                                      No. OP 06-0571

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2006 MT 256

              ____________________________________
                                                 )
STEVE L. RIOS and THE OFFICE OF STATE            )
PUBLIC DEFENDER,                                 )
                                                 )
             Petitioners,                        )              OPINION
                                                 )                AND
      v.                                         )               ORDER
                                                 )
JUSTICE COURT, CASCADE COUNTY, SAMUEL L. )
HARRIS, Justice of the Peace,                    )
                                                 )
             Respondents.                        )
             ____________________________________)

¶1     Steve L. Rios and the Office of State Public Defender (OSPD) jointly filed a

Petition for Writ of Supervisory Control. We entered an Order on August 16, 2006,

granting Respondents Justice Court, Cascade County, and Samuel L. Harris, Justice of

the Peace, 15 days in which to file a response to the Petition. The Attorney General

submitted a response on behalf of the Respondents.

¶2     The State charged Rios with traffic offenses and he appeared in Justice Court

before Respondent Judge Harris. Justice Court appointed the OSPD to represent Rios

and required Rios to complete the indigency questionnaire required by § 47-1-111, MCA.

The court also ordered Rios, however, to appear for a hearing to review his eligibility for

public defender services. The court directed him to bring financial documentation to this

hearing. The Petition argues that the court’s actions exceeded its authority under the

statutory provisions governing eligibility of representation by the OSPD.

¶3     Rios and OSPD originally filed the Petition on August 9, 2006. The Petition
included the request that this Court vacate the hearing that the Justice Court had

scheduled for August 11, 2006. The Justice Court had not received notice of the filing of

the Petition before the hearing, however, and thus proceeded with the hearing as

scheduled.

¶4     The Justice Court determined after the hearing that Rios satisfied the criteria to be

eligible for public defender services. The Petition thus has been rendered moot with

respect to Rios. The Attorney General nevertheless contends that this question likely will

arise in future proceedings and, therefore, argues that a justiciable controversy still exists.

See Montana-Dakota Utils. v. City of Billings, 2003 MT 332, ¶ 10, 318 Mont. 862, ¶ 10,

80 P.3d 1247, ¶ 10. We agree.

¶5     The Attorney General contends that Harris acted properly pursuant to § 47-1-

111(1)(b), MCA, in conducting the hearing. The Attorney General argues that a court

cannot conduct a meaningful review of a defendant’s eligibility for court-appointed

counsel without knowing the information that forms the basis of the indigency

determination. We agree with the Attorney General’s contention that a court must know

the basis of the indigency determination in reviewing a defendant’s eligibility for court-

appointed counsel. We disagree with the Attorney General, however, as to when this

review should take place and which party should initiate the review.

       Section 47-1-111(1), MCA, provides as follows:
       47-1-111. Eligibility--determination of indigency--rules. (1)(a) Beginning
       July 1, 2006, when a court orders the office to assigned counsel, the office
       shall immediately assign counsel prior to determination under this section.

       (b) If the person for whom counsel has been assigned is later determined
       pursuant to this section to be ineligible for public defender services, the
       office shall immediately notify the court so that the court’s order may be
       rescinded.

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       (c) A person for whom counsel is assigned is entitled to the full benefit of
       public defender services until the court’s order requiring the assignment is
       rescinded.

       (d) Any determination pursuant to this section is subject to the review and
       approval of the court.

¶6     The statute provides that the court may appoint OSPD to represent a defendant

even before OSPD can determine whether the defendant qualifies for public defender

services. Section 47-1-111(1)(a), MCA. This appointment insures that all defendants

will be represented by counsel at their initial appearance before a court.

¶7     Once OSPD has been appointed counsel, it is incumbent upon OSPD to determine

whether the defendant fits the criteria for eligibility for public defender services. Section

47-1-111(1)(b), MCA. The statute imposes the duty upon OSPD to notify the court

immediately in the event that a defendant does not qualify for public defender services so

that the court may rescind its order appointing OSPD as counsel for that defendant.

Section 47-1-111(b), MCA. OSPD must remain as counsel providing the full benefit of

public defender services, however, until the court issues an order rescinding its

assignment. Section 47-1-111(c), MCA.

¶8     The statute further provides that any determination by OSPD regarding the

eligibility of a defendant for public defender services “is subject to the review and

approval of the court.” Section 47-1-111(d), MCA. We look first to the plain meaning of

the words used in interpreting a statute. In re Maynard, 2006 MT 162, ¶ 5, 332 Mont.

485, ¶ 5, 139 P.3d 803, ¶ 5. Subsection (d) provides that the court is to review and

approve a determination of eligibility. This provision would make no sense if the initial

determination of eligibility were to be undertaken by the court, as argued by Judge Harris

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and the Attorney General. A court cannot review its own determination of eligibility.

