Bramlett v. Peterson
| Decision Date | 08 December 1969 |
| Docket Number | No. 69-117-Civ-J.,69-117-Civ-J. |
| Citation | 307 F. Supp. 1311 |
| Parties | Arrie BRAMLETT, Harry Goodale, and Lila Hollestelle, individually, and on behalf of all others similarly situated, Plaintiffs, v. The Honorable: J. S. PETERSON, Justice of Peace, District 1; Ray C. Schroeder, Justice of Peace, District 2; Irwin S. Hicks, Justice of Peace, District 4; James O. Taylor, Justice of Peace, District 5; Charles H. Lennon, Justice of Peace, District 6; Hallie E. Miller, Justice of Peace, District 7; Charles J. Luke, II, Justice of Peace, District 8; O. S. Burklin, Justice of Peace, District 9; Jefferson Clark, Justice of Peace, District 10; Francis Smelt, Justice of Peace, District 11; Walter W. Snell, Justice of Peace, District 12; and Lloyd Sparks, Justice of Peace, District 14, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
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Warren H. Cobb, Thomas A. Goldsmith, Daytona Beach, Fla., for plaintiffs.
Ralph Clayton, DeLand, Fla., and J. Kermit Coble, Daytona Beach, Fla., for defendants.
Walter W. Snell, Daytona Beach, Fla., pro se, and for defendants Peterson, Lennon, Taylor, Luke, Clark, Smelt, Hicks and Schroeder.
PRELIMINARY INJUNCTION
Plaintiffs bring this action for themselves and pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of all other indigent persons in Volusia County, Florida, who have been and will be denied certain constitutional rights solely because of their impecunious condition. Jurisdiction of this Court is grounded in 28 U.S.C. § 1343(3), (4); § 2201, and the suit is brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiffs were granted leave to proceed in forma pauperis in this cause. The complaint was filed February 25, 1969, and a final hearing was had October 16, 1969. In addition, habeas corpus relief is requested for two of the plaintiffs, Bramlett and Goodale.
The complaint initially challenged the constitutionality of Chapter 61-1646 of the Laws of Florida as it related to the compensation for justices of the peace in Volusia County. Under the statute, a peace justice received a fee if, and only if, criminal proceedings were initiated before the peace justice, without regard to whether an information or indictment ensued. Because of this substantial and direct pecuniary interest in the finding of probable cause, plaintiffs alleged that an unconstitutional denial of due process resulted, citing Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L. Ed. 749 (1927); Bennett v. Cottingham, 290 F.Supp. 759 (N.D. Ala. 1968), aff'd 393 U.S. 317, 89 S.Ct. 554, 21 L.Ed.2d 513 (1969); Rollo v. Wiggins, 149 Fla. 264, 5 So.2d 458 (1942).
After the filing of this suit, a special act, Chapter 69-740, was passed in the 1969 session of the Florida Legislature which places all Volusia County justices of the peace on a salary not dependent upon the fees generated by the institution of criminal proceedings. The special act repeals Chapter 61-1646, and when the 1969 law expires by its own terms on June 30, 1970, the earlier statute will not be reactivated for the reason that no express reference to its revival is made in the new law as required by Florida Statutes, section 2.04 (1967), F.S.A. Consequently, this Court finds that at present there is no case of actual controversy between the parties regarding the fee system. This Court will not anticipate what the legislature may do after Chapter 69-740 expires, nor will a ruling be made here on the constitionality of fee systems similar to the prior one of Volusia County alleged still to be in use in many other Florida counties. See, e. g., Oklahoma City v. Dulick, 318 F.2d 830 (10th Cir. 1963). Because this issue is moot, and because the statute is a special act, not of general application, a three-judge court is unnecessary. E. g., Rorick v. Board of Commissioners, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928).
Plaintiffs' second count alleges that the Volusia County peace justices fail to advise indigent misdemeanants of their right to court-appointed counsel before trial and fail to appoint an attorney for them in the absence of an intelligent and voluntary waiver.
