California Attorney General Opinion No. 81-113

_________________________ ________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 81-113 : of : MARCH 26, 1981 : GEORGE DEUKMEJIAN : Attorney General : : Randy Saavedra : Deputy Attorney General : : The Honorable Willie Brown, Jr., Speaker of the Assembly, has requested an opinion on the following question: Must a county pay the costs of providing court-appointed counsel for indigent defendants in paternity cases? CONCLUSION A county is not required to pay the costs of providing court-appointed counsel for indigent defendants in paternity cases. ANALYSIS The California Supreme Court in the case of Salas v. Cartez (1979) 24 Cal. 3d 22 held that: 1 81-113 “ . . . in proceedings to determine paternity in which the state appears as a party or appears on behalf of a mother or child, indigent defendants are constitutionally entitled to appointed counsel.” (Id., at p§ 34.) The majority opinion in Salas did not address the issue of the payment of costs for appointed counsel. In fact, the dissenting justices accused the majority of being “strangely silent on the critical question-who is going to pay for counsel?” (Id., at p. 42.) In addressing the issue of a county’s obligation to pay for the services of court appointed counsel, two questions will be examined. First, is there any statutory authority to require the counties to pay such fees in a paternity action. Second, if the answer to the first question is no, can the court require the county to pay attorney fees in the absence of legislative authority. In examining the question of whether statutory authority exists to require the payment of attorneys’ fees by counties in paternity suits in which the state represents, or acts as, a party, we were unable to find any statute which would require such payment or would allow the courts to order such payment. Although there are a number of legislative enactments authorizing compensation for appointed counsel,1 none of these statutes apply to counsel appointed in actions to determine paternity. The Uniform Parentage Act (Civ. Code, § 7000 et seq.) permits a court to order parties to a paternity action initiated under the Act to pay “reasonable fees of counsel . . . in proportions and at times determined by the court.” (Civ. Code, § 7011.) However, a county is not permitted to act as a party in such an action although the district attorney may, pursuant to Civil Code section 7006(g), initiate a paternity action on behalf of another party (such as a child) in the interests of justice.” (County of Los Angeles v. Superior Court, supra, 102 Cal. App. 3d 926.) Therefore, although participation of the “the state” in the person of the district attorney as representative of a party would, pursuant to Salas, require appointment of counsel for an indigent defendant, there is no provision for payment of the attorney by the county because it is not a party. A county is permitted to act as a party in an action to enforce support obligations pursuant to Welfare and Institutions Code section 11350 et seq. As such an 1 For example, Penal Code sections 987.2-987.8 and 1241 authorize appointment of counsel at public expense for indigent defendants in criminal cases. The same is authorized in juvenile court proceedings by Welfare and Institutions Code sections 317, 318.5, and 634; in mentally disordered sex offender proceedings by Welfare and Institutions Code section 6305; for narcotics addicts in Welfare and Institutions Code section 3104; for developmentally disabled in Welfare and Institutions Code section 4801; and the mentally ill in Welfare and Institutions Code section 5365. 2 81-113 action may include a determination of paternity, an indigent defendant is entitled to appointed counsel. However, an action brought pursuant to section 11350 et seq. was found by the court in County of Los Angeles v. Superior Court, supra, 102 Cal. App. 3d 926 to be separate and distinct from, although similar to, an action brought under the Uniform Parentage Act. (Id., at p. 929.) The same court found that Welfare and Institutions Code section 11350 et seq. contained no provision for payment of attorneys’ fees by any party, including the county. (Id., at p. 930.) The second question, whether a court can require the payment of attorney fees in the absence of legislative authority, was addressed in 40 Ops. Cal. Atty. Gen. 89 (1962) in which we stated: “In the absence of statutory authorization, it has long been established in this State that an attorney is not entitled to compensation or necessary expenses incurred in representing an indigent