# Arnold v. Kemp > Supreme Court of Arkansas · July 15, 1991 · 306 Ark. 294 URL: https://www.frixlaw.com/law-library/cases/9649287 ## Case - **Full name:** Blair ARNOLD and Thomas E. Allen and Suzan A. Jernigan v. the Honorable John Dan KEMP, Circuit Judge of the Independence Circuit Court, Sixteenth Judicial District; State of Arkansas and Suzan A. Jernigan v. State of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** July 15, 1991 - **Citations:** 306 Ark. 294; 813 S.W.2d 770; 1991 Ark. LEXIS 384 - **Precedential status:** Published - **Opinion:** Concurrence by Newbern - **Judges:** Holt, Hays, Dudley, Newbern, Glaze - **Cited by:** 65 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Modified by State v. Post, 311 Ark. 510 (1993). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649287 ## How later opinions describe it (automated extraction) - holding the payment caps on reimbursement for attorneys appointed to represent indigent criminal defendants unconstitutional under taking clause and equal protection analyses - stating that "the practice of criminal law has changed, as have the times" ## Opinion text David Newbern, Justice, concurring. Time changes everything. In the first of the “Scottsboro cases,” Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court held there were some circumstances in which the Due Process Clause of the Fourteenth Amendment entitled an indigent defendant to the right of counsel. In 1942, there were still “circumstances” in which an indigent defendant charged with rape and murder was said to have no right to counsel to assist in his defense. Betts v. Brady, 316 U.S. 455 (1942). The horn could be heard in the distance, however, and in Gideon v. Wainwright, 372 U.S. 335 (1963), it became loud and clear that the Fourteenth Amendment required the states to observe that “In all criminal prosecutions, the accused shall enjoy the right. . . to have the assistance of counsel for his defense.” U.S. Const, amend. 6. It was about the time of Gideon v. Wainwright that Atticus Finch was defending Tom Robinson, without mention of a fee, perpetuating in the eyes of readers everywhere the noble image of the lawyer dedicated to justice with no thought of the “lucre” we mentioned in State v. Ruiz, 269 Ark. 331 , 602 S.W.2d 65 (1980). But things were changing still. Criminal defense work became more complicated due to the pervasiveness and growth of the sciences of detection and the salutary and growing recognition of the need for fair play in safeguarding the rights of accused persons. Justice Dudley’s thoughtful rejection of the due process rationale of the majority opinion, has given me pause. How can it be a “taking” of a lawyer’s property to ask the lawyer to do that which the lawyer is already sworn to do? I believe the answer lies in the set of changes mentioned above affecting the trial of criminal cases and the concurrent changes in the legal profession which have resulted in a degree of specialization. The law is an activity not only steeped in precedent but “bound” by it, or at least weighted by it in the process of social, and the slowly following legal, evolution. It is easy for those engaged in the profession to add nostalgia to precedent and hope we will not have to alter the way we do things. If the burden of representing indigent criminal defendants were shared by all lawyers, perhaps (although not to a true purist) it would be too little to amount to a taking. The truth is that serious criminal cases demand experienced criminal lawyers in order that justice be done. I do not deny that there are still lawyers who can “do it all,” but more and more we see instances where good lawyers, for good reasons often having to do with protection of their would-be clients, do not wish to be put in the impossible position of having to deal with matters foreign to their experience. We see good criminal defense lawyers, relatively few in number, being called upon time and again to the point of exhaustion of themselves, to say nothing of exhaustion of the laudable sentiment and purpose of the lawyer’s oath. I tend to agree there is an Equal Protection Clause problem in addition to the Due Process Clause prohibition against a taking without just compensation. It seems inevitable that the concern Justice Dudley points up about the possible burden of expense this decision will place on the counties will be addressed by creation of a statewide public defender system. I hope it may also stimulate consideration of resurrecting the appellate public defender program we had in Arkansas in the late 1970s. Lawyers who wish to engage in private criminal law practice will still be able to do so, and good criminal lawyers who are not public defenders may remain available to be appointed for criminal defense work without fee if they choose. Indigent defendants may in some, probably rare, instances have the assistance of counsel of their choice. At any rate they will be assured of counsel from an office devoted solely to the task of assisting them expertly. The resources available to the State for prosecution will be balanced by the resources available to the defense, and our system of justice will be fairer than it has been. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649287. Public record. Not legal advice.