Reed v. Duter

• Decision Date: 18 September 1969
• Docket Number: No. 17546.,17546.
• Citation: 416 F.2d 744
• Parties: Linda Lea REED, Petitioner-Appellant, v. Rex T. DUTER, Superintendent, Wisconsin School for Girls, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

416 F.2d 744 (1969)

Linda Lea REED, Petitioner-Appellant, v. Rex T. DUTER, Superintendent, Wisconsin School for Girls, Respondent-Appellee.

No. 17546.

United States Court of Appeals Seventh Circuit.

September 18, 1969.

Joseph F. Preloznik, Madison, Wis. for petitioner-appellant.

Robert W. Warren, Atty. Gen. of Wisconsin, William A. Platz, Sverre O. Tinglum, Asst. Attys. Gen., Madison, Wis., for respondent-appellee.

Before KILEY and FAIRCHILD, Circuit Judges, and MORGAN, District Judge.¹

ROBERT D. MORGAN, District Judge.

Appellant, now seventeen years of age and confined at the Wisconsin School for Girls, at Oregon, Dane County, Wisconsin, filed her petition for a writ of habeas corpus in the court below seeking to obtain her release from custody. Following a nonevidentiary hearing, the court found that the petition showed neither that the State of Wisconsin did not provide a remedy to appellant nor that available State remedies were ineffective to protect her rights. An order was entered denying her petition upon the ground that appellant had not exhausted her State remedies as required by the provisions of 28 U.S.C. § 2254(b).

This appeal from that decision presents a unique aspect of the always perplexing problem of weighing the adequacy of state court procedures against the constitutional safeguards for protection of the right of indigent persons to liberty. Perusal of this record recalls to mind the truth, sardonically stated many years ago, that the law gives both the rich and the poor the right to sleep under the bridges. We have advanced under our Constitution and the decisions interpretative thereof to the point at which we have drained the sarcasm from that truth and have given it realistic meaning. The criminal convict, solely because of his poverty, cannot be denied rights which the rich may obtain by the combination of their affluence and the operation of law.

Ultimately, the merits of this case must present the issue whether a juvenile offender may, because of her indigency, her minority and certain idiosyncrasies of state law, be denied a right which her adult contemporaries would enjoy. The issue which we face is unique in that we must skirt those ultimate merits because of the procedural background hereinafter related which limits the office of our review to a procedural issue collateral thereto.

On April 1, 1968, a petition was filed in the County Court of Milwaukee, Wisconsin, alleging that appellant was a delinquent minor. On April 10, 1968, she was found by the court to be a delinquent minor and committed to the custody of the Department of Social Services of the State of Wisconsin for confinement at the School for Girls until she shall have attained the age of twenty-one years. She was first confined at that institution on April 12, 1968.

Immediately prior to the hearing which led to her confinement, a "voluntary defender" appeared to represent her. Though the record is not clear upon the point, it is a fair inference therefrom that such counsel appeared as an adjunct to established State procedural practice in juvenile cases or pursuant to appointment by the court. The case then proceeded to an immediate hearing to the delinquency finding, and to her commitment to custody.

Neither the court nor her counsel advised appellant that she had a right to appeal that decision. She was not advised of her right to the appointment of counsel for the purpose of pursuing an appeal. No appeal was taken.

In July, 1968, after the expiration of the forty days' period of time for a direct appeal, Sec. 48.47, Wis.Stats. (1967), appellant first sought to invoke post-commitment procedures in the State courts for the review of constitutional questions related to the adjudication of her delinquency. She then filed in the Circuit Court of Dane County (county of confinement) an affidavit of indigency and a petition for the appointment of counsel to assist her in prosecuting the post-commitment remedies available to her. Her petition was predicated upon conclusory allegations that the proceedings which had led to her commitment had not conformed to the constitutional requirements prescribed by the opinion and decision in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.

On July 26, 1968, the Honorable W. L. Jackman, a judge of the Circuit Court of Dane County, denied her petition without considering the merits thereof. The basis for that order, as therein stated, was that a petition for appointment of counsel should be filed in the appropriate court of the county of appellant's place of residence.

