concurring in part and dissenting in part.
The court pronounces today that the statutory assignment scheme, which requires that lawyers represent indigent defendants in criminal — and in certain civil — cases, while not facially infirm, may be unconstitutional in its present-day application. In a proceeding for corrective relief from the trial judge’s order, which approved two lawyers’ fees in an amount exceeding the statutory maximum rates for criminal defense work, the court today (1) modifies the trial court’s order by reducing the hourly rate to the level of pay drawn by district attorneys/public defenders and their assistants, (2) approves the amount claimed by the lawyers for overhead and out-of-pocket expenses and (3) adopts guidelines for trial courts to apply in future assignments of counsel.
I join in concluding that the regime of assigning lawyers for criminal defense work in counties which are without public defender services is tainted by a constitutional infirmity. I recede from the court’s interim institutional design that is to govern until the legislature overhauls the system. In my view, the whole scheme is affected by a fatal and incurable flaw. It saddles the judiciary with the responsibility of operating defense services in 75 counties — a function properly to be performed by the executive department. Until the legislature establishes a professionally independent statewide public defender system within the executive department, I would, merely as a stopgap measure, (1) develop guidelines that would equalize, on a statewide basis, the Bar’s burden for providing defense services in those 75 counties and (2) call upon the Oklahoma Bar Association [hereafter called the Bar] to manage a statewide service pool of qualified lawyers for deployment in criminal as well as other mandated public-service work.
I
A SYSTEM THAT IMPOSES EXECUTIVE DUTIES UPON THE JUDICIAL SERVICE VIOLATES ART. 4, § 1, OKL. CONST.1
The threshold issue here is the constitutional propriety of placing in the judicial department the executive function of managing professional resources for deployment in the defense of criminally accused *1166indigent persons.2 In a series of pronouncements enforceable against the states, the U.S. Supreme Court has imposed on state governments the burden of providing defense services for indigent persons who stand charged (a) with a felony, (b) in misdemeanor prosecutions involving loss of liberty and (c) with a juvenile delinquency.3 The penalty for noncompliance is federal invalidation of state convictions. The Oklahoma legislature’s present-day response to the U.S. mandate consists of (1) authorizing public defender services in some, but not all, counties,4 (2) directing the judiciary to assign counsel for indigent defendants in certain criminal and civil proceedings5 and (3) establishing a maximum statutory compensation rate for court-procured defense services.6
In obedience to the legislative and federal constitutional mandates, the judiciary has furnished manpower for defense services (a) in counties where no public defender system exists, (b) in all cases where a conflict of interest disqualifies the public defender from serving and (c) in certain noncriminal cases. In my view, the entire assignment regime’s institutional design for provision of legal service is constitutionally infirm. It imposes on the judicial service the responsibility of managing professional human resources for necessary deployment in the executive service of State government — i.e., the defense of indigent persons.
The principal function of the judiciary is to preside over the adjudicative process with a view to ensuring that the proceedings are error-free. It does not include procuring lawyers to make the process meet 6th Amendment, or other legal, standards.7 Defense services the State is constitutionally mandated to provide are clearly executive in character.8 The Oklahoma Supreme Court’s “superintending control” under Art. 7, § 4, Okl. Const.,9 is neither managerial nor administrative but purely adjudicative in character.10 Its terms will not support this court’s ukase for the judiciary’s involuntary assumption of managerial responsibilities extraneous to the discharge of its governmental service.
Judicial exercise of managerial power over the defense service in criminal cases clearly offends the separation-of-powers *1167doctrine enjoined on this government by Art. 4, § 1, Okl. Const.11 That section prohibits the judiciary’s unauthorized incursion into the affairs of the executive branch.12 Our fundamental law explicitly prohibits a judge from exercising functions incompatible with (or not germane to) the Bench’s constitutionally articulated mission and with the mandated posture of detachment and neutrality.13 The judiciary cannot permit itself to have any greater degree of operational entanglement with defense services than that which marks out its involvement with the prosecution.14
The law must insulate from anyone’s interference — judicial, legislative or executive — all aspects of a public defender’s attorney/client relationship. The litigation-related strategy choices, as well as any other facet of professional decision-making in the conduct of a person’s defense, must be beyond the pale of outsiders’ meddling.15 *1168Nevertheless, the essence of the service to be provided is correctly characterized as extraneous to the judicial or legislative function and akin to that of the executive.16 It is the executive’s responsibility to seek reversal-proof convictions in judicial tribunals properly constituted to administer that standard of adjudicative process which conforms to the dictates of our fundamental law. In short, in the aftermath of Gideon and its progeny, defense, as much as prosecution, is an essential component of government service for the enforcement of criminal laws.