¶9     Subsection (1)(b) further bolsters this interpretation. Subsection (1)(b) directs

OSPD to “immediately notify” the court that a defendant is not eligible for public

defender services. OSPD would have no need to notify the court, immediately or

otherwise, of the own court’s determination that a defendant is not eligible for public

defender services. We construe, interpret and apply the law so as to avoid absurd results.

State v. McGowan, 2006 MT 163, ¶ 15, 332 Mont. 490, ¶ 15, 139 P.3d 841, ¶ 15.

Statutory construction should not lead to absurd results if a reasonable interpretation

would avoid it. McGowan, ¶ 15. Subsection (1)(b) makes sense only if someone other

than the court determined in the first instance that the defendant was not eligible for

public defender services. The statute imposes on OSPD that duty of making an initial

determination of eligibility. Thus, contrary to the position advocated by the Attorney

General, any judicial review takes place after OSPD has conducted its determination of

the defendant’s eligibility for public defender services, as contemplated by § 47-1-

111(1)(b), MCA.

¶10    We agree with OSPD that the statute limits the court’s involvement to those

circumstances in which either of the parties request review regarding a defendant’s

eligibility for public defender services. Subsection (1)(d) allows the court’s review of

OSPD’s determination of eligibility. Subsection (1)(d) further vests in the court the

authority to approve OSPD’s determination. It also implicitly vests in the court the

authority to “disapprove” OSPD’s determination. Nowhere in the statute, however, does

the Legislature contemplate the court initiating the review process based on its own

doubts about a defendant’s eligibility. This provision does not authorize a procedure that

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appears to be designed to assert the court’s primary authority over indigency

determinations.

¶11    We emphasize subsection (1)(d) states that the court may “review and approve”

such determinations. Nothing in the statute states that the court shall “initiate” any such

determination. The court’s review of OSPD’s determination takes place only when one

of the parties seeks it. The statute imposes no gatekeeper role on the courts.

Accordingly,

¶12    IT IS HEREBY ORDERED that we accept jurisdiction of the matter for purposes

of undertaking review of the issues raised.

¶13    IT IS FURTHER ORDERED that the Petition is GRANTED.

¶14    The Clerk of Court shall mail a copy of this Order to all counsel of record.

       DATED this 5th day of October, 2006.


                                                         /S/ KARLA M. GRAY
                                                         /S/ BRIAN MORRIS
                                                         /S/ JOHN WARNER
                                                         /S/ W. WILLIAM LEAPHART
                                                         /S/ PATRICIA COTTER
                                                         /S/ JAMES C. NELSON


Justice Jim Rice dissenting.

¶15    During Rios’s initial appearance, Judge Harris noted that Rios, although

requesting appointment of a public defender, was employed full time at the rate of $12.50

per hour, that his wife was also employed, and that he had no dependents. The court

appointed counsel for Rios, but because the initial information, according to Judge

Harris’s affidavit, “indicated a high probability that Defendant did not qualify for a public



                                              5
defender,” the Judge scheduled a hearing to review Rios’s eligibility for defender

services.

¶16    The Court strikes down this effort, concluding that the statute “limits the court’s

involvement to those circumstances in which either of the parties request review

regarding a defendant’s eligibility for public defender services” because “[n]owhere in

the statute . . . does the Legislature contemplate the court initiating the review process

based on its own doubts about a defendant’s eligibility.”

¶17    I find the Court’s statutory interpretation, and the implications thereof, to be

untenable. Section 47-1-111(1)(d), MCA, clearly states that “[a]ny determination

pursuant to this section is subject to the review and approval of the court” and places

none of the limitations on the courts which the Court imposes today. Nowhere does the

statute limit a court’s authority herein “to those circumstances in which either of the

parties request review.” It makes no sense that a court, empowered to “review” and

“approve,” is nonetheless rendered powerless to “inquire.”

¶18    As the Attorney General notes, trial courts retain broad discretion to conduct the

matters which come before them and to provide for the orderly administration of justice.

However, on the basis of restrictions it reads into the statute, the Court today bars trial

courts from exercising any discretion, or even making an inquiry, into a defender matter

which arises before it. I cannot agree with this handcuffing of the courts, which should

be able to act sua sponte when a matter of concern comes to its attention. I would review

such actions under an abuse of discretion standard.

¶19    Since the effective date of the new defender statute, Judge Harris has ordered the

appointment of the State Public Defender in approximately 100 cases. This case

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presented the first instance wherein information came to the court which raised a

question—in my view, a legitimate question—about the defendant’s eligibility for

defender services. I would conclude that Judge Harris appropriately made inquiry, was

not prohibited by law from doing so, and did not abuse his discretion in resolving the

matter.



                                                       /S/ JIM RICE




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