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Inmate’s Right to Attorney in Civil Actions Is Upheld Again

Times Staff Writer

In a case that has drawn extraordinary interest in the legal community, the state Supreme Court Monday reaffirmed an earlier ruling that indigent prisoners who are sued civilly have a right to a lawyer but ducked the key question of who must pay the bills.

The court ruled nearly 10 years ago that in extreme situations, lawyers can be conscripted to handle the defense of inmates who are sued. Since then, the question of how they are to be paid has been left unanswered.

Several bar groups maintained that the concept amounted to “involuntary servitude,” and there was talk of refusing forced appointments by trial courts.

However, while acknowledging the intense interest in Monday’s case by lawyers, the court by a 6-1 margin said it was placing the issue on the “judicial back burner” to give the Legislature and State Bar time to come up with a “fair legislative solution.”

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‘Deeply Disturbed’

Dissenting Chief Justice Rose Elizabeth Bird chastised the court for its ruling, saying she was “deeply disturbed by the majority’s avoidance of issues squarely presented by this case.”

“In short, the majority would do well to heed the advice Lord Chesterfield gave to his son, ‘Never put off till tomorrow what you can do today.’ ”

Bird wrote that she would require the state to pay the bills of lawyers who are appointed to represent indigents. Others have suggested that the State Bar levy additional fees to cover such costs.

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Legislative moves to deal with the issue have been on hold pending a decision in Monday’s case. A bill authorizing $1 million to pay legal bills of indigent inmates passed last year but was vetoed by Gov. George Deukmejian.

In his veto message, the governor said the court created the problem by ruling in 1976 that inmates had a right to legal representation. The court, he said, should solve the problem.

That ruling did not attract much notice until December, 1983, when a state Court of Appeal declared that a Napa lawyer had to represent Terry Val Yarbrough, who is serving a sentence of 17 years to life at the California Medical Facility at Vacaville for a second-degree murder conviction. Yarbrough is being sued by the son of a man whom Yarbrough killed in a barroom fight in Napa.

Considerable Cost

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Yarbrough claimed that the gun fired accidentally and said he was contemplating bringing the gun manufacturer into the suit, which would add considerable cost, according to his attorney. The State Bar estimated that the cost of defending Yarbrough at $75,000 to $100,000, representing an amount of time that would be a major burden for any lawyer.

“This is the worst conceivable result, and the least expected,” said J. Roland Wagner, who was appointed by a Superior Court judge in Napa to represent Yarbrough and estimated that he has spent 500 hours on the case.

“We have been doing this pro bono, and you kind of hate to see all of it go to waste. It leaves us as much in the air as we were before,” he said.

Led by Justice Otto Kaus, the court ordered the trial judge to reconsider his order that Wagner be appointed to represent Yarbrough. The court noted that its 1976 opinion emphasized that appointments should be made only in a limited number of cases, because most inmates incarcerated for violent crimes are indigent, making them unlikely to be sued.

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“The problem isn’t going to go away,” said Edward Lascher, a Ventura attorney who filed one of the nearly 30 friend-of-the-court briefs in the case. “Given the affection in which prisoners are held, the Legislature isn’t going to do a thing.”

The question, meanwhile, is certain to come up with increasing frequency, because courts regularly are allowing crime victims and their families to sue perpetrators for damages resulting from the crimes.

A spokeswoman for the State Bar said the decision “threw everybody for a loop.” The Bar prepared statements anticipating a ruling that would settle the issue but was unprepared for a ruling that left the issue undecided, she said. (Yarbrough vs. Superior S.F.24698)

In another ruling Monday, the court reinstated a suit by the parents of a 13-year-old boy who died while in custody at a juvenile hall in Santa Clara County. In issuing the ruling, the court expanded the right to sue for emotional distress by family members who witness the death of a loved one caused by negligence.

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Past rulings have said family members could collect if they witnessed a sudden death, such as one resulting from a car accident. Monday’s case expanded the right by allowing the mother to sue for emotional distress for a death resulting from illness.

Watched Son

The suit was filed by Raul and Gloria Ochoa. The mother watched as her son, Rudy, grew increasingly ill during a six-day period in March, 1981. The mother pleaded with doctors to treat her son, but they assured her that he was merely suffering from the flu, according to the suit.

As he grew sicker, authorities refused to allow the woman to bring in her own doctors, the suit claimed, and when she tried to apply cold compresses to Rudy’s forehead, she was told to leave the infirmary. The boy died the following day of pneumonia. (Gloria Ochoa et al. vs. Superior Court of Santa Clara County SF24637)

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