(concurring in part and dissenting in part).
{18} I concur in the action of. the Court lifting the stay. The combination of events described in the opinion and the march of time places Defendant in an intolerable situation which requires our action. However, the fact that we are willing-and have the apparent authority-to enforce this particular order against the Department speaks volumes about the real issue the case raises.
{19} The Department argues that by enacting the Public Defender Act (PDA) the legislature intended to create a “sole source” or “package deal” system of representation for indigent defendants in New Mexico. The Department asserts it has no authority to provide any assistance to persons unless they are its clients and it is providing full representation. The Department admitted at argument that its position is not viable if its interpretation of the PDA is not accurate. Defendant responds by reminding us that there is a constitutional right at stake and that the State has responded to its constitutional obligation by enacting both the Indigent Defense Act (IDA) and the PDA. Defendant argues that the IDA and PDA read together do not clearly require defendants to become full clients of the Department in order to receive benefits. The Defendant concedes that if New Mexico has a “sole source” system, her position would not be viable.
{20} I do not believe, and I do not believe the majority disagrees, that the IDA and PDA are clear on the question. The majority chooses not to resolve the issue. Given this basic lack of clarity, what role do the courts have to play in these circumstances? I believe the answer is provided by our Supreme Court in State ex rel. Quintana v. Schnedar, 115 N.M. 573, 855 P.2d 562 (1993). The specific holding in State ex rel. Quintana involved the court’s power to determine indigency and appoint counsel for defendants in the face of an argument by the Department that the PDA gave it exclusive statutory power to determine indigency. The broader rule of the case, however, is that the courts retain power and inherent authority to act “to guarantee the enforcement of constitutional civil liberty protections in criminal prosecutions” 115 N.M. at 575, 855 P.2d at 564.
{21} It seems inescapable to me that the courts have the power to do what the district court did here: That is, hear a motion for relief when the Department has refused a request for a benefit from a privately represented indigent Defendant, and order the Department to consider the request as it would a similar request made by one of its staff attorneys. As the district court said in its letter decision, “State Ex Rel Quintana makes clear that the District Court retains the ultimate authority to insure the Defendant’s statutory and constitutional rights are protected____It seems logical to me that if I can appoint a lawyer to represent a criminal defendant I should be able to insure that that lawyer can have the resources to provide that defense.”
{22} It is part of the business of the courts to interpret and apply the law-statutory and constitutional. When the constitutional right is clear and the statutory law is honestly open to interpretation, the courts have an obligation to act. The prudential considerations the majority cites do not counsel inaction; they do counsel caution and circumspection. Viewed in that light, I can find no fault with the district court’s well-measured order.