Smith v. Lewis

HOLOHAN, Justice,

dissenting.

Seven years ago, this court in State v. Evans, 129 Ariz. 153, 629 P.2d 989 (1981), held that the statute A.R.S. § 11-584(A)(1) was designed to provide representation for indigents in the state court system, and the statute did not authorize public defenders *515to represent indigent defendants in the federal court system. After our decision in Evans the legislature did not act to amend the statute to provide that public defenders might represent indigent defendants in the federal court system. Under the generally accepted principles of statutory construction we presume that the legislature was aware of existing case law and when it retains the language iipon which the decision was based, it approves that interpretation. State v. Pennington, 149 Ariz. 167, 717 P.2d 471 (App.1985). In the intervening seven years A.R.S. § 11-584(A)(1) was amended in 1985 to add an additional responsibility for public defenders to represent indigent persons in sanity hearings. A.R.S. § ll-584(A)(l)(c). The legislature has not changed the statute since the 1985 amendment. I must conclude that the legislature approved this court’s decision in Evans.

The court now feels that the possibility of payment for defense services by the federal government has changed the interpretation to be placed on A.R.S. § 11-584(A)(1). Just how a change in federal policy can change a state statute without legislative action is not explained. Justice Gordon, writing for the dissent in Evans, expressed the notion that the court was concerned about taxpayers’ funds being used to pay lawyers to represent indigent defendants in federal courts, but that was a minority position which was not adopted by the majority.

The majority in Evans relied on the plain language of § 11-584(A)(1) to conclude that the statute was designed to provide a defender organization to represent defendants in the state court system. The statute was not designed to provide representation of indigents in every situation. As pointed out in Evans, it was expected that the federal system would provide its own means for supplying representation for indigents in its courts. The state is not required by the Constitution to provide attorneys for representation of indigents in discretionary appeals or habeas corpus proceedings in the federal courts. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

The possibility of payment to public defenders by the federal government raises the problem of dual compensation under state law. A.R.S. § 38-601 forbids the acceptance of any additional salary or emolument in excess of the salary provided by law for county employees. Members of the public defender’s staff are county employees, and it would be unlawful for them to accept additional compensation from the federal government.

The court asserts that continuing the representation by the public defenders advances worthy goals. The court feels that counsel and defendant will undoubtedly have forged a relationship of mutual trust and confidence. It is useful to note that the petitioner Smith has had to establish that relationship with at least three members of the public defender’s staff. The attorney that represented him at trial and the attorney who represented him on appeal are no longer with the office. Smith at the time of oral argument was being represented by the third attorney from the public defender’s staff. Nor is the Smith scenario unusual in the real world, and the presence of federal money will not change the realities of representation by the attorneys in the public defender offices. On the other hand, the appointment of new counsel in the federal court could provide a state defendant with a fresh review of the case.

All of these considerations, of course, do not change the real issue, which is whether our statute authorizes the public defender to represent indigents in the federal court. Evans answered the question in the negative.

The court has failed to address the problems that will be caused by extending legal representation into the federal courts. For the last several years this court has continually faced the problems of the increasing workload of public defender offices in both Maricopa and Pima Counties. These offices are constantly seeking extensions of time to file briefs in the appellate courts. The members of the public defender’s staff *516of Maricopa County have actually sought relief from the superior court to lessen the number of new assignments because of their existing caseloads.

In light of the existing caseloads, it seems rather hollow to extol the advantages of the public defender following a case through the state and federal court system, if in fact one attorney did so.

Additionally, it strains reality to argue that a defendant, who has been sentenced to death, represented by counsel who has lost the case through every avenue of the state court system, can be said to have an overriding confidence in that counsel so that it would result in injustice for a new counsel to take over the case in the federal system. •

There is nothing changed since State v. Evans which indicates a legal reason to change the interpretation placed by the court originally on A.R.S. § 11-584(A)(1). The only difference is that there has been a change in the membership of the court. If this is the significant difference, whatever happened to stare decisis?