On certification to the Superior Court, Appellate Division.
Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
The question before us is whether this Court should order government to pay attorneys who are assigned by the municipal court to represent defendants too poor to pay for counsel. Assuming our power to do so, we nevertheless conclude that the answer is no, at least not now. We reach that Conclusion in view of the substantial number of municipalities presently making such payments or providing public defenders without being so ordered; in view of the probable increase in the number of municipalities that will do so in the future; and in view of the substantial preferability of the continued cooperation between the judiciary and the municipalities as compared to the inevitable confrontation that would result between the branches of government if such orders were to issue. In the meantime, the bar, which has shouldered the sometimes heavy burden of what is clearly an obligation of the public, an obligation imposed on the state constitutionally, see Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), and "as a matter of simple Justice," Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971), will have to continue to bear it, as it has borne so many others for so many years. We shall continue to encourage the other branches of government to lessen that burden and perhaps eliminate it. And in any event, we shall, by this decision, assure that the burden is more equally distributed among members of the bar. We shall do both not for the purpose of diminishing the traditional role of the bar in serving the public pro bono, for the bar seeks no such relief -- indeed, its service to the public without pay today is probably greater than at any time. We shall do both only because this form of pro bono service -- representing indigent defendants in municipal court matters -- is inevitably not only inefficient but unfair to indigent defendants who suffer with unequal Justice.
Up-to-date figures supplied by the Administrative Office of the Courts (AOC) show that today there are 307 municipal courts with public defenders. The survey of municipal courts taken in 1986, mentioned later and relied on at trial, showed 110 municipal courts with public defenders. The rough extrapolation used by the parties (the survey, of all municipal courts, produced a two-thirds response rate), suggested a total, statewide, of 165 municipal courts with public defenders at that time, compared to 307 now. While the situations are not identical, we note that more than 500 municipalities, without court order, have appointed municipal prosecutors.
Our decision today is based on our belief that more municipalities will join those who have appointed public defenders to represent indigent defendants (or who pay designated counsel to do so), thereby not only relieving the bar of this burden but increasing the likelihood of effective, fair, and equal representation of the poor, as well as more efficient operation of the municipal court. If that belief proves incorrect, we assume the Legislature will address this problem. Cf. State v. Rush, 46 N.J. 399, 413 (1966) ("If legislation [is] necessary, it is idle to suppose it [will] not be enacted."). Put differently, although most unsatisfactory, the situation today does not call for statewide action by this Court. We cannot forever accept a system so clearly inefficient, historically unfair, and potentially unconstitutional. We stay our hand only because we believe other branches of government, state, county, and local, are equally able to address the problem, equally committed to meeting the constitutional obligation, and equally concerned with the unfairness that inevitably affects the present system.
We may be forced, however, to consider appropriate action in some areas of the state. For instance, as noted later, Jersey City, which has had a public defender system since 1973, recently terminated it (effective July 1, 1991), forcing the municipal court to assign counsel to indigent defendants without compensation. The extent of potential unfairness to defendants and to the bar may be unacceptable, even considering our policy favoring voluntary cooperation. The basis for our decision today -- the voluntary movement of municipalities towards public defender systems or paid counsel -- is seriously threatened by this development.
The trial court's decision sustained the constitutionality of the system of attorney representation then in effect. It did so because of our decision in Rush, not because it agreed. Indeed, it explicitly found the system of assigning counsel not only unfair and inefficient but unconstitutional. It believed, however, that to so rule was beyond its power in view of the decision in Rush and the Appellate Division decisions that followed. The Appellate Division agreed. Madden v. Delran, No. A-5602-87 (App. Div. June 29, 1989). As the trial court said, "the issue is now ripe for the Supreme Court's consideration." Madden v. Delran, No. L-099058-86 at 22 (Law Div. June 15, 1988).
The legal setting is familiar. The municipal court assigned plaintiff to represent an indigent defendant accused of driving while intoxicated. On completion of the case he submitted his bill for counsel fees to the municipality, which declined to pay. We may assume that he knew the assignment was pro bono, that he would not be paid, and that under established law he had no legal right to be paid. See In re Antini, 53 N.J. 488, 495 (1969); Rush, supra, 46 N.J. at 412; State v. Monaghan, 184 N.J. Super. 340, 343 (App. Div. 1982); In re Spann Contempt, 183 N.J. Super. 62, 65 (App. Div. 1982); Norton v. State, 167 N.J. Super. 212, 216 (App. Div. 1979). In the best traditions of the bar, he sought to change the established law. He brought suit for his fees. He did so not for personal gain -- for when the municipality, after suit was started, tendered full payment of his bill, he refused it but to remedy the clearly unsatisfactory system in his county of assigning counsel at the municipal court level.
The trial court treated his refusal to accept payment as having the effect of converting his suit for legal fees into one for a declaratory judgment that the present system was unconstitutional and that assigned counsel must be compensated. Various orders and amended pleadings to that effect were filed. We therefore face the underlying issue of whether counsel must be compensated when assigned by a municipal court to represent an indigent defendant constitutionally entitled to counsel because accused of an offense for which conviction entails a "consequence of magnitude."*fn1 Rodriguez, supra, 58 N.J. at 295.
If not for the record in this case, discussed later, the answer would be simple. Every constitutional claim that plaintiff asserts was disposed of in Rush. The taking of private property for public use without just compensation, denial of due process, denial of equal protection, denial of the right to counsel, all were either explicitly or implicitly rejected in that case. See 46 N.J. at 405-09. As for the denial of counsel, we found that it could not be said "that assigned counsel are less qualified than counsel privately retained," id. at 406; in response to the contention that "our system of assignment casts an unequal burden as among members of the profession," we noted that our Rule (then R.R. 1:12-9(e)) "[was] designed to distribute the burden equally, subject only to such variations as may be dictated by the complexity of a case or other considerations relevant to the objective of full, competent representation," and that the Rule "seeks to assure such equality of treatment as the subject will permit," id. at 409; and further, that there was no showing that the plan envisioned by the Rule "has been enforced unequally, let alone invidiously." Ibid. Concerning all other constitutional claims, we observed that "the duty to defend the poor is a professional obligation rationally incidental to the right accorded a small segment of the citizenry to practice law." Id. at 408. The only qualifications to these holdings were that "conceivably the burden upon the bar could reach such proportions as to give the due process argument a force it does not now have," ibid., and implicitly, the further possibility that the equality of burden as among members of the profession then found might change. Id. at 409.
Despite the rejection of those constitutional claims, we decided in Rush as a matter of policy to exercise our power to relieve the bar of its pro bono obligation to defend indigents accused of crime. Id. at 412. We did so because the obligation had become oppressive, even if not unconstitutional, and was likely to become even more so. The decision was read as requiring the counties thereafter to bear the costs. Antini, supra, 53 N.J. at 491. In Antini, although we declared that our power in accordance with Rush to compel payment of assigned counsel for juveniles would apply, we declined to exercise that power because the Legislature, prior to ...