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, ) O P I N I O N ) A N D v. ) O R D E R ) JUSTICE COURT, CASCAD E 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 res ponse to the Petition. The Attorney General submitted a response on beha lf of the Respondents. ¶2 The State charged Rios with traffic offe nses and he appeared in Justice Court before Respondent Judge Harris. Justice C ourt appointed the OSPD to represent Rios and required Rios to complete the indigenc y questionnaire required by § 47-1-111, MCA. The court also ordered Rios, ho wever, 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 Pe tition on August 9, 2006. The Petitionincluded the request that this Cour t 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, an d thus proceeded w ith the hearing as schedule d

. ¶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 Attorne y G e neral neve rtheless conten ds that this question likely will arise in future proceedings and, therefore, ar gues that a justiciable c ontroversy still exists. See Montana-Dakota Utils. v. City of Billings , 2003 M T 332, ¶ 10, 318 M o nt. 862, ¶ 10, 80 P.3d 1247, ¶ 10. We agree. ¶5 The Attorney General contends that Ha rris acted properl y pursua nt to § 47- 1- 111( 1)(b), MCA, i n conducting t h e 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 infor m ation that form s the basis of the indige ncy 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 courtappointed counsel. We disagr ee 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--determ ination of indigency--rules

. (1)(a) Beginning July 1, 2006, w h en a cour t orders the office to assi gned counsel, the office shall imm e diately assign c o un sel prior to determination under this section. (b) If the person for whom counsel has been assigned is later determined purs u ant to this section to be ineligib le for public defender services, the office shall im m e diately notify the cour t so that the court’s order m a y be rescinded.

2(c) A person for whom counsel is assi gned is entitled to the full benefit of public defender services until the cour t’s order requiring the assignment is rescinded. (d) Any determination purs u ant to this section is subject to the revie w and appr oval of the court. ¶6 The statute provides that the court may appoint OS PD t o represent a defenda nt even before OSPD can determ ine whet her the defenda nt qualifies for public defender services. Section 47-1-111(1 )(a), MCA. Thi s appoi ntm e nt insures that all defenda nts will be represented by counsel at their initial appearance before a court. ¶7 Once OSPD has been ap pointed counsel, it is incumbent upon OSPD to determine whether the defendant fits the criteria for elig ibility for public defender services. Section 47-1-111(1)(b), MCA. The stat ute imposes the duty upon O S P D to notify t h e court immediately in the event that a defenda nt does not qualify for public defender s e rvices so that the court may rescind its order appointing OSPD as co unsel for that defendant. Section 47- 1-111(b), MCA. O S PD m u st rem a in as counsel pr ovi ding the ful l 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 determ ination by O S P D regarding the eligibility of a defendant for public defender services “is subject to the review and
appr oval of the court.” Section 47-1-111( d), MC A. We look first to the plain m e aning of the words used in interpreting a statute. In re Maynar d , 2006 M T 162, ¶ 5, 332 Mont. 485, ¶ 5, 139 P. 3d 803, ¶ 5. Subsection (d ) provi des that the court is to review a nd approve a determinatio n of elig ibility. This provision would make no sense if the initial determination of eligibility were to be undertaken by the cour t, as argued by Judge Harris

3and the Attorne y Ge neral. A court cannot re view its own determinat ion of eligibility. ¶9 Subsection (1)(b) further bolsters this in terpretation. Subsection (1)(b) directs OSPD to “immediately notify” the court that a defenda nt is not eligible for publ ic defender services. OSPD wo uld have no ne ed to notify the court, im m e diately or otherwise, of the own court’s determ ination th at 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. 4 90, ¶ 15, 139 P

