May v. State
| Decision Date | 22 December 1995 |
| Parties | Ex parte State of Alabama. (Re James W. MAY v. STATE). Ex parte James W. MAY. (Re James W. May v. State). 1930680, 1930683. |
| Court | Alabama Supreme Court |
W. Donald Bolton, Jr., Foley, for James W. May.
Jeff Sessions, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
Mannon G. Bankston, Jr., Oxford; and William R. Blanchard (committee chairman), Montgomery, for Amicus curiae Alabama State Bar (Indigent Defense Committee), in support of May's petition.
James E. Boren, Baton Rouge, Louisiana, for Amicus curiae National Association of Criminal Defense Lawyers, in support of May's petition.
Thomas M. Goggans, Montgomery, for Amicus curiae Alabama Criminal Defense Lawyers Association.
Joel L. Sogol, Tuscaloosa, for Amicus curiae American Civil Liberties Union of Alabama.
The writs of certiorari are quashed as having been improvidently granted.
The petitioner in case number 1930683, James W. May, contends that the imposition of a duty to represent indigent criminal defendants at rates currently limited by Ala.Code 1975, § 15-12-21(d), violates numerous constitutional provisions, including the prohibition against taking of property without just compensation, and he invites us to reexamine our holdings on these issues in Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985), and Sparks v. Parker, 368 So.2d 528 (Ala.), appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62 L.Ed.2d 16 (1979). We conclude that the facts and data presented in this case do not warrant reexamination of these issues at this time. Therefore, these writs are quashed.
WRITS QUASHED AS IMPROVIDENTLY GRANTED.
Requiring attorneys to represent indigent defendants without compensating them adequately for their professional services has been a perennial problem for the state, as I wrote in a dissenting opinion in Sparks v. Parker, 368 So.2d 528 (Ala.1979); appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62 L.Ed.2d 16 (1979). See 7A C.J.S. Attorney and Client § 299, n. 48 (Pocket Part) (1991). 1
Although my position regarding the constitutionality of requiring attorneys of this state to furnish services without adequate compensation has not changed, I have not received much support for my position on this legal issue from either this Court, the Supreme Court of the United States, or other courts, state or federal, for that matter, but I still believe that my analysis of the issue in Sparks was correct.
I naturally disagree with the State's argument that the rationale in Sparks is constitutionally sound, but, in view of the fact that the United States Supreme Court refused to review Sparks, I see no reason to continue to dissent. I do enthusiastically support the decision of the majority to allow the opinion of the Court of Criminal Appeals to stand, thereby granting attorneys some relief so they can at least be reimbursed for the expenses they incur in representing indigent defendants. Therefore, I concur.
There seems to be growing sentiment for the position I stated in Sparks. See, Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770, 780-81 (1991) (Newbern, J., concurring), modified, State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993); 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); Makemson v. Martin County, 491 So.2d 1109 (Fla.1986).
In conclusion, I remind the reader of a statement often attributed to Abraham Lincoln: "A lawyer's time and advice are his stock in trade." It seems axiomatic that if the state appropriates that "stock in trade" without an adequate payment therefore, it has taken property without just compensation.
1 In my dissent in Sparks, I wrote:
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