|
(Cite
as: 782 N.W.2d 549) |
Supreme
Court of Minnesota.
In
the Matter of the WELFARE OF the Child of S.L.J., Parent.
No.
A09-80.
May
14, 2010.
*550
Syllabus
by the Court
1.
Although indigent Indian parents have the right under the Indian Child Welfare
Act, 25 U.S.C. ? 1912(b) (2006), to representation by court-appointed counsel in
juvenile protection proceedings, in the absence of express statutory authority
under Minn.Stat. ? 611.14 (2008) indigent Indian parents do not have the right
under either Minn.Stat. ?? 611.16 or 611.18 (2008), to the appointment of public
defenders to represent them.
*551
2. Under Minn.Stat. ? 260C.331 (2008), the cost of court-appointed counsel to
represent indigent Indian parents in juvenile protection proceedings is a charge
upon the county in which the proceedings are held.
3.
Under Minn.Stat. ? 375.1691 (2008), a judicial order compelling the payment of
county funds must be paid no later than the first fiscal year after the order is
received by the county.
G.
Paul Beaumaster, Rice County Attorney, Benjamin Bejar, Assistant Rice County
Attorney, Faribault, MN, for appellant Rice County.
Grant
D. Sanders, Sanders & Co., Ltd., Faribault, MN, pro se
respondent.
Kathleen
Heaney, Sherburne County Attorney, Arden Fritz, Assistant Sherburne County
Attorney, Elk River, MN, for amicus curiae Minnesota County Attorneys
Association.
John
A. Tuma, Northfield, MN, for amicus curiae Minnesota Inter-County
Association.
John
L. Fossum, Fossum Law Office, LLC, Northfield, MN, for amicus curiae Minnesota
Association of Criminal Defense Lawyers.
Janet
C. Werness, St. Paul, MN, for amicus curiae Southern Minnesota Regional Legal
Services.
Bradford
S. Delapena, Assistant State Public Defender, St. Paul, MN, for amicus curiae
Minnesota State Public Defender.
OPINION
MAGNUSON,
Chief Justice.
We
are asked to decide whether the district court erred in appointing private
counsel at county expense, rather than a public defender at state expense, for
the parent in this juvenile-protection case, who must be provided counsel under
the federal Indian Child Welfare Act, 25 U.S.C. ? 1912(b) (2006). The court of
appeals affirmed the appointment of private counsel for the parent in this case
and further held that the cost of private counsel appointed for the parent is a
county obligation. We affirm the court of appeals.FN1
FN1.
Although not consolidated with this case, on the same day this case was argued,
we heard arguments in In
re Welfare of Children of: J.B. and R.P.; S.K.J. and J.N.T.; S.L.A.J. and
B.J.T., Parents,
782 N.W.2d 535 (Minn.2010). The opinion in that case, which presents similar,
but not identical, issues and arguments, is filed concurrently with this
opinion.
In
June 2008, the Minnesota State Board of Public Defense resolved to discontinue
representation of parents, custodians, and guardians in juvenile protection
proceedings, effective July 8, 2008. On July 22, 2008, in response to the action
by the State Board of Public Defense, the Rice County Board of Commissioners
voted not to pay for representation of qualified parents in child-protection or
termination-of-parental-rights cases in 2008 and future years.
In
September 2008, appellant Rice County petitioned to terminate the parental
rights of S.L.J. to her newborn child. Both mother and child are eligible for
membership in the Wyandotte Nation of Oklahoma. The district court appointed
respondent Grant D. Sanders, a lawyer in private practice, to represent S.L.J.
and ordered Rice County to pay Sanders' attorney fees. When Sanders' first
invoices were not paid, the court ordered Rice County to pay Sanders the sum of
$4,000 by December 30, 2008, or appear (in the persons of the county auditor and
all members*552
of the county board) to show cause why Rice County should not be held in
contempt.
