(dissenting).
{35} I respectfully dissent because the majority wrongfully focuses on the status of the attorney representing an indigent instead of the defendant’s indigency to determine whether he is entitled to the basic tools of an adequate defense at State expense. In doing so, the majority puts Brown in the intolerable position of having to choose between his constitutional right to counsel of choice and his constitutional right to the basic tools of an adequate defense, it ignores clear provisions of the Indigent Defense Act, which provide that an indigent defendant is entitled to necessary services at public expense whether or not he is represented by private counsel, and it contravenes public policies that encourage attorneys to donate their services to the poor, thereby resulting in unnecessary expenditures of public funds. An indigent is entitled to the basic tools of an adequate defense regardless of whether his attorney is a public defender or a private attorney donating his services.
FACTS AND PROCEDURAL BACKGROUND
{36} On March 11, 2002, Brown was arrested and charged with committing three felonies and one misdemeanor. At his first appearance in the magistrate court on March 27, 2002, he was represented by attorney Stephen Kortemeier. While jailed, Brown had completed an eligibility determination for indigent defense services form, and the magistrate court found he was indigent. An attorney on contract with the Department was later appointed to represent Brown on April 12, 2002, but Mr. Kortemeier continued to represent Brown through the preliminary hearing in magistrate court. Brown was then bound over to the district court for trial.
{37} In the district court Mr. Kortemeier filed a “declaration of counsel” stating he had refunded the “nominal retainer” he received from Brown and that he agreed to represent Brown without charge. The district judge simultaneously made his own finding that Brown was indigent, and he ordered that Brown “is entitled to all services ... normally provided by the State of New Mexico to an indigent defendant.” This order was filed with the State’s consent, and approval" and the State does not challenge its validity. It is therefore the controlling order before us.
{38} The case then went into its discovery phase and Mr. Kortemeier determined that he needed to incur investigative and expert witness expenses to defend Brown. He therefore made a request for authorization to incur expenses and fees to be paid by the State, arguing the expenses were necessary to present an adequate defense, and that the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article II, §§14 and 18 of the New Mexico Constitution, and Section 31-16-3 of the Indigent Defense Act, require the State to pay the expenses because Brown is indigent. Mr. Kortemeier submitted his affidavit with the motion in which he related that the Department refused to make the funds available for Brown’s defense because Brown was not a client of the Department and Mr. Kortemeier was not on contract with the Department. Furthermore, Mr. Kortemeier was told he was not eligible to become a contract attorney. One of the experts needed was a ballistics expert. Mr. Kortemeier contacted a qualified ballistics expert who was willing to accept the fee customarily paid by the Department for such expertise.
{39} The State did not contest the necessity or reasonableness of the expenses in its response. It only asserted that Subin prohibited the court from ordering the Department to pay the expert witness fees and expenses. In reply, Brown pointed out his motion did not seek an order specifically directing the Public Defender to pay the funds, so Subin is not controlling, and if it is controlling, it should be distinguished or overruled. Finally, he argued that Subin is contrary to Quintana, which states that the district court retains the ultimate authority to insure that an indigent’s constitutional and statutory rights are protected.
{40} The district judge concluded that Subin controls and is not in conflict with Quintana. Since Brown is indigent, the district judge reasoned, he does not have a right to counsel of his own choosing. Therefore, he concluded, Brown could choose to be represented by the Department and have the State pay the expenses or he could choose to continue with Mr. Kortemeier as his counsel and provide for his own investigative and expert witness expenses. The district judge certified his order for an interlocutory appeal, which we granted.
CHOOSING BETWEEN CONSTITUTIONAL RIGHTS
{41} The majority recognizes that Brown has a constitutional right to select his own counsel, but then it takes that right away from him in holding that, “defendants who wish to select their own counsel must take all the consequences that go along with that selection, and one such [automatic] consequence is that public funding will not be available for expert witness services.” Majority Opinion ¶ 17. I respectfully submit that this is an unconstitutional result.
{42} The Sixth Amendment to the United States Constitution provides, “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. Since 1963, this constitutional provision has required states to provide indigent criminal defendants with legal representation at public expense to insure the fairness of their trials. Gideon, 372 U.S. at 344, 83 S.Ct. 792. The New Mexico Constitution embraces and parallels these ideals when it states at Article II, § 14, “ ‘[i]n all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel.’ ” Quintana, 115 N.M. at 575, 855 P.2d at 564 (quoting N.M. Const, art. II, § 14).
