
    24067
    Ex parte John F. HARDAWAY and S. Kirkpatrick Morgan, Jr., Respondents v. The COUNTY OF LEXINGTON, Appellant, In re STATE of South Carolina v. Robert Haskell SOUTHERLAND, Defendant.
    (443 S.E. (2d) 569)
    Supreme Court
    
      
      Jeff M. Anderson, Bouknight, Nicholson, Davis, Frawly & Anderson, Lexington, for appellant.
    
    
      John F. Hardaway, Columbia, and S. Kirkpatrick Morgan, Lexington, for respondents.
    
    
      Robert E. Lyon and Robert S. Croom, of the South Carolina Association of Counties, Columbia, for amicus curiae.
    
    Heard Dec. 7, 1993.
    Decided May 9, 1994.
    Reh. Den. June 7, 1994.
   Moore, Justice:

This appeal is from an order in a capital murder case ordering appellant (County) to pay costs and attorneys’ fees in excess of those provided under the Defense of Indigents Act. In so ruling, the trial judge retroactively applied our decision in Bailey v. State, — S.C. —, 424 S.E. (2d) 503 (1992).

We reverse.

FACTS

Respondents are attorneys who were appointed to represent Robert Haskell Southerland, an indigent defendant in a capital murder case tried before our decision in Bailey was issued. Respondents moved for the trial judge to set reasonable hourly rate for attorneys’ fees claiming that the limitation on fees under S.C. Code Ann. §§ 16-3-26(B) (Supp. 1992) and 17-3-50 (1985) effected an unconstitutional taking of property. The trial judge held the motion in abeyance pending our decision in Bailey.

Once Bailey was issued, the trial judge determined it should be applied retroactively and awarded respondents attorneys’ fees based on an hourly fee of $90 and expenses. He then ordered the State to pay the first $5,000 of attorneys’ fees and costs as provided in § 16-3-26(B) 'and the first $2,500 of investigative expenses as provided in § 16-3-26(C). County was ordered to pay the remaining amounts for a total exposure of $58,054.49 in attorneys’ fees and costs and $7,559.98 in investigative expenses. County appeals.

ISSUE

Did the trial judge err in applying Bailey retroactively?

DISCUSSION

Under State law, a judicial decision that creates a new liability where none formerly existed is applied prospectively only. Toth v. Square D, 298 S.C 6, 377 S.E. (2d) 584 (1989). We conclude Bailey created a new liability for counties and therefore should be applied prospectively.

In Bailey, this Court held “the hourly rates and caps provided in §§ 17-3-50 and 16-3-26 are not absolute allowances in capital cases, but merely limitations upon the State’s funds allocated for the Defense of Indigents.” — S.C. at —, 424 S.E. (2d) at 508. We then decided it “necessarily falls upon the county to supplement as required in a given case” citing McMehan v. York County Council, 281 S.C. 249, 315 S.E. (2d) 127 (Ct. App. 1984). Id.

McMehan involved the payment of attorney fees incurred under the Defense of Indigents Acts. The Court of Appeals construed S.C. Code Ann. § 17-3-70(b) (1985) to require that a county pay the balance of fees incurred under the Defense of Indigents Act when State funds allocated to the county for that purpose have been exhausted. McMehan did not determine any liability beyond the amounts set forth in the Defense of Indigents Acts.

In Bailey, we held for the first time that counties are liable for reasonable attorney fees and costs beyond those provided under the Defense of Indigents Act. Beyond merely construing the applicable statutes regarding hourly fees and caps, we created by judicial decision in Bailey a new liability for counties where none formerly existed. Cf. State v. Southern Farm Bureau Life Ins. Co., 265 S.C. 402, 219 S.E. (2d) 80 (1975) (an opinion simply construing a statute is not limited to prospective application). Accordingly, we hold Bailey is limited to prospective application. The trial judge’s order imposing liability on County for fees and costs exceeding its liability under the Defense of Indigents Acts is hereby

Reversed.

Chandler and Toal, JJ., concur.

Harwell, C.J., and Finney, J., dissenting in separate opinion.

Harwell, Chief Justice:

I disagree with the majority’s finding that Bailey went “[bjeyond merely construing the applicable statutes” to create a new liability for counties where none formerly existed. Bailey was a declaratory judgment action challenging the constitutionality of sections 16-3-26 and 17-3-50. As seen in the following passage, the Bailey opinion is based solely on statutory construction:

We hold that [sections 16-3-26 and 17-3-50] cannot be interpreted as the absolute maximum amount of remuneration for costs and fees, since they clearly do not provide compensation adequate to ensure effective assistance of counsel in capital cases. This Court has long recognized that legislative acts are to be construed in favor of constitutionality and will be presumed constitutional absent a showing to the contrary. Accordingly, we hold that the hourly rates and cap provided in §§ 16-3-26 and 17-3-50 are not absolute allowances in capital cases, but merely limitations upon the State’s funds allocated for the Defense of Indigents. It then necessarily falls upon the county to supplement as required in a given case. [Emphasis added.]