Thereafter, on August 5, 1968, appellant filed an affidavit of indigency and her petition for appointment of counsel in the Circuit Court of Milwaukee County (county of residence). That petition was identical to the petition which she theretofore had filed in Dane County. On August 9, 1968, the Honorable Max Raskin, a judge of the Circuit Court of Milwaukee County, entered an order denying her petition without considering the merits thereof. The basis for that order, therein stated, was that appellant's petition for the appointment of counsel would have to be filed in the county wherein she was confined.

Each of the above petitions was filed pro se.

Thereafter, appellant's present appointed counsel, an attorney for Wisconsin Judicare, filed a petition on her behalf in the Supreme Court of the State of Wisconsin, invoking the supervisory powers defined in Art. VII, Sec. 3, of the Wisconsin Constitution, requesting that the court direct the manner in which counsel was to be appointed to assist appellant in preparing and prosecuting a petition for a writ of habeas corpus. That petition was denied, without opinion, on October 1, 1968.

On October 9, 1968, pursuant to directions of the Supreme Court of Wisconsin, appellant, by said attorney, filed her petition for leave to commence an original action for mandamus and other relief against Judge Raskin to compel him to consider the merits of her petition for the appointment of counsel.

On October 10, 1968, the Supreme Court of Wisconsin issued its alternative writ of mandamus, commanding Judge Raskin to appoint counsel for appellant, or, in the alternative, to show cause why he should not comply with that command of the writ.

On October 17, 1968, Judge Raskin filed a motion to quash the writ of mandamus, based upon the ground that the writ failed to show that he had any legal duty to comply with its command, because it appeared upon the face of the writ that appellant was confined in a county other than Milwaukee County, and that, therefore, the Circuit Court of the latter County had no jurisdiction over appellant. That motion was accompanied by a motion to implead Judge Jackman as an indispensable party to appellant's suit for mandamus.

On the same date, the court entered an order requiring Judge Jackman to show cause, if any, why he should not be made a party to the suit for mandamus.

On October 23, 1968, Judge Jackman filed an affidavit stating, inter alia, that the mandamus suit was a controversy between appellant and Judge Raskin, that appellant's petition prayed no relief against any Circuit Judge of Dane County, and that Judge Raskin had no legal right to any relief against the affiant.

No further action had been taken by the Supreme Court of Wisconsin as of June 10, 1969.²

The proceeding below was commenced on April 8, 1969, alleging the above chronology of state court proceedings in support of the contention that Wisconsin either did not afford appellant a remedy or that the remedies afforded were ineffectual to protect her federal, constitutional rights. This chronology must be viewed in the light of established Wisconsin procedure in criminal prosecutions.

Counsel must be appointed, upon request, at the expense of the county in which a prosecution arises, for all indigent defendants charged with a criminal offense. Sec. 957.26(1)(2), Wis.Stats. (1967). Provision is made for the appointment of counsel to represent prisoners in the prosecution of proceedings for writs of habeas corpus in the State courts. Sec. 957.26(6), Wis.Stats. (1967). Section 16.51(7), Wis.Stats. (1967), provides that the State shall reimburse counties for all expenses growing out of proceedings on behalf of prisoners in state prisons, in all actions commenced by the State or by prisoners in pursuit of post-conviction remedies, when such proceedings are commenced in the county in which any such prison is located.

In response to the decision in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, the Supreme Court of Wisconsin has construed those statutes as requiring that counsel be appointed as a matter of right for all criminal defendants for the preparation of the first appeal to review a conviction, including the pursuit of certain limited post-conviction remedies in the trial court. McLaughlin v. State, 32 Wis.2d 124, 145 N.W.2d 153, 154-155.³

Appellant's allegation, that the basis for the Dane County order denying appointment was the conviction of the judges of the Circuit Court of Dane County that that County could not charge the expenses of appointment of counsel back to the State under Section 16.51 because the Wisconsin School for Girls is not a "prison," as defined by Section 53.01, Wis.Stats. (1967), is not denied.

Appellee contends that the petitions filed by appellant, pro se, were insufficient to invoke the jurisdiction of either of the Wisconsin Circuit Courts because they contained no factual allegations showing any constitutional claim having arguable merit. That contention rests upon the context of the issuable paragraph of each petition, as follows:

"4. That during the course of the proceedings that led to petitioner\'s incarceration, he was denied one or more of the following due process requirements as set forth by the United States Supreme Court in the case of In the Matter of Gault, 87 S.Ct. 1428 (1967), namely:

"a. Notice

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