Opinion
5849-08.
Decided February 11, 2009.
Alicia M. Nemec, Esq., Petitioner.
Office of the Attorney General, Attorneys for Respondent (Stephen M. Kerwin, of counsel) The Capitol.
Petitioner, an attorney, moves pursuant to Article 78 and CPLR 3001 for an order and judgment: (a) declaring that respondent's failure to approve in full her request for compensation pursuant to County Law § 722-b is arbitrary and capricious; and (b) directing respondent to pay her $15,825.50 in additional legal fees. Acknowledging that proper service was not made on respondent pursuant to CPLR 307, petitioner also moves for an extension of time to cure the defective service. Respondent Appellate Division of the Supreme Court, Third Judicial Department ("Third Department") cross-moves to dismiss the petition in its entirety, arguing, inter alia, that its challenged fee determination is non-justiciable.
BACKGROUND
This combined action/proceeding arises out of a claim for compensation submitted by petitioner in connection with her work as assigned appellate counsel in a criminal case. On or about October 20, 2004, respondent assigned petitioner as appellate counsel on behalf of an indigent criminal defendant. This representation continued through March 2006. On April 7, 2007, petitioner submitted a claim in the amount of $29,638.49.
On or about April 9, 2008, a panel of five Appellate Divisions justices found that extraordinary circumstances warranted compensation in excess of the statutory cap of $4,400, but reduced the requested award to $13,000 in attorney's fees and $785.99 in costs and disbursements. This application followed.
ANALYSIS
It is the responsibility of the appellate court to fix the compensation and reimbursement of assigned appellate counsel (County Law § 722-b). Compensation for time expended in appellate representation is capped at $4,400 ( id. [b]), but an appellate court may authorize compensation in excess of this statutory maximum in "extraordinary circumstances" ( id.).
Nothing in County Law § 722-b provides for judicial review of the compensation awarded to assigned counsel. Indeed, numerous decisions have rejected the availability of judicial review of compensation awards to assigned counsel, regardless of the procedural vehicle by which such review is sought ( see e.g. Kraham v Mathews, 305 AD2d 746 [3d Dept 2003] [declaratory judgment action], appeal denied 100 NY2d 512); Matter of McLaughlin v Mathews, 290 AD2d 846 [3d Dept 2002] [Article 78 proceeding]; and People v Herring, 279 AD2d 765 [3d Dept 2001] [direct appeal]).
In 2001, in response to the growing practice of certain trial judges authorizing enhanced compensation awards for assigned counsel and the lack of any available "mechanism to review these enhanced awards, either judicially or administratively" ( Levenson v Lippman , 4 NY3d 280 , 286), the Chief Administrative Judge amended Rule 127.2 (b) to give administrative judges the power to review and modify the "order of the trial judge with respect to a claim for compensation in excess of the statutory limit" (( 22 NYCRR 127.2 [b]). Notably, the amendment, by its terms, applies only to compensation orders of a trial judge and not to compensation orders issued by appellate courts.
As the Court of Appeals explained, prior to the amendment, "the trial judge could reconsider the award in consultation with the appropriate administrative judge. The final determination of the fees, however, remained with the trial judge" ( Levenson, supra, n 2).
In upholding amended Rule 127.2 (b) against a claim that it unconstitutionally divested the Appellate Division of its jurisdiction to review compensation orders issued by the Supreme Court by assigning that power to administrative judges, the Court of Appeals explained that the fixing of a compensation award pursuant to County Law § 722-b is "an administrative act not subject to judicial review" ( Levenson, supra, at 288-289). Thus, because "appellate courts have no power to review a trial court's excess compensation award, and [the Court of Appeals'] decisions contemplated administrative review of such awards, section 127.2 (b) does not confer upon an administrative judge any authority that would otherwise belong to the appellate courts" ( id. at 289). Further, the Court of Appeals explained that "[b]y making no provision in the County Law for any review of excess compensation awards, the Legislature simply created a gap in the administrative process that the Chief Administrator was entitled to fill. Otherwise, these awards would be wholly unreviewable" ( id. [emphasis added]).
Accordingly, if petitioner's request for compensation had been set by a trial court, such determination would be subject to review and potential modification by the local administrative judge. And if petitioner remained unsatisfied with the compensation awarded, the Kraham decision suggests the "potential availability of CPLR article 78 review" of the administrative judge's determination ( Kraham, supra, at 105).
In this case, however, petitioner's compensation award was set directly by respondent, the Appellate Division, Third Department. As noted above, Section 127.2 (b) makes no provision for the administrative review of the compensation order of an appellate court. Thus, since neither the Rules of the Chief Administrative Judge nor the County Law make any provision for the review of excess compensation awards rendered by appellate courts, the "gap in the administrative process" identified by the Court of Appeals in Levenson remains and such awards continue to be "wholly unreviewable" ( Levenson, supra, at 201).
Indeed, to hold otherwise would result in the highly anomalous situation of a lower court sitting in judgment of the determination of an appellate court. Further, any challenge to this Court's review would be heard by the same Appellate Division that rendered the challenged award. And, as the Court of Appeals explained in Matter of Director of Assigned Counsel Plan of the City of N.Y ( 87 NY2d 191, 194), allowing a trial court to review the compensation orders issued by an appellate court "is impractical, since the [trial] courts are several steps removed from the circumstances in which the services were rendered and are therefore not well positioned to assess the wisdom of the [appellate judges'] discretionary choices."
As noted by Judge Rosenblatt in his concurrence in Levenson, the Association of Justices of the Supreme Court of the State of New York and Association of Supreme Court Justices for the City of New York opposed Section 127.2 (b), in part because it allows administrative judges to overrule the orders of other judges of "co-ordinate jurisdiction" ( Levenson, supra, at 292). Obviously, having trial judges overrule the orders of judges of superior jurisdiction raises far more substantial issues.
Based on the foregoing, the Court concludes that the compensation of assigned appellate counsel rests in the sole and unreviewable discretion of the appellate courts.
In view of this conclusion, the Court has no occasion to reach the alternative arguments for dismissal offered by respondents. Further, the Court denies petitioner's motion to extend time to effectuate proper service as academic, since even if the petition were properly served, the petition does not state a viable cause of action.
The Court has examined petitioner's remaining contentions and finds them to be without merit.
Accordingly, it is
ORDERED that respondent's cross-motion to dismiss the petition is granted in its entirety; and it is further
ORDERED that petitioner's motion to extend time for service is denied as academic; and it is further
ADJUDGED that the petition/complaint is hereby dismissed.
All papers, including this Decision, Order and Judgment are being returned to the attorneys for there spondent. The signing of this Decision, Order and Judgment shall not constitute entry or filing underCPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.