Summary
In Willis v. Price, 256 Ga. 767 (353 S.E.2d 488) (1987), this Court held that "[r]egardless of the worthiness of the cause," a trial court cannot appoint counsel to represent an indigent civil litigant "absent a clear state constitutional or statutory authority" providing for payment out of State or county funds.
Summary of this case from DeKalb County v. AdamsOpinion
44275.
DECIDED MARCH 11, 1987.
Habeas corpus. Bibb Superior Court. Before Judge Johnson.
Michael J. Bowers, Attorney General, Eddie Snelling, Jr., Assistant Attorney General, for appellant.
Lamar W. Sizemore, Jr., for appellee.
Although "none of our cases hold[s] that a habeas corpus court lacks the authority to appoint counsel for an indigent habeas petitioner in the exercise of its discretion" ( State of Ga. v. Davis, 246 Ga. 200, 202 ( 269 S.E.2d 461) (1980), Hill, J., dissenting; and see Sims v. Caldwell, 231 Ga. 377, 378-381 ( 202 S.E.2d 70) (1973), Gunter, J., dissenting), "we know of no statute, case, or constitutional provision which would permit a trial judge to appoint counsel to a habeas petitioner, to be paid out of state or county funds." (Emphasis supplied.) State of Ga. v. Davis, supra at 201; cert. den. 449 U.S. 1057 ( 101 S.C. 631, 66 L.Ed.2d 511) (1980); Johnson v. Zant, 249 Ga. 812 (11) ( 295 S.E.2d 63) (1982). The provisions of OCGA § 9-14-53 (f) (1) for the state's reimbursement of certain counties for "court costs" for indigent habeas corpus petitioners, do not embrace attorney fees. See Bell v. McNair, 160 Ga. 853 (2) ( 129 S.E. 94) (1925). Regardless of the worthiness of the cause, absent a clear state constitutional or statutory authority providing for the expenditure of state funds, such funds cannot be disbursed. Wright v. Absalom, 224 Ga. 6 ( 159 S.E.2d 413) (1968); Cole v. Foster, 207 Ga. 416, 418 (1) ( 61 S.E.2d 814) (1950) and cits.
Accordingly, although the habeas court judge may have acted within his discretion in granting the indigent petitioner's motion for the appointment of counsel due to the complexity and arguable merit of the case, it was error to order that the state bear the expense of providing assistance of counsel for the habeas proceeding.
Judgment reversed. All the Justices concur.