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Electronically Filed
Supreme Court
SCAP-30616
19-OCT-2011
08:37 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---O0O---
In re Attorney‟s Fees of DAVID BETTENCOURT,
Petitioner/Court-Appointed Counsel-Appellant
in
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
JOSHUA GONDA, Respondent/Defendant-Appellee.
SCAP NO. 30616
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 08-1-1534)
October 19, 2011
RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.
OPINION OF THE COURT BY MCKENNA, J.
I. Introduction
Petitioner/Court-Appointed Counsel-Appellant David
Bettencourt (“Bettencourt”) appeals from the order of the
Circuit Court of the First Circuit‟s administrative judge
summarily reducing excess court-appointed attorney‟s fees
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certified by the trial judge as necessary to provide fair
compensation. We have accepted Bettencourt‟s appeal as a
discretionary transfer under Hawaii Revised Statutes (HRS) §
602-58(b)(1)(1993 & Supp. 2010), as this case presents a
question of first impression regarding the scope of the
administrative judge‟s authority under HRS § 802-5(b)(1992 &
Supp. 2010).1
We hold that, under HRS § 802-5(b), both the trial judge
and the administrative judge independently review excess fee
requests to determine whether a fee award is “fair
compensation.” Both the trial judge‟s and administrative
judge‟s orders awarding fees under HRS § 802-5(b) are judicial
acts subject to appellate review under the abuse of discretion
standard. In this case, because the administrative judge
1
HRS § 802-5(b) states:
The court shall determine the amount of reasonable
compensation to appointed counsel, based on the rate of $90
an hour; provided that the maximum allowable fee shall not
exceed the following schedule:
(1) Any felony case $6,000
(2) Misdemeanor case - jury trial 3,000
(3) Misdemeanor case - jury waived 1,500
(4) Appeals 5,000
(5) Petty misdemeanor case 900
(6) Any other type of administrative or judicial
proceeding, including cases arising under section
571-11(1), 571-14(a)(1), or 571-14(a)(2)
3,000.
Payment in excess of any maximum provided for under
paragraphs (1) to (6) may be made whenever the court in
which the representation was rendered certifies that the
amount of the excess payment is necessary to provide fair
compensation and the payment is approved by the
administrative judge of that court.
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summarily reduced Bettencourt‟s attorney‟s fees with no reasons
given, we cannot determine whether the administrative judge
abused his discretion in ordering reduced fees. Therefore, we
vacate the administrative judge‟s June 9, 2010 Order and remand
for further proceedings consistent with this opinion.
II. Background
A. The Underlying Criminal Case, State v. Gonda, Cr. No. 08-1-
1534
On October 10, 2008, the circuit court appointed
Bettencourt to represent Joshua Gonda in State v. Gonda, Cr. No.
08-1-1534, nunc pro tunc to the date of the indictment charging
Gonda with the following offenses:
Count I: Attempted Murder in the First Degree
Counts II and III: Attempted Murder in the Second Degree
Counts IV, V, VI: Carrying or Use of Firearm in the
Commission of a Separate Felony
Count VII: Place to Keep Pistol or Revolver2
Gonda was accused of shooting a sixteen-year-old passenger in a
car on Moanalua Freeway. The sixteen-year-old survived but was
paralyzed from the chest down. Gonda faced a maximum penalty of
life imprisonment without the possibility of parole if
convicted.
Bettencourt represented Gonda before trial judge Michael
Town (“trial judge”) for the duration of the case, from his
appointment in early October 2008 through the end of trial in
2
Before trial commenced, the State filed a Motion for Nolle Prosequi without
Prejudice as to Count VII.
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late January 2010 (approximately sixteen months). Jury
selection and trial took place over the course of fourteen days
in January 2010. After the jury deliberated for one day, it
returned a not guilty verdict as to all counts, and a Judgment
of Acquittal was subsequently entered.
B. Bettencourt’s Attorney’s Fees Requests
Bettencourt filed two requests for his own fees as
appointed counsel. First, on October 29, 2009, Bettencourt
requested excess attorney‟s fees for the billing period from
September 30, 2008 through July 31, 2009, in the amount of
$19,188.00, representing 213.2 hours, billed at the statutory
rate of $90.00 per hour. The trial judge certified the entire
amount; administrative judge Richard Perkins (“administrative
judge”) approved the lesser amount of $18,567.00, representing
206.3 hours, billed at the statutory rate of $90.00 per hour.
The administrative judge crossed out entries on Bettencourt‟s
submitted time sheets indicating that he would not allow
Bettencourt to bill attorney‟s fees for making copies of
documents, which is not legal work. This attorney‟s fee request
is not the subject of the instant appeal.
