Sparks v. Parker

• Decision Date: 09 February 1979
• Citation: 368 So.2d 528
• Parties: In re Guy SPARKS, Attorney at Law v. Robert M. PARKER, Presiding Judge, 7th Circuit, State of Alabama. Ex parte Guy Sparks and the Calhoun County, Alabama, Bar Association, etc., Petitioners. 77-667, 77-687.
• Court: Alabama Supreme Court

Page 528

368 So.2d 528

In re Guy SPARKS, Attorney at Law v. Robert M. PARKER, Presiding Judge, 7th Circuit, State of Alabama.

Ex parte Guy Sparks and the Calhoun County, Alabama, Bar Association, etc., Petitioners.

77-667, 77-687.

Supreme Court of Alabama.

Feb. 9, 1979.

Rehearing Denied March 9, 1979.

Guy Sparks, Richard B. Emerson, Anniston, for Calhoun County Bar Association, petitioners.

William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for respondent, opposed.

William H. Morrow, Jr., Montgomery, Gen. Counsel for Alabama State Bar, amicus curiae.

BLOODWORTH, Justice.

Petitioners appellants seek a writ of mandamus requiring Judge Robert M. Parker, Presiding Judge of the Seventh Judicial Circuit, to vacate, modify or set aside his order of December 27, 1977, establishing an indigent defense system for the circuit and requiring him to vacate his order of June 28, 1978, denying appellants' motion to vacate the original order, or, in the alternative, an appeal of the June 28, 1978, order denying the motion to vacate the original order.

Pursuant to §§ 15-12-2 and 15-12-3, Code of 1975, the order of December 27, 1977, was entered by Judge Parker with the advice and consent of the Indigent Defense Commission of the Seventh Judicial Circuit of Alabama and after consultation with the Indigent Defense Committee of the Calhoun County Bar Association. Under the indigent defense system instituted by the court, it was ordered that the "team system" be utilized for indigent felony appointments. Fifty-two eligible Calhoun County attorneys were appointed to four teams, each team consisting of thirteen attorneys and each team being eligible for appointment during three months of each year. In misdemeanor and juvenile cases, the order provided that attorneys would be appointed alphabetically.

In essence, appellants are challenging the orders establishing the indigent defense system in Calhoun County, seeking to have this The first issue is whether mandamus or appeal is proper. We conclude that the proper procedure for review of the order below is appeal. Judge Parker issued the December 1977 order to fulfill a clear legal duty imposed upon him by §§ 15-12-2 and 15-12-3 to establish and administer an indigent defense system. Although mandamus will lie where there has been an abuse of discretion to compel the proper exercise thereof (Foshee v. State, 210 Ala. 155, 97 So. 565 (1923), Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953), East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969)), the system established under the December order appears on its face to be fair and reasonable and cannot be characterized as arbitrary or capricious. Therefore, since the order was made within the statutory authority and within the judge's discretion, mandamus will not lie but appeal is the proper remedy.

Court determine that § 15-12-21 through § 15-12-23, Code of 1975, are unconstitutional. They argue that by compelling the service of court appointed attorneys for the compensation provided by these sections, these provisions of Alabama law are unconstitutional. (Sections 15-12-21 through 15-12-23 are attached as Appendix A.)

The second issue is whether the constitutional rights of indigent defendants to adequate representation are infringed by Judge Parker's order establishing an indigent defense system as authorized by the laws of this state. In presenting this claim, appellants assert that if attorneys are underpaid, they cannot satisfactorily perform the constitutional guarantee of right to counsel. However, no facts or data are shown in the record in support of this contention. Moreover, Judge Parker indicated in his June 28, 1978, order that the trial court "has not observed any great disparity between appointed and retained counsel" and notes that "(t)he same attorneys that are appointed are also the ones that are retained." Addressing a similar contention, the New Jersey court made the following observations in State v. Rush, 46 N.J. 399, 405-407, 217 A.2d 441, 444-445 (1966):

"As to the right of an accused, appellant contends that counsel, if unpaid, cannot by his performance satisfy the constitutional guarantee of the right to the aid of counsel. We know of no data to support a claim that an assigned attorney fails or shirks in the least the full measure of an attorney's obligation to a client. Our own experience, both at the bar and on the bench, runs the other way. A lawyer needs no motivation beyond his Sense of duty and his Pride.

