Arnold v. Kemp

¶1concurring. I concur with the majority’s decision to reverse the trial court’s finding appellants in contempt. The majority relies heavily upon the case of State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987) in holding our law, Ark. Code Ann. § 16-92-108 (1987), unconstitutional. I believe it is important to discuss the rationale in Stephan in detail, particularly as it relates what measure of compensation must be paid an attorney so as to avoid the due process issue and “taking” existent in this case.

¶2In Stephan, the court considered a number of constitutional arguments challenging the constitutionality of its law providing limits on attorneys’ fees and costs, but, as just mentioned, our court primarily relies on the Kansas court’s analysis of the due process argument. Our court correctly acknowledges that the Stephan decision holds that the Kansas “fee-cap’ law was not unconstitutional per se. The majority court then, however, fails to discuss the full rationale employed by the Stephan court when deciding how the Kansas law could be (and was in that case) unconstitutionally applied. First, the Kansas Supreme Court stated the following:

Requiring attorneys to donate a reasonable amount of time to indigent defense work bears a real and substantial relation to the legitimate government objective sought — protection of indigent defendants’ Sixth Amendment right to counsel. Such a requirement may also be reasonable in light of the general ethical responsibility of lawyers to make legal services available. Clearly the Indigent Defense Services Act was adopted in the interest of the community. Under such an analysis, the statute on its face does not violate due process. (Emphasis added.)

¶3Stephan, 242 Kan. at 363, 747 P.2d at 838.

¶4After stating the above, the Kansas Court then proceeded into a lengthy discussion of how the Kansas Indigent Defense Services Act could be unconstitutional in its application. In doing so, the court discussed how the Fifth Amendment has been applied to limit the state’s powers of eminent domain and, citing Kansas case law, defined a taking under the Fifth Amendment as “acquiring of possession and the right of possession and control of tangible property to the exclusion of the former owner.” The court indicated the services of an attorney are not protected by the Fifth Amendment, but if the property taken is viewed as the attorney’s money, it is protected as tangible property. The Kansas Court held that when the attorney is required to advance expense funds out-of-pocket for an indigent, without full reimbursement, the Kansas system violated the Fifth Amendment. Similarly, when an attorney is required to spend an unreasonable amount of time on indigent appointments so that there is a substantial interference with his or her private practice, again, the Kansas system violated the Fifth Amendment. Before turning to our state law and its application, I should mention the majority opinion emphasizes a sentence from the Stephan case that states, “We conclude that the attorneys’ services are property, and are thus subject to Fifth Amendment protection.” Of course, such principle is true as the Kansas Supreme Court applied it in Stephan, but the Kansas Court made it abundantly clear that the services to which the court referred were as it had thoroughly described, viz., services are not protected by the Fifth Amendment unless it is properly viewed as the attorneys’ money or tangible property.

¶5In applying the rationale of the Stephan case to the situation before us — as I understand is our majority court’s intention — the appellants have certainly shown the fee and costs caps contained in § 16-92-108 are unconstitutional as applied to them. Appellants were appointed to defend Suzan A. Jernigan against capital murder charges, and under § 16-92-108, appellants are limited to a fee of $1,000.00 and costs in the sum of $100.00. Appellants have shown that, as of February 20,1991, they have provided over $3,389.00 in overhead expenses.

¶6Unquestionably, Arkansas’ statutory limits on fees and costs, like Kansas’s, will require modification by our General Assembly. However, I would disagree with any suggestion that attorneys’ fees in indigent criminal cases should be in line with fees paid other attorneys in the community for similar cases. In their due process argument, appellants suggest they should be entitled to just compensation and speak in terms of setting such fees at what they call “market value.” The majority opinion merely provides the trial court should determine fees that are considered “just” and makes no reference to market value. I am not clear as to what the majority means by “just fees,” but if it intends that term to mean the hourly rates that were testified to in this case, viz., ranging from $75.00 to $125.00 per hour, I must disagree with such a holding. Such a result would obviously place Arkansas in a position that requires it to pay appointed counsel far more than what the federal government pays under its law.1 More importantly, the majority’s suggestions wholly ignore the Stephan decision on this point where the Kansas court stated the following:

We agree fully that the bar of this state has an ethical obligation to provide legal services to the indigent accused. That ethical obligation may justify paying attorneys a reduced fee for legal services to the poor, less than the fee an attorney might charge a financially solvent client for the same service, but not less than the lawyers’ average expenses statewide.

¶7Id. at 375, 747 P.2d at 845.

¶8Again, quoting the Kansas Court, it concluded, “The state also has an obligation to pay appointed counsel such sums as will fairly compensate the attorney, not at the top rate an attorney might charge, but at a rate which is not confiscatory, considering overhead and expenses.” Id. at 383, 747 P.2d at 849.

¶9In conclusion, I note my concern that the method and manner the majority adopts in establishing fees in appointed cases is somewhat vague since the term “just fees” has the connotation of “just compensation” and “just compensation” is generally measured in terms of market value. The use of market value in assessing fees departs from all cases I have read on this subject with the exception of the case of Delisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987), where the Alaska Supreme Court held such fees should be fixed at “market value.” In my view, this part of the DeLisio case is an aberration and should not be followed. Such a path is not required by our law and will surely pose an added financial burden for our state. For emphasis, I point out that out of the 22,253 criminal cases terminated in the state during 1990, 2,875 cases were known to be handled by appointed attorneys and 5,601 cases were known to be handled by public defenders. Also, I believe this court’s adoption of “market value” fees, as suggested by appellants, would prove counterproductive to indigent defendants and private individual attorneys having considerable criminal defense experience, because the state may be forced to establish a public defender system that will cover all 7 5 counties in order to be able to know what its costs will be in providing necessary representation to indigents.

¶10For the foregoing reasons, I concur in the majority’s decision to reverse the order finding appellants in contempt. However, I disagree with any interpretation which might be given to the majority holding that “just fees” means fees assessed at market value or at the top rates testified to in this case.

¶11Instead, like the court did in Stephan, I would limit this court’s opinion to read that an appointed attorney may be fairly compensated for Fifth Amendment purposes at a rate which is not confiscatory, considering overhead and expenses. In doing so, the General Assembly would then have the flexibility to adopt a fee schedule in indigent cases similar to the one employed under federal law — an option I view as being constitutional but precluded by a “market value” requirement.