Second, on March 17, 2010 (after the trial), Bettencourt
submitted his Amended Request for Attorney‟s Fees to the circuit
court, for the billing period covering August 1, 2009 through
January 28, 2010, requesting $38,529.00 in excess attorney‟s
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fees for 428.1 hours of work, in addition to the previously
approved $18,567.00 for 206.3 hours of work. The trial judge
certified the total amount of fees requested on March 22, 2010.
The administrative judge approved only $26,640.00 of
Bettencourt‟s requested attorney‟s fees on June 9, 2010, which
amounts to a cut of $11,889 in fees. No notations were made as
to whether the administrative judge reduced the fees by some
percentage, reduced the fee rate for all hours claimed, or
reduced the amount of hours of work billed. Viewed as a
percentage, the reduction is an approximate 31% cut in the
amount of fees requested. Viewed as a reduction to the hourly
rate, 428.1 hours of work at approximately $62 per hour, rather
than at the statutory maximum rate of $90 an hour, were
approved. Viewed in terms of hours, 296 hours at the statutory
rate of $90, rather than 428.1 hours at the statutory rate, were
approved.
In addition to making no notations on Bettencourt‟s time
worksheets as to which billed items he disallowed, the
administrative judge provided no written explanation for the
reduction beyond what was documented by his clerk in an internal
court memorandum, which was eventually appended to Bettencourt‟s
second fee request. According to the internal memorandum, dated
June 9, 2010, addressed to the Fiscal Office from the 8th
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Division Law Clerk, the reason for the reduction in fees was as
follows:
The reason that the request for attorney fee totals do not
match the hourly worksheet totals is that [the
administrative judge] summarily reduced the amount.
Because the attorney requested an amount of compensation
over the $6,000 statutory limit, [the administrative judge]
was entitled per the Crim. Admin. Order to summarily reduce
the fees granted by the court to a reasonable amount.
Therefore, there are no changes that I can make to the
hourly worksheet totals, since the changes were summarily
made by [the administrative judge] based on his discretion
and were not based on particular inaccuracies or errors in
the hourly worksheets.
Criminal Administrative Order (“CAO”) No. 1.1, part II
reads: “Court-appointed counsel are entitled to reasonable
compensation for necessary fees [HRS § 802-5]. The Court
determines the amount of reasonable compensation based upon
statutory limits. If a request appears unreasonable, the
court may summarily reduce or deny it.”
Likewise, CAO No. 1.1, Part II, 4 “Payment Exceeding
Maximum Fees” reads, in pertinent part: “Where the
presiding judge . . . determines that the excess payment is
not necessary to provide fair compensation, the amount may
be summarily reduced.”
(emphasis in original).
The 8th division law clerk‟s memorandum referred to Criminal
Administrative Order (“C.A.O.”) 1.1, which read in pertinent
part:
II. REQUESTS FOR ATTORNEY’S FEES
Court-appointed counsel are entitled to reasonable
compensation for necessary fees [HRS § 802-5]. The Court
determines the amount of reasonable compensation based upon
statutory limits. If a request appears unreasonable, the
court may summarily reduce or deny it. Reasonable
compensation for fees is based upon the following:
A. Fee Schedule
1. Maximum Fees [HRS § 802-5(b)]
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a. Felony case $6,000
. . . .
2. Compensation Rate [HRS § 802-5(b)]
$90 per hour
. . . .
4. Payment Exceeding Maximum Fees [HRS § 802-5(b)]
Payment in excess of the statutory maximum is
within the discretion of the Court. Such
payment may be made if 1) the presiding trial
judge certifies that the excess payment is
necessary for fair compensation and 2) the
Administrative Judge approves. Where the
presiding judge or Administrative Judge
determines that the excess payment is not
necessary to provide fair compensation, the
amount may be summarily reduced.
(emphasis in original, footnote omitted).
Coincidentally, on the same day that the administrative
judge reduced Bettencourt‟s court-appointed attorney‟s fees,
Chief Justice Ronald T. Y. Moon issued a June 9, 2010 Order
Rescinding Statewide Court Administrative Orders and Memoranda.
The Order stated:
It appears that previously approved statewide court
administrative orders or memoranda include requirements
that are more appropriate for court rules than for
administrative orders and memoranda and that revised
administrative orders and memoranda have not been submitted
for my review, as instructed by my May 24, 2007 memorandum
to the Chief Judges. Therefore,
IT IS HEREBY ORDERED, pursuant to Article VI, § 6 of
the Hawaii Constitution and effective immediately upon
filing of this order, that all previously approved
statewide circuit, family, and district court
administrative orders or memoranda are hereby rescinded.