person upon appointment of the court (Hill v. Superior Court, 46 Cal. 2d 169, 172; Rowe v. Yuba County, 17 Cal. 61, 63; Gibson v. County of Sacramento, 37 Cal. App. 523, 529; 38 Ops. Cal. Atty. Gen. 154; 36 Ops. Cal. Atty. Gen. 85; 26 Ops. Cal. Atty. Gen. 216; 25 Ops. Cal. Atty. Gen. 221).” The courts have reached the same conclusion in three recent cases. In Payne v. Superior Court (1976) 17 Cal. 3d 908, the court held that incarcerated defendants in civil suits were entitled to a meaningful opportunity to be heard before they could be deprived of their property through the courts. Where no other means are available to preserve an indigent prisoner’s right of access to the courts, the court held that counsel must be appointed. The Payne court noted that until the Legislature authorized funds for payment of appointed attorneys, such funds would be unavailable. The court specifically stated that it lacked the power to mandate payment from public funds. Until the Legislature chose to exercise its power to authorize funds for this purpose “attorneys must serve gratuitously in accordance with their statutory duty not to reject ‘the cause of the defenseless or oppressed.’ (Bus. & Prof. Code § 6068, subd. (h).)” (Payne v. Superior Court, supra, 17 Cal. 3d at p. 920, fn. 6.) The issue of payment for the services of a private attorney appointed to represent an indigent prisoner in a civil action was squarely before the court in County of Fresno v. Superior Court (1978) 82 Cal. App. 3d 191. The superior court awarded the attorney $600 in fees and costs and ordered Fresno County to make payment out of its general fund. On appeal by the county, the court held that the superior court lacked the 3 81-113 power to order payment in the absence of legislative action granting such authority and making an appropriation therefor. The court noted that even in criminal actions, where appointment of counsel was most strongly mandated by constitutional considerations, the courts had no power to order payment of counsel but had to rely on attorneys’ ethical obligation to do pro bono work until the Legislature acted to authorize payment. (Id., at p. 196.) The authority of a superior court to order a county to pay attorneys’ fees to a private attorney appointed to defend an indigent father in an action by the county for reimbursement of child support was raised in County of Los Angeles v. Superior Court (1980) /102 Cal. App. 3d 926. The appellate court held that the superior court was without authority to make such an order without legislative authorization. The court examined a number of statutes which might have been interpreted to grant authority to order payment of attorney fees and found that none were applicable in a child support reimbursement action taken pursuant to Welfare and Institutions Code section 11350. The above-cited cases make it clear that a county cannot be ordered to pay the fees of court-appointed attorneys unless there is legislative authority for such an action. This is true even when the appointment itself is constitutionally mandated 2 In summary, a county is not required to pay the costs of providing court appointed counsel for indigent defendants in paternity cases. In the absence of legislation providing for payment of such costs, attorneys appointed by the court must serve gratuirously.3 ***** 2 We recognize that there are several equitable theories which may allow the award of attorney fees against the state. These theories, the “common fund doctrine,” the “substantial benefit rule” and the “private attorney general concept” have been upheld by the California Supreme Court (Serrano v. Priest (1977) 20 Cal. 3d 25), but they have no application to the issue of payment of court appointed counsel for indigent defendants. They are relevant only in cases in which a prevailing plaintiff has recovered or preserved a sum of money; conferred a “substantial benefit,” either pecuniary or nonpecuniary; or vindicated a constitutional right for the benefit of a large class (e.g., taxpayers). Even in the cases where these theories are applicable, the power of the court to actually enforce its awards of attorney fees if the Legislature refuses to appropriate funds for this purpose is in doubt. This issue was argued before the California Supreme Court on February 3, 1981 in Mandel v. Myers, S.F. 24217. 3 As we have determined that a county is not liable for the cost of court-appointed attorneys in paternity actions, it was unnecessary to address the second aspect of your question involving the states obligation to reimburse a county for such costs. 4 81-113