Bailey at —, 424 S.E. (2d) at 508.

Clearly, the liability in Bailey arises from the operation of statutes. It should also be clear that if the liability arises from the operation of statutes, the Legislature created that liability and it has been the law since the statutes were enacted. I am surprised that this conclusion seems to be new ground for the Court. In State v. Southern Farm Bureau Ins. Co., 265 S.C. 402, 219 S.E. (2d) 80 (1975), litigants sought to have this Court prospectively apply Lindsay v. Southern Farm Bureau Cas. Ins. Co., 258 S.C. 272, 188 S.E. (2d) 374 (1972), which like Bailey, was a declaratory judgment action involving the interpretation of two statutes. The Court rejected the claim, stating:

Life and Casualty now take the position that Lindsay v. Southern Farm, supra, being a declaratory judgment only, is not retroactive in effect. They ask the Court to hold that our opinion is to be applied prospectively only. We think the position is untenable. Our ruling was not the making of new law for prospective application; it was the construction of a statute which had been the law since its enactment in 1931. ■ ■ ■ Accordingly, we find the exception without merit and hold that our opinion in Lindsay v. Southern Farm, supra, was retroactive in its nature and effect. [Emphasis added.]

The majority ignores that Bailey itself concedes retroactive application to claims that arose before December 7, 1992. In Bailey, this Court specifically remanded the case to the trial judge for retroactive application of our ruling. Bailey at —, 424 S.E. (2d) at 509. The sparse and casual use of prospective language cited by the majority cannot seriously be read to override the Court’s own application of its holding. Cf. Russo v. Sutton, — S.C. —, 422 S.E. (2d) 750 (1992) (prospective opinion not retroactively applicable to its own litigants).

The majority also ignores that it has already applied Bailey retroactively to facilitate the award of attorney’s fees in capital cases. See Buffalo v. State, Op. No. 93-MO-058 (S.C. Sup. Ct. filed February 25, 1993); Greenville Co. v. State In re: State v. Leitz, Op. No. 93-MO-059 (S.C. Sup. Ct. filed February 25, 1993); Ex Parte: County of Horry In re: State v. Eaddy and State v. Hoffman, Op. No. 93-MO-060 (S.C. Sup. Ct. filed February 25, 1993); Ex Parte: County of Horry In re: State v. Wells, Op. No. 93-MO-061 (S.C. Sup. Ct. filed February 25, 1993); Ex Parte: County of Horry In re: State v. Pressley, Op. No. 93-MO-062 (S.C. Sup. Ct. filed February 25, 1993); Richland Co. v. State In re: State v. Dyar and State v. Simmons, No. 93-MO-063 (S.C. Sup. Ct. filed February 25, 1993). While these are memorandum opinions without precedential effect, the Court gave great weight to a single memorandum opinion that applied a case retroactively in Toth v. Square D Co., 298 S.C. 6, 377 S.E. (2d) 584 (1989):

[T]his Court has already given retroactive effect to the Small decision through our holding in Francisco v. Black River Electric Cooperative, Mem. Op. 87-MO-325 (S.C. filed July 27, 1987).... Although we recognize that Francisco is a memorandum opinion without precedential value, it nonetheless indicates that we have already implicitly allowed retroactive application of Small. By our holding today, we explicitly hold that Small is to be retroactively applied to causes of action arising prior to the date it was filed.

Toth at 10, 377 S.E. (2d) at 586-87.

In conclusion, I wholly disagree with the majority’s analysis because it gives Bailey a life apart from the controlling statutes and, by doing so, reaches the astonishing result that the recovery of fees and costs possible on December 7, 1992, somehow could not occur on January 19, 1993, even though the controlling statutes had not been amended. In my view, the trial judge did not err in applying Bailey retroactively. Therefore, I respectfully dissent.

Finney, J., concurs. 
      
       At the time, § 17-3-50 set a fee of ten dollars per hour for out-of-court time and fifteen dollars for in-court time; under § 16-3-26(B) the maximum to be paid for fees and costs was $5,000. Both statutes have since been amended.
     
      
       Section 16-3-26(0) has also been subsequently amended.
     
      
       We specifically noted in Bailey that “it is unrealistic to expect that token compensation will suffice in the future to provide an indigent defendant with the quality of legal representation mandated by the United States Supreme Court.” — S.C. at —, 424 S.E. (2d) at 508 (emphasis added).
     
      
       The date of the trial judge’s order in this ease.
     