On petition for writ of certiorari to the Supreme Court of
Florida.
The petition for a writ of certiorari is denied.
Page 479 U.S.
1043 , 1044
Justice WHITE, dissenting.
Petitioners are two political subdivisions in the State of
Florida that have filed a single petition for certiorari, under
this Court's Rule 19.4, seeking review of two separate judgments of
the Supreme Court of Florida. Both cases present the same federal
constitutional question; I set forth the facts in Martin County v.
Makemson only.
Respondent Robert Makemson was appointed under Florida law to
represent a defendant charged with first-degree murder, kidnaping,
and armed robbery. Respondent's representation of the defendant
spanned a 9- month period, and upon completion of the task
respondent petitioned the trial court, pursuant to Fla.Stat.
925.036 (1985),* for attorney's fees in the amount of $9,500.
Section 925.036(2)(d) establishes a limit of $3, 500 on
compensation to appointed attorneys who represent capital
defendants at trial. Notwithstanding this provision, the state
trial court awarded respondent the $9,500 he requested, declaring
that " 'in setting rigid maximum fees without regard to the
circumstances in each case[, 925.036] is arbitrary and capricious
and violates the due process clause of the United States and
Florida Constitutions.' "
491 So. 2d
1109, 1111 (1986). The Fourth District Court of Appeals quashed
the trial court's order declaring 925.036 unconstitutional and
certified several pertinent questions to the Florida Supreme Court.
464 So. 2d 1281 (1985). The Supreme Court held, inter alia, that
the statute, while facially valid, was unconstitutional as applied
to this case. The court reasoned:
"[W]e find that the statutory maximum fees, as inflexibly
imposed in cases involving unusual or extraordinary circum-
______--- * Florida Stat. 925.036 (1985) provides, in relevant
part:
"(1) An attorney appointed pursuant
to s. 925.035 or s. 27.53 shall, at the conclusion of the
representation, be compensated at an hourly rate fixed by the chief
judge or senior judge of the circuit in an amount not to exceed the
prevailing hourly rate for similar representation rendered in the
circuit; however, such compensation shall not exceed the maximum
fee limits established by this section. . . .
(2) The compensation for representation shall not exceed
the following:
(a) For misdemeanors and juveniles represented at the
trial level: $ 1,000.
(b) For noncapital, nonlife felonies represented at the
trial level: $ 2,500.
(c) For life felonies represented at the trial level:
$3,000.
(d) For capital cases represented at the trial level:
$3,500.
(e) For representation on appeal: $2,000."
Page 479 U.S.
1043 , 1045
stances, interfere with the defendant's sixth amendment right
'to have the assistance of counsel for his defense.' The statute,
as applied to many of today's cases, provides for only token
compensation. The availability of effective counsel is therefore
called into question in those cases when it is needed most.
* * * * *
[Section 925.036] interferes with the sixth amendment right to
counsel. . . . [W]e must not lose sight of the fact that it is the
defendant's right to effective representation rather than the
attorney's right to fair compensation which is our focus." 491 So.
2d at 1112.
This Court has never held that the Sixth Amendment right to
counsel, made applicable to the states by the Fourteenth Amendment,
requires the states and their political subdivisions to pay
appointed counsel reasonable compensation for their services.
Indeed, under our existing cases, I discern nothing in the Sixth
Amendment that would prohibit a state from requiring its lawyers to
represent indigent criminal defendants without any compensation for
their services at all. By my view, Florida had no Sixth Amendment
duty to enact 925.036; it follows a fortiori that the Sixth
Amendment does not require the state or its political subdivisions
to pay more than the limits established in that statute. This view
is consistent with our decision in Powell v. Alabama,
287 U.S. 45 (1932). There,
the Court held that a state trial court had a duty to assign
counsel in a capital case where the defendant was unable to employ
an attorney and was incapable of representing himself. The Court
asserted that "[a]ttorneys are officers of the court, and are bound
to render service when required by such an appointment." Id., at
73, 53 S. Ct. at 65.
Even were I not of this view, I would still vote to grant the
petition for certiorari because the decisions in these cases
conflict with the decisions of other courts. In Williamson v.
Vardeman,
674 F.2d
1211, 1214 (1982), for example, the Eighth Circuit held that
the courts of Missouri could constitutionally compel private
attorneys to represent indigent defendants without compensation for
their services. And, in New Jersey v. Rush, 46 N.J. 399,
217 A.2d
441 (1966), the Supreme Court of New Jersey expressly rejected
the argument that the Sixth Amendment mandates payment of fees to
appointed counsel. The court assumed-perhaps
Page 479 U.S.
1043 , 1046
gratuitously-that an attorney had standing to assert the Sixth
Amendment right of his client, and stated that it knew "of no data
to support a claim that an assigned attorney fails or shirks in the
least the full measure of any attorney's obligation to a client. .
. . A lawyer needs no motivation beyond his sense of duty and
pride." Id., at 405-406, 217 A.2d at 444.
This petition presents an important issue of constitutional law
that the Court should address. I respectfully dissent from the
denial of certiorari.
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