The legislature may not impose nonjudicial duties upon any judicial officer or tribunal, neither may it command the judiciary to recruit lawyers to be used for what is essentially the discharge of a purely executive function.17 The exclusive, constitutionally invested power to requisition Bar resources for rendition of professional pro bono services resides in the Supreme Court.18 Judges of other courts may exercise this power only to the extent delegated to them by this court.19
II
A PUBLIC DEFENSE SYSTEM FOR ONLY 75 COUNTIES, WHICH FAILS TO EQUALIZE THE PUBLIC-SERVICE BURDEN AMONG ALL LAWYERS IN THE STATE, OFFENDS OKLAHOMA CONSTITUTION’S COMMAND FOR EQUAL TREATMENT UNDER THE LAW IN ART. 2, §§ 6 AND 7 20 AND ART. 5, § 4621 "
There is no statewide mechanism for equalizing the public-service burdens imposed by the flawed assignment regime on lawyers in the 75 affected counties. The current practice — which weighs heavily on lawyers in some of these counties and immunizes from like service nearly all legal practitioners with offices in the largest two metropolitan counties — offends our State Constitution’s uniformity-of-procedures clause, Art. 5, § 46,22 as well as the equal treatment components infused into Art. 2, §§ 6 and 7.23
In the discharge of the Supreme Court’s power to regulate the practice of law and *1169in conformity with our fundamental law, I would create an interim equalization design for providing defense services that will uniformly affect all Oklahoma lawyers.24 When the Bar was “integrated” in 1938, the profession became organized into a single governmental agency. All lawyers became practitioners in one government-operated system of licensure, discipline and regulation.25 With integration also came deprivatization of the Bar.26 Lawyers are quasi-public functionaries27 under the Supreme Court’s rule-structured regime and are holders of a state occupational license. *1170Rulemaking for the Bar is the Supreme Court’s exercise of its constitutionally invested power to regulate the legal profession and the practice of law. The authority over lawyers resides solely in the Supreme Court. It is spelled out in its rules.28 The power to requisition lawyers for public service and to define the terms and conditions upon which the legal practitioners shall carry out their public duty lies within this court’s exclusive authority over the profession.29
Ill
A BAR-MANAGED INTERIM PLAN FOR EQUALIZING THE DEFENSE SERVICE BURDEN
Until the legislative department establishes a statewide public defender service30 that is both totally independent of the judiciary and impervious to judicial tinkering, I would exercise the court’s constitutionally invested powers to develop an interim court-assignment system with a built-in mechanism for equalizing the burden among all qualified practitioners in the State.31 I would call upon the Bar to manage this stopgap plan and to ensure an equal distribution of the government-service burden to be imposed.32
Competence of lawyers for criminal work
I do not approve of developing competency standards through the adjudicative process of an appellate opinion. This task should be accomplished by rules and guidelines to be developed in cooperation with the representatives of the nisi prius Bench and the Court of Criminal Appeals. Those courts, which are more directly affected and vitally interested in the competence of the criminal bar, must participate in formulating these standards.
I would not treat lawyers’ competence as a single concept applicable to all criminal proceedings. Criteria should be developed that will enable lawyers to qualify for misdemeanor defense, though perhaps they might not be so qualified for felony work. Some may be professionally fit for certain felony defense service but not for all — e.g., robbery but not capital homicide offenses. Lastly, there may be those who qualify for the defense in juvenile delinquency or in some other case under the rubric of juvenile process. In other words, competency standards for assignments must neither be *1171too rigid nor prescribed by this court’s ukase. They should be formulated in committees and promulgated by rules.
