Hendrix v. City of Seattle, No. 1

CourtUnited States State Supreme Court of Washington
Writing for the CourtHALE; HUNTER; NEILL and McGOVERN, JJ., and DONWORTH; ROSELLINI; Harlan; HILL and HAMILTON; FINLEY; Rosellini
Citation76 Wn.2d 142,456 P.2d 696
PartiesLeon Morris HENDRIX, Respondent, v. The CITY OF SEATTLE, and the Honorable Charles Z. Smith, Judge of the Municipal Court of the City of Seattle, Departmentppellants.
Decision Date05 June 1969
Docket NumberNo. 39357,A,No. 1

Page 142

76 Wn.2d 142
456 P.2d 696
Leon Morris HENDRIX, Respondent,
The CITY OF SEATTLE, and the Honorable Charles Z. Smith,
Judge of the Municipal Court of the City of
Seattle, Department No. 1, Appellants.
No. 39357.
Supreme Court of Washington, En Banc.
June 5, 1969.

Page 143

[456 P.2d 698] A. L. Newbould, Corp. Counsel, Seattle, for appellants.

John M. Junker, Michael H. Rosen, Seattle, for respondent.

Vernon J. Guinn, Seattle, amicus curiae, Seattle-King County Legal Services Center.

HALE, Judge.

There is an old saying that hard cases make bad law and this case seems to vindicate it. The case invites an extreme ruling because it involves an unusually severe sentence in Seattle Municipal Court passed [456 P.2d 699] upon an 18-year-old indigent defendant 1 who had no attorney and no funds with which to employ one. The primary question is whether a defendant in municipal court charged with a serious misdemeanor has a constitutional right to counsel at public expense. A secondary question, but one of nearly equal gravity, is whether a municipal court judge has inherent judicial authority either to compel members of the bar to serve indigent defendants in municipal court without compensation, or, in the alternative, to bind the municipal treasury to pay for such services.

The defendant was charged in two complaints with two distinct violations of the disorderly conduct ordinances of Seattle. In one complaint, the city charged him with the misdemeanor of stealing money from the Milk Barn Car Wash, in violation of ordinance No. 16046, codified as Seattle code, § 12.11.020; the other complaint, brought under the same disorderly conduct ordinance, accused him of contributing

Page 144

to the delinquency of a 13-year-old girl by accompanying, congregating or loitering with her at 3 o'clock in the morning about the public streets. 2

On arraignment before the municipal court on both charges, the court advised the defendant of his right to counsel and offered him time and opportunity to obtain counsel. Defendant advised the court that he had no funds with which to employ an attorney and requested the court to provide him counsel without cost. In denying this application, the court advised the defendant that the municipal court had neither the authority to compel attorneys to serve without compensation nor funds with which to pay attorneys in defending indigent defendants in municipal court. In this connection, it should be noted that we have not been advised that the city of Seattle or any other city of this state has appropriated funds or legislatively authorized the expenditure of public funds for the compensation of counsel for indigent defendants in municipal court.

The case proceeded to trial and, on conviction, defendant was sentenced by the municipal court to serve 180 days consecutively on each charge, making a total sentence of 360 days. He timely filed notice of appeal--so far as the record appears--and separately petitioned the superior court for writ of certiorari to review the municipal court's refusal to supply him with counsel. The superior court on review sustained defendant's contentions that he had a constitutional right to appointment of counsel without cost; held that the municipal court had abridged that right; and, setting aside the two convictions, remanded the cause to the municipal court with directions to supply counsel to the defendant at public expense. Defendant, thus, at the outset, had simultaneously pending in the superior court his petition for review and his appeals. Before the hearing of his

Page 145

superior court review, however, defendant moved for and the court granted him a dismissal of his appeals. The superior court then, on certiorari, remanded each cause to the municipal court. It was the city's contention then and now that certiorari did not lie to review the municipal court convictions inasmuch as the defendant had filed his appeals and thus had a plain, speedy and adequate remedy at law.

Defendant urged and the trial court ruled that one accused of a serious misdemeanor in Seattle Municipal Court has a constitutional right to the appointment of counsel for his defense under the sixth amendment to the constitution of the United [456 P.2d 700] States, 3 article 1, section 22, constitution of the state of Washington, 4 and the fourteenth amendment to the constitution of the United States. Further, he contends that he should be supplied counsel as a matter of judicial policy.

