State v. Hicks

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-08-0174-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 08-0072
THE HONORABLE BETHANY G. HICKS, )
Judge of the SUPERIOR COURT OF ) Maricopa County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of MARICOPA, ) No. CV2007-001874
)
Respondent Judge, )
)
) O P I N I O N
RAPHAEL DURNAN, )
)
Real Party in Interest. )
_________________________________ )

Special Action from the Superior Court in Maricopa County
The Honorable Bethany G. Hicks, Judge

REVERSED AND REMANDED
________________________________________________________________

Petition for Review from Order of the Court of Appeals,
Division One, No. 1 CA-SA 08-0072

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Daniel P. Schaack, Assistant Attorney General
Richard P. Broder, Assistant Attorney General Tucson

Attorneys for State of Arizona

SHERICK LAW OFFICE Tucson
By Steven P. Sherick

And
WILLIAM G. WALKER, P.C. Tucson
By William G. Walker

And

HARALSON, MILLER, PITT, FELDMAN & MCANALLY, P.L.C. Tucson
By Stanley G. Feldman
Attorneys for Rafael Durnan
________________________________________________________________

R Y A N, Justice

¶1 We here consider whether the State is vicariously

liable when a private attorney appointed to represent an

indigent criminal defendant provides negligent representation.

We hold that when there is no claim that an indigent defendant’s

appointed contract attorney did not have the required skill and

experience to handle the case, the State cannot be held liable

for the attorney’s subsequent negligence.

I

¶2 The Gila County grand jury indicted Rafael Durnan on

four felony counts. Because he had no funds to hire an

attorney, a Gila County Superior Court judge appointed Kristi

Riggins to defend him. Riggins was in private practice and had

contracted with Gila County to represent indigent defendants. 1

¶3 After a jury convicted Durnan of three of the charges,

1
Gila County does not have a county-funded public defender’s
office; therefore it relies on contract counsel to defend
indigent defendants. See Arizona Public Defender Association,
http://www.adpa.us/offices; Gila County Superior Court,
http://wwww.supreme.state.az.us/gilasc (last visited Dec. 18,
2008).
2
the judge sentenced him to ten years in prison.

¶4 Durnan then petitioned for post-conviction relief,

claiming that Riggins had provided ineffective assistance of

counsel. See Ariz. R. Crim. P. 32.1. After a hearing, the

superior court found ineffective assistance and ordered a new

trial. The State subsequently dismissed all charges against

Durnan. By then, he had served five years in prison.

¶5 Durnan sued the State, alleging that the State had

negligently hired and supervised Durnan’s court-appointed

counsel, and that the State was also vicariously liable for

counsel’s negligence. 2 Durnan later dismissed the negligent

hiring and supervision claims, leaving only the claim of

vicarious liability.

¶6 The State maintained that it cannot be vicariously

liable because Riggins was an independent contractor over whom

it exercised no supervision or control. Durnan argued that

Riggins’s status as an independent contractor was irrelevant

under the non-delegable duty exception to the vicarious

liability doctrine.

¶7 The superior court judge denied cross-motions for

summary judgment, concluding that “the State would be liable for

any malpractice by defendant Riggins” under the doctrine of non-

2
Durnan named but later dismissed Riggins and Gila County as
defendants in the lawsuit.
3
delegable duty set forth in Wiggs v. City of Phoenix, 198 Ariz.

367, 10 P.3d 625 (2000). The State filed a special action in

the court of appeals, which declined jurisdiction without

comment.

¶8 We granted the State’s petition for review because

this matter raises an issue of first impression of statewide

importance. We have jurisdiction under Article 6, Section 5(3),

of the Arizona Constitution and Rule 23 of the Arizona Rules of

Civil Appellate Procedure.

II

¶9 We must determine whether the State’s duty to provide

counsel to indigent defendants includes a duty to ensure that

private appointed counsel effectively represents the defendant. 3

Only if the State has such a duty is it necessary to decide

whether the duty is non-delegable. We thus turn to an analysis

of the scope of the State’s duty.

A

¶10 “Duty is defined as an obligation, recognized by law,

which requires the defendant to conform to a particular standard

of conduct in order to protect others against unreasonable risks

of harm.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 10, 150 P.3d

3
This case does not involve whether a county-funded public
defender’s office could be held liable for the malpractice of
one of its attorneys, and we express no opinion on that subject.

4
228, 230 (2007) (internal quotation marks and citation omitted).

The United States and Arizona Constitutions guarantee the right

to assistance of counsel in criminal cases. U.S. Const. amend.

VI (“In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his

defence.”); Ariz. Const. art. 2, § 24 (“In criminal

prosecutions, the accused shall have the right to appear and

defend in person, and by counsel . . . .”).