1st Amendment speech and associational freedoms
I join the court today in condemning the use of a lawyer’s advertising or competitive activity within a county as a permissible gauge for a nonresident legal practitioner’s inclusion into a pool for criminal defense assignment in a county other than that in which he or she maintains a professional office. No lawyer should be targeted for a criminal defense assignment as a punitive sanction for exercising his/her 1st Amendment freedom to advertise anywhere unthin the state. To sanction discretion that would enable a judge to single out for assignment out-of-county lawyers who seek business dehors their professional residence would have an impermissibly chilling effect on the legal practitioner’s 1st Amendment right to advertise.33
I would allow an assigned practitioner to exercise his/her 1st Amendment right to associate with other counsel in handling a criminal defense or other public service duty.34 Any lawyer — whether volunteer, assigned or hired — should be free to associate with specialists or other counsel in providing defense services.35
IV
PROPOSED SCHEME OF DICHOTOM-IZED COMPENSATION FOR PRIVATE PRACTITIONERS WHOSE SERVICES ARE REQUISITIONED FOR THE DEFENSE OF INDIGENT CRIMINAL DEFENDANTS
I would not reward lawyers for discharging their public-duty service with that quantum of compensation which equals salaries drawn by the district attorneys/public defenders and their assistants. Rather, I would restrict legislative power to set rates for lawyers’ public service work to no more than the Bar-prescribed quantum of annual public-duty maximum,36 Once an individual practitioner has performed all that may constitute the permissibly claimed public service maximum, all work beyond that maximum — whether for the benefit of the State in criminal defense or for the benefit of some other governmental entity — should be paid at its fair market value.37
*1172I would hence adopt a dichotomized scheme of compensation for lawyers assigned to perform public service. For the required public service work a lawyer would be compensated at the statutory rate; but when that duty is done, excess services would qualify as property whose taking for public use must be compensated at fair market value, lest there be an expropriation in the constitutional sense.38 Lawyers appointed from the private sector must also be compensated for all out-of-pocket expenses.39 Volunteers who re*1173quest public service assignments in excess of the Bar-established maximum would be compensated at the state-authorized rate.
SUMMARY
I would accordingly direct that the fee-setting judge reconsider the claim on remand in conformity to my views by first determining if the affected lawyers had made, in this case, more than their required individual annual public-service contribution. If the judge should conclude that the case demanded work in excess of that minimum contribution, then the balance of the services rendered in the case should be compensated on the basis of its fair market value in addition to all out-of-pocket and travel expense reimbursement. That portion of the service which represents the public-work contribution should be compensated at the statutory rate.
Because the task of furnishing manpower for day-to-day criminal defense services is an executive function that may not be imposed upon the judiciary, I would urge the legislature to address itself to the problem at the earliest possible date with a view to establishing and implementing a professionally independent statewide public defender system within the executive branch of government. Until such agency is created, I would, as quickly as possible, begin utilizing the Bar as an equalization mechanism to create a statewide pool of qualified lawyers and to develop a plan to distribute evenly the Bar’s public-service burden among all licensed practitioners within this State.
. See infra nóte 11.
. Defense services are typically provided under three methods: 1) assigned counsel programs, 2) public defender offices and 3) contract delivery systems. ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, Approved Draft 1968, Commentary (a).
. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963]; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 [1972]; Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d. 527 [1967],
. 19 O.S.1981 § 137.1 and 19 O.S.Supp.1989 § 138.1.
. See 22 O.S.Supp.1983 § 1175.2(B)(4) (competency to stand trial); 22 O.S.Supp.1985 § 464 (arraignments).
. See 21 O.S.Supp.1985 § 701.14 (maximum statutory fee in capital cases); 22 O.S.1981 § 1271 (other criminal cases); 20 O.S.Supp.1989 § 1304(b)(9) (guardianship cases); 10 O.S.Supp. 1989 § 24(B) (juvenile proceedings).
. I perceive no difference between the statutorily mandated judicial procurement of professional resources for deployment in the defense of the accused indigent persons and a legislative command that the judiciary supply a staff of lawyers for the Governor, or for any other executive or legislative office.
In Bradshaw v. Ball, 487 S.W.2d 294, 299 [Ky. 1972], the court notes that "it is the duty of the executive department to enforce the criminal laws, and it is the duty of the legislative department to appropriate sufficient funds to enforce the laws which they have enacted. The proper duty of the judiciary, in the constitutionally ideal sense, is neither to enforce laws nor appropriate money. The judiciary's reason for existence is to adjudicate." (Emphasis added.)
