire some funds it might be considered unnecessary but not in conflict with our Constitution. However, it applies as well to the defendant who has no funds and no probability of acquiring any, either because he is imprisoned or destitute, and this is in conflict with the requirement of Article 15th Part I of the Constitution which specifically provides that a person “shall have the right to counsel at the expense of the state if need is shown . . . . ”
Helm White for Southern New Hampshire Legal Services Association, Inc., for negative answer.We are therefore of the opinion that the answer to your first question is that the footnote is invalid and payment should be made to counsel without reference to it. Our answer to the first question renders moot the other questions propounded.
Frank R. Kenison. Laurence I. Duncan. Edward J. Lampron. William A. Grimes. Robert F. Griffith.August 26,1969.