February 9, 1989
Mr. Douglas N. Papendick
Davison County State's Attorney
Davison County Courthouse
Mitchell, South Dakota 57301
OFFICIAL OPINION NO. 89-05
County establishment of indigent defense representation
Dear Mr. Papendick:
You have requested an official opinion from this office relating to the following factual situation:
FACTS:
The Davison County Board of Commissioners is currently looking into various alternatives to provide for representation of indigent defendants within the county. Specifically, the county commission would like to fulfill their statutory requirement for providing such representation in a manner which is more economically feasible than is presently the case. The method currently being implemented by Davison County is a case-by-case disbursement at preauthorized hourly rates. In the past, a flat rate schedule had been implemented in an attempt to stabilize the costs associated therewith.
In an attempt to bring these costs down to a more manageable and predictable level, the county commission is currently considering the use of a bid process to engage the professional services of an attorney or law firm to handle the bulk of legal representation of indigent criminal defendants in the county. There would necessarily need to be exceptions made, however, in cases of conflict of interest, capital cases, habeas corpus proceedings, appellate work, etc. When these situations arose, it would be left up to the court to appoint appropriate representation which would be charged against the county on an hourly rate as is currently the case.
It is proposed that the attorney or law firm which would be awarded the professional services contract for indigent defense representation would not be considered county employee(s) nor would the county commission be responsible for the establishment, maintenance, or overhead expenses normally associated with the operation of the attorney(s) office. Thus, the county commission is not contemplating creating a public defender's office, per se. Rather, they are seeking a legitimate alternative to the current method utilized for providing for such representation.
QUESTION:
Does SDCL 23A-40-7 permit the Davison County Board of Commissioners to enter into a professional services contract with an attorney or law firm within the county to provide for the bulk of indigent defense representation for the county?
SDCL 23A-40-7 specifically provides that:
The board of county commissioners of each county and the governing body of any municipality shall provide for the representation of indigent persons described in 23A-40-6. They shall provide this representation by:
(1) Establishing and maintaining an office of a public defender;
(2) Arranging with the courts in the county to appoint attorneys on an equitable basis through a systematic, coordinated plan; or
(3) Adopting a combination of subdivisions (1) and (2) of this section.
In those counties which have established an office of public defender, any proceedings after judgment may be assigned to the public defender.
In regard to subsection (1) of the foregoing statute, the county commission has indicated that it does not wish to establish and maintain a public defender's office. Yet, under subsection (2), they would like to give all the attorneys in the county the opportunity to handle the bulk of the indigent defense work in an attempt to stabilize the expense associated therewith. Subsection (3), however, sets forth that a county can provide this representation by combining different characteristics of the two previously mentioned methods.
The proposed plan to contract out for professional services through a bid process will follow the spirit of the law if the opportunity to bid is open to all attorneys who would like to submit a bid therefor. The fact that the arrangements are to be made on an equitable basis pursuant to statute does not necessarily relate to a case-by-case arrangement. Instead, the bidding process itself can prove to be equitable to all interested parties over a period of time. It is important to note that the statute does not specify how the county commission may go about making arrangements for indigent representation. The bid process certainly would seem to be a viable option for setting up this type of an arrangement with the courts.
Moreover, it would be my opinion that the final selection process must necessarily involve a systematic inquiry into the attorney or law firm's ability to handle the potential caseload, experience, qualifications, etc. for it to be an acceptable arrangement. In addition, it should be remembered that before any such agreement is finalized, the court should be consulted about the proposed plan and its approval must be achieved. Without the court's approval, I do not believe the county can force the court to honor the professional services contract for such representation. It cannot be contended, however, that the circuit court is solely responsible for the establishment of indigent defense representation under SDCL 23A-40-7(2). Rather, the county commission may arrange with the court to provide for such representation on an equitable basis as previously indicated and under a systematic and coordinated plan which is workable for all. In proposing a plan as is questioned herein, the county commission is merely seeking to fulfill their statutory obligation of providing the necessary representation for indigent persons. Under the proposed plan, the court would not be obligated to assign a case to the contracting attorney in every instance. The attorney would simply be agreeing to be available for appointments to such representation in a majority of cases where a defendant establishes indigency.
In addition, I see no reason to limit bid proposals to individual attorneys or firms. By that I mean a group of otherwise unassociated attorneys could submit a joint proposal agreeing to provide these services jointly as opposed to individually. This arrangement would assure equity when considering sole practitioners versus multi-member firms.
By providing for indigent defense representation under a professional services contract, the county commission would simply be contracting for the attorney or law firm's professional services. They would not be attempting to act in an advisory or management capacity. The control of the office would lie directly with the attorney or attorneys who are responsible therefor, and it would not be subject to supervision by the county commission or any other body. In this way, the proposed arrangement would differ from the creation of an actual public defender's office. See SDCL 7-16A-3, 7-16A-4, 7-16A-5. Moreover, such an arrangement would not provide for the unlawful expenditure of public funds because there is no direct prohibition against providing for indigent defense representation in the proposed manner. Unlike the situation in Simpson v. Tobin, 367 N.W.2d 757 (S.D. 1985), the proposed plan does not entail the expenditure of public funds in direct contradiction to state statute. In fact, the county is ultimately responsible for paying the expenses associated with appointments for indigent representation. The manner in which they choose to expend these funds is not outcome determinative of the question involved herein. Nevertheless, as previously indicated, before the proposed plan were to be implemented, it must necessarily be offered to the circuit court in an attempt to present a workable and effective arrangement for all involved.
In light of the foregoing, it is my opinion that the answer to your question is "Yes." The Davison County Board of Commissioners may seek to provide for the representation of indigent persons within their county through the acceptance of bids for a professional services contract with a licensed attorney from the county. The purpose of this contract would be to provide for the bulk of the county's indigent defense representation. Yet, the county would not be going so far as to create a public defender's office. The implementation of the proposed systematic and coordinated plan for these appointments should, however, include the input of the circuit court.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
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