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Alan G. Krams, for appellant.
Cliff Zucker, for individual respondent.
Kenneth Falk, for respondent Office of Court Admin.
Amy L. Abramowitz, for respondent SNY.
American Association of Retired Persons, et al., amici curiae.
MEMORANDUM:
The order of the Appellate Division should
be affirmed, with costs.
In November 1993, St. Luke's-Roosevelt Hospital
Center initiated a proceeding pursuant to Article 81 of the Mental Hygiene
Law (MHL) for the appointment of a guardian for respondent, an indigent
alleged incompetent person (AIP), for the purpose of transferring her to
a nursing home and making major medical or dental treatment decisions without
her consent. The AIP had a right to be represented by counsel of
her choice in those proceedings if she could afford one (Mental Hygiene
Law 81.10) and if she could not afford counsel, the court was obliged
to assign counsel under the statute (Mental Hygiene Law 81.10[c]) and
because her constitutionally protected liberty interests were at stake
(see, Lassiter v Dept. of Social Services, 452 US 18; Rivers v Katz, 67
NY2d 485). Supreme Court named an attorney as counsel for respondent
and Mental Hygiene Legal Services as an independent court evaluator (see,
Mental Hygiene Law 81.09, 81.10; Bailly, Practice Commentaries, McKinney's
Cons. Laws Book 34A, Mental Hygiene Law 81.10, p 314). Though the
statute is silent as to the source of funds for payment of counsel if the
AIP is indigent, the Supreme Court determined that competent counsel could
not be obtained to represent the AIP without compensation. After
remand to provide the City of New York with an opportunity to contest the
issue, Supreme Court held that the City must pay for the court-appointed
attorney at the rates provided in Article 18-B of the County Law. A
divided Appellate Division affirmed those determinations (640 NYS2d 73,
n.o.r.).* The parties agree that the AIP
was entitled to assigned counsel. The dispute between them is whether
the court may require that counsel be paid and if so, by whom. We
conclude that the Legislature, by providing for the assignment of counsel
for indigents in the Mental Hygiene Law, intended, by necessary implication,
to authorize the court to compensate counsel. There remains the question
of whether the City or the State is responsible for that compensation.
The two pertinent statutes are Article 18-B of the County Law ( 722 &
722[f]) and section 35 of the Judiciary Law.
Assignments under Article 18-B are paid for by the county (and by New
York City for the five counties therein, see, 722-e). Appointments under
section 35 of the Judiciary Law are paid for by the State ( 35[5]).
Although the statutes are silent on who should pay counsel in Mental Hygiene
Law Article 81 proceedings, the responsibility of paying for assigned counsel
in the overwhelming majority of cases in which the appointment of counsel
for indigents has been authorized has fallen upon the locality under Article
18-B, rather than the state pursuant to Judiciary Law 35. The evidence
in the record before us establishes that Article 18-B Panels are better
able, both financially and practically, to provide the needed assistance
under this provision of the Mental Hygiene Law. Accordingly, in the
absence of legislation directing otherwise, we affirm the determination
of the courts below that assignment of counsel here is appropriately funded
by the City of New York in accordance with the procedures set forth in
County Law Article 18-B.
F O O T N O T E
* The dissenter concluded that Supreme Court had abused its discretion in requiring the appointment of counsel who had to be compensated when it could have avoided the dilemma by simply removing Mental Hygiene Legal Services as evaluator and appointing it to represent the AIP. We conclude the court did not abuse its discretion as a matter of law in failing to do so.
* * * * * * * * * * * * * * * *
Order affirmed, with costs, in a memorandum. Judges Simons, Titone,
Bellacosa, Smith, Levine and Ciparick concur. Chief Judge Kaye took
no part.
Decided December 20, 1996