. Earl v. Tulsa County Dist. Court, Okl., 606 P.2d 545, 547 [1980]; see also Polk County v. Dodson, 454 U.S. 312, 334, 102 S.Ct. 445, 458, n. 5, 70 L.Ed.2d 509 [1981] (Burger, C.J., concurring).
. Art. 7, § 4, Okl. Const., provides in pertinent part:
“ * * * The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law. * * *” (Emphasis mine.)
. In Re: Approval of Rules Mandated by the Dispute Resolution Act, 12 O.S.Supp.1985 §§ 1801 et seq., 57 OBJ 876 [April 8, 1986] (Opala, J., not participating).
. A tripartite division of government is not explicitly mandated by the U.S. Constitution; our fundamental law, Art. 4, § 1, Okl. Const., expressly and inflexibly commands that the functions of government be divided into three departments. Sterling Refining Co. v. Walker, 165 Okl. 45, 25 P.2d 312, 320 [1933], The terms of Art. 4, § 1, Okl. Const, are:
“The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.”
In the federal judicial system the principle of separation of powers came to be recognized and enforced when the U.S. Supreme Court held that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. Ill of the federal Constitution. The United States v. Ferreira, 54 U.S. 40, 13 How. 40, 14 L.Ed. 42 [1851]; Hayburn's Case, 2 U.S. 409, 2 Dall. 409, 1 L.Ed. 436 [1792]; for a more recent exposition of the Court’s view on proper distribution of government functions see IMS. v. Chadha, 462 U.S. 919, 951-952, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317 [1983].
. Earl v. Tulsa County Dist. Court, supra note 8; see also in this connection Pulaski County ex rel. Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222, 223 [1978].
We should not be commingling the functions of this carefully designed constitutional structure. See In Re: Appeal of Rules Mandated by the Dispute Resolution Act, supra note 10 (Opala, J., nonparticipating), where this court approved rules and regulations for mediation services authorized by the Dispute Resolution Act which placed the management of mediation services in the Judicial Department; see also in this connection the views of Scalia, J., in dissent from the Court’s opinion in Morrison v. Olson, 487 U.S. 654, 697, 108 S.Ct. 2597, 2622, 101 L.Ed.2d 569 [1988] (Scalia, J., dissenting) (where the Court upheld a congressional enactment that authorized court assignment of independent counsel to investigate and prosecute certain officials of the executive branch) and in Mistretta v. U.S., 488 U.S. 361, 109 S.Ct. 647, 675, 102 L.Ed.2d 714 [1989] (Scalia, J., dissenting) (where the Court approved congressional creation of a Sentencing Commission as an independent body of the Judicial Branch with power to promulgate binding Sentencing Guidelines).
. Earl v. Tuba County Dist. Court, supra note 8, 606 P.2d at 547; Sterling Refining Co. v. Walker, supra note 11; Ex parte Coffelt, 93 Okl.Cr. 343, 228 P.2d 199, 202-203 [1951]; Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 [1967]; Opinion of the Justices, 365 Mass. 639, 309 N.E.2d 476, 480 [1974]; Case of Supervisors of Election, 114 Mass. 247, 249, 251 [1873],
. Earl v. Tulsa County Dist. Court, supra note 8, 606 P.2d at 547.
. The separate writing by Simms, J., erroneously ascribes to my institutional design the flaw of subjugating the defense to executive dictation. I fully recognize the professional independence of lawyers who, either as assigned counsel or as public employees, are called upon to defend. In Polk County v. Dodson, supra note 8, 454 U.S. at 321, 102 S.Ct. at 451, the argument was pressed that because public defenders are paid by the state, they are subject to “supervision by persons with interests unrelated to those of indigent clients.” In refuting this notion, the Court stated that "a public defender is not amenable to administrative direction in the same sense as other employees of the State” and that “a defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior.” The Court noted that equally important "is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages.” Polk, supra note 8, 454 U.S. at 321-322, 102 S.Ct. at 451. Burger, C.J., states in his concurring opinion in Polk, supra note 8, 454 U.S. at 327, 102 S.Ct. at 454, that under Gideon and Argersinger "the government undertakes only to provide a professionally qualified advocate wholly independent of the government. It is the independence from governmental control as to how the assigned task b to be performed that is crucial. ... The obligations owed by the attorney to the client are defined by the professional *1168codes, not by the governmental entity from which the defense advocate’s compensation is derived." (Emphasis mine.)
