Pulaski County ex rel. Mears v. Adkisson

560 S.W.2d 222, 262 Ark. 636, 1978 Ark. LEXIS 1792

• Court: Supreme Court of Arkansas
• Decided: January 9, 1978
• Docket: 77-194
• Status: Published

Opinions

Darrell Hickman, Justice.

The county Judge of Pulaski County filed with us a petition for a writ of prohibition asking that we prohibit two Pulaski County circuit judges from enforcing an order they signed in 1977 funding the Public Defender’s Program of Pulaski County.

We granted a temporary writ of prohibition on July 11, 1977. On review we make it permanent.

The Public Defender’s office of the Sixth Judicial District [Pulaski and Perry Counties] presently exists and operates by Act 279 of 1975. Section 3 of that Act 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.

The Pulaski County Public Defender’s office 1977 budget for a total of $185,284.76 was submitted and approved by two circuit judges. The budget provided for salaries for eight employees totalling $141,420.00; retirement money in the amount of $14,142.00; and, withholding for F.l.C.A. in the amount of $6,522.76. Also, the budget contained a provision for office supplies, postage and other miscellaneous expenses totalling $23,200.00.

Two of the four Pulaski County circuit judges, who make up the Criminal Division, had in the past signed orders approving the budget of the Public Defender’s office and directing Pulaski County to pay the money without an appropriation by the quorum court.

The two-judge order signed in June, 1977, stated:

. . . that the Proposed Budget submitted by the Public Defender, attached hereto, is approved and made a part of this Order, and the County Judge of Pulaski County is hereby ordered to pay said amounts with County General Funds without prior appropriation of the Quorum Court.

The Pulaski County Judge refused to pay any money from the county general fund and sought a writ of prohibition from us to prevent the circuit judges from enforcing the order.

We hold this order was entered without judicial authority because it determines and orders payment of salaries and expenses for the Public Defender’s office. Such action is a legislative and not a judicial function. The order and Section 3 of Act 279 — which authorizes the circuit court to set salaries — are in violation of the separation of powers doctrine of the Arkansas Constitution. Ark. Const.. Art. 4, § 2.

Prohibition is a proper remedy in this case because the circuit judges had no jurisdiction over the subject matter. Webb v. Todd Harrison, Circuit Judge, 261 Ark. 279, 547 S.W. 2d 748 (1977).

We emphasize that our decision is limited to the sole issue of the circuit court’s authority to set salaries. Although the parties raised numerous arguments, we do not at this time feel it necessary to rule on these matters.

Byrd, J., not participating. Fogleman and Howard, JJ., dissent.