“Utilizing the remedy of appeal would probably result in the demise of the public defender system while that remedy was being pursued.”
How later courts described this case
- “Utilizing the remedy of appeal would probably result in the demise of the public defender system while that remedy was being pursued.”
Written by the judges who cited it.
The opinion
Darrell Hickman, Justice. The majority has decided, after considerable strain both legally and logically, that an ordinance of the Pulaski County Quorum Court appropriating money for a Public Defender System, as authorized by Act 279 of 1975, is legal.
The simple fact that the Pulaski County Quorum Court has appropriated money for the Public Defender System as it exists in the Sixth Judicial District (which is comprised of Pulaski and Perry Counties), is not enough to satisfy all the obvious deficiencies of the act creating the Public Defender System in this district.
Act 279 of 1975 is clearly a local act in violation of the Arkansas Constitution. Amend. 14, Ark. Const. This act was passed at the same session as the “Public Defender Act.” See Act 996 of 1975.
The authorities in Pulaski County, rather than proceeding with a public defender system as authorized by Act 996 of 1975, chose to seek separate legislation for their public defender system. There is no doubt the act is local legislation since on its face it only applies to Pulaski and Perry Counties. We only approve local legislation in the interests of “the administration of justice.” See Sebastian Bridge Dist. v. Lynch, 200 Ark. 134 , 138 S.W. 2d 81 (1940). Without conceding the point, the argument that the local act for a public defender system is necessary to the administration of justice carries little weight because Pulaski and Perry Counties could have proceeded to establish a public defender system under Act 996 of 1975, and thereby have avoided the obvious shortcomings of the local act.
The act in question does not merely authorize Pulaski County to have a public defender system, it gives the circuit court the power to create and maintain the system. This power is alien to courts and is a clear violation of the separation of powers clause of the Arkansas Constitution. Art. 4, § 2, Ark. Const. The fatal portion of Act 279 reads:
The circuit court may create a Public Defender System for indigent persons accused of serious crimes in the district and provide for the compensation of such attorneys and investigators as is necessary and for the reasonable expenses of the office. These salaries and expenses shall be paid for the administration of justice from General Revenues of the county and without the necessity of a prior appropriation therefor by the quorum court. Section 3, Act 279 of 1975. [Emphasis added].
We have already declared that portion of Section 3 which authorizes the circuit court to approve and set salaries to be unconstitutional. Mears v. Adkisson, Judge, 262 Ark. 636 , 560 S.W. 2d 222 (1977). The issues before us now were also argued in Adkisson, but we declined to review them.
The appellant argues that Act 279 is an unlawful delegation of a legislative function. I believe this argument has merit. The act clearly gives the circuit court the authority to create a system and maintain it; this is a legislative and administrative function.
In the case before us a budget of $185,000 has been approved by the quorum court which authorizes: salaries for a public defender, three assistants, a chief investigator, assistant investigator, and three secretaries; retirement benefits of some $14,000 (whether the employees contribute to a state, county or private retirement system, we dp not know); and, office supplies and equipment of some $23,000.
The majority in approving the authority of the circuit courts to create this system state that the system is comparable to a circuit judge appointing a single lawyer to represent a single indigent and authorizing a fee not to exceed $350.00 for his services. Ark. Stat. Ann. § 43-2419 (Repl. 1977). Such an argument avoids the question squarely presented to us, i.e., whether the public defender and his employees are state or county employees. Rather than answer this question, the majority has decided that public defenders are neither state or county employees, but are “private” attorneys acting as officers of the court. This is an incredible conclusion.
Perhaps the majority has to reach this conclusion because if the employees of the public defender’s office are state employees, then only the state, not the counties, can set the salaries. Art. 16, § 4, Ark. Const. If the employees are county employees, then the county judge, as opposed to the circuit judge, pursuant to Amendment 55 has the authority to hire and fire public defenders and the employees of the office. Amend. 55, § 4, Ark. Const.
Apparently the majority has decided that the circuit judge or judges (we do not know which since there are four circuit judges in Pulaski County at this time) will hire or fire the public defender and the employees. The act makes no provision for such matters. It will be no comfort to indigent defendants to know that their particular lawyer has been hired by the judge trying their case, and that the lawyer needs the approval of that same judge to keep his job.
It would be much easier to brand Act 279 for what it is, blatant local legislation which clearly violates the separation of powers clause of the Arkansas Constitution. Rather than being a tool for the effective administration of justice, the act clearly becomes a possible violation of the due process clause of the Arkansas and United States Constitutions.
Rather than seek to patch up Act 279 and, in fact, do a little legislating ourselves, it would be better to tell the Sixth Judicial District to operate a public defender system as authorized by the Public Defender Act or seek legislation which will satisfy the constitution.
I respectfully dissent to the view of the majority in this case for the reasons which I have stated.