. 3d 841, ¶ 15. Statutor y construction should not lead to ab surd results if a reasonable interpretation would a voi d it. McGowan , ¶ 15. Subsection (1)(b) m a kes sense only if som e one other than the court determined in the first instance that the de fendant w a s not eligible for public defender services. The statute impos es on OSPD that duty of making an initial determination of eligibility. Thus, contrary to the position advocat ed by the Attorney General, any judicial review takes place af ter OSPD has conducted its determin ation of the defendant’s eligibility fo r public defender services, as contemplated by § 47-1- 111(1)(b), MCA. ¶10 We agree with OSPD that the statute limits the court’s in volvement to those circumstan ces in which either of the par ties request revi ew regardi ng a defendant’s eligibility for public defender services. Subsection (1)(d) allows the court’s review of OSPD’s determination of elig ibility. Subsection (1)(d) further vests in the court the authority to approve OSPD’s determination. It also implicitly ve sts in the court the authority to “disapprove” OSPD ’s determination. Nowhere in the statute, however, does the Legislature contemplate the court initia ting the review process based on its own doubts about a defendant’s elig ibility. This provision does not authorize a procedure that

4appears to be designed to assert t h e court’s prim ary authority over indi genc y determ inations. ¶11 We emphasize subsection (1)(d) states that th e court may “review and approve” such determinations. Nothing in the statute states that th e court shall “initiate” any such determ ination. The court’s review of O S P D ’s determ ination takes place onl y whe n one of the parties seeks it. The statute im poses no gatekee p er role on t h e courts. Accordi n gly, ¶12 IT IS HEREBY ORDE RED that we accept jurisdicti on of the matter for purposes of undertaking review of the issues raised. ¶13 IT IS FURTHER ORDERED that the Petition is GRANTED. ¶14 The Cler k of C ourt shall m a il a copy of this Order to all counsel of record.
DA TED thi s 5th da y of October, 2006.

/ S / K A R L A M

. G R A Y / S / B R I A N M O R R I S /S/ JOHN WARNER / S / W

. W I L L I A M L E A P H A R T / S / P A T R I C I A C O T T E R / S / J A M E S C

. N E L S O N

Justice Ji m Rice dissenting. ¶15 During Rios’s initial appearance, Judg e Harris noted that Rios, although requesting appointm ent of a public defender, was em ployed f u ll time at the rate of $12. 50 per hour, that his wife was also em ploye d, and t h at he had no de pe nde nts. The court appointed counsel for Rios, but because the initial inform ation, according to Judge Harris’s affidavit, “indicated a high probability that Defendant did not qu alify for a public

5defender,” the Judge scheduled a hearing to review Rios’s eligibility for defender services. ¶16 The Court strikes down this effort, conclu ding that the statute “limits the court’s involvement to those circumst ances in which either of the parties request revie w regarding a defendant’s eligibility for public defender services” because “[n]owhere in the statute . . . does the Legislature contem plate the court initiating the review process based on its own doubt s about a defendant’s eligibility.” ¶17 I find the C ourt’s statutory interpr e tation, and the implications thereof, to be

unte n able. Section 47- 1-111(1)(d) , MCA, cl early states that “[a]ny determination
purs u ant to this section is subject to the revie w and approval of t h e court” and places none of t h e lim itations on the c o urts which the Court imposes today. Now h ere does the statute limit a court’s authority herein “to thos e circum stances in whi c h either of the parties request review.” It m a kes no sense that a court, em powere d to “review” and “appr ove,” is nonet h eless rendere d powerless to “inquir e .” ¶18 As the Attorney General notes, trial courts retain broa d discretion to conduct the

m a tters which com e be fore them and t o pr ovi de for the orderly administration of justice. However, on the basis of restrictio ns it reads into the statute, the Court today bars trial courts from exercising any disc retion, or even m a king an i n quiry, int o a defender m a tter whic h arises before it. I cannot agree with this handc uffing of the c ourts, w h ich shoul d be able to act sua sponte when a m a tter of concer n com e s to its attention. I w oul d revie w such actions under an abus e of discretion standar d

. ¶19 Since the effective date of the new defend er statute, Judge Harris has ordered the appointment of the State Public Defender in a ppr oxim ately 100 cases. This case

6presented the first instance wherein information came to the court which raised a question—in my view, a legitimate questio n—about the defendant ’s eligibility for defender services. I w ould conclude that Judge Harris appr opriately m a de inquiry, was not prohibit ed by law from doi ng so, and did not abuse his discretion in resolvi ng t h e
matter.

/S/ JIM RICE

7