State Public Defender v. Iowa District Court ( 2016 )

  •                    IN THE SUPREME COURT OF IOWA
                                  No. 15–0848
                             Filed October 21, 2016
          Certiorari to the Iowa District Court for Story County, Stephen A.
    Owen, District Associate Judge.
          The state public defender challenges a district court order taxing
    court and travel costs against the state public defender for withdrawing
    from the representation of a child prior to a detention hearing without
    taking steps to secure alternative representation for the child.   WRIT
          Adam C. Gregg, State Public Defender, for plaintiff.
          No appearance for defendant.
    HECHT, Justice.
           The Iowa District Court for Story County assessed court and travel
    costs against the state public defender in a juvenile detention proceeding
    because it concluded the local defender improperly refused to represent
    the juvenile in the proceeding. The state public defender brought this
    certiorari action pursuant to Iowa Rule of Appellate Procedure 6.107(1).
    We must determine whether the district court exceeded its jurisdiction or
    otherwise acted illegally in taxing the costs against the state public
    defender. We conclude the district court erred and sustain the writ.
           I. Background Facts and Proceedings.
           Around 9:00 a.m. on April 7, 2015, the district court issued an
    order appointing the local public defender of Nevada, Iowa, to represent
    S.J., a juvenile who had been detained the night before on a burglary
    charge in Story County. 1         At 10:07 a.m., the public defender filed a
    motion to withdraw from representing S.J., citing concurrent conflicts of
    interest between S.J. and other clients.
           At 2:20 p.m. on the same day, the court held a hearing in
    Marshalltown on S.J.’s detention and the local public defender’s motion
    to withdraw.      After counsel for the state made his opening statement,
    Katherine Flickinger, an attorney with the local public defender’s office,
    informed the court that S.J.’s interests were directly adverse to the
    interests of three of the local public defender’s other current clients.2
    Flickinger argued she was ethically bound to withdraw from representing
    S.J. because of the concurrent conflicts of interest. See Iowa R. Prof’l
           1The  order also scheduled a detention hearing to be held at 2:00 p.m. that
    afternoon in Marshalltown.
           2Two  of the other current clients were potential witnesses against S.J. while the
    third was a codefendant.
    Conduct 32:1.7(a)(1)–(2) (providing that except in specific circumstances,
    an attorney “shall not represent a client if the representation involves a
    concurrent conflict of interest”). Following a brief colloquy between the
    court and Flickinger about the public defender’s policies and procedures
    on handling withdrawals in such circumstances, the court took the
    motion to withdraw under advisement and continued questioning
                 Q. Ms. Flickinger, what’s S.J.’s position today? A.
           Well, Your Honor, I cannot take a position on S.J.’s behalf
           because I cannot represent S.J.
                 Q. Okay. So the child is here today without an
           attorney. Is that essentially the public defender’s position?
           A.   Your Honor, it’s our position that we just cannot
           represent S.J. underneath the rules. It’s a “shall not”
           provision in the ethical rules, so we would ask that we be
           withdrawn and S.J. be appointed an attorney that can
           represent S.J.
           After briefly consulting with others in the courtroom about an
    appropriate placement, the court ordered S.J.’s transfer from detention
    to shelter care and closed the hearing.
           Less than two hours after the hearing, the court entered orders
    withdrawing the local public defender’s appointment and appointing new
    conflict-free counsel for S.J. 3
           Ten days later, the court issued an order concluding that although
    the local public defender avoided conflicts of interest in the case by
    withdrawing, she took “absolutely no action to mitigate the consequences
    to [S.J.] in its effort to withdraw.”        In particular, the court found no
    evidence that the local public defender sought competent conflict-free
    counsel to represent S.J. prior to the April 7 hearing despite having
           3The  order of April 7 withdrawing the public defender’s appointment stated a
    “ruling on the . . . motion to withdraw will be forthcoming.”
