Person with retained counsel can still seek state payment for expert services

Sarah G. Swain and Cooper Overstreet won in Landrum v. Goering, No. 116,447 (Kan. July 21, 2017), obtaining a writ of mandamus against the Sedgwick County District Court and BIDS ordering the district court to consider payment of investigative, expert, or other services for a partially indigent client represented by a privately retained attorney. The KSC recognized that, when court-appointed attorneys require such services, payment is required under K.S.A. 22-4508. The question was whether this statute or any other provision of law requires the state to pay for such services for persons who are partially indigent and therefore may have retained an attorney. The KSC answered the question in the affirmative:

The parties' arguments focus on the meaning of the first seven words in the statute: "An attorney other than a public defender." Landrum argues the plain language of the statute applies to any attorney other than a public defender and applies to his situation, i.e., where a defendant has retained counsel but does not have the financial ability to pay for investigative, expert, or other services. The Board argues instead that the language refers to only those attorneys who are not public defenders but are part of the Board's system of contract appointed counsel.

The plain language of the statute does not go as far as the Board suggests, and we would have to add words in order to reach the Board's desired reading, such as: "An attorney other than a public defender or retained counsel." This we cannot do. As per the words used in K.S.A. 22-4508, the only attorneys excluded are public defenders. Landrum's privately retained attorney is not a public defender and, thus, is not excluded. As a result, she falls within the category of attorneys who may seek services for a client who is financially unable to obtain such services.

Moreover, except in cases involving a public defender, K.S.A. 22-4508 imposes only two restrictions on a defendant's eligibility for investigative, expert, or other services: The defendant must be financially unable to obtain the services, and the services must be "necessary." See K.S.A. 22-4508. Notably, the financial restriction does not explicitly, or even implicitly, require a finding that the defendant be unable to employ counsel or be unable to employ counsel and obtain the services. An inability to obtain necessary services serves as the only financial condition. 

Because the KSC found the language to be plain, it rejected the Board's other arguments seeking a more limited reading of the statute. The KSC also recognized that there are different statutory provisions for determination of whether a person is able to employ counsel and whether the person can afford services necessary to an adequate defense. As a result, the KSC ordered the district court to hold an ex parte proceeding to determine whether Mr. Landrum could financially obtain necessary investigative, expert, or other services.