concurring. I agree with the majority opinion’s holding that the statute setting a limit of $1,000.00 on attorney’s fees and a limit of $100.00 on investigation expenses for the defense of a capital murder case is unconstitutional as applied in this case. I concur in holding that the statute, as applied, violates the Equal Protection Clause of the fourteenth amendment. Consequently, I agree that the judgment of criminal contempt entered against attorneys Arnold and Allen must be remanded. However, I am unable to agree that the attorneys’ right to due process has been violated and that the attorneys are entitled to “just compensation” because their property has been unconstitutionally taken. The distinction is significant.
1. Due Process
In 1876, we held that attorneys may be required to represent indigent defendants without pay:
Attorneys are a privileged class; they are only permitted to practice in the courts; and they are officers of the
court. The law confers on them rights and privileges, and with them imposes duties and obligations to be reciprocally enjoyed and performed. The services required of them, in cases like the present, are such as charity and humanity demand in behalf of the destitute and defenseless; and the presumption cannot be admitted that they serve in expectation of fee or reward. The appellees but performed a duty, which their relation to the court and the public required of them.
Arkansas County v. Freeman & Johnson, 31 Ark. 266 (1876).
That concept has been followed through the years and, in State v. Ruiz, 269 Ark. 331, 602 S.W.2d 65 (1980), we wrote:
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, 246 F.2d 633 (9th Cir. 1965) cert. denied, 382 U.S. 978 (1966). Finding no common law or statutory or constitutional authority establishing payment of attorney’s fees, we are left only with 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.
In Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), we wrote:
Appellant argues the court erred in denying three motions for funds. He first submits that Ark. Stat. Ann. § 43-2419, which authorizes and limits the amount of funds for payment of defense counsel and investigation services for indigent defendants, is so inadequate as to be unconstitutional. We considered this issue in State v. Ruiz & Van Denton, 269 Ark. 331, 602 S.W.2d 625 (1980), and upheld its constitutionality. Although we expressed concern that the statute does not allow for adequate compensation in some cases, we said the remedy must remain in the province of the legislature.
In sum, we have long required lawyers to perform this duty as a form of public service.
Compelling an individual to perform special types of public services does not constitute an imposition of involuntary service. See Hurtado v. United States, 410 U.S. 578 n. 11 (1973) (requirement that prisoners serve as witnesses in a trial without compensation constitutes public duty); Bertelson v. Coney, 213 F.2d 275, 277-8, cert. denied, 348 U.S. 856 (1954) (special draft of medical personnel); Selective Draft Law Cases, 245 U.S. 366, 390 (1918) (military draft); Butler v. Perry, 240 U.S. 328, 333 (1916) (work on public roads). In order to meet some special needs, a government must have the ability to compel special forms of public service. The only real issue is whether the government must pay “just compensation” for those public services.
The vast majority of state and federal courts which have addressed the due process issue have decided that requiring counsel to serve without compensation is not an unconstitutional taking of property without just compensation. See Williamson v. Vardeman, 674 F.2d 1211 (8th Cir. 1982) for a listing of cases. A minority of courts have relaxed this obligation by reasoning that, although requiring an attorney to accept uncompensated cases as a condition of practicing law does not normally violate due process, the level of appointments may be so great that they constitute a “taking” when the attorney is no longer able to engage in remunerative practice. State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987); DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987); and see Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695 (1984) for a listing of other cases.
The source of the special duty is a lawyer’s status as an officer of the court. As stated in United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965), cert. denied, 382 U.S. 978 (1966):
An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a “taking of his services.” Cf. Kunhardt & Company, Inc. v. United States, 266 U.S. 537, 45 S.Ct. 158, 69 L.Ed. 428 (1925).
In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court held, in a capital case where the defendant was unable to employ counsel and was incapable of making his own defense adequately because of ignorance, etc., that it was the duty of the court to assign counsel for him, and stated at page 73, 53 S.Ct. page 65: “Attorneys are officers of the court, and are bound to render service when required by such an appointment.”
In sum, I would follow our long tradition and our past cases and would agree with the vast majority of courts and hold that there has not been a taking of the attorneys’ property.
However, the majority opinion holds that attorneys’ services are property subject to fifth amendment protection, and that there has been an unconstitutional taking of that property. The fifth amendment, in the material part, provides, “nor shall private property be taken for public use, without just compensation." (Emphasis added.) “Just compensation” means that the owner of the property appropriated is entitled to receive the fair value of the property taken, but, no more, because to award him less would be unjust to him, and to award him more would be unreasonable to the public. Bauman v. Ross, 167 U.S. 548 (1897). We have said “just compensation” means “full compensation.” Arkansas State Hwy. Comm’n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953). Thus, a lawyer who regularly earns $150.00 per hour from paying clients must be paid by the State at that same rate for representing an indigent defendant. The majority opinion states otherwise, and, as its basis, cites one of our cases and an Arkansas statute. The case does not deal with “just compensation” under the fifth amendment. The statute is the one overruled as applied in this case. More importantly, ultimately state law is not going to control the federal issue of just compensation under the fifth amendment to the Constitution of the United States. No state limit, even a reasonable one, can be placed on the amount of just compensation due under the fifth amendment. For all practical purposes, the judiciary will have usurped the legislature’s power over appropriations, and the courts will be authorized to order large sums of unappropriated money to be paid to attorneys. It is conceivable that county, and perhaps state, financial crises will result.