    resources to do so at its immediate disposal. The court further found the
    local public defender ignored her ethical duty prior to the hearing to
    “take all reasonable steps to mitigate the consequences [of withdrawal] to
    [S.J.],” see Iowa R. Prof’l Conduct 32:1.16 cmt. [9], and determined the
    state public defender failed to meet his statutory duty to “coordinate the
    provision of legal representation” in this juvenile proceeding as required
    by Iowa Code section 13B.4(1). 4 The court further concluded the local
    public defender’s failure to comply with these ethical and statutory
    directives wasted the time of those involved in S.J.’s April 7 detention
    hearing. For these reasons, the court taxed to the state public defender
    the court costs related to the April 7, 2015 hearing. The court’s order
    also taxed “the costs associated with travel for the public defender, the
    county attorney, and the Ames police officer appearing in [the April 7]
    proceedings . . . .”
           On May 15, the state public defender filed a petition for writ of
    certiorari in this court, claiming the district court acted illegally when it
    taxed the court and travel costs against the state public defender. We
    granted certiorari on July 24, 2015.
           II. Standard of Review.
           In a certiorari case, we review a district court’s ruling for correction
    of errors at law. State Pub. Def. v. Iowa Dist. Ct. for Plymouth Cty., 
    747 N.W.2d 218
    , 220 (Iowa 2008). When reviewing for correction of errors at
    law, we are bound by “the district court’s well-supported factual findings”
    but not its legal conclusions. State Pub. Def. v. Iowa Dist. Ct. for Clarke
           4Following the April 7 detention hearing, the court made three telephone calls
    seeking replacement counsel for S.J. from a list of attorneys with whom the state public
    defender contracts for court appointments in juvenile court matters. The court’s
    April 17 order concluded the state public defender, acting through a local designee,
    should have used his resources to identify conflict-free counsel for S.J. before the
    April 7 hearing.
    745 N.W.2d 738
    , 739 (Iowa 2008) (quoting State Pub. Def. v. Iowa
    Dist. Ct. for Johnson Cty., 
    663 N.W.2d 413
    , 415 (Iowa 2003)).
          “A writ of certiorari lies where a lower board, tribunal, or court has
    exceeded its jurisdiction or otherwise has acted illegally.” State Pub. Def.,
    747 N.W.2d at 220 (quoting State Pub. Def. v. Iowa Dist. Ct. for Black
    Hawk Cty., 
    633 N.W.2d 280
    , 282 (Iowa 2001)). “Illegality exists when the
    court’s findings lack substantial evidentiary support, or when the court
    has not properly applied the law.” Id. (quoting Christensen v. Iowa Dist.
    578 N.W.2d 675
    , 678 (Iowa 1998)).
          III. Analysis.
          As a general rule, court costs “are taxable only to the extent
    provided by statute.” City of Cedar Rapids v. Linn County, 
    267 N.W.2d 673
    , 673 (Iowa 1978); see also City of Des Moines v. State ex rel. Clerk of
    449 N.W.2d 363
    , 364 (Iowa 1989).        Absent statutory authority, a
    court lacks authority to tax costs against a party. Woodbury County v.
    164 N.W.2d 129
    , 133 (Iowa 1969).              The Iowa General
    Assembly has prescribed a detailed scheme for the payment of costs and
    expenses in juvenile proceedings. The statutes provide that “[a] county
    shall pay the costs incurred in connection with the administration of
    juvenile justice under section 232.141.” Iowa Code § 602.1303(5) (2015).
    Section 232.141 allocates the cost of juvenile proceedings to the county
    in which they are held; however, that county “may recover the costs and
    expenses from the county where the child has legal settlement.” Id.
    § 232.141(2)–(3), (7). Notably, the legislature did not authorize courts to
    tax court costs or travel expenses of witnesses, parties, or their counsel
    to attorneys representing parties in juvenile proceedings.       Finding no
    statutory authority for taxing such costs or expenses to the state public
    defender, we conclude the district court erred in its application of the law
    to the facts before it.