. The new institutional design I would counsel should leave the judiciary with no greater power over the defense component than it customarily wields over the prosecution. In this framework the judicial role would recede to that of judicature. Once the public defense component is integrated into the executive department, either as an agency under an autonomous commission or otherwise, the independence of the defenders' professional decision-making process must receive no less respect than prosecutorial discretion.
. In Sterling Refining Co. v. Walker, supra note 11, 25 P.2d at 320, the court held that "by reason of the provisions of article 4, §1, legislative powers could not be delegated to or conferred upon the Supreme Court of Oklahoma."
. See Part II, infra.
. The Supreme Court's inherent power over the Bar is nondelegable. In re Integration of State Bar of Oklahoma, infra note 24; Winters v. City of Oklahoma City (Opala, J., concurring in part and dissenting in part) infra note 26.
. The provisions of Art. 2, § 6, Okl. Const., are:
“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”
The terms of Art. 2, § 7, Okl. Const., provide: "No person shall be deprived of life, liberty, or property, without due process of law."
. The terms of Art. 5, § 46, Okl. Const., provide in pertinent part:
"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
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Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals...." [Emphasis mine.]
. See supra note 21. Maule v. Independent School Dist. No. 9, Okl., 714 P.2d 198, 203-204, n. 32 [1985]; Ind. Schl. Dist. v. Okl. City Fed. of Teachers, Okl., 612 P.2d 719, 725 [1980] (Opala, J., dissenting); Oklahoma City v. Griffin, Okl., 403 P.2d 463, 465 [1965]; Fenimore v. State, 200 Okl. 400, 194 P.2d 852, 854 [1948].
. See supra note 20. Our due process clause in Art. 2, § 7, Okl. Const., has a definitional sweep that is coextensive with its federal counterpart. See 5th and 14th Amendments, U.S. Const.; McKeever Drilling Co. v. Egbert, 170 Okl. 259, 40 *1169P.2d 32, 35 [1935]; Elam v. Workers’ Compensation Court of State, Okl., 659 P.2d 938, 941, 943 [1983] (Opala, J., dissenting); Black v. Ball Janitorial Service, Inc., Okl., 730 P.2d 510, 513, n. 9 [1986]; Harry R. Carlile Trust v. Cotton Petroleum, Okl., 732 P.2d 438, 443, n. 25 [1986]; Fair Sch. Finance Coun. of Okla. v. State, Okl., 746 P.2d 1135, 1148, n. 48 [1987], The latter (and hence our own) contains a built-in anti-discrimination component which affords protection against unreasonable or unreasoned classifications serving no "important governmental objective.” Davis v. Passman, 442 U.S. 228, 234-235, 99 S.Ct. 2264, 2271, 60 L.Ed.2d 846 [1979]; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 [1954]; see State ex rel. State Bd., Etc. v. Naifeh, Okl., 598 P.2d 225, 226 [1979] (Opala, J., dissenting). Our jurisprudence recognizes the equal-protection component in our own due process clause. McKeever Drilling Co. v. Egbert, supra; Personal Loan & Finance Co. v. Oklahoma Tax Com’n., Okl., 437 P.2d 1015, 1019 [Okl. 1968]..
. Tweedy v. Oklahoma Bar Ass'n, Okl., 624 P.2d 1049, 1052 [1981]; In re Integration of State Bar of Oklahoma, 185 Okl. 505, 95 P.2d 113 [1939]; Ford v. Board of Tax-Roll Corrections, Okl., 431 P.2d 423 [1967],
. Whether the Oklahoma Bar should be deemed a "government agency," or some other quasi-public entity, for the purpose of determining its permissible expenditures under the 1st Amendment, need not be reached now. Suffice it to say here that the Bar’s activities serve an important public interest in "regulating the legal profession and improving the quality of legal services.” Keller v. State Bar of California, — U.S. -, 110 S.Ct. 2228, 2236, 110 L.Ed.2d 1 [1990]; see also Tweedy v. Oklahoma Bar Ass'n, supra note 24.
