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Timothy A. Roulan v. County of Onondaga and the Assigned Counsel Program

December 30, 2011

TIMOTHY A. ROULAN,
PLAINTIFF-APPELLANT,
v.
COUNTY OF ONONDAGA AND THE ASSIGNED COUNSEL PROGRAM, INC.,
DEFENDANTS-RESPONDENTS.



Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.), entered October 5, 2010.

Roulan v County of Onondaga

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2011

PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.

The order, among other things, granted plaintiff's motion for leave to renew and, upon renewal, adhered to its prior order denying plaintiff's motion for partial summary judgment on the declaratory judgment cause of action and granting defendants' cross motion seeking partial summary judgment dismissing the declaratory judgment cause of action.

It is hereby ORDERED that the order so appealed from is modified on the law by denying defendants' cross motion for partial summary judgment dismissing the declaratory judgment cause of action, reinstating that cause of action and granting judgment in favor of defendants as follows: It is ADJUDGED and DECLARED that the assigned counsel plan established by defendant Onondaga County Bar Association Assigned Counsel Program, Inc., incorrectly sued as The Assigned Counsel Program, Inc., is valid with the exception of section D (2) under the "Assignment by Court and Client Eligibility" heading, by granting plaintiff's motion for partial summary judgment on the declaratory judgment cause of action in part and granting judgment in favor of plaintiff as follows: It is ADJUDGED and DECLARED that section D (2) under the "Assignment by Court and Client Eligibility" heading of the assigned counsel plan is invalid, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that various sections of the assigned counsel plan in defendant County of Onondaga (County) were invalid. Defendant Onondaga County Bar Association Assigned Counsel Program, Inc., incorrectly sued as The Assigned Counsel Program, Inc. (ACP), established that plan (hereafter, ACP Plan) pursuant to County Law article 18-B through a contract with the Onondaga County Bar Association (OCBA).

Plaintiff moved for partial summary judgment seeking a declaration that the contract and handbook containing the ACP Plan were "illegal, ultra vires and/or a nullity, and that they [were], as written, unconstitutional." Defendants then cross-moved for partial summary judgment dismissing the declaratory judgment cause of action. Thereafter, plaintiff cross-moved for partial summary judgment on the breach of contract cause of action. Supreme Court, inter alia, denied plaintiff's motion and cross motion and granted defendants' cross motion. Following additional discovery, plaintiff moved for leave to renew his prior motion and cross motion, as well as his opposition to defendants' cross motion. Defendants cross-moved for summary judgment dismissing the remaining causes of action. Although the court purportedly denied plaintiff's motion for leave to renew, improperly denominated in the order as a "motion to renew and reargue," it is clear from the decision that the court actually granted the motion and, upon renewal, adhered to its original decision. The court also granted defendants' cross motion.

We note at the outset that the court erred in dismissing the declaratory judgment cause of action rather than declaring the rights of the parties with respect thereto (see Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047). We conclude, however, that one section of the ACP Plan is invalid. We therefore modify the order by denying defendants' cross motion for partial summary judgment dismissing the declaratory judgment cause of action, reinstating that cause of action and declaring that the ACP Plan is valid with the exception of section D (2) under the "Assignment by Court and Client Eligibility" heading. We further modify the order by granting plaintiff's motion for partial summary judgment on the declaratory judgment cause of action in part and declaring that section D (2) under the "Assignment by Court and Client Eligibility" heading of the ACP Plan is invalid.

As a matter of background, we note that County Law article 18-B was enacted in 1965 as a means to compensate attorneys who were assigned to represent certain indigent litigants. Before article 18-B was enacted, attorneys admitted to practice law in the State of New York were required, by virtue of their admission to the bar, to represent indigent litigants without any compensation (see Matter of Smiley, 36 NY2d 433, 438; Matter of Stream v Beisheim, 34 AD2d 329, 333; Mitchell v Fishbein, 377 F3d 157, 168). Courts had the inherent power and a constitutional obligation to appoint counsel for indigent criminal defendants (see Mitchell, 377 F3d at 168; see also Smiley, 36 NY2d at 437-438), and "such service, however onerous, created no legal liability against the county in favor of the person rendering the same" (Stream, 34 AD2d at 333 [internal quotation marks omitted]). Following the decisions of the United States Supreme Court in Gideon v Wainwright (372 US 335) and the Court of Appeals in People v Witenski (15 NY2d 392), both of which established that indigent criminal defendants had a constitutional right to counsel, it became apparent "that the private [b]ar could not carry the burden of uncompensated representation for the large numbers of defendants involved. Consequently, legislation was enacted to provide systematic representation of defendants by assigned counsel and for their compensation" (Smiley, 36 NY2d at 438; see Rep of NY State Bar Assn Comm on State Legislation, Bill Jacket, L 1965, ch 878, at 16).

Pursuant to County Law § 722, a governing body of a county shall put in operation a plan (hereafter, 18-B plan) to provide counsel to, inter alia, persons charged with a crime who are financially unable to obtain counsel. The statute provides four options for such a plan, and the 18-B plan enacted in the County was a bar association plan whereby "the services of private counsel are rotated and coordinated by an administrator" (§ 722 [3] [a] [i]). Compensation of attorneys assigned pursuant to such a plan, other than for representation on appeal, "shall be fixed by the trial court judge" (§ 722-b [3]) in accordance with certain statutory rates (see § 722-b [2]). In the event that an attorney has not been assigned pursuant to an 18-B plan, the court lacks the power to order that the attorney be compensated because the Legislature, which controls the public purse, has provided that only those attorneys appointed pursuant to an 18-B plan may be compensated from public funds (see Mitchell, 377 F3d at 168-169; Matter of Goodman v Ball, 45 AD2d 16, lv denied 34 NY2d 519; cf. People v Ward, 199 AD2d 683, 684). Regardless of any limits on the compensation of assigned attorneys, nothing in County Law article 18-B or the ACP Plan limits the inherent power of the court to assign counsel to an indigent criminal defendant.

With that background, we address the issues relevant to this appeal, some of which are similar to issues we addressed in Matter of Parry v County of Onondaga (51 AD3d 1385). In that case, the petitioner, who is plaintiff's attorney in this action, commenced an original proceeding pursuant to CPLR article 78 seeking relief in the nature of prohibition and mandamus. We concluded that the petitioner failed to establish " a clear legal right to the relief sought' " and dismissed the petition (id. at 1387). We noted, however, that the petition also must be dismissed to the extent that it sought a declaration and that such relief must be sought in a declaratory judgment action (see id.). Aside from the plaintiff in this case, the petitioner in Parry is representing another attorney in a declaratory judgment action (see Cagnina v Onondaga County, ___ AD3d ___ [Dec. 30, 2011]). The two actions seek similar declarations, inasmuch as each plaintiff challenges the validity of various sections of the ACP Plan. Contrary to defendants' contention, our decision in Parry, addressing the issue whether the ACP Plan violated County Law ยง 722 or infringed upon the court's inherent power to assign counsel, does not preclude our review of issues raised in this action because they are separate and distinct from those addressed in Parry. We also reject defendants' contention that the declaratory ...


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