          Neither can the district court’s taxation of court costs and travel
    expenses under the circumstances of this case be sustained if viewed as
    a sanction for the local public defender’s conduct in moving to withdraw
    as S.J.’s counsel and declining to represent her at the April 7 hearing.
    The April 17 order taxing costs purported to sanction a nonparty—the
    state public defender—for the local public defender’s withdrawal.                   It
    imposed this sanction without prior notice and without giving the state
    public defender an opportunity to be heard, in violation of due process.
    See Mullane v. Cent. Hanover Bank & Tr. Co., 
    339 U.S. 306
    , 314, 
    70 S. Ct. 652
    , 657, 
    94 L. Ed. 865
    , 873 (1950) (“An elementary and
    fundamental requirement of due process in any proceeding which is to be
    accorded    finality    is    notice     reasonably   calculated,   under   all    the
    circumstances, to apprise interested parties of the pendency of the action
    and afford them an opportunity to present their objections.”).
          Although the general rule under the Iowa Rules of Professional
    Conduct     is   that        appointed     counsel    may   not     withdraw      from
    representation without permission from the appointing authority, see
    Iowa R. Prof’l Conduct 32:1.16(c) & cmt. [3], the general assembly has
    expressly prescribed the duty of local public defenders confronting
    conflicts of interest: “If a conflict of interest arises . . . , the local public
    defender shall return the case to the court.”            Iowa Code § 13B.9(4)(a).
    The record reveals the local public defender complied with this statutory
    directive by notifying the court of the concurrent conflicts of interest
    approximately one hour after the appointment and by appearing at the
    hearing upon short notice to answer the court’s questions. The district
    court’s order entered shortly after the April 7 hearing withdrew the
    appointment, implicitly acknowledging the existence of the local public
    defender’s concurrent conflicts.
           The district court nonetheless concluded in its April 17 order that
    the local public defender breached a statutory duty in failing to identify
    and arrange for conflict-free substitute counsel to represent S.J. at the
    April 7 hearing.       See id. § 13B.4(1) (“The state public defender shall
    coordinate the provision of legal representation of all indigents . . . in
    juvenile proceedings . . . .”). Although we understand the district court’s
    sense of urgency in securing counsel for S.J. under the tight time
    constraints established for holding juvenile detention hearings, 5 we find
    no evidence in the record supporting a finding that either the state public
    defender or the local public defender breached a statutory duty under
    the circumstances of this case.
           Iowa Code section 13B.9(4)(a) prescribes the procedure for
    appointing substitute counsel when a local public defender “return[s] the
    case to the court” because of a conflict of interest:
           If the case is returned and the state public defender has filed
           a successor designation, the court shall appoint the
           successor designee. If there is no successor designee on file,
           the court shall make the appointment pursuant to section
           815.10. As used in this subsection, “successor designee”
           may include another local public defender office, or a
           nonprofit organization or a person admitted to practice law
           in this state that has contracted with the state public
           defender under section 13B.4, subsection 3.
           5The  urgency under the circumstances of this case arose from the applicable
    statutory framework allowing twenty-four weekday hours from the time at which a child
    is taken into custody to hold a detention hearing; otherwise, the child must be released.
    Iowa Code §§ 232.22(4), .44(1). In this case, the court stated in its April 17 order that it
    received notice of S.J.’s alleged involvement in criminal activity around 10:30 p.m. on
    April 6, 2015, and the court gave verbal permission for the detention at that time. As
    noted above, the court promptly issued its written order at 9:04 a.m. the next morning,
    appointing the local public defender and scheduling a hearing for 2:00 p.m. that day
    because of the twenty-four hour limit for conducting a detention hearing.
    Id. § 13B.9(4)(a). We conclude the plain language of the statute allocated
    to the court—not the public defender—the responsibility of selecting and
    appointing a successor counsel for S.J. See id.