. The deprivatization process underwent by the State Bar of Oklahoma is at variance with the common law’s history. During the classical period of the common law, each court "licensed” its own practitioners. See generally Martineau, The Attorney As An Officer Of The Court: Time To Take The Gown Off The Bar, 35 S.Carol.L.Rev. 541 [1984]. The English Bar— unlike that of Oklahoma—was a private bar. The exclusive power of admitting candidates to the Bar of England was entrusted to the Inns of Court (independent, self-governing, unincorporated professional societies that trained students in the law). Admission to practice law in England could be accomplished by (a) entering one of the four Inns of Court in London, (b) completing the required legal training and (c) receiving a formal "call to the bar" of the Inn of which the candidate was a member. A person called to the bar signed the Roll at his own Inn of Court and was tacitly permitted by the judges to practice in the courts. Costigan, Cases On The Legal Profession and Its Ethics, pgs. 12 and 86, n. 31 [1933]; Chroust, The Beginning, Flourishing and Decline of the Inns of Court: The Consolidation of the English Legal Profession After 1400, 10 Vanderbilt L.Rev. 79, 112 [1956]; II Holdsworth, A History of English Law 484-512 [4th Ed.1936]; Nolan, Readings in the History of the American Legal Profession at 15 [The Michie Company 1980] (an excerpt from Pluck-nett, A Concise History of the Common Law 224-230 [1956]). Before 1868, there was no concept of a public license to practice law in England. Only lawyers who intended to practice in the King’s overseas dominions, colonies, protectorates and mandated territories were required to sign an official roll kept at the Crown Office in the Law Courts’ Central Office in the Strand. Costigan, supra at 87, n. 31; see also Chroust, The Rise of the Legal Profession in America, Vol. I at 33-35, n. 95, Vol. II at 171— 172 [1965]. The English "call to the bar" — i.e., the admission to the bar of a private professional society — has no modern equivalence in a government license to practice law.
Oklahoma made a sharp break with history when in 1938 it organized lawyers into a statewide bar under the auspices of this court and refashioned the profession into a regulated resource of the judiciary. See In re Integration of State Bar of Oklahoma, supra note 24; see also in this connection Nolan, supra at 177-178 (an excerpt from Hurst, The Growth of American Law: The Law Makers 285-293 [1950]).
The federal and state practitioners are differently organized. In the federal judicial environment each United States court is authorized to establish and to control its own bar. 28 U.S.C. §§ 1654 and 2071; see Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 557 [1987]; see also Winters v. City of Oklahoma City, Okl., 740 P.2d 724, 729 [1987] (Opala, J., concurring in part and dissenting in part).
."An attorney is neither a public officer nor an officer of the court, in any proper legal sense. He exercises a quasi-public franchise, a privilege, not under the court but under the law.” (Emphasis added.) Costigan, supra note 26 at p. 83, n. 24. [1933].
. Tweedy v. Oklahoma Bar Ass'n, supra note 24 624 P.2d at 1052; Supreme Court of Virginia v. Consumers Union, Etc., 446 U.S. 719, 731-732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641, 653 [1980].
. See Mallard v. U.S. Dist. Court for Southern Dist. of Iowa, 490 U.S. -, 109 S.Ct. 1814, 1823, 104 L.Ed.2d 318 [1989] (Stevens, J., dissenting).
. See for example the California comprehensive public defender system adopted for each county in the state to be staffed with paid lawyers. Cal. [Gov’t] Code §§ 27700-27712 (West. 1968 & Supp.1984). See also Cook, Appointment of Counsel in California: A People v. Johnson Perspective, 3 Whittier L.Rev. 499 [1981], where the author notes, at 500, that most counties in California maintain a public defender office. While the statutory scheme allows the court to assign private counsel in criminal cases, California jurisprudence indicates a firm policy against allowing an indigent defendant other court-assigned counsel where a public defender is available. See Cook, supra at 506-508.
. This could be accomplished by creating a statewide service pool of lawyers for deployment in public service work. The Bar, as an equalization mechanism, could maintain an accounting system that would establish and keep track of how much public service may be due from each licensed lawyer who must serve. All lawyers would be in this service pool and be treated alike for conscription to pro bono work in conformity with the licensee’s specialty and skills. In this manner lawyers who do not qualify for criminal law work could be utilized for pro bono civil assignments.