{43} Inherent in the constitutional right to counsel is the right to be represented by counsel of choice. Recognition of the right to choose one’s attorney goes back to 1932 when the Supreme Court stated, “[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932); see also Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (recognizing that the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment). Furthermore, a court, “must recognize a presumption in favor of ... counsel of choice.” Id. at 164, 108 S.Ct. 1692.
{44} Indigency does not deprive a criminal defendant of his or her constitutional right to counsel of choice. Caplin & Drysdale, Chartered v. United States, 491 U.S, 617, 624-25, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) states, “[t]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” We implicitly recognized that right in State v. Lewis, 104 N.M. 218, 220, 719 P.2d 445, 447 (Ct.App. 1986) when we stated:
[t]he sixth amendment implicitly requires that a defendant facing criminal charges be afforded a fair opportunity to be heard at trial through counsel of his own choosing. The constitutional right of an indigent criminal defendant to the assistance of counsel for his defense is a fundamental right, essential to a fair trial.
(Citations omitted.)
{45} Admittedly, an indigent’s right to choose his or her attorney is not absolute. For example, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons, declines to represent the defendant; a defendant is not entitled to an attorney who is not a member of the bar; and a defendant may not insist on an attorney who has a conflict of interest. Wheat, 486 U.S. at 159, 108 S.Ct. 1692. It is also recognized that an indigent defendant, as a general rule, has no right to choose or substitute counsel appointed by the court to represent him because he is indigent. Hernandez, 104 N.M. at 272, 720 P.2d at 307; Salazar, 81 N.M. at 514, 469 P.2d at 159. The majority rely on Hernandez and Salazar to conclude that Brown has no right to counsel of choice in' this case. Majority Opinion ¶¶ 15-16. However, this reliance is misplaced because Mr. Kortemeier is not appointed, and he represented Brown before a Public Defender attorney was ever appointed to represent Brown. Brown’s constitutional right to have Mr. Kortemeier represent him is not overcome by any recognized exception in this ease. Brown therefore has a constitutional right to be represented by Mr. Kortemeier, his counsel of choice, since Mr. Kortemeier has agreed to represent him pro bono.
{46} The constitutional right to counsel of choice is not the only constitutional right at issue. Further developments in Sixth Amendment jurisprudence have established that the states are required to “provide indigent prisoners with the basic tools of an adequate defense.” Britt, 404 U.S. at 227, 92 S.Ct. 431. Our courts have expressly recognized this constitutional right of indigent criminal defendants. See State v. Turner, 90 N.M. 79, 82, 559 P.2d 1206, 1209 (Ct.App. 1976) (stating an indigent must be provided with the basic tools for an adequate defense); State v. Romero, 87 N.M. 279, 282, 532 P.2d 208, 211 (Ct.App.1975) (stating requirement that indigent defendants be provided with basic tools of an adequate defense should be construed liberally in favor of defendant’s right to equal protection of the law). In Ake, 470 U.S. at 74, 105 S.Ct. 1087, the Supreme Court specifically held that states must provide expert witness services as part of their constitutional obligation to provide indigent criminal defendants with meaningful access to justice when the assistance of an expert witness constitutes a “basic tool of an adequate defense.” We have also expressly recognized this constitutional right. See Subin, 2001-NMCA-105, ¶ 4, 131 N.M. 350, 36 P.3d 441 (recognizing holding of Ake). Most importantly, this constitutional right is not dependent on the status of counsel. The determinative factor is the defendant’s indigency. An indigent defendant with pro bono counsel is no less entitled to due process and fundamental fairness than one with appointed counsel.
{47} Brown therefore has two equally valuable constitutional rights: the constitutional right to counsel of choice and the constitutional right to be provided with the basic tools of an adequate defense. The holding of the majority requires Brown to choose between these constitutional rights. However, it is well settled that forcing a criminal defendant to “surrender” one constitutional right “in order to assert another” is “intolerable.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (describing situation whereby defendant was obliged to either forfeit what he believed to be a valid Fourth Amendment claim or to waive his Fifth Amendment privilege against self-incrimination); State v. Gutierrez, 119 N.M. 618, 623, 894 P.2d 395, 400 (Ct.App.1995) (quoting Simmons that it is “intolerable” that one constitutional right should have to be surrendered in order to assert another); see also State v. Aragon, 1999-NMCA-060, ¶ 12, 127 N.M. 393, 981 P.2d 1211 (acknowledging that forcing the defendant to either continue with ineffective counsel or waive his right to a jury trial would violate the constitution). In United, States ex rel. Wilcox v. Johnson, 555 F.2d 115 (3d Cir.1977), the Third Circuit concluded that conditioning the exercise of the right to testify upon a waiver of the right to counsel constituted an impermissible infringement upon both rights. Particularly applicable here, the court said:
A defendant in a criminal proceeding is entitled to certain rights and protections which derive from a variety of sources. He is entitled to all of them; he cannot be forced to barter one for another. When the exercise of one right is made contingent upon the forbearance of another, both rights are corrupted.