          The record reveals the state public defender had provided the
    district court a list of private contract attorneys from which to choose a
    replacement for the local public defender in this case.             In light of the
    statute’s unequivocal directives and the state public defender’s provision
    of a list of contract attorneys, the district court’s finding that the local
    public   defender   disregarded   its       statutory   duty   to     ensure   the
    representation of S.J. is not supported by the statutory framework or by
    substantial evidence in the record.
          We now turn to the district court’s conclusion in the April 17 order
    that the public defender breached an ethical duty to mitigate S.J.’s
    damages arising from withdrawal. Although the court acknowledged the
    principle that “[t]he lawyer’s statement that professional considerations
    require termination . . . ordinarily should be accepted as [a] sufficient
    [ground for withdrawal],” see Iowa R. Prof’l Conduct 32:1.16 cmt. [3], it
    reasoned that J.S.’s strong constitutional right to counsel augured in
    favor of permitting representation by the local public defender at the
    April 7 hearing, especially because “[d]etention hearings are not hearings
    on the merits.”
          The district court correctly recognized that S.J.’s right to counsel is
    well-established.   Since the 1960s, Iowa courts have recognized that
    children have the right to counsel in delinquency proceedings. See In re
    199 N.W.2d 111
    , 115 (Iowa 1972) (noting counsel was
    appointed under a provision of the 1966 Iowa Code); see also In re Gault,
    387 U.S. 1
    , 35–37, 
    87 S. Ct. 1428
    , 1448, 
    18 L. Ed. 2d 527
    , 550–51
    (1967) (recognizing a child’s right to counsel under the Sixth Amendment
    of the United States Constitution).         Children in detention hearings are
    entitled to this representation regardless of their parents’ ability to pay.
    Iowa Code § 232.11(1)(b), (3) (2015). Importantly, S.J. is guaranteed the
    right to conflict-free counsel. See State v. Smitherman, 
    733 N.W.2d 341
    349 (Iowa 2007) (“The Sixth Amendment guarantees the right to conflict-
    free counsel . . . .”).
           When appointed to represent a client in a juvenile proceeding, a
    local public defender must continue to represent that person “unless
    other counsel is appointed to the case.”             Iowa Code § 13B.9(1)(b).
    However, appointed counsel’s obligation to continue the representation
    must be viewed in conjunction with his or her duty to avoid conflicts of
    interest. See id. § 13B.9(4)(a) (“If a conflict of interest arises . . . the local
    public defender shall return the case to the court.”); see also id.
    § 13B.9(4)(b) (“If a conflict of interest arises in any case, [the local public
    defender’s duty under section 13B.9(1) to represent an indigent party in
    delinquency proceedings pursuant to chapter 232] does not affect the
    local public defender’s obligation to withdraw as counsel or as guardian
    ad litem.”); Iowa R. Prof’l Conduct 32:1.7(a) (“Except as provided in
    paragraph (b), a lawyer shall not represent a client if the representation
    involves a concurrent conflict of interest.”). These statutory and ethical
    rules clearly establish the local public defender had a statutory and
    ethical duty to withdraw due to its conflicts of interest in this case. In
    furtherance of its statutory and ethical duties, the local public defender
    promptly filed a motion to withdraw notifying the court of the concurrent
    conflicts and appeared at the April 7 hearing to answer the court’s
    questions pertaining to the grounds for withdrawal.           We conclude the
    district court erred in concluding the local public defender violated an
    ethical duty when she declined to represent S.J. at the April 7 detention
    hearing and failed to expedite the district court’s selection and
    appointment of successor designee for S.J.
          IV. Conclusion.
          We conclude the district court made an error of law and exceeded
    its authority in determining the state public defender or the local public
    defender   violated   either   statutory   or   ethical   duties   under   the
    circumstances of this case. Accordingly, we sustain the writ and vacate
    the district court’s April 17 order taxing court costs and travel expenses
    to the state public defender. The state public defender complied with its
    statutory and ethical duties to avoid conflicts of interest.       The district
    court therefore exceeded its lawful authority when it assessed court and
    travel costs against the state public defender for refusing to represent the
    child-in-interest at the detention hearing.