For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
The appellants in these consolidated appeals are attorneys who were assigned in January 1968 to represent two indigent juveniles charged with delinquency in the Union County Juvenile and Domestic Relations Court. After the completion of their services they applied to the court for an allowance of compensation, to be paid by the County Treasurer. We had previously held that compensation was not to be awarded to assigned counsel in proceedings before the juvenile courts. State in re Steenback, 34 N.J. 89, 103-104 (1961). Pointing to the requirement of counsel for juveniles laid down by In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2 d 527, (1967), appellants' contention was that the later holding of State v. Rush, 46 N.J. 399 (1966), with respect to county payment of compensation to attorneys assigned to represent indigent adults charged with crime, should be extended to cover those assigned in juvenile causes as well. No question was raised as to the reasonableness of the amounts sought. The court denied the requests, 101 N.J. Super. 385 (1968), and the attorneys appealed to the Appellate Division. We certified the matter on our own motion before argument there. R.R. 1:10-1.
In Rush, handed down March 7, 1966, we decided that the time had come to relieve the bar of the task of defending, without any compensation except in cases of murder, indigent adults accused of crime, i.e., indictable offenses. This obligation, which included representation on appeals and post-conviction applications, had existed in this state since 1795 -- more than 150 years before the United States Supreme Court put the indigent's right to counsel on a federal constitutional
basis -- and had been distributed among the members of the bar in each county by assignment in alphabetical rotation. See former R.R. 1:12-9. We held that compensation, computed at 60% of the fee a client of ordinary means would pay an attorney of modest financial success, should be paid by the county, on order of the trial court, to attorneys assigned in "non-murder" cases after January 1, 1967. We further stated that assigned attorneys were already entitled to receive reimbursement of their out-of-pocket expenses since State v. Horton, 34 N.J. 518 (1961). The delayed date was fixed in order to give the legislature an opportunity to determine "whether this obligation of the State should be met by the present system of assignment in individual cases, or by a public defender, or some combination of both." 46 N.J., at 415.
The considerations and bases for the Rush conclusion are fully set forth in the opinion and need not be repeated here beyond saying that the exercise of our power was dictated by the vastly increased burden of such assignments in recent years, both by reason of the constantly growing number of such cases and the greater amount of time required for each, which had resulted in an unfair portion of a public obligation being placed upon the profession. We had in mind not only the burden of assignments in cases of indictable offenses, but also that of those then made on a selective basis in juvenile causes (see former R.R. 6:3-4 and 6:9-1 (a) and (b)) and in the local criminal courts involving non-indictable offenses (see former R.R. 8:3-3 (b)). In addition we recognized that members of the bar were also called upon from time to time to represent indigents in civil matters, especially in counties where legal aid organizations had no paid professional staff. (Most of this service has since been assumed by legal services projects established in the various counties by the Office of Economic Opportunity in the state Department of Community Affairs, N.J.S.A. 52:27 D -1, et seq.).
The legislature thereafter decided that New Jersey should have a statewide Public Defender system, N.J.S. 2 A:158 A -1, et seq., L. 1967, c. 43, and appropriated funds to put the system in operation effective July 1, 1967. The statute in section 1 set forth a declaration of state policy:
"It is hereby declared to be the policy of this State to provide for the realization of the constitutional guarantees of counsel in criminal cases for indigent defendants by means of the system and program established and authorized by this act to the end that no innocent person shall be convicted, and that the guilty, when convicted, shall be convicted only after a fair trial according to the due process of the law."
It went on expressly to specify that "[i]t shall be the duty of the Public Defender to provide for the legal representation [through staff attorneys or lawyers engaged by him on a case basis] of any indigent defendant who is formally charged with the commission of an indictable offense" (N.J.S. 2 A:158 A -5), including direct appeals from convictions and post-conviction proceedings. Necessarily also included by implication was representation of such persons in preliminary proceedings in local criminal courts. While the statute did not explicitly include representation with respect to custodial interrogation and identification or the like before a formal charge is actually made, we are of the view that legal services constitutionally required in such situations are fully within the broad declaration of policy and we understand that the Public Defender, quite properly, is furnishing counsel in such situations in the interest of continuity and expedition of representation. It is to be noted, however, that the statute did not provide for the representation of juveniles or persons charged with non-indictable offenses.
We thereafter amended our rule dealing with the assignment of counsel, effective July 1, 1967, to tie in with the Public Defender law with respect to counsel for adults charged with indictable offenses. R.R. 1:12-9(a) and (b).
The upshot was that the precise holding of Rush, providing for county compensation of individually assigned counsel, was effective only as to assignments made between January 1, 1967 and July 1, 1967. It may be added that R.R. 1:12-9(c) and (d) and 3:2-3(b), also amended at the same time, provided more specifically for the individual assignment of counsel by the court under the old rotation system for those indigents charged with non-indictable offenses who are "constitutionally or otherwise entitled by law to counsel". The former rule and assignment system was continued as to juvenile causes where the ...