In
response to the order to show cause, Rice County argued that because S.L.J. is
eligible for membership in the Wyandotte Nation, and is therefore entitled to
representation under the Indian Child Welfare Act (ICWA), 25 U.S.C. ? 1912(b),
Minn.Stat. ? 611.16 (2008) required that a public defender, rather than private
counsel, be appointed for her. Rice County further argued that Minn.Stat. ?
611.27, subd. 7 (2008), limits the state's responsibility for public defender
services to the appropriations made to the Minnesota Board of Public Defense,
and therefore the obligation to pay the fees of a lawyer appointed for S.L.J.
was the sole responsibility of the state. Furthermore, Rice County argued that
under Minn.Stat. ? 375.1691 (2008), it could not be ordered to pay Sanders' fees
because Rice County had not approved such payment and Rice County's budget had
not allocated funds to do so. Rice County argued that because its failure to pay
Sanders' fees was statutorily authorized, it was therefore acting in accordance
with the law and could not be held in civil contempt.
Although
the limited record before us does not include a transcript of the show-cause
hearing, it appears that the parties agreed that the district court's order to
show cause would be deemed a writ of mandamus instead. Following the hearing,
the court issued a peremptory writ of mandamus that obligated Rice County: to
pay Sanders $4,000 for legal services rendered to S.L.J. through the end of
November 2008; to pay Sanders' future invoices within ten days of court
approval; and to ?approve a system for payment of costs for representing
indigent parents in future juvenile protection cases during the budget year
2009, by no later than February 16, 2009.? The court concluded that it had ?the
authority, but not the duty, to appoint Public Defenders to represent parents in
Juvenile protection proceedings.? However, ?given the significant financial and
personnel pressures that are already being addressed by the State Board of
Public Defense,? the court declined to exercise its discretion to compel the
public defender to represent S.L.J.
The
district court further concluded that Minn.Stat. ? 375.1691 should be
interpreted to give Rice County ?no discretion with respect to paying the fees
for court-appointed counsel? if the request is submitted to the County before
the adoption of its next annual budget. The court noted that the Rice County
District Court Administrator had submitted a budget request to the county board
in July 2008 for $180,000 for fees of counsel appointed to represent indigent
parents in juvenile protection cases, which the county board had denied. Because
Rice County had a clear duty to pay, and because Sanders had no other adequate
remedy, the district court concluded that mandamus was an appropriate
remedy.
Upon
Rice County's appeal, the court of appeals affirmed the district court's order
requiring Rice County to pay Sanders' outstanding and future invoices.
In
re Welfare of Child of S.L.J.
(S.L.J.),
772 N.W.2d 833, 844 (Minn.App.2009). The court concluded that Minn.Stat. ?
611.16 was ambiguous and, in the context of the remainder of Minn.Stat. ch. 611
and its legislative history, should be read to limit the right to a public
defender to only ?persons who are parties to criminal cases.? See
S.L.J.,
772 N.W.2d at 840. Therefore, the court of appeals concluded that the district
court had not erred in appointing private counsel for S.L.J. Id.
at 842.
The
court of appeals further concluded that under Minn.Stat. ? 260C.331, subd.
*553
3(4) (2008), responsibility for paying Sanders' fees fell to the county.
S.L.J.,
772 N.W.2d at 842. The court rejected Rice County's argument that under
Minn.Stat. ? 375.1691 it could not be required to pay Sanders if the county
board never approved the payment; the court agreed with the district court that
Rice County was obligated to pay Sanders in 2009 ?regardless [of] whether the
county board has budgeted for the expense.? S.L.J.,
772 N.W.2d at 843-44. However, the court of appeals reversed, as beyond the
district court's authority, the requirement that Rice County approve funding for
representation of indigent parents in child-protection and
termination-of-parental-rights cases in the future.FN2
Id.
at 845. We granted Rice County's petition for review of the district court's
writ of mandamus and denied Sanders' petition for cross-review as to payment of
his fees in the future.
FN2.
Neither party sought our review on this issue and therefore we do not address
it.
I.