¶11 In 1963, the United States Supreme Court held that the

Sixth Amendment, as applied to the states by the Fourteenth

Amendment, generally requires states to provide counsel for

indigent defendants in criminal cases. Gideon v. Wainwright,

372 U.S. 335, 342 (1963). It reasoned that “[t]he assistance of

counsel is often a requisite to the very existence of a fair

trial.” Argersinger v. Hamlin, 407 U.S. 25, 31 (1972). Central

to “the right to counsel is the right to the effective

assistance of counsel.” Strickland v. Washington, 466 U.S. 668,

686 (1984) (emphasis added, internal quotation marks and

citation omitted). This Court therefore has recognized that the

State has the duty to appoint competent counsel. State v.

Torres, 208 Ariz. 340, 342, ¶ 6, 93 P.3d 1056, 1058 (2004);

Zarabia v. Bradshaw, 185 Ariz. 1, 3, 912 P.2d 5, 7 (1996)

(holding that Yuma County’s system of random appointment of

private attorneys to represent indigent clients offended an
5
Arizona statute and rule of criminal procedure because it failed

to consider the skill-level required for each case); State v.

DeLuna, 110 Ariz. 497, 500-01, 520 P.2d 1121, 1124-25 (1974)

(explaining that a defendant is entitled to competent counsel).

B

¶12 The question then becomes whether the State’s duty is

such that the State may be held liable for appointed contract

counsel’s ineffective representation. The answer is no. The

State’s duty ends once it has appointed competent counsel. See

Foster v. County of San Luis Obispo, 17 Cal. Rptr. 2d 730, 733

(Ct. App. 1993) (“[T]he duty of [the county] to provide

appellant with competent legal assistance extended only to the

appointment of counsel, and not to counsel’s subsequent legal

performance.”). Any enlargement of the State’s duty beyond

appointment of qualified counsel would also suggest a corollary

right of the State to supervise the performance of counsel’s

duties. Such supervision would encroach upon both the

defendant’s Sixth Amendment rights, Strickland, 466 U.S. at 686,

and the appointed attorney’s ethical obligations, Polk County v.

Dodson, 454 U.S. 312, 321 (1981) (noting that an appointed

attorney, even though paid by the State, has an ethical duty to

exercise independent judgment on behalf of the client). Thus,

we hold that the State’s constitutional duty is discharged once

6
the State has appointed a competent attorney. 4

¶13 Polk County is instructive. There, an indigent

criminal defendant sued Polk County claiming that his public

defender’s inadequate representation violated his constitutional

rights. Id. at 314. The United States Supreme Court held that

a public defender does not act under color of state law when

providing representation to an indigent defendant. 454 U.S. at

324-25. The Court noted that “a defense lawyer best serves the

public, not by acting on behalf of the State or in concert with

it, but rather by advancing ‘the undivided interests of his

client.’” Id. at 318-19 (quoting Ferri v. Ackerman, 444 U.S.

193, 204 (1979)). Therefore, once qualified counsel is

appointed, the State’s duty is complete because it cannot

interfere with the representation provided by appointed counsel.

See id. at 318 (noting that although attorneys are licensed by

the state, they serve a private function when defending a

client); see also Ferri, 444 U.S. at 204 (observing that “the

primary office performed by appointed counsel parallels the

office of privately retained counsel”). As the Court recognized

in Strickland, “[t]he government is not responsible for, and

hence not able to prevent, attorney errors that will result in

4
Because the parties stipulated to dismiss Durnan’s
negligent hiring claim with prejudice, there is no issue as to
Riggins’ qualifications to serve as Durnan’s attorney at the
time of appointment.
7
reversal of a conviction or sentence.” 466 U.S. at 693. The

State’s duty is to appoint qualified counsel for an indigent

defendant; the duty to provide effective representation belongs

to the attorney, not the State.

III

¶14 Durnan does not claim that Riggins was unqualified or

incapable of providing adequate representation - only that she

did not in fact provide such representation. Because the State

may not participate in the actual representation of an indigent

defendant, the State discharged its duty to provide competent

counsel when it appointed Riggins to represent Durnan. 5

Therefore, the superior court erred in finding that the State

could be held vicariously liable under the non-delegable duty

doctrine for the alleged negligence of the court-appointed

contract attorney.

IV

¶15 For the foregoing reasons, we reverse the order of the

5
Durnan argues that the State has a non-delegable duty to
provide effective assistance of counsel, relying on Wiggs v.
City of Phoenix, 198 Ariz. 367, 10 P.3d 625 (2000), and Medley
v. North Carolina Department of Corrections, 412 S.E.2d 654
(N.C. 1992). As discussed above, however, the State’s sole duty
is to appoint competent counsel, and it indisputably fulfilled
that duty here by directly appointing qualified counsel. Thus,
Wiggs and Medley are inapposite because in both cases, the
government hired others to discharge its duties. See Wiggs, 198
Ariz. at 268, ¶ 3, 10 P.3d at 626 (stating that the city-hired
contractor operated and maintained streetlight); Medley, 412
S.E.2d at 655 (indicating doctor was an independent contractor
for, and not an employee of, state prison).
8
superior court and remand the case to that court for entry of

judgment for the State.

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

9