EXCEPTIONAL AND REQUIRED AN EXTRAORDINARY AMOUNT OF TIME, AND THAT THE REQUEST FOR ORDINARY FEES IS REASONABLE. 22 O.S. 1355.13(B) (1992).
YOU HAVE ASKED WHAT EFFECT, IF ANY, THE CHANGE IN THE STATUTE HAS ON NON-SYSTEM ATTORNEYS WHO WERE APPOINTED PRIOR TO THE LEGISLATIVE CHANGE AND CONTINUE TO REPRESENT THOSE DEFENDANTS. IN ESSENCE YOU HAVE ASKED UNDER WHICH STATUTE THEY ARE TO BE PAID.
IT IS A WELL SETTLED PRINCIPLE OF STATUTORY CONSTRUCTION IN OKLAHOMA THAT STATUTES ARE GENERALLY CONSTRUED TO OPERATE PROSPECTIVELY ONLY.
"ALL STATUTES ARE CONSTRUED AS HAVING PROSPECTIVE OPERATION UNLESS THE LEGISLATURE CLEARLY INTENDED OTHERWISE. IF THERE IS ANY DOUBT, IT MUST BE RESOLVED AGAINST THE RETROACTIVE EFFECT."
IN THE MATTER OF MCNEELY, 734 P.2D 1294, 1296, N.7 (OKLA.1987) (CITATIONS OMITTED). THERE IS NOTHING IN THE AMENDED VERSION OF 1355.13 TO INDICATE THAT THE LEGISLATURE INTENDED THE PAY SCALE THEREIN TO BE APPLIED RETROACTIVELY.
BOTH VERSIONS OF THE STATUTE REFER TO PAYING THOSE NON-SYSTEM ATTORNEYS-APPOINTED TO REPRESENT DEFENDANTS IN DEATH PENALTY CASES. THE PAYMENT PROVISIONS ARE TRIGGERED BY THE APPOINTMENT OF SUCH ATTORNEYS. TO AVOID GIVING RETROACTIVE EFFECT TO THE AMENDMENT WHICH BECAME EFFECTIVE JULY 1, 1992, THE COMPENSATION FOR A NON-SYSTEM ATTORNEY APPOINTED TO REPRESENT A DEFENDANT IN A CAPITAL CASE MUST BE GOVERNED BY THE STATUTE IN EFFECT AT THE TIME OF THAT APPOINTMENT. THUS, IN YOUR EXAMPLE OF AN ATTORNEY APPOINTED PRIOR TO THE LEGISLATIVE CHANGE WHO CONTINUES TO REPRESENT THAT CLIENT AFTER THE LEGISLATIVE AMENDMENT, THE ATTORNEY SHOULD CONTINUE TO BE COMPENSATED AT THE RATE IN EFFECT AT THE TIME OF THE APPOINTMENT, $125.00 PER HOUR FOR ALL REASONABLE SERVICES WITH NO UPPER LIMIT.
TO PROPERLY APPLY THE NEW STATUTE PROSPECTIVELY, IT MUST BE CONSTRUED TO GOVERN THOSE APPOINTMENTS MADE SUBSEQUENT TO ITS ENACTMENT. IN YOUR LETTER, YOU ILLUSTRATED A SITUATION IN WHICH A LEAD ATTORNEY MIGHT HAVE BEGUN REPRESENTATION PRIOR TO JULY 1, 1992, WITH CO-COUNSEL APPOINTED SUBSEQUENT TO THAT DATE. PROSPECTIVE APPLICATION OF THE PRESENT 22 O.S. 1355.13 WOULD REQUIRE THAT THE TWO BE PAID DIFFERENTLY - EACH IN ACCORDANCE WITH THE STATUTE IN EFFECT AT THE TIME OF APPOINTMENT.
THEREFORE, IT IS MY OPINION THAT THE AMENDED VERSION OF 22 O.S. 1355.13, WHICH BECAME EFFECTIVE JULY 1, 1992, HAS NO EFFECT ON COMPENSATION OF NON-SYSTEM ATTORNEYS APPOINTED UNDER THE PRIOR 1355.13 AND BEFORE THE EFFECTIVE DATE OF THE AMENDMENT, AND SHOULD BE APPLIED PROSPECTIVELY, THAT IS, TO GOVERN COMPENSATION OF ATTORNEYS APPOINTED AFTER JULY 1, 1992.
(GAY ABSTON TUDOR)