[1][2][3]
Mandamus ?lies to compel a governmental body or board to perform a duty [that]
the law clearly and positively requires? and ?where there is no other plain,
speedy, and adequate remedy available.? Int'l
Union of Operating Eng'rs, Local No. 49 v. City of Minneapolis,
305 Minn. 364, 374, 233 N.W.2d 748, 754-55 (1975). Mandamus is an extraordinary
remedy, issued upon equitable principles in the exercise of sound judicial
discretion. Nationwide
Corp. v. Northwestern Nat'l Life Ins. Co.,
251 Minn. 255, 265, 87 N.W.2d 671, 679-80 (1958). But where a decision on a writ
of mandamus is based solely on a legal determination, our review is de novo.
Breza
v. City of Minnetrista,
725 N.W.2d 106, 110 (Minn.2006).
Rice
County argues that: (1) under Minn.Stat. ? 611.16, the district court was
obligated to appoint a public defender for S.L.J.; (2) under Minn.Stat. ?
260C.331, Rice County is not obligated to pay for the private counsel appointed
for S.L.J.; and (3) under Minn.Stat. ? 375.1691, Rice County cannot be required
to pay any expense for which the county board has not previously authorized
payment.
We
consider first whether the district court correctly appointed private counsel to
represent S.L.J. or whether, as Rice County argues, the public defender was
obligated by law to represent S.L.J.
The
Indian Child Welfare Act, 25 U.S.C. ?? 1901-1931 (2006), requires the
appointment of counsel for indigent Indian parents in child-protection and
termination-of-parental-rights cases. Under 25 U.S.C. ? 1912(b), ?[i]n any case
in which the court determines indigency, the parent or Indian custodian shall
have the right to court-appointed counsel in any removal, placement, or
termination proceeding.? Because S.L.J. is eligible for membership in the
Wyandotte Nation of Oklahoma and because the district court determined that she
is indigent, S.L.J. has the right under federal law to court-appointed counsel
in the juvenile court proceedings.
Because
S.L.J. is entitled under federal law to court-appointed counsel, we now consider
whether S.L.J. was entitled to representation by a public defender or whether
the district court correctly appointed private counsel for her. As a threshold
matter, Sanders contends that the question of his appointment to represent
S.L.J. was not properly before the court of appeals, and is not properly before
our court, because Rice County failed to timely appeal the district court order
appointing him. Under Minn. R. Juv. Prot. P. 47.02, an appeal must be taken
within 30 days from ?a final order of the juvenile *554
court affecting a substantial right of the aggrieved person.? Sanders was
appointed to represent S.L.J. in September 2008, an order from which Rice County
did not immediately appeal. Rather, after filing its notice of appeal from the
district court's January 2009 writ of mandamus, Rice County filed a notice of
review from the order appointing Sanders, which the court of appeals dismissed
as an improper attempt to amend the notice of appeal. Nevertheless, the court of
appeals addressed the issue of Sanders' appointment, concluding that there was
no authority requiring Rice County to challenge the appointment order when it
was issued and no authority holding that Rice County's failure to immediately
appeal from the appointment order amounted to forfeiture of the issue.
S.L.J.,
772 N.W.2d at 838.
Under
Minn. R. Civ.App. P. 103.04, an appellate court ?may review any order affecting
the order from which the appeal is taken? and ?any other matter as the interest
of justice may require.? Sanders did not seek further review of the court of
appeals' implicit determination that the order appointing him was not a final
order and both parties have fully briefed the question of the propriety of the
appointment. We granted further review to address the validity of Sanders'
appointment, and we do so now.
[4]
The Indian Child Welfare Act requires the appointment of counsel for indigent
Indian parents in juvenile protection proceedings. 25 U.S.C. ? 1912(b). However,
the ICWA does not specify whether the counsel appointed for indigent Indian
parents is to be a public defender or private counsel. The court of appeals
found the answer to the first part of that question in Minn.Stat. ch. 611
(2008), concluding that a public defender appointment is not appropriate.
