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Duffy v. Circuit Court For the Seventh Judicial Circuit2/11/2004
umstances. For example, the court's action in reducing the fee does not start out as a lawsuit in the usual way by one party serving a summons and complaint. Neither the attorney nor the court is a party in the underlying case. The attorney is involved only because the court ordered the attorney to represent the indigent party. When the underlying case is appealed, the attorney fee issue may not be ripe for appeal because the attorney's services have not been completed. Additionally, the attorney on appeal may not be the same attorney that tried the case below.
. The trial court's review of court appointed attorney fees is more in the form of an administrative function collateral to the underlying case. It is unlike other cases which allow a court to award attorney fees as part of the judgment to be paid by the opposing party, such as in a divorce or condemnation action. Court appointed attorney fees are not paid by the opposing party but from the county treasury. The procedures governing the submission, approval and review of attorney fees is set by the presiding judges and is separate from the underlying case. SDCL 23A-40-8, 23A-40-9.
Scope of Review
. Courts that have found a writ of certiorari an appropriate means to bring the issue before a higher tribunal have limited the scope of review. Lunde v. Ruigh, 356 NW2d 566, 569 (Iowa 1984); Bye, 701 P2d at 60 (Colo 1985). The Iowa Supreme Court limits review to whether the lower court used the correct legal standard and whether it abused its discretion in applying the correct legal standard. Lunde, 356 NW2d at 569. The Iowa Court stated:
here are two types of challenges to trial court orders determining compensation for court-appointed counsel; (1) those asserting that an incorrect legal standard has been applied in fixing fees; and (2) those asserting an abuse of discretion in the application of the proper legal standard. We pointed out in Walters that:
Our scope of review depends on what part of the challenge is being considered. Plaintiff's assertion that an incorrect legal standard was applied is reviewed on error. When an incorrect standard is applied we remand for new findings and application of the correct standard. When a correct legal standard is applied our review is greatly circumscribed; we affirm unless the trial court's discretion "was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable."
Lunde, 356 NW2d at 569 (citing Walters v. Herrick, 351 NW2d 794, 796 (Iowa 1984)). The Court further clarified an "abuse of discretion" challenge as limited to whether the lower court "abused its discretion to the extent that it acted illegally in setting the fee." Green, 415 NW2d at 609.
. Similarly, Colorado courts limit a review of court appointed attorney fees to whether a lower court "has exceeded its jurisdiction or abused its discretion in exercising its functions, and appeal is not an appropriate remedy." Bye, 701 P2d at 59 (citing Prudential Property & Casualty Insurance Co. of America v. District Court, 617 P2d 556, 558 (Colo 1980)).
. We determine that Duffy has properly brought this matter as a writ of certiorari because in this case, "there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy." SDCL 21-31-1. However, the scope of review is limited to whether the trial judge and/or the Seventh Circuit court "has regularly pursued the authority of such court." SDCL 21-31-8. In order to determine whether the court has "regularly pursued" its authority, it is important to review the background of court appointed attorney fees and the court's authority i
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