Id. at 120.
{48} The fact that Brown is indigent does not diminish either constitutional right to require him to accept all or none of the services normally provided to an indigent defendant, as the majority holds. While it is true that wealth is not a suspect class, I respectfully submit that the State must assert and establish a compelling reason to justify this disparate treatment. See San Antonio Indep. Sch. Dist., 411 U.S. at 29, 93 S.Ct. 1278 (stating when a statute differentiating on the basis of wealth interferes with the exercise of a fundamental right, strict scrutiny applies). The State has not done so, and the majority fails to identify a compelling state interest to justify its result.
{49} The majority fails to give full recognition to Brown’s constitutional right to Mr. Kortemeier’s representation as his pro bono counsel and his constitutional right as an indigent to obtain the basic tools of an adequate defense at public expense. The majority also requires Brown to choose which constitutional right he will have at the expense of the other. I therefore dissent.
THE INDIGENT DEFENSE ACT AUTHORIZES THE EXPENDITURES
{50} I would also hold that Brown has a statutory right to the assistance he seeks. The majority suggests that Brown did not argue a statutory right to investigative and expert witness fees to the district judge. Majority Opinion ¶¶ 7, 25. This is incorrect. The “request for authorization to incur expenses & fees” specifically cites to Section 31-16-3 of the Indigent Defense Act. This statute provides:
A. A needy person who is being detained by a law enforcement officer, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled to be represented by an attorney to the same extent as a person having his own counsel and to be provided with the necessary services and facilities of representation, including investigation and other preparation. The attorney, services and facilities and expenses and court costs shall be provided at public expense for needy persons.
B. A needy person entitled to representation by an attorney under Subsection A is entitled to be:
(1) counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney;
(2) represented in any appeal or review proceedings; and
(3) represented in any other postconviction proceeding that the attorney or the needy person considers appropriate unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at Ms own expense.
C. A needy person’s right to a benefit under this section is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.
(Emphasis added.)
{51} New Mexico enacted the Indigent Defense Act in 1968, and the Public Defender Act in 1973, to ensure that indigent criminal defendants receive the services to which they are constitutionally entitled. Quintana, 115 N.M. at 575, 855 P.2d at 564. These acts provide the statutory framework within which to evaluate the question presented, and de novo review applies. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (recognizing that the standard of review for issues of statutory interpretation and construction is de novo); see also Subin, 2001-NMCA-105, ¶4, 131 N.M. 350, 36 P.3d 441 (applying de novo review in an analogous case).
{52} My analysis is guided by the following rules of statutory construction. “The starting point in every ease involving the construction of a statute is an examination of the language utilized by [the Legislature]” in drafting the pertinent statutory provisions. State v. Wood, 117 N.M. 682, 685, 875 P.2d 1113, 1116 (Ct.App.1994). “When a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” State v. Jonathan M., 109 N.M. 789, 790, 791 P.2d 64, 65 (1990); accord State v. Shije, 1998-NMCA-102, ¶ 6, 125 N.M. 581, 964 P.2d 142. However, the plain meaning of the rule is only a guideline for determining legislative intent. Junge v. John D. Morgan Constr. Co., 118 N.M. 457, 463, 882 P.2d 48, 54 (Ct.App.1994). “It is the responsibility of this Court to search for and effectuate the purpose and object of the underlying statutes.” State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233.
{53} The Indigent Defense Act prescribes that needy persons are “entitled to be represented by an attorney to the same extent as a person having his own counsel and to be provided with the necessary services and facilities of representation, including investigation and other preparation ... at public expense.” Section 31-16-3(A). The plain language of this statute directs that Brown is entitled to investigative and expert assistance at public expense upon a showing that he is a “needy person” and that the desired services are “necessary.” Additionally, the Indigent Defense Act provides that a “needy person’s right to a benefit under this section is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.” Section 31-16 — 3(C). Thus, under the plain language employed by the Legislature, Brown’s right to the benefit of publicly funded investigative and expert assistance cannot be diminished as a consequence of his waiver of appointed counsel. We have previously observed, “[the] Indigent Defense Act recognizes that a defendant may be represented by employed counsel and still be indigent in connection with other matters pertaining to defense of the case.” State v. Apodaca, 80 N.M. 244, 246, 453 P.2d 764, 766 (Ct.App.1969).
