June 6, 2016

State high court says flat fees for public defenders are OK

Joe Gratz


The New Mexico Supreme Court ruled Thursday that flat-fee rates paid by the state’s Public Defender’s office to contract attorneys in criminal cases does not violate an indigent person’s right to effective counsel as guaranteed by the U.S. Constitution.

Photo Credit: Joe Gratz cc

Joe Gratz

Photo Credit: Joe Gratz cc

The unanimous ruling vacated a lower court order that the Law Office of the Public Defender pay a minimum of $85 an hour to attorneys in criminal cases for indigent clients, and it affirmed the state Legislature’s decree that the Public Defender not pay contract attorneys an hourly rate, but rather a flat-fee rate.

“We find no basis to presume that any indigent defendant currently represented by contract counsel necessarily receives constitutionally deficient assistance,” the court’s opinion said. “We assume that attorneys represent their clients honorably, consistent with both their professional duties and the terms under which they contract with the LOPD to provide indigent defense.”

The opinion rose out of criminal cases in Lincoln County in 2012 and 2014 against Santiago Carrillo, who was charged with voyeurism, possession of drug paraphernalia and criminal sexual penetration. He filed a motion asking a judge to order the LOPD to pay his contract attorney, Gary Mitchell, $85 an hour. At the time, the Public Defender’s office was paying contract attorneys in Lincoln County flat-rate fees ranging from $180 to $700 per case.

Carrillo argued that his attorney couldn’t provide an effective defense unless he had sufficient funds to do so and that a flat-rate fee wasn’t sufficient.

In 2015, a state District Court judge agreed and ordered the LOPD to pay contract attorneys a minimum of $85 an hour.

The problem, though, was that the state Legislature, in its FY2016 budget, had specifically prohibited the Public Defender from paying hourly rates to contract attorneys. In many ways, it was a money issue. That year, the LOPD requested a budget of $96 million, $45.7 million of which was to be for contract attorneys. Instead, the Legislature appropriated $12.8 million for contract legal services.

When making the appropriation, the Legislature wrote, “the appropriations to the public defender department shall not be used to pay hourly reimbursement rates to contract attorneys.”

The District Court judge who ordered the LOPD to pay contract attorneys an hourly rate also nullified the Legislature’s ban on the hourly rates.

But in its opinion, the Supreme Court said the Legislature had to authority to order the ban on hourly rates. “We have consistently maintained that the Legislature has the power to affix reasonable provisions, conditions or limitations upon appropriations and upon the expenditure of funds appropriated,” the opinion said. “On the facts presented, we do not conclude that the Legislature’s condition is unreasonable.”