See
S.L.J.,
772 N.W.2d at 840-41.
Minnesota
Statutes ? 611.14 (2008) lists four categories of individuals who are entitled
to be represented by a public defender:
(1)
a person charged with a felony, gross misdemeanor, or misdemeanor including a
person charged under sections 629.01 to 629.29;
(2)
a person appealing from a conviction of a felony or gross misdemeanor, or a
person convicted of a felony or gross misdemeanor, who is pursuing a
postconviction proceeding and who has not already had a direct appeal of the
conviction;
(3)
a person who is entitled to be represented by counsel under section 609.14,
subdivision 2; or
(4)
a minor ten years of age or older who is entitled to be represented by counsel
under section 260B.163, subdivision 4, or 260C.163, subdivision 3.
Correspondingly,
Minn.Stat. ? 611.26, subd. 6 (2008), provides that the district public defender
is to represent minors 10 years of age or older in juvenile court ?when so
directed by the juvenile court?:
The
district public defender shall represent, without charge, a defendant charged
with a felony, a gross misdemeanor, or misdemeanor when so directed by the
district court. The district public defender shall also represent a minor ten
years of age or older in the juvenile court when so directed by the juvenile
court.
Sections
611.14 and 611.26, taken together, specifically provide that minors ten years of
age and older are entitled to representation by district public defenders in
juvenile protection proceedings and require the district public defender to
provide such representation when directed by the court. However, section 611.14
does not list parents among those entitled to a *555
public defender in juvenile protection proceedings. Nor does section 611.26
require the district court to appoint a public defender to represent-or a public
defender to assume representation of-parents in juvenile protection proceedings.
In the absence of express authorization, we decline to hold that indigent Indian
parents have the right under either section 611.14 or section 611.26 to the
appointment of a public defender, as opposed to private counsel, to represent
them in juvenile protection proceedings.
Rice
County argues that Minn.Stat. ? 611.16 (2008) requires that S.L.J. have been
appointed a public defender. Section 611.16 provides:
Any
person described in section 611.14 or any other person entitled by law to
representation by counsel, may at any time request the court in which the matter
is pending, or the court in which the conviction occurred, to appoint a public
defender to represent the person. In a proceeding defined by clause (2) of
section 611.14 [appeals from convictions and postconviction proceedings],
application for the appointment of a public defender may also be made to a judge
of the Supreme Court.
Id.
Because S.L.J. is entitled by federal law to representation, Rice County argues
that she is ?any other person entitled by law to representation,? and therefore
entitled to representation by a public defender.
[5][6]
The court of appeals concluded that section 611.16 was limited to persons
involved in criminal cases, S.L.J.,
772 N.W.2d at 841, a construction that Rice County contends is impermissibly
narrow. We agree with Rice County. By limiting the persons who may request the
appointment of a public defender under section 611.16 to those who are
defendants in criminal proceedings, the court of appeals added a limitation to
section 611.16 that is not expressly stated. Because S.L.J. is entitled under
the ICWA to representation, she is a ?person entitled by law to representation?
and under section 611.16 could request appointment of a public
defender.
However,
it is Minn.Stat. ? 611.18 (2008) that authorizes the district court to actually
appoint a public defender. Under section 611.18, the appointment of a public
defender is required
[i]f
it appears to a court that a person requesting the appointment of counsel
satisfies the requirements of this chapter, the court shall order the
appropriate public defender to represent the person at all further stages of the
proceeding through appeal, if any. For a person appealing from a conviction, or
a person pursuing a postconviction proceeding and who has not already had a
direct appeal of the conviction, according to the standards of sections 611.14
and 611.25, subdivision 1, paragraph (a), clause (2), the state public defender
shall be appointed. For a person covered by section 611.14, clause (1), a
district public defender shall be appointed to represent that person. If (a)
conflicting interests exist, (b) the district public defender for any other
reason is unable to act, or (c) the interests of justice require, the state
public defender may be ordered to represent a person. When the state public
defender is directed by a court to represent a defendant or other person, the
state public defender may assign the representation to any district public
defender. If at any stage of the proceedings, including an appeal, the court
finds that the defendant is financially unable to pay counsel whom the defendant
had retained, the court may appoint the appropriate public defender to represent
*556
the defendant, as provided in this section.
