The petitioner, William K. Ball, is a licensed attorney from Monticello, Arkansas. He was appointed by Judge Paul Roberts to represent Mary McKinley in a criminal case in Drew County, Arkansas. Ball filed a motion to void the appointment on two grounds. First, he relied on Ark. Stat. Ann. § 43-2419 (Supp. 1985) which provides in pertinent part:
An attorney shall not be so appointed by a court if the attorney certifies to the court in writing, that he or she has not attended or taken a prescribed course in criminal law in an accredited school of law within twenty-five (25) years prior to the date of appointment, that the attorney does not hold himself or herself out to the public as a criminal lawyer, and does not regularly engage in the practice of criminal law.
Ball certified to the court in writing that he had not attended an accredited school or taken a course in criminal law within the last 25 years, did not practice criminal law, and had not handled a criminal case since 1957. Second, he asserted he was simply not qualified to represent the defendant, and to accept the appointment would violate the Model Rules for Professional Conduct, because he could not competently represent a defendant in a criminal case.
The trial judge ruled Ark. Stat. Ann. § 43-2419 unconstitutional because it violated the 14th Amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution as a deprivation of the defendant’s right to counsel. The trial judge discussed the existing situation in Drew County, which has no public defender. He observed that counsel have to be appointed from members of the local bar, Ball was a competent attorney and would be a capable defense counsel after familiarizing himself with recent criminal procedure. Ball petitioned us for relief.
The trial court correctly held that the statute was unconstitutional but gave the wrong reason. The statute violates the separation of powers provisions contained in Art. 4, §§ 1 and 2 of the Arkansas Constitution, which provide:
The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
According to the separation of powers doctrine". . .one department cannot interfere with, or encroach on, or exercise the powers of, either of the other departments, . . .”16 C.J.S. Constitutional Law § 111 (1984). The judicial power of Arkansas is, of course, in the appellate, trial and inferior courts. Ark. Const, art. 7, § 1. Amendment 28 also grants the Supreme Court the exclusive power to regulate the practice of law and the professional conduct of attorneys.
In McConnell v. State, 227 Ark. 988, 302 S.W.2d 805 (1957), the legislature passed an act requiring every court to grant a continuance upon request by a member or employee of the legislature within a specified period of time surrounding the legislative session. We found that the act violated the separation of powers doctrine because the act deprived the courts of the power to decide a judicial question. McConnell explained that the legislature could aid the courts in the execution of their judicial powers but cannot arbitrarily compel the use of that power. See also Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975).
The right to decide whether an attorney, who regularly practices before a court, can be appointed to represent an indigent in a criminal case is a judicial question, not a legislative one. Ark. Const, art. 4, §§ 1 and 2; Ark. Const, amend. 28; see also Ark. Stat. Ann. § 43-1203 (Repl. 1977); A.R.Cr.P. Rule 8.2. The legislature invaded the province of the judicial branch of government in declaring certain attorneys could not be appointed as counsel in a criminal case.
Ball asks us for one of three extraordinary remedial writs: prohibition, mandamus, or certiorari. The first two are clearly not warranted because the trial court had jurisdiction and this was a discretionary act. The third writ, certiorari, is a writ which is discretionary on our part. Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). On certiorari, we review only the face of the record and cannot consider questions of fact. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973); Martin v. Hargrove, 149 Ark. 383, 232 S.W. 596 (1921).
In McKenzie, we denied certiorari to review an order of the trial court authorizing an out-of-state attorney to appear as attorney of record. On the face of the record, the trial court had jurisdiction to enter the order. In this case on the face of the record, the trial court correctly held the statute unconstitutional so the appointment cannot be voided on the basis of the statute.
The second argument concerns the trial court’s discretionary act in appointing Ball as counsel in a criminal case. To grant certiorari in this case would be to review both the trial court’s discretionary act and questions of fact, which we cannot do. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978). Ball is not precluded, however, from preserving for appeal in the criminal case the question of whether the trial court was wrong in appointing him counsel.
Denied.
Purtle, J., dissents. Holt, C.J., and Dudley, J., concur.