IT IS FURTHER ORDERED that the Administrative
Director shall cause any such administrative orders or
memoranda published on the Judiciary‟s web page(s) to be
removed therefrom and shall not permit posting of any
administrative order or memorandum unless approved by the
Chief Justice.
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(emphasis added). The order was time-stamped filed at 9:57 a.m.
on June 9, 2010. There is no time stamp accompanying the
administrative judge‟s approval of $26,640 in fees on June 9,
2010.
C. The Instant Appeal
Bettencourt timely appealed to the ICA, and his timely
application for transfer to this court was accepted. An order
granting or denying attorney‟s fees under HRS § 802-5 is an
appealable final order. See State v. Pzeradzki, 6 Haw. App. 20,
21, 709 P.2d 105, 107 (1985). Bettencourt argues that the
administrative judge, in reducing his fees, engaged in a
standardless independent review of the trial judge‟s
certification of his attorney‟s fees, abused his discretion by
leaving no reasons on the record for the fee reduction, did not
afford Bettencourt notice and an opportunity to be heard before
reducing his fees, erroneously relied on C.A.O. 1.1, and was
most likely driven by impermissible financial and budgetary
motives. Bettencourt argues that the administrative judge‟s
review of the trial court‟s certification of “fair compensation”
should be deferential. He argues further that arbitrary excess
fee reductions pose a constitutional threat to the indigent
defendant‟s right to competent legal representation and the
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court-appointed attorney‟s right to due process and interest in
fair compensation.
The State of Hawaii (“State”), through the Attorney
General, argues that HRS § 802-5 was not intended to fully
compensate court-appointed attorneys, that HRS § 802-5(b) sets
forth a standard of “fair compensation” that applies to the
trial judge but not the administrative judge, that the
administrative judge has unfettered discretion to grant or deny
excess attorney‟s fees, and that the administrative judge was
not required to set forth reasons for reducing Bettencourt‟s
fees.
As a threshold matter, both parties dispute whether C.A.O.
1.1 was in effect at the time of the administrative judge‟s
order reducing fees and whether C.A.O. 1.1 authorized the
reduction in fees. We need not decide this issue. To the
extent that C.A.O. 1.1 permitted a summary reduction of excess
attorney‟s fees, it conflicts with this court‟s case law, namely
In re Attorney‟s Fees of Reinhard Mohr, 97 Hawaii 1, 32 P.3d 647
(2001), which held that an order awarding attorney‟s fees under
HRS § 802-5 is a judicial act subject to review under the abuse
of discretion standard. Were summary reduction permissible,
potentially arbitrary and capricious reductions to excess fee
awards would be shielded from appellate review. The summary
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reduction of attorney‟s fees is not authorized under HRS § 802-
5(b) and Mohr.
III. Discussion
The statute at issue in this case is HRS § 802-5(b), which
states, in relevant part:
The court shall determine the amount of reasonable
compensation to appointed counsel, based on the rate of $90
an hour; provided that the maximum allowable fee shall not
exceed the following schedule:
(1) Any felony case $6,000
(2) Misdemeanor case - jury trial 3,000
(3) Misdemeanor case - jury waived 1,500
(4) Appeals 5,000
(5) Petty misdemeanor case 900
(6) Any other type of administrative or judicial
proceeding, including cases arising under section 571-
11(1), 571-14(a)(1), or 571-14(a)(2) 3,000.
Payment in excess of any maximum provided for under
paragraphs (1) to (6) may be made whenever the court in
which the representation was rendered certifies that the
amount of the excess payment is necessary to provide fair
compensation and the payment is approved by the
administrative judge of that court.
(emphasis added). The statute appears to envision two levels of
review based on the legislature‟s choice of two different verbs
for each level of review. First, the trial court “certifies”
the amount requested is necessary to provide fair compensation.
Second, the administrative judge of the court “approve[s]” the
amount. The question is, what was the scope of review the
legislature intended at the “certifying” and at the “approving”
stages? The legislative history of the act and its many
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amendments is completely silent as to the meaning of these
terms.
