$50 for work outside of court, it was argued that the statutory language "in excess of the foregoing limits" was intended to apply only to the maximum award of $800 and not to the statutory hourly rates. It was held that that argument was unpersuasive. (People v Herring, 279 AD2d 765, 766 [3d Dept 2001], lv denied 96 NY2d 711.) In People v Brisman (173 Misc 2d 573 [Sup Ct, NY County 1996]), the court wrote that
"the legislative history of the statute [County Law § 722-b], as well as the opinion of the Attorney-General who drafted the statute, clearly indicate that under section 722-b, in cases which present extraordinary circumstances, trial courts have the power to provide for compensation that exceeds
both the statutory hourly rates and the statutory maxima set forth for the class of offense charged." (
Supra at 578 [emphasis added].)
See also
Matter of D.H. (NYLJ, Aug. 15, 2000, at 24, col 4 [Fam Ct, NY County]), in which counsel for a juvenile delinquent was awarded $3,367.50 for 24.1 hours of out-of-court preparation and 20.8 hours in-court representation at a uniform rate of $75 per hour. The court's research has found no reported decision where a law guardian, rather than assigned counsel, was awarded compensation at hourly rates in excess of $40 and $25. In an unreported decision, however, the Supreme Court, Madison County, found extraordinary circumstances and made an award of $6,697.50 to a law guardian for 89.3 hours of work at the hourly rate of $75. (
Webster v Webster, Jan. 26, 2001, O'Brien, J., Index No. 98-1078.) Given that the reference in County Law § 722-b to "the foregoing limits" has been held to apply to
both the maximum award of $800
and the hourly rates of compensation in awarding payment to assigned counsel, and further given that the relevant language in Judiciary Law § 35 (3) is identical to that of County Law § 722-b, and in the absence of any statutory language that would evince a legislative intent to allow enhanced hourly rates for assigned counsel but not for law guardians, this court can find no basis in statute, court rule, decisional law or logic to agree with the argument propounded by the Law Guardian Program director. Accordingly, this court holds that, under the provisions of Judiciary Law Â
§ 35 (3), once extraordinary circumstances are established to its satisfaction, a trial court has the authority to award compensation to a law
guardian that exceeds
both the maximum allowance of $800 as well as the statutory hourly rates. The modification made by the Law Guardian Program director to the court's award to the law guardian in this case, based on his conclusion that the court lacked such authority, was unwarranted and should be set aside. This court further rejects the argument that it lacks the jurisdiction to hear this issue on the basis that it is nonjusticiable. In
Matter of Werfel v Agresta (36 NY2d 624) and
Matter of Director of Assigned Counsel Plan of City of N.Y. (
Bodek) (
87 NY2d 191), it was held that the trial court's determination of a fee award is administrative in nature and, therefore, not amenable to judicial review. Such is not the case here. Had this court's award been modified by the Law Guardian Program director based on his determination that the award had been made without a finding of the requisite extraordinary circumstances,
that decision would be nonjusticiable. Or, had this court found that the law guardian had failed to establish that extraordinary circumstances existed and then declined to award enhanced compensation,
that decision, too, would be nonjusticiable. (
Matter of McLaughlin v Mathews, 290 AD2d 846 [3d Dept 2002];
People v Herring, supra ; Rotta v Rotta, 233 AD2d 152 [1st Dept 1996].) This case, however, presents not an issue of discretion but rather one of statutory construction. The interpretation of statutory language is not administrative in nature. Because the modification made by the Law Guardian Program director to this court's fee award was based on his construction of Judiciary Law Â
§ 35 (3), the issue of whether that was a
misconstruction is not nonjusticiable. Accordingly, the modification made by the Law Guardian Program director to the law guardian's voucher as approved by this court is vacated, and the Law Guardian Program director is directed to certify it to the Comptroller for payment in the sum of $3,044.01.