Summary
stating that alleged incompetent person had a right to counsel at guardianship proceeding "and if she could not afford counsel, the court was obliged to assign counsel because required to do so by statute . . . and because her constitutionally protected liberty interests were at stake"
Summary of this case from In re C.F.C.Opinion
Decided December 20, 1996
APPEAL, on constitutional grounds, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered April 2, 1996, which affirmed an order and judgment (one paper) of the Supreme Court (Kristin Booth Glen, J.; opn 159 Misc.2d 932), entered in New York County, adjudging that Marie H. is entitled to counsel as a matter of constitutional right at public expense, ordering the City of New York, Assigned Counsel Plan (18-B panel) to pay counsel for Marie H. an amount to be determined upon the presentation of the usual voucher for his fee in accordance with regular 18-B practice, and ordering that in any proceeding brought pursuant to Mental Hygiene Law article 81 within the City of New York in which the petition seeks powers for a guardian of the person to either place the indigent allegedly incapacitated person (AIP) in a nursing home or other institutional facility, or to make major medical decisions, an indigent AIP is constitutionally entitled to counsel at public expense, and that if Mental Hygiene Legal Service is not appointed to serve as counsel, the City of New York, Assigned Counsel Plan (18-B panel) shall pay for the cost of counsel for the indigent AIP in an amount to be determined upon the presentation of the usual voucher in accordance with regular 18-B practice.
Paul A. Crotty, Corporation Counsel of New York City (Alan G. Krams and Kristin M. Helmers of counsel), for appellant. Disability Advocates, Inc., Albany (Cliff Zucker of counsel), for Marie H., respondent.
Kenneth Falk, New York City, Michael Colodner and John Eiseman for New York State Office of Court Administration, respondent.
Dennis C. Vacco, Attorney-General, New York City (Amy L. Abramowitz and Barbara G. Billet of counsel), for State of New York, respondent.
Steven S. Zaleznick, Bruce B. Vignery, Julie Campbell and Vicki Gottlich, of the District of Columbia Bar, admitted pro hac vice, for American Association of Retired Persons and others, amici curiae.
Matter of St. Luke's-Roosevelt Hosp. Ctr. (Marie H. — City of New York), 226 A.D.2d 106, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In November 1993, St. Luke's-Roosevelt Hospital Center initiated a proceeding pursuant to article 81 of the Mental Hygiene Law for the appointment of a guardian for respondent, an indigent alleged incompetent person (AIP), for the purpose of transferring her to a nursing home and making major medical or dental treatment decisions without her consent. The AIP had a right to be represented by counsel of her choice in those proceedings if she could afford one (Mental Hygiene Law § 81.10) and if she could not afford counsel, the court was obliged to assign counsel because required to do so by statute (Mental Hygiene Law § 81.10 [c]) and because her constitutionally protected liberty interests were at stake (see, Lassiter v Department of Social Servs., 452 U.S. 18; Rivers v Katz, 67 N.Y.2d 485). Supreme Court named an attorney as counsel for respondent and Mental Hygiene Legal Services as an independent court evaluator (see, Mental Hygiene Law §§ 81.09, 81.10; Bailly, Practice Commentaries, McKinney's Cons Laws of NY, Book 34A, Mental Hygiene Law § 81.10, at 314). Though the statute is silent as to the source of funds for payment of counsel if the AIP is indigent, the Supreme Court determined that competent counsel could not be obtained to represent the AIP without compensation. After remand to provide the City of New York with an opportunity to contest the issue, Supreme Court held that the City must pay for the court-appointed attorney at the rates provided in article 18-B of the County Law. A divided Appellate Division affirmed those determinations ( 226 A.D.2d 106).
The dissenter concluded that Supreme Court had abused its discretion in requiring the appointment of counsel who had to be compensated when it could have avoided the dilemma by simply removing Mental Hygiene Legal Services as evaluator and appointing it to represent the AIP. We conclude the court did not abuse its discretion as a matter of law in failing to do so.
The parties agree that the AIP was entitled to assigned counsel. The dispute between them is whether the court may require that counsel be paid and if so, by whom. We conclude that the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel. There remains the question of whether the City or the State is responsible for that compensation.
The two pertinent statutes are article 18-B of the County Law (§§ 722 — 722-f) and section 35 of the Judiciary Law. Assignments under article 18-B are paid for by the county (and by New York City for the five counties therein, see, § 722-e). Appointments under section 35 of the Judiciary Law are paid for by the State (§ 35 [5]). Although the statutes are silent on who should pay counsel in Mental Hygiene Law article 81 proceedings, the responsibility of paying for assigned counsel in the overwhelming majority of cases in which the appointment of counsel for indigents has been authorized has fallen upon the locality under article 18-B, rather than the State pursuant to Judiciary Law § 35. The evidence in the record before us establishes that article 18-b panels are better able, both financially and practically, to provide the needed assistance under this provision of the Mental Hygiene Law. Accordingly, in the absence of legislation directing otherwise, we affirm the determination of the courts below that assignment of counsel here is appropriately funded by the City of New York in accordance with the procedures set forth in County Law article 18-B.
Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur; Chief Judge KAYE taking no part.
Order affirmed, with costs, in a memorandum.