We could look to other statutes providing for excess
attorney‟s fees for court-appointed attorneys representing
indigent clients to seek guidance in construing the statute in
pari materia. See HRS § 1-16 (2009). One such statute is HRS §
571-87 (2006 & Supp. 2010),3 which authorizes fees for court-
appointed counsel and guardians ad litem in family court cases
3
HRS § 571-87(b) reads, in relevant part:
The court shall determine the amount of reasonable compensation
paid to appointed counsel and guardian ad litem, based on the
following rates:
(1) $90 an hour for in-court services provided by an attorney
licensed to practice law in the State; and
(2) $60 an hour for:
(A) Out-of-court services provided by an attorney licensed to
practice law in the State; and
(B) All services provided by a person who is not an attorney
licensed to practice law in the State, whether performed in-court
or out-of-court.
(c) The maximum allowable fee shall not exceed the following
schedule:
(1) Cases arising under chapters [587A] and 346, part X:
(A). Predisposition.......................... $3,000;
(B). Postdisposition review hearing.......... $1,000;
(2) Cases arising under chapters 560, 571, 580, and
584.......................................... $3,000.
Payments in excess of any maximum provided for under paragraphs
(1) and (2) may be made whenever the court in which the
representation was rendered certifies, based upon representations
of extraordinary circumstances, attested to by the applicant,
that the amount of the excess payment is necessary to provide
fair compensation in light of those circumstances, and the
payment is approved by the administrative judge of that court.
(emphasis added).
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involving child protective services or adult protective
services. Like HRS § 802-5(b), HRS § 571-87(b) provides for
excess attorney‟s or guardian ad litem fees when, in addition to
the applicant‟s representation of extraordinary circumstances,
the trial court “certifies” the amount as necessary to provide
fair compensation and the administrative judge of the court
“approve[s]” the amount. However, the legislative history to
that statute and its many amendments is also silent as to the
scope of each level of review.
We could also turn to the Criminal Justice Act, 18 U.S.C. §
3006A (2000 & Supp. 2011), which is the federal analog to HRS
Chapter 802, as an interpretive aid. This court and the
legislature have frequently looked to the federal statute for
guidance. See Mohr, 97 Haw. at 32, 32 P.3d at 657 (Ramil, J.,
concurring); Stand. Comm. Rep. 234 in 1987 Senate Journal at 988
(comparing state and federal statutes providing excess
compensation for extended and complex cases). 18 U.S.C. §
3006A(d)(3) states, in relevant part:
Waiving maximum amounts. Payment in excess of any maximum
amount provided in paragraph (2) of this subsection may be
made for extended or complex representation whenever the
court in which the representation was rendered, or the
United States magistrate if the representation was
furnished exclusively before him, certifies that the amount
of the excess payment is necessary to provide fair
compensation and the payment is approved by the chief judge
of the circuit. The chief judge of the circuit may
delegate such approval authority to an active or senior
circuit judge.
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(emphasis added).
In interpreting the difference in roles between the
district judge, who “certifies” excess attorney‟s fees and the
chief judge, who “approves” excess fee certifications, the
federal chief judges of the district courts have explained that
each exercises independent judgment in reviewing fees. See
United States v. Harper, 311 F.Supp. 1072, 1072-73 (D.D.C. 1970)
(“The District Judge approved the voucher as submitted. On the
basis of my independent examination of the voucher and the files
and records in the case, I endorsed the application. . . .[I]t
is my practice to endorse the [excess fee] application with a
brief statement explaining my action.”); see also United States
v. Sepulveda, 502 F.Supp.2d 1104, 1106 (D. Mont. 2007) (“The
process [of approving excess fees] is not one involving a
„rubber stamp.‟ It is a meaningful congressionally mandated
step that requires detailed justification not only by the
lawyer, but also by the approving judge.”); see also United
States v. D‟Andrea, 612 F.2d 1386, 1388 (7th Cir. 1980) (“We
cannot conclude that this duty [approving excess fees] is solely
ministerial[.]”). Thus, the federal courts envision two
distinct levels of independent examination of attorney‟s fee
requests, each of which must be concluded with a justification
for the award given. We are persuaded that both the trial judge
and the administrative judge exercise de novo review over
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attorney fee requests in excess of the statutory maximum set
forth under HRS § 802-5(b), with any reduction in fee accounted
for by a statement of reasons as to why the modified fee award
constitutes “fair compensation.”
In this case, the trial judge certified that the full
amount of attorney‟s fees was reasonable and necessary to
provide fair compensation. The administrative judge, on the
other hand, approved a lesser amount as reasonable and necessary
to provide fair compensation, but no reasons were given as to
why. Although we have not previously expressly held that the
administrative judge must provide justification for a reduced
attorney‟s fee award, case law interpreting HRS § 802-5, as
explained below, reasonably leads to that conclusion.