"Nor can it be said that assigned counsel are less qualified than counsel privately retained. As in other callings, some men acquire reputations for excellence. In numbers they are few, and sometimes it is not clear why fortune has chosen them alone. It is understandable that a defendant will seek a lawyer of wide repute if he can afford him, but of course the Constitution does not assure every man, indigent or not, that only a leader of the bar will speak for him. Even the State cannot command such representation; most criminal cases are prosecuted by young men who have yet to be acclaimed but who are not in the least unequal to their responsibility on that account. Nor does preeminence at the bar necessarily bespeak special experience in criminal matters. In the State courts, criminal work is not too rewarding financially. Very few specialize in that area, and overall the well known lawyers have had but sporadic exposure to it.

"Nor is prior experience in criminal matters essential. The law is a vast field and no man is in command of all of it. Lawyers, as do judges, move from scene to scene absorbing the special features of each. A capacity to that end goes to the essence of the practice of law. A lawyer's training equips him for it, and his every experience sharpens that skill. And although a new scene may demand a greater initial effort, the newcomer may well bring a zeal and a freshness long lost to a tired or comfortable expert.

"Moreover, few cases really turn upon the skill of the advocate. The facts and the applicable law are quite compelling We are in full accord with these views. In that case, although the New Jersey Supreme Court determined for policy reasons that members of the bar would not be required to discharge the state's obligation to provide indigent defendants with counsel, the New Jersey court did not find their system of assignment unconstitutional, holding, viz:

and a lawyer who has both on his side will do well against anyone. No doubt a small number of cases are lost through lack of skill or poor preparation, but while the legal profession, like all others, suffers to a degree from the inept and the indolent, the phenomenon cannot be said to be related to a system of assignment of counsel. Further, illogical though it may be, judges tend to have a larger sense of responsibility for the performance of lawyers they assign than for the performance of counsel privately retained, and to the extent that this is true, there may be an advantage for the indigent accused."

"We are satisfied our system of assignment yields representation equal to that obtained by defendants who retain their own counsel. This is not to say that another approach would not be more desirable. Rather our point is that what we have meets the constitutional demand, and to recur to the precise point counsel here seeks to make, we are satisfied that our assignment system does not fall short because assigned counsel are Unpaid." (Footnote omitted.) (Emphasis supplied.)

The third issue raised is whether the indigent defense system violates the constitutional rights of counsel appointed to defend indigents accused of crimes in that it contravenes Amendment 328(6.10) of the Alabama Constitution, requires the provision of services without just compensation (Ala.Const., Art. I, §§ 6, 13, 23; U.S.Const., 5th and 14th Amendments), compels involuntary servitude (Ala.Const., Art. I, § 32; U.S.Const., 13th Amendment), and violates constitutional guarantees of equal protection (U.S.Const., 14th Amendment).

We now proceed to discuss these issues. Appellants contend that the indigent defense system contravenes Amendment 328(6.10) of the Alabama Constitution of 1901 which states in part:

"Adequate and reasonable financing for the entire unified judicial system shall be provided. Adequate and reasonable appropriations shall be made by the legislature for the entire unified judicial system, exclusive of probate and municipal courts."

Appellants argue that because the legislature has not provided the "adequate and reasonable financing" specified, attorneys should therefore be relieved of the duty to provide representation for indigent defendants. In Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830 (1974), this Court reiterated the principle of the separation of powers of government into three branches with separate functions, holding:

"Within their respective spheres each branch of government is supreme. State v. Stone, 224 Ala. 234, 139 So. 328. Judicial power and legislative power are coordinate, and neither can encroach upon the other. Ex parte Huguley Water System, et al., 282 Ala. 633, 213 So.2d 799. The authority to determine the amount of appropriations necessary for the performance of the essential functions of government is vested fully and exclusively in the legislature. Abramson v. Hard, 229 Ala. 2, 155 So. 590. Section 72, Alabama Constitution of 1901, provides: 'No money shall be paid out of the treasury except upon appropriation made by law * * * ' "

It is therefore not within the sphere of the judicial branch to determine what appropriations are to be made although, of course, it would be within our purview to determine if the appropriations made are "adequate and reasonable" for the unified judicial system or so inadequate as to constitute the taking of property (services) without due process of law in the context of this case. We do not find such to be the...