{54} The majority suggest that the Public Defender Act should be regarded as a kind of legislative amendment to the Indigent Defense Act, by which the Department was designated as the exclusive source of services and funding for all indigent defendants. Majority Opinion ¶¶ 25, 27, 29. However, the Supreme Court has previously held that the Public Defender Act does not super-cede the Indigent Defense Act, see Quintana, 115 N.M. at 576, 855 P.2d at 565, and nothing in the Indigent Defense Act conditions the receipt of necessary services or funding on acceptance of representation by the Department. Furthermore, the ‘exclusive source’ argument advanced by the majority is at odds with the plain language of the Indigent Defense Act, which specifically provides that “[p]ayments of costs, expenses and attorney fees” to which indigent defendants are entitled “shall be made from ... funds appropriated to the district court.” Section 31 — 16—8(A) (2); see Rule 5-511(B)(2)(a) NMRA 2003 (recognizing that funds are appropriated to the administrative office of the courts “for the payment of witnesses in indigency cases”).
{55} The majority states that the Indigent Defense Act cannot provide an independent basis for an award of expert assistance at public expense because the Legislature has not seen fit to make a specific appropriation to the district courts pursuant to Section 31-16-8(A)(2) to cover such expenditures. Majority Opinion ¶¶25, 27, 29. In this regard, the majority opinion can be interpreted as stating that the State proved the Public Defender Department is the only entity with an appropriation for expert witnesses for indigent defendants, and that the district court does not have such funding, and neither does the district attorney. Majority Opinion ¶ 7. There was no such proof. All that occurred was oral argument without proof or evidence. This record does not show whether funds have been appropriated to any entity apart from the Department for indigent defendants. In Subin the court stated, “the parties agree that no funds have been appropriated to the district court for either counsel fees or expenses and that all such funds are contained in the [Public Defender] Department’s appropriation.” Id. ¶ 9. This was apparently the status of appropriations in 2001 when Subin was decided. The majority faults Brown for not proving that this factual agreement of the parties in 2001 was erroneous. Majority Opinion ¶ 25. Brown had no obligation to prove that agreement was erroneous in this case in 2002. Again, this record does not show that funds have been appropriated only to the Department for indigent defendants.
{56} Assuming that no such appropriation has been made, I do not regard the Legislature’s inaction as a repudiation of the rights or the obligations established under the Indigent Defense Act. The Legislature’s failure to make an appropriation earmarked to facilitate the provision of services to indigent defendants may simply reflect a belief that such services can be provided within the existing budget. See Subin, 2001-NMCA-105, ¶ 11, 131 N.M. 350, 36 P.3d 441.
{57} The majority chooses to ignore the plain, unambiguous language of the Indigent Defense Act, and its holding is premised on an assumption, not established by this record, that funds for indigent criminal defendants have only been appropriated to the Department. The Legislature, through the Indigent Defense Act, has provided the mechanism by which an indigent defendant who is represented by pro bono counsel will not be deprived of his constitutional right to the basic tools of an adequate defense at public expense. For this additional reason, I dissent.
PUBLIC POLICY
{58} I must also dissent because the majority opinion contravenes public policy in three important respects.