.“One of the major conclusions of those who participated in the formulation of the Federal Criminal Justice Act and embodied in that act is that counsel must be provided in a systematic fashion and not by ad hoc arrangements or day-to-day improvisation reflecting the ideas of individual judges. See Att’y Gen. Report x-xi, 42-43; Criminal Justice Act of 1964, 18 U.S.C. § 3006A. This view is substantiated in the survey of state practice, which indicates that the worst inequities, to both the defendant and the bar, occur in those areas where no organized or systematic approach to the problem has been taken." (Emphasis added.) ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, Approved Draft 1968, Commentary (a) at p. 15.
. See Bates v. State Bar of Arizona, 433 U.S. 350, 383, 97 S.Ct. 2691, 2708-2709, 53 L.Ed.2d 810 [1977], reh’g denied 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 [1977]; Shapero v. Kentucky Bar Assoc., 486 U.S. 466, 476, 108 S.Ct. 1916, 1923, 100 L.Ed.2d 475, 486 [1988],
. The right to associate with others in pursuit of political, social, economic, educational, religious and cultural ends is protected by the 1st Amendment. Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 [1965]; Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 3251, 82 L.Ed.2d 462 [1984]; see also N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 907-909, 932-933, 102 S.Ct. 3409, 3422-3423, 3435-3436, 73 L.Ed.2d 1215 [1982]; Abood v. Detroit Board of Education, 431 U.S. 209, 231, 97 S.Ct. 1782, 1797, 52 L.Ed.2d 261 [1977]. Governmental action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny (Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 [1976]) and must clearly outweigh the repressive effect on association rights engendered by the governmental regulation.
. I would save for another day the question whether both lawyers should be entitled to full compensation for services rendered.
. The quantum of public service to be performed annually at the statutory rate by the bearer of a state license to practice law, which would constitute a burden to be borne equally with others, should be a norm initially developed by the Bar and then promulgated by the Supreme Court in the exercise of its legislative authority over professional activities of lawyers.
. A minority of courts have recognized an analogous concept—although espousing somewhat different terminology. [1] In People v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337, 341 [1966], the court dichotomized its compensation scheme into a "regular” and “extraordinary” service component, holding that the statutory fee limitation could not constitutionally be applied to extraordinarily lengthy and complex multiple representations; see also People v. Atkinson, 50 Ill.App.3d 860, 8 Ill.Dec. 932, 366 N.E.2d 94 [1977], People v. Johnson, 87 Ill.2d 98, 57 Ill.Dec. 599, 429 N.E.2d 497 [1981] and In Re Petition for Fees, 148 Ill.App.3d 453, 102 Ill.Dec. 67, 499 N.E.2d 624 [1986], where the court found "extraordinary circumstances” to exist and awarded compensation in excess of the regular statutory fee. [2] The court in People v. Wilson, 60 Misc.2d 144, 302 N.Y.S.2d 647 [1969], and Application of Armani, 83 Misc.2d 252, 371 N.Y.S.2d *1172563 [1975], also found that extraordinary circumstances existed and awarded counsel fees in excess of the statutory maximum. [3] In Jewell v. Maynard, 383 S.E.2d 536, 547 [W.Va.1989], the court holds that a lawyer may not be required to devote more than 10 percent of his normal work year to court-assigned cases. The court established a compensation regime comparable to that in the federal court system and directed the legislature to establish a “mechanism that allows lawyers to receive up to $1,500 cash advances for out-of-pocket expenses”. [4] Under the Nevada statutory scheme, fees may be awarded in excess of the statutory maximum allowed for indigent criminal defense work when "extraordinary circumstances” are present. See Lueck v. State, 99 Nev. 717, 669 P.2d 719 [1983]. See also Annot., Validity and construction of statute or court rule fixing maximum fees for attorney appointed to represent indigent, 3 ALR4A 577, 588, § 8 [1981].
. The terms of Art. 2, § 24, Okl. Const. are:
“Private property shall not be taken or damaged for public use without just compensation. ...”
