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Unjust taking???

I've devoted more than a few electrons in the past few weeks to the subject of appointed counsel fees -- you can read through them here -- suggesting the possibility of court action to correct the paltry compensation awarded to lawyers tasked with representing indigents, and lo and behold:  out of the Second District comes State v. Sells, a case on that very subject.  Sells was charged with aggravated murder with a death penalty specification, which was dismissed by the state just prior to trial.  Sells was found guilty, and the two lawyers who'd been appointed to represent him then filed an application for extraordinary fees, claiming that they'd spent 800 hours on the case, or substantially more than Miami County's cap of $20,000 for capital cases.  The court of appeals didn't buy it.

Which isn't at all surprising, considering the argument the lawyers raised.  They didn't argue that paying attorneys hourly fees that would have been regarded as penurious during the Ford administration might have some impact upon the quality of that representation, and thus potentially deny defendant's the right to effective representation of counsel.  No, what they argued was that not paying them an adequate fee representated an "government taking without just compensation," in violation of the 5th Amendment's taking clause.

If your IQ is above room temperature, you can probably spot the flaw in that argument.  It would be one thing if they'd tried to turn down the appointment, and the court had refused to let them off the case.  That didn't happen here.  So how can they claim that the government "took" something which they voluntarily gave?

Unfortunately for the two lawyers, the appellate panel did have an IQ above room temperature, and quickly shot down their argument, citing numerous cases to the same effect, including the ones where doctors had made the same claim with regard to Medicare fees, and the courts replied, "Well, then don't sign up to take Medicare patients."  And yes, speaking of doctors, this does bear more than a little resemblance to the old joke:  Guy goes into a doctor, says, "Doc, it hurts when I do this."  Doc says, "So don't do that."  Badda bing, badda boom.

What was interesting about the case, though, is that the panel went on to address the 6th Amendment argument about low fees resulting in ineffective assistance of counsel:

In our view, however, whether a fee cap may operate to deprive a particular indigent defendant of his Sixth Amendment right to the effective assistance of counsel presents a different question than whether the cap deprives an attorney who voluntarily agrees to accept an appointment thereunder of his property within the meaning of the Fifth and Fourteenth Amendments. If the existence of a fee cap results in a given defendant being unable to obtain effective representation, then he may have a valid Sixth Amendment argument. It does not follow, however, that an attorney who voluntarily agrees to accept a criminal appointment subject to a fee cap also has a viable takings claim. Whereas the fee cap at least theoretically could deprive an indigent defendant of his Sixth Amendment rights, it cannot deprive an attorney who volunteers for appointment of his Fifth Amendment right to just compensation because, as explained above, government compulsion is lacking. Moreover, there is no evidence or argument in this case that the existence of Miami County's fee schedule operated to deprive the appellants' client of his Sixth Amendment right to the effective assistance of counsel.

That last sentence suggests one of the problems in doing the basis of a "direct appeal" -- i.e., an appeal from a denial of extraordinary fees -- as opposed to a civil suit:  your chances of being able to build a record are much greater in the latter than the former.  Plus, I think you're better off doing it in Federal court, for reasons which should be obvious to.... well, see "room temperature" comment above.


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