Arnold v. Kemp

• Decision Date: 15 July 1991
• Docket Number: No. CR,CR
• Citation: 813 S.W.2d 770,306 Ark. 294
• Parties: Blair ARNOLD and Thomas E. Allen and Suzan A. Jernigan, Appellants, v. The Honorable John Dan KEMP, Circuit Judge of the Independence Circuit Court, Sixteenth Judicial District, State of Arkansas, Appellee. Suzan A. JERNIGAN, Appellant, v. STATE of Arkansas, Appellee. 91-60.
• Court: Arkansas Supreme Court

Page 770

813 S.W.2d 770

306 Ark. 294

Blair ARNOLD and Thomas E. Allen and Suzan A. Jernigan, Appellants, v. The Honorable John Dan KEMP, Circuit Judge of the

Independence Circuit Court, Sixteenth Judicial

District, State of Arkansas, Appellee.

Suzan A. JERNIGAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-60.

Supreme Court of Arkansas.

July 15, 1991.

Blair Arnold, Tom Allen, John Norman Harkey and H. David Blair, Batesville, for appellants.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellees.

Ralph G. Brodie, Jeff Rosenzweig, Little Rock, for amici curiae Ark. Bar Assn.

HOLT, Chief Justice.

This case involves the constitutionality of Ark.Code Ann. § 16-92-108 (1987), which relates to the legislative limitation of expenses and fees imposed upon court-appointed attorneys for indigent clients accused of crime. We find, under the circumstances of this case, the expense and fee "caps" contained in section 16-92-108 to be unconstitutional and that the contempt citation should be vacated. We remand to the trial court for proceedings consistent with this opinion.

On November 30, 1990, the appellant, Suzan Jernigan, was charged by information with the capital murder of her husband, J.B. Goff, and mother, Patricia L. Dunn. Jernigan was determined to be indigent, and the appellants, Blair Arnold and Thomas Allen, were appointed as her attorneys by the court on December 11, 1990. Both Messrs. Arnold and Allen objected to their appointments; however, they represented Jernigan during her arraignment. Trial date was subsequently set for April 1, 1991.

On March 14, 1991, Messrs. Arnold and Allen advised the trial court that they were refusing to proceed because they could not provide Jernigan with effective assistance of counsel as they were reluctant to incur overhead expenses while representing her, particularly in light of the fact that the trial court had refused to reimburse them for their out-of-pocket expenses or provide attorney's fees and had refused to supply Jernigan with funds with which to hire the necessary expert and investigatory assistance. Counsel were found to be in contempt of court, fined $1,000.00, and ordered to appear before the court on March 29, 1991, for further proceedings.

The appellants filed a notice of appeal, as well as a petition for a temporary writ of prohibition and permanent writs of prohibition, mandamus, and certiorari.

In Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), we noted that appealability is controlled by Ark.R.App.P. 2(a), which requires a final judgment or decree or one that, in effect, determines the action and prevents a judgment from which an appeal might be taken or discontinues the action. Jernigan's appeal is premature as there has been no final, appealable order for this court to review. Her petitions for other relief are also inappropriate at this juncture and will not be considered.

We do, however, address the following arguments promulgated by Messrs. Arnold and Allen as an appeal from their contempt charge predicated upon their refusal to proceed as Jernigan's court-appointed counsel: 1) the fee and expense limitations contained in section 16-92-108 violate their right to due process and just compensation, and 2) the present system of appointing attorneys in the State of Arkansas violates their right to equal protection.

Messrs. Arnold and Allen also assert 3) that the limitation of expenses and attorneys' fees creates an inherent conflict of interest between the indigent and the court-appointed attorney, [306 Ark. 297] and 4) that the limitation of expenses and fees by the General Assembly inherently, and in its application, invades the judicial branch of state government. In light of our analysis of the first two arguments, we need not address the latter two points on appeal.

I. DUE PROCESS AND JUST COMPENSATION

Messrs. Arnold and Allen initially argue that section 16-92-108 violates their right to due process and just compensation.

We have held that there is a strong presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality; if it is possible for the courts to so construe an act that it will meet the test of constitutionality, we not only may, but should and will do so. Further, the party challenging a statute has the burden of proving it unconstitutional. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).

We have previously addressed the constitutionality of Ark.Stat.Ann. § 43-2419 (Repl.1977) (currently section 16-92-108) in State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980), where the State appealed from a circuit court decision awarding reasonable attorneys' fees to attorneys representing indigent criminal defendants and holding the statute limiting such payments to be unconstitutional. In that case, we held that the statute limiting payments to attorneys representing criminal defendants to $100 for investigation expenses and $350 for attorneys' fees did not violate the provision in the Arkansas Constitution providing for the separation of powers, and the trial court was bound by the statute.

At that time, we based our decision on a quick and short reference to the historical practice of attorneys representing indigents for little or no fee and on the professional oath an attorney swears to upon admittance to the Arkansas Bar, which oath reads in pertinent part as follows:

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man's cause for lucre or malice. SO HELP ME GOD.

We also stated in obiter dictum:

It has been argued in another case that requiring an attorney to furnish services for little or no fee is a taking of property in violation of the due process clause of the United States Constitution. This argument was rejected in the case of United States v. Dillon, 346 F.2d 633 (9th Cir.1965), cert. denied, 382 U.S. 978 [86 S.Ct. 550, 15 L.Ed.2d 469] (1966). Finding no common law or statutory or constitutional authority establishing payment of attorneys fees, we are left only the sources provided by the legislature. The only other source is the services being furnished by the attorneys themselves. Lawyers clearly have an obligation to represent indigents upon court orders and to do so for existing statutory compensation or for no remuneration at all.

(Citation omitted.)

Subsequent to our decision in State v. Ruiz, supra, other states have addressed the constitutionality of comparable fee cap statutes and found them to be unconstitutional. DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987); State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987); and Makemson v. Martin County, 491 So.2d 1109 (Fla.1986).

In Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), we were presented with the issues that we now address but were unable to directly analyze at that time because the defendant in that case had neither shown nor argued that he had suffered any specific prejudice resulting from the fee cap statute. See Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). We noted, however, our concern and gave notice that we would reconsider our earlier decisions on the issue in an appropriate case and even outlined pertinent cases from other jurisdictions and their rationale that have dealt with the question. Coulter v. State, 304 Ark. at 542, 804 S.W.2d at 356; see also Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990). Rather than discuss these cases again, we single out and attach primary significance to State ex rel. Stephan v. Smith, supra, as the Supreme Court of Kansas commented at length upon the historical argument of legal representation for little or no fee:

... the tradition of requiring pro bono work of attorneys originated in common-law England where attorneys who were expected to provide such representation also enjoyed special rights and privileges. They were the sergeants-at-law, the elite among all English lawyers. They had special practice privileges, they commanded higher fees, and judges were selected exclusively from their ranks. They were actually public officers and were sometimes paid by the government. As officers of the court, English lawyers were exempt from suit, military service, and other compelled public service. Their modern American counterparts enjoy no such special privileges. The distinction and its consequences were recognized by the Indiana Supreme Court as early as 1854 [in Webb v. Baird, 6 Ind. 13, 17 (1854) ]:

The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer justly demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class--clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens.

(Citations omitted.)

The court in Webb noted that an attorney is under no obligation, honorary or otherwise, to volunteer his services; it devolves as much on any other citizen of equal wealth to employ counsel in the defense as on the attorney to render services gratuitously.

The Kansas court concluded that:

Attorneys generally have an ethical obligation to provide pro bono services for indigents. Such services may only be provided by attorneys. The individual attorney has a right to make a living. Indigent defendants, on the other hand,...