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12/22/95 EX PARTE STATE ALABAMA (RE JAMES W. MAY v.

December 22, 1995

EX PARTE STATE OF ALABAMA (RE: JAMES W. MAY
v.
STATE); EX PARTE JAMES W. MAY (RE: JAMES W. MAY V. STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Baldwin Circuit Court, CC-90-106.01; Court of Criminal Appeals, CR-92-350) Thomas B. Norton, Jr., TRIAL JUDGE.

Released for Publication May 3, 1996.

Cook, Justice. Hooper, C. J., and Shores, Houston, and Ingram, JJ., concur. Maddox, J., concurs specially.

The opinion of the court was delivered by: Cook

COOK, JUSTICE.

The writs of certiorari are quashed as having been improvidently granted.

The petitioner in case number 1930683, James W. May, contends that the imposition of a duty to represent indigent criminal defendants at rates currently limited by Ala. Code 1975, § 15-12-21(d), violates numerous constitutional provisions, including the prohibition against taking of property without just compensation, and he invites us to reexamine our holdings on these issues in Ex parte Grayson, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S. 865, 88 L. Ed. 2d 157, 106 S. Ct. 189 (1985), and Sparks v. Parker, 368 So. 2d 528 (Ala.), appeal dismissed, 444 U.S. 803, 62 L. Ed. 2d 16, 100 S. Ct. 22 (1979). We conclude that the facts and data presented in this case do not warrant reexamination of these issues at this time. Therefore, these writs are quashed.

WRITS QUASHED AS IMPROVIDENTLY GRANTED.

Hooper, C. J., and Shores, Houston, and Ingram, JJ., concur.

Maddox, J., concurs specially.

MADDOX, JUSTICE (concurring specially).

Requiring attorneys to represent indigent defendants without compensating them adequately for their professional services has been a perennial problem for the state, as I wrote in a Dissenting opinion in Sparks v. Parker, 368 So. 2d 528 (Ala. 1979); appeal dismissed, 444 U.S. 803, 62 L. Ed. 2d 16, 100 S. Ct. 22 (1979). See 7A C.J.S. Attorney and Client § 299, n. 48 (Pocket Part) (1991). *fn1

Although my position regarding the constitutionality of requiring attorneys of this state to furnish services without adequate compensation has not changed, I have not received much support for my position on this legal issue from either this Court, the Supreme Court of the United States, or other courts, state or federal, for that matter, but I still believe that my analysis of the issue in Sparks was correct.

I naturally disagree with the State's argument that the rationale in Sparks is constitutionally sound, but, in view of the fact that the United States Supreme Court refused to review Sparks, I see no reason to continue to Dissent. I do enthusiastically support the decision of the majority to allow the opinion of the Court of Criminal Appeals to stand, thereby granting attorneys some relief so they can at least be reimbursed for the expenses they incur in representing indigent defendants. Therefore, I concur.

There seems to be growing sentiment for the position I stated in Sparks. See, Arnold v. Kemp, 311 Ark. 510, 845 S.W.2d 770, 780-81 (1991) (Newbern, J., Concurring), modified, State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993); DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987); State ex rel. Stephan v. Smith, 242 ...


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