Minn.Stat.
? 611.18.
Rice
County contends that because the district court found that S.L.J. satisfied the
requirements of chapter 611, the district court was required under section
611.18 to appoint a public defender at state expense, rather than private
counsel at county expense.FN3
The district court found that S.L.J. was indigent, Native American, and entitled
to legal representation in the juvenile protection proceedings. However, S.L.J.
is not among those persons listed in section 611.14. Although section 611.16
allowed S.L.J. to request the appointment of a public defender, in the absence
of language in section 611.14 that specifically grants her the right to
representation by a public defender, we must affirm the district court. Nothing
in chapter 611 requires the appointment of a public defender for indigent
parents, even those who are entitled to counsel under the ICWA, in juvenile
protection cases.
FN3.
Rice County argues that S.L.J. did request the appointment of a public defender.
As we have explained, under the statutory scheme, the fact that S.L.J. requested
the appointment of a public defender does not mean she is entitled to a public
defender under section 611.14.
In
reaching this conclusion, we are guided by the canon of statutory construction
?expressio unius est exclusio alterius?-that the expression of one thing is the
exclusion of another. See
In
re Common Sch. Dist. No. 1317,
263 Minn. 573, 575, 117 N.W.2d 390, 391 (1962). The Legislature has enumerated
in sections 611.14 and 611.26 those persons entitled in both criminal and other
proceedings to the appointment of a public defender, as opposed to private
counsel, and indigent parents in juvenile protection proceedings are not among
those enumerated persons. In
re Welfare of Children of: J.B. and R.P.; S.K.J. and J.N.T.; S.L.A.J. and
B.J.T., Parents,
782 N.W.2d 535, 541-44 (Minn.2010).
II.
[7]
We turn, then, to the question of whether Rice County is responsible for paying
for the private counsel appointed for S.L.J. in this case. We conclude that the
Legislature intended the cost of such representation to be the obligation of the
county.
Minnesota
Statutes ? 260C.331 (2008) lists the expenses of juvenile protection cases that
are charges upon the county, which include fees for court-appointed counsel.
Minn.Stat. ? 260C.331, subd. 3, provides:
The
following expenses are a charge upon the county in which proceedings are held
upon certification of the judge of juvenile court or upon such other
authorization provided by law:
(1)
the fees and mileage of witnesses, and the expenses and mileage of officers
serving notices and subpoenas ordered by the court, as prescribed by
law;
(2)
the expense of transporting a child to a place designated by a child-placing
agency for the care of the child if the court transfers legal custody to a
child-placing agency;
(3)
the expense of transporting a minor to a place designated by the
court;
(4)
reasonable compensation for an attorney appointed by the court to serve as
counsel, except in the Eighth Judicial District where the state courts shall pay
for counsel to a guardian ad litem until the recommendations of the task force
created in Laws 1999, chapter 216, article 7, section 42, are
implemented.
*557
The state courts shall pay for guardian ad litem expenses.
Under
the plain language of section 260C.331, subd. 3(4), the fees of private counsel
appointed for indigent Indian parents in juvenile protection proceedings are to
be paid by the county in which the juvenile protection case is
venued.
Rice
County first argues that this statutory provision is ambiguous and, read in its
entirety, provides that the only expenses of counsel the county is required to
pay are the expenses of counsel appointed for the guardian ad litem in a
juvenile protection case. We disagree with Rice County that subdivision 3 is
ambiguous. Under subdivision 3, the county is responsible for paying reasonable
compensation of attorneys appointed to serve as counsel in juvenile protection
cases venued in the county. Rice County's interpretation of subdivision 3 is
also contrary to Minn.Stat. ? 645.19 (2008), under which we are instructed that
?[e]xceptions expressed in a law shall be construed to exclude all others.?