In DeLisio v. Alaska Superior Court, 740 P.2d 437, 442-443 [Alaska 1987], the court holds that "a court appointment compelling an attorney to represent an indigent criminal defendant is a taking of property for which just compensation is required,” which is to be "measured by the fair market value of the property appropriated;” in State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816, 841-842 [1987], the court concludes that attorneys’ services are property and thus subject to 5th Amend, protection; State ex rel. Scott v. Roper, 688 S.W.2d 757, 768 [Mo. 1985]; in Jewell v. Maynard, supra note 37, 383 S.E.2d at 547, the court acknowledges that a lawyer is duty-bound to accept court assignments but holds that equal protection and due process principles place an upward limit on this obligation; in Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 705-706 [D.C.Cir.1984], the court noted that "an unreasonable amount of required uncompensated service” might constitute "taking” in the constitutional sense; see also County of Fresno v. Superior Ct. of Fresno Cty., 82 Cal.App.3d 191, 146 Cal.Rptr. 880, 884-887 [Cal.App., 1978] (Hopper, J., dissenting); see generally Kendrick, Uncompensated Appointments of Attorneys For Indigent Criminal Defense: The Need For Supreme Court Standards, 14 S.W.Univ.L.Rev. 389 [1984]; Pirsig and Kirwin, infra note 39 at 164, n. 2.
A minority of courts take the position that assigned counsel are entitled to compensation in the absence of statute or court rule authorizing it (Bradshaw v. Ball, supra note 7 at 298; State v. Green, 470 S.W.2d 571, 576 [Mo.1971]; see Annot., Right of Attorney Appointed by Court For Indigent Accused To, and Court's Power to Award, Compensation by Public, in Absence of Statute or Court Rule, 21 ALR3d 819, Part III [1968 & 1989 Supp.]) and that a lawyer may not be appointed to render gratuitous service (Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 29 N.E.2d 405, 413 [1940]; Bedford v. Salt Lake County, 22 Utah 2d 12, 447 P.2d 193, 195 [1968]; McNabb v. Osmundson, 315 N.W.2d 9, 16 [Iowa 1982]; Honore v. Washington State Bd. of Prison Terms & P., 466 P.2d 485, 495-496 [Wash. 1970]; Carpenter v. County of Dane, 9 Wis. 249, 252 [Wis.1859]).
But cf. United States v. Dillon, 346 F.2d 633 [9th Cir.1965]; cert. denied 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 [1966], where the court rejected the argument that compelled service amounts to a taking of property without just compensation; Williamson v. Vardeman, 674 F.2d 1211, 1214-1215 [8th Cir.1982]; Weiner v. Fulton County, 113 Ga.App. 343, 148 S.E.2d 143, 146 [1966], cert. denied, 385 U.S. 958, 87 S.Ct. 393, 17 L.Ed.2d 304 [1966] Annot., 21 ALR3d supra at 823-824; but see State ex rel. Scott v. Roper, supra 688 S.W.2d at 764, where the court notes that the majority of commentators appear to reject the reasoning in Dillon, supra. A number of the authors cited in Roper take the position that a lawyer’s services should be treated as a property right.
. Under this dichotomized compensation approach an Oklahoma County lawyer — after discharging his/her annual quantum of public service — when appointed to a case in Canadian County would draw pay at the fair market value on the basis of Canadian County standards, but out-of-pocket and travel expenses would be reimbursed on actual outlay basis.
There has been a trend toward allowing reimbursement of assigned counsel for out-of-pocket expenses. See State v. Second Jud.Dist.Ct. In And For Co. Of Washoe, 85 Nev. 241, 453 P.2d 421, 422-423 [1969]; State v. Horton, 34 N.J. 518, 170 A.2d 1, [N.J.1961]; State v. Rush, 46 N.J. 399, 217 A.2d 441, 448 [1966]; People v. Randolph, supra note 37; People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645 [1966]; Jewell v. Maynard, supra note 37, 383 S.E.2d at 547; Williamson v. Vardeman, supra note 38 at 1215, where the court holds that the state cannot constitutionally require court-assigned counsel to make out-of-pocket expenditures in behalf of indigent criminal defendants; Annot., Construction of *1173State Statutes Providing For Compensation Of Attorney For Services Under Appointment By Court In Defending Indigent Accused, 18 ALR3d 1074, § 7 [1968]; Buchwald, Indigent Criminal Defendant’s Constitutional Right to Compensated Counsel, 52 Cornell L.Q. 433 [1967]; Pirsig and Kir win, Professional Responsibility 164, n. 3 [3rd Ed. 1976]. Court-assigned counsel, under the Criminal Justice Act, 18 U.S.C. § 3006A(d), are entitled to reimbursement for out-of-pocket expenses, see Annot., 9 ALR Fed 569, §§ 16-20 [1971 and 1989 Supp.].