The legal precedent set by the majority opinion may possibly lead to a ruinous level of court costs and fees. If lawyers’ time cannot be taken without just compensation in criminal cases, it cannot be taken in civil cases. Juvenile proceedings which require attorneys ad litem may be the next area contested. If lawyers’ time cannot be taken without just compensation, witnesses’ time cannot be taken without just compensation. Suppose the president of a large corporation earns $1,000.00 per hour and witnesses a minor car wreck. Could the parties to the car wreck afford to have their dispute decided in a court if one witness’s fee amounts to $1,000.00 per hour? Perhaps this concept, which ignores the duty to perform certain public services, can be most clearly demonstrated by stating that, followed to its logical conclusion, it would mean if a person were making $100,000 per year and were drafted into the Army as a private, he would be entitled to receive $ 100,000 per year for his military service. In sum, I would join the vast majority of state and federal courts and hold that requiring counsel to serve poor people in criminal cases without compensation is not an unconstitutional taking of property. Therefore, counsel is not entitled to “just compensation.”
2. Equal Protection
However, I concur in holding that the statutes placing unreasonable limits on fees and expenses violate the Equal Protection Clause of the fourteenth amendment. The practical, but significant, difference is that under an equal protection holding the State could place a reasonable limit on attorneys’ fees.
As set out in the majority opinion a statute will be upheld if it bears a “fair and substantial relationship to a legitimate State end.” See Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981). The factors used to determine fairness are: (1) the character of the classification, (2) the individual interests asserted, and (3) the governmental interests asserted. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). In this case the indigent defendant has the right, under federal and state law, to the effective assistance of counsel. The obligation to provide that counsel is the State’s. Without question, a statute providing for fees to indigent defendants is related to a legitimate State end.
The State has adopted a statutory scheme by which it has delegated its obligation to the various counties. The counties may set up a public defender system or may pay individual attorneys to defend indigents, but when individual attorneys are appointed, the limit of the county’s liability is $1,000.00. As the majority opinion points out, individual attorneys are appointed in forty-nine (49) of the seventy-five (75) counties in the State. In Independence County, where this case arose, one of the attorneys appointed has now been appointed to defend five murder cases, four of them capital murder cases, since 1978, his year of admission to the bar. He has been forced to expend 200 to 500 hours defending each case. His office overhead currently amounts to $23.92 per hour. He estimates this case will take 300 to 500 hours of his time. If he spends 300 hours on this case, his overhead costs will be over $7,000.00. After deducting the $1,000.00 fee, the result will be an out-of-pocket loss of over $6,000.00 on office overhead alone. This does not include his loss of time. He customarily bills at the rate of $90.00 to $100.00 per hour. Obviously, $90.00 times 300 hours would amount to $27,000.00. All together, he will likely suffer a financial loss well in excess of $25,000.00, and this is the fifth time in thirteen (13) years he has been appointed to defend a murder case.
Other attorneys testified that, if the accused in this case could pay a fee, they would charge fees of $50,000 to $80,000. There can be no real question but that the proof in this case shows that the attorneys appointed will suffer a substantial personal financial loss.
The State has a legitimate interest in supplying counsel to an indigent defendant who is charged with capital murder. The only issue is whether the State has met that obligation in a way which does not unfairly discriminate against these attorneys. As set out, the test of fairness has three (3) criteria. First, the character of classification. The statute passes this test. It has a rational basis. Lawyers may be singled out as a class to defend indigents at less than “just compensation.” Second, and the only real issue, is whether the class singled out is fairly treated. This necessitates a weighing of the lawyer’s ethical duty to defend indigents against their ability to financially maintain themselves and their families. The ethical obligation will justify paying them a reduced fee for providing legal services to poor people, but the statute now before us pays far less than a “reduced fee.” In fact, as applied in this case, it mandates a real and substantial financial loss to these attorneys. The statutory fee limitation, as applied in this case, is so low that it is patently unfair. It does not amount to a fair balancing of the attorneys’ ethical duty with their financial interests. Thus, the statute, as applied in this case, denies these attorneys their right to equal protection.
3. Conclusion
I concur in holding that the statute as applied violates the Equal Protection Clause of the fourteenth amendment, but I do not agree with the majority that the attorneys’ right to due process has been violated. The practical difference is that I would uphold a reasonable statutory limitation on fees, while the majority opinion authorizes “just compensation.”