Section 260C.331, subd. 3(4) has only one exception, under which the state court
system (rather than the county) pays for counsel appointed for guardians ad
litem appointed in cases pending in the Eighth Judicial District. We decline to
expand the narrow statutory exception that Rice County requests or
proposes.
Rice
County further argues that section 260C.331, as a whole, addresses only the
costs and expenses of care for the child involved in the juvenile-protection
proceeding, rather than attorney fees incurred in representation of the parent.
At oral argument, Rice County suggested that the Legislature intended to further
limit the attorney fees for which counties are liable under section 260C.331 to
fees incurred on behalf of a child in proceedings other than the juvenile
protection proceeding itself-for example, while representing the child in
probate court.
As
support for this construction of section 260C.331, Rice County cites Minn.Stat.
? 260C.007, subd. 22 (2008). Section 260C.007, subdivision 22, defines ?legal
custody? as ?the right to the care, custody, and control of a child who has been
taken from a parent by the court in accordance with the provisions of section
260C.201 [CHIPS proceedings] or 260C.317 [termination of parental rights
proceedings].? Subdivision 22 also provides: ?The expenses of legal custody are
paid in accordance with the provisions of section 260C.331.? Minn.Stat. ?
260C.007, subd. 22. Rice County contends that subdivision 22 of section 260C.007
limits the expenses for which it is liable under section 260C.331 to those
related to the custody of the child.
We
do not read the definition of ?legal custody? in section 260C.007, subdivision
22, to limit the expenses that are the responsibility of Rice County under
section 260C.331. Rather, the references in section 260C.007, subdivision 22, to
sections 260C.201 and 260C.317, simply help to define ?legal custody.? Rice
County's argument that section 260C.331 addresses only the costs and expenses of
custody of the child also reads an additional limitation into that statute that
the Legislature has not made express.
For
all the foregoing reasons, we hold that under Minn.Stat. ? 260C.331, subd. 3(4),
Rice County is obligated to pay the fees of private counsel appointed for the
indigent parent in this juvenile protection proceeding.
III.
[8]
Finally, we address Rice County's argument that, notwithstanding section
260C.331, under Minn.Stat. ? 375.1691 (2008), Rice County cannot be required to
*558
pay any expense for which the county board has not previously authorized
payment. Section 375.1691 provides:
Notwithstanding
any law to the contrary, a judicial order compelling payment out of county funds
shall not be paid unless approved by the county board, if a budget request for
the item was not submitted to the county board prior to adoption of the budget
in effect for the fiscal year. If the county board refuses to approve payment,
the order may be paid in the first fiscal year for which a budget is approved
after receipt of the order. This section does not apply to a judgment or other
award against the county that is a result of litigation to which the county or a
county official in an official capacity was a party.
Minn.Stat.
? 375.1691. Rice County contends that the plain language of section 375.1691
precludes the county from having to pay court-ordered attorney fees in the
absence of either approval by the county board or an appropriation of funds for
such expenses, neither of which have occurred here.
Under
Minn.Stat. ? 645.44, subds. 15 and 16 (2008), we are to interpret ?may? as
permissive (subdivision 15) and ?shall? as mandatory (subdivision 16) ?unless
another intention clearly appears,? id.,
subd. 1 (2008). In this case, we believe, another interpretation clearly
appears. If Rice County is correct and nothing can be paid without approval by
the county board, then the second sentence of section 375.1691-?If the county
board refuses to approve payment, the order may be paid in the first fiscal year
for which a budget is approved after receipt of the order?-is superfluous: so
long as the county board refuses to approve payment, the ordered funds will
simply never be paid. We hold that under Minn.Stat. ? 375.1691, a judicial order
compelling the payment of county funds must be paid no later than the first
fiscal year after the order is received by the county.
Affirmed.