The leading case interpreting HRS § 802-5 is In re
Attorney‟s Fees of Reinhard Mohr, 97 Hawaii 1, 32 P.3d 647
(2001). In that case, the ICA approved in part and denied in
part a court-appointed appellate defense counsel‟s (“Mohr”)
request for attorney‟s fees under HRS § 802-5. 97 Hawaii at 3,
32 P.3d at 649. Mohr requested fees in the amount of $1,412.00
for 35.3 hours of service, in support of which he appended
worksheets detailing 2 hours of client contact, 21.3 hours of
research, and 10.9 hours of reading and drafting court
documents; 1.1 hours were unaccounted for in the worksheets. 97
Hawaii at 4, 6, 32 P.3d at 650, 652. The ICA approved only
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$292.00 in fees, representing 7.3 hours of service, and Mohr
appealed to this court. 97 Hawaii at 4, 32 P.2d at 650.
We held that the ICA abused its discretion in reducing
Mohr‟s fee award. 97 Hawaii at 6, 32 P.3d at 652. While we
agreed that Mohr‟s fees should be reduced for various reasons,
we concluded that the ICA abused its discretion in allowing only
2.2 hours out of 21.3 hours documented for research. 97 Hawaii
at 8, 32 P.3d at 654. We therefore ultimately ordered that
Mohr be compensated for 15.35 at the statutory hourly rate (then
$40 for out-of-court work), or $614.00. Id.
Notable in our treatment of Mohr‟s appeal was our reliance
on the record created by Mohr:
[W]e also recognize that every review of a fee request
requires an analysis of evidence and an application of
statutory standards. Such analysis and application is a
judicial process like any other original proceeding in
which evidence is taken and law is applied. It is an
adjudication of the appointed attorney‟s private, statutory
right to be compensated for the work the attorney has done,
and the attorney bears the burden of adducing evidence
sufficient to justify his or her claim.
97 Hawaii at 5, 32 P.3d at 651.
In this case, however, the analysis of attorney‟s fees is
not as easy to perform for several reasons. First, Mohr‟s
request was for a relatively low amount, generated by relatively
few hours of work on an appeal. The nature of appellate work is
subject to ready evaluation by this court, which reviews similar
attorney‟s fees requests for work performed before it. Thus,
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even though the ICA reduced Mohr‟s fees without explanation, we
were able to evaluate Mohr‟s fee requests against the work
performed to arrive at what was reasonable compensation for
Mohr.
In the instant case, however, Bettencourt has requested
hundreds of hours‟ worth of fees, six times the limit set forth
by statute for court-appointed representation in a felony case.
Mohr, on the other hand, requested fees well within the
statutory maximum. 97 Hawaii at 3, 3 n.3, 32 P.3d at 649, 649
n.3. Bettencourt‟s client faced a multi-count indictment (with
counts including attempted first and second degree murder) with
a maximum penalty of life imprisonment without the possibility
of parole. The representation included a fourteen-day trial,
culminating in an acquittal on all counts. The trial judge (in
particular) and administrative judge are the ones most capable
of evaluating whether the compensation Bettencourt requested was
fair in light of the work he performed.
Second, in the instant case, the record does not indicate
whether the administrative judge performed an “analysis of
evidence and an application of statutory standards” before
summarily reducing Bettencourt‟s fee award. There is no
indication of which billable items were disallowed or reduced.
As a result, we cannot ascertain whether the administrative
judge abused his discretion in deciding that $26,640 was
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reasonable and necessary to provide fair compensation to
Bettencourt.
IV. Conclusion
Based on the foregoing, we hold that (1) under HRS § 802-
5(b), both the trial judge and the administrative judge
independently review excess fee requests to determine whether a
fee award is “fair compensation”; (2) both the trial judge‟s and
administrative judge‟s orders awarding fees under HRS § 802-5(b)
are judicial acts subject to appellate review under the abuse of
discretion standard; and (3) to enable appellate review of
excess fee awards, if a fee request is reduced, it is necessary
for the judge reducing the request to set forth reasons for the
reduction. Accordingly, we vacate the administrative judge‟s
June 9, 2010 Order and remand for further proceedings consistent
with this opinion.
David Glenn Bettencourt, /s/ Mark E. Recktenwald
Attorney at Law, Petitioner/
Real Party in Interest-Appellant /s/ Paula A. Nakayama
Russell Suzuki (Diane Erickson /s/ Simeon R. Acoba, Jr.
and Robyn B. Chun, Deputy
Attorneys General, State of /s/ James E. Duffy, Jr.
Hawaii, with him on the briefs)
for Respondent/Plaintiff- /s/ Sabrina S. McKenna
Appellee State of Hawaii
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