Our approach to the constitutional aspects of the case must be guided by those concepts of judicial restraint which have in such large measure shaped the constitutional history of this country and laid the foundation for separating the powers of government into the legislative, executive and judicial functions, a doctrine upon which individual freedom seems so largely to depend. In keeping with this doctrine, courts ought not abrogate or compel legislative action either directly or indirectly unless the constitutions require it. Where reasonable doubts exist as to a constitutional duty or prohibition affecting the legislative

Page 146

branch of government, they should be resolved in favor of the legislature's action or inaction.

Since the adoption of the sixth amendment, the Supreme Court of the United States has not, despite countless opportunities to do so, declared that one accused of a misdemeanor has a constitutional right to appointed counsel. See Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash.L.Rev. 685 (1968). 5 The traditional line drawn between felonies and lesser crimes has persisted from our colonial beginnings to the present time, and no authoritative decisions to the contrary have been presented to us which eradicate that distinction. In a nearly unbroken line, the leading cases involving the right to counsel at public expense and the corresponding obligation to furnish counsel depend upon the marked distinction between felonies and lesser offenses.

For example, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), cited by the defendant, involved the felony of burglary. That case simply declared a constitutional rule for all courts--a rule never doubted in the state of Washington since earliest territorial days--that on an arraignment for the felony of burglary the court, on request, was under a constitutional duty to appoint counsel for an indigent defendant, and failure to supply counsel on request deprived the court of jurisdiction.

On this very point, the Supreme Court has recently twice declined to review a refusal to appoint counsel in state court misdemeanor prosecutions. Although a denial of certoriari by the Supreme Court has not been deemed to amount to a declaration, modification or repudiation of a rule, it is not totally without significance especially where dissenting opinions highlight the refusal. We thus should not ignore the juridical circumstances that, not long after the Gideon decision, the Supreme Court in two cases where

Page 147

state courts had expressly refused to appoint counsel at public expense in misdemeanor prosecutions, despite vigorous dissents, denied certiorari to [456 P.2d 701] review the very point at issue before us. Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364 (1966), cert. denied, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966); State v. DeJoseph, 3 Conn.Cir. 624, 22 A.2d 752 (1966), cert. denied, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966).

In Winters, the defendant was charged with Immoral conduct, a misdemeanor under a city ordinance; in DeJoseph, the defendant was doubly charged with the misdemeanor of obtaining money under false pretenses and falsely holding himself out to be an attorney. In each case, the trial courts declined to furnish counsel at public expense and the state supreme courts affirmed. Denial of certiorari in those two cases following hard upon Gideon afforded us a logical basis on which to analyze the question as to the constitutional right to appointed counsel in misdemeanor cases. Those cases put the question squarely, and in denying certiorari the Supreme Court resolved some of the ambiguity said to reside in Gideon, supra, and we think portended the later statement in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), that Gideon v. Wainwright held 'that there was an absolute right to appointment of counsel in Felony cases.' (Italics ours.) The term 'felony,' we think was neither inadvertent nor obiter dictum.

That the Supreme Court has discovered no constitutional mandate compelling the public to supply counsel free of charge in misdemeanor prosecutions may be seen in other cases involving the right to counsel. Whenever failure to supply counsel has been held to be jurisdictional, it is made clear that the charge amounted to a felony. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), involved uttering counterfeit money, a felony. Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948), held that it was improper for the trial court to accept from a 17-year-old boy pleas of guilty to four separate counts of burglary without first offering to provide the youthful defendant with counsel at public expense. Burglary was unmistakably

Page 148

a felony under Pennsylvania law for the maximum confinement could have been 80 years and petitioner was actually sentenced to not less than 20 nor more than 40 years' imprisonment.

On many other occasions, the Supreme Court has made it clear that the constitutional right to counsel at public expense is limited to felony prosecutions. In Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442 (1962), a state case involving habitual criminal charges, the Supreme Court held that the trial court's duty to appoint counsel existed in felonies only, saying, at 447, 82 S.Ct., at 500:

We only conclude that a trial on a charge of being a habitual...

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