The Fifth Circuit Court of Appeals has been abundantly clear in its insistence that indigent misdemeanants have a constitutional right to counsel, absent knowing and voluntary waiver. Bohr v. Purdy, 412 F.2d 321 (5th Cir. 1969); James v. Headley, 410 F.2d 325 (5th Cir. 1969); Colon v. Hendry, 408 F.2d 864 (5th Cir. 1969); Boyer v. City of Orlando, 402 F.2d 966 (5th Cir. 1968) (); Goslin v. Thomas, 400 F.2d 594 (5th Cir. 1968); McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965); Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965). Most recently, the Fifth Circuit heard arguments in Mathews v. Florida, No. 27,879 (argued Nov. 10, 1969) (contesting what lower limit of potential sentence should apply to right to counsel for accused misdemeanants) remanded for clarification of extent of potential penalty on Feb. 26, 1970. The result in that case, as noted below, is not relevant here. To date, the Supreme Court of the United States has not ruled on this issue. Beck v. Winters, 407 F.2d 125 (8th Cir.), cert. denied, 395 U.S. 963, 89 S.Ct. 2104, 23 L.Ed.2d 749 (); Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364, cert. denied, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966); State v. De Joseph, 3 Conn.Cir. 624, 222 A.2d 752, cert. denied, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966); Patterson v. Warden, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137 (1963) (). We will not list the other numerous decisions of lower courts, both state and federal, that agree with the established Fifth Circuit position, but many are collected in Beck v. Winters, 407 F.2d 125 (8th Cir. 1969), cited above.
In the face of these Fifth Circuit Court of Appeals decisions, extending from 1965, the Florida courts have repeatedly refused to guarantee accused indigent misdemeanants their constitutional right to court-appointed counsel. State ex rel. Taylor v. Warden of Orange County Prison Farm, 193 So.2d 606 (Fla.1967); Watkins v. Morris, 179 So.2d 348 (Fla.1965); Fish v. State, 159 So.2d 866 (Fla. 1964); Brinson v. Purdy, 201 So.2d 260 (3d D.C.A.Fla. 1967). This issue was before the Florida Supreme Court in Boyer v. City of Orlando, No. 38.660 (Fla.Sup.Ct. argued Nov. 12, 1969) (certificate denied on procedural grounds, Feb. 25, 1970), on remand for exhaustion from 402 F.2d 966 (5th Cir. 1968). It now appears the court will again consider the issue in Argersinger v. Hamlin, No. 39,309 ().
It has been held that trial courts have authority to appoint counsel for indigent defendants in criminal cases. See Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
Although we do not require by this order that compensation be given to counsel appointed for indigent misdemeanants, we note that even the specter of potential cost in substantial amounts has been found to be not too burden-some. See e.g., Stevenson v. Holzman, Or., 458 P.2d 414, 418 (1969) (). Regardless of whether appointed counsel can be paid, (see Perry v. State, 120 Ga.App. 304, 170 S.E.2d 350 (filed Sept. 12, 1969), the holding of this order is unequivocal: absent knowing and voluntary waiver, accused indigent misdemeanants are constitutionally entitled to court-appointed counsel without cost or obligation to them in trials before Volusia County justice of the peace courts. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), no provision was made for payment of appointed defense counsel. Since Gideon, the problem of counsel has been met by provisions for payment such as the federal Criminal Justice Act of 1964, 18 U.S.C. § 3006A; by O.E.O. legal services assistance for some post-conviction review cases, and by the donation of services by court-appointed attorneys. A substantial majority of states afford the right to counsel in all or certain misdemeanor cases. Comment, 21 U.Fla.L.Rev. 421 (1969).
While this case was pending, an attempt was made to secure funds for the Volusia County public defender's office to enable it to supply attorneys for indigent misdemeanants. J. Fla. House of Rep. (April 23, 1969, at 227, 228) (). The attempt failed, reportedly following comments that the legislature was reluctant to anticipate the ruling of this Court. "House Spurns Cash Hike for `Defenders,'" Daytona Bch. News J., April 24, 1969, (remarks of Representative J. Savage).
Whatever solution is settled upon, it is unnecessary for this Court to specify what that result should be. In a case similar to the one presently at bar which involved the issue of counsel for indigent misdemeanants, it was said with regard to the lack of authority to appoint or provide compensation for court-appointed counsel:
Any legal vacuum resulting in State criminal proceedings is a situation for which responsibility cannot be laid at the door of this court...
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