{59} First, the majority discourages the members of the bar of New Mexico from representing indigent defendants pro bono. On the other hand, the Supreme Court has directed as a matter of professional responsibility that, “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influences on their behalf. A lawyer should aid the legal profession in pursuing these objectivesf.]” Preamble to Rules of Professional Conduct, 16 NMRA 2003. This directive is carried forth in Rule 16-601 NMRA 2003, which states that attorneys should aspire to render at least 50 hours of pro bono public legal services per year. Our courts have recognized the value and importance of pro bono services to the poor. See, e.g., Maestas v. Allen, 97 N.M. 230, 232, 638 P.2d 1075, 1077 (1982) (commending counsel for providing services on a pro bono basis to persons who are unable to retain counsel); Lujan v. Lujan, 2004-NMCA-036, ¶ 23, 135 N.M. 285, 87 P.3d 1067, 2003 WL 23357696 [No. 22, 984 (N.M.Ct.App. Oct. 28, 2003) ] (commending attorneys for pro bono representation, stating that they perform a valuable service in the tradition of the most honorable aspects of the profession of law), petition for cert. filed, [No. 28,394 (N.M.Sup.Ct. Nov. 17, 2003) ]. It is a strong policy of New Mexico to encourage attorneys to provide pro bono representation to indigent persons, as a public service and a professional responsibility, and we should advance that public policy by encouraging and supporting, not discouraging pro bono services. I agree with the statement of the Honorable Judith Billings, past chair of the American Bar Association Standing Committee on Pro Bono and Public Service, that:
Judges have a special opportunity, and obligation, to use their positions to provide access to our justice system. As leaders in the community and the bar, we can lead the way to enhance access. Judges can encourage the involvement of lawyers to provide pro bono legal assistance to those without the financial means to afford counsel.... Judges can use the court’s administrative tools to develop a court culture that is supportive of pro bono service.
Justice Rebecca L. Kourlis & Judge Daniel M. Taubman, Changes to Code of Judicial Conduct Allow Judges to Support Pro Bono Legal Services, 20 Colo. Law. 41 (May 2000) (quoting Billings, “Using the Judiciary to Promote Pro Bono Activity," Dialogue 14 (ABA Div. for Legal Services, Summer 1997)).
{60} Secondly, the majority opinion results in the unnecessary expenditure of public funds. While the majority recognizes that the Department has a “limited budget” and an “obligation to administer its resources so that all of its clients realized [sic] their constitutional rights to counsel and ancillary services”, Majority Opinion ¶24, its reasoning will result in higher, unnecessary expenditures by the State. First, it results in a greater client base for the Department since it discourages pro bono representation. Second, instead of allowing the State to pay only limited expenses of Brown’s defense, the majority requires the State to pay for all of them, including the most expensive component, counsel. The majority holding guarantees a need to spend more public funds, instead of encouraging pro bono representation with the potential to conserve state funds. It therefore results in an unreasonable and unnecessary burden on the public treasury. Our courts have previously noted that the Department’s resources are both limited and escalating. See March v. State, 105 N.M. 453, 455, 734 P.2d 231, 233 (1987) (observing that the public defender’s office is overburdened); cf. In re Allred, 2001-NMSC-019, ¶ 21, 130 N.M. 490, 27 P.3d 977 (observing that resources of the judicial system, including the Department are thinly stretched). Requiring indigent defendants to abandon donated legal services and requiring them to accept representation by public defenders as a condition of receiving other basic tools of an adequate defense will only further increase these burdens. In contrast, by permitting indigent defendants to avail themselves of the free services of pro bono counsel, the State and the Department will potentially be saved money and resources. Public policy dictates we follow the latter course. See Coyazo v. State, 120 N.M. 47, 53, 897 P.2d 234, 240 (CtApp.1995) (commenting on the desirability of private attorney involvement with indigent defense work to alleviate the burdens on the system).
{61} Finally, the Indigent Defense Act and the Public Defender Act were designed to provide indigent criminal defendants with meaningful access to justice. Consistent with that purpose we should confirm an indigent’s entitlement to the basic tools of an adequate defense whether or not the attorney is donating his services to the indigent. The constitutional rights at issue in this case are based on Brown’s indigency, not the status of his attorney. The majority of our sister states have reached similar conclusions when confronted with analogous issues. See, e.g., Ex parte Sanders, 612 So.2d 1199, 1201 (Ala.1993) (holding indigent defendant has right to public funds to hire expert although represented by counsel retained by family); Dubose v. State, 662 So.2d 1189, 1191 (Ala. 1995) (following Sanders); People v. Worthy, 109 Cal.App.3d 514, 167 Cal.Rptr. 402, 406 (1980) (concluding that, upon a proper showing of necessity, trial court must provide an indigent defendant expert services, without regard to whether his counsel is appointed or pro bono); People v. Evans, 271 Ill.App.3d 495, 208 Ill.Dec. 42, 648 N.E.2d 964, 969 (1995) (concluding that indigent defendant entitled to expert witness funding although represented by private law firm where services provided on pro bono basis); Missildine, 311 N.W.2d at 293-94 (holding Sixth Amendment authority for furnishing investigative services at public expense without regard to whether indigent represented by private counsel); State v. Jones, 707 So.2d 975, 977-78 (La.1998) (holding although indigent defendant was represented by counsel retained by defendant’s father, he was eligible for state funded necessary services); State v. Huchting, 927 S.W.2d 411, 419 (Mo.Ct.App. 1996) (noting retention of private counsel does not cause a defendant to forfeit his eligibility for state assistance in paying for expert witness or investigative expenses); Manning, 560 A.2d at 698-99 (holding indigent defendant could not be denied state-funded expert services because he was represented by private counsel, whether counsel was pro bono or paid by third party); Widdis v. Second Jud. Dist. Ct., 114 Nev. 1224, 968 P.2d 1165, 1168 (1998) (holding criminal defendant with private counsel constitutionally entitled to reasonable defense services at public expense based on defendant’s showing of indigency and need for the services); Bums, 4 P.3d at 800-02 (holding statutory right to publicly funded expert assistance under statute could not be conditioned upon accepting court-appointed counsel in lieu of private counsel retained at father’s expense); State ex rel. Rojas v. Wilkes, 193 W.Va. 206, 455 S.E.2d 575, 577 (1995) (holding that funds with which defendant’s family retained private counsel irrelevant to defendant’s right as indigent to have necessary expert assistance provided at state’s expense).
{62} I respectfully submit that the majority opinion either overlooks or contravenes the public policies discussed above. For this additional reason, I respectfully dissent.
CONCLUSION
{63} The majority concludes that Subin is the controlling authority in this case. Majority Opinion ¶ 28. I disagree. Subin dealt with a narrow issue: whether the district court had the authority to order the Department to pay expert witness fees for an indigent defendant who was not its client. Subin, 2001-NMCA-105, ¶4, 131 N.M. 350, 36 P.3d 441. Here, Brown has not limited his claim to entitlement of Department funds. As a result, Subin does not control the issue presented in this case. Furthermore, while Subin held that the district judge had no authority to order the Public Defender Department to pay expert witness fees for an indigent defendant represented by counsel paid for by family members, it then affirmed the order. Accordingly, none of the parties in Subin sought a review of its reasoning in the Supreme Court even though Judge Bustamante dissented because they all received what they wanted: the defendant got his expert witness, and the Public Defender Department’s position was sustained. I respectfully submit, for the reasons stated herein, that Subin should be overruled.
{64} I also conclude that an indigent criminal defendant is statutorily entitled under the Indigent Defense Act to receive the basic tools for an adequate defense upon a showing of need, notwithstanding the fact that he or she is represented by private counsel pro bono for no fee.
{65} Brown argued in the district court and in this Court that the expenses and services he seeks are necessary. However, the district judge never ruled whether they are necessary. Brown must be provided with the opportunity to establish that the expert assistance he requests is necessary. See Turner, 90 N.M. at 82, 559 P.2d at 1209 (observing that entitlement to expenses depends upon a showing of necessity). If Brown succeeds in making such a showing, he should be entitled to the requested assistance at public expense. As indicated above, funding for this purpose should presumptively come from appropriations to the district court. See § 31-16-8(A)(2). However, the district judge is not limited to ordering payment from such appropriations if they do not exist. See Quintana, 115 N.M. at 578, 855 P.2d at 567 (stating that courts may be required to make appropriate order when necessary to safeguard a defendant’s constitutional or statutory rights); Wilson, 574 So.2d at 1339-40 (recognizing inherent authority of courts to provide adequate funding for their operations in cases where the legislature fails to so provide but refusing to apply that rule to indigent defense attorney fees set by legislature under the facts of that case); Wilke, 734 N.E.2d at 818 (acknowledging rule that courts have inherent authority to insure necessary funding for necessary operations); see also Subin, 2001-NMCA-105, ¶ 13, 131 N.M. 350, 36 P.3d 441 (stating “in appropriate cases, courts as guardians of the constitution or as interpreters of statutes may well order executive departments to make funding available as needed”). Should the district court conclude that funds have not been appropriated to it for such purposes, and should alternative appropriations prove unavailable, the necessary funds should be provided from the budget of the district court. See State v. Duran, 91 N.M. 35, 36-37, 570 P.2d 36, 37-38 (Ct.App.1977) (observing that where the district court determines that appropriations to it for witness fees have been exhausted, the defendant must establish that alternative sources of funding do not exist before the district court will be required to make funds available).
{66} The ruling of the district should be reversed, and the case remanded for enforcement of the operative, unchallenged order that Brown “is entitled to all services ... normally provided by the State of New Mexico to an indigent defendant.” Since the majority disagrees, I respectfully dissent.