Jolly v. Wright, 22

• Decision Date: 06 May 1980
• Docket Number: No. 22,22
• Parties: Janice Sue JOLLY v. Lorenza WRIGHT.
• Court: North Carolina Supreme Court

Page 135

265 S.E.2d 135

300 N.C. 83

Janice Sue JOLLY v. Lorenza WRIGHT.

No. 22.

Supreme Court of North Carolina.

May 6, 1980.

John C. Cooke, Asst. Wake County Atty., Raleigh, for plaintiff-appellee.

Wake-Johnston-Harnett Legal Services by Gregory C. Malhoit and M. Travis Payne, Raleigh, for defendant-appellant.

Rufus L. Edmisten, Atty. Gen. by R. James Lore, Henry H. Burgwyn, Associate Atty. Gen., Raleigh, for the State, amicus curiae.

HUSKINS, Justice:

The sole question presented for review is whether an indigent defendant has a statutory or constitutional right to be represented by appointed counsel in civil contempt proceedings brought to compel compliance with outstanding child support orders.

Defendant asserts both a statutory and constitutional entitlement to appointed counsel. He relies on G.S. 7A-451(a)(1), the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the Law of the Land provisions in Article I, Section 19 of the North Carolina Constitution.

We turn first to defendant's statutory claim. Defendant contends his entitlement to appointed counsel is granted in G.S. 7A-451(a)(1) which provides:

"(a) An indigent person is entitled to services of counsel in the following actions and proceedings:

(1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more is likely to be adjudged."

Defendant reasons that a civil contempt action is a "case in which imprisonment . . . is likely to be adjudged," and thus concludes that the instant case is encompassed by the plain language of G.S. 7A-451(a)(1). Plaintiff contends that consideration of the legislative and case law background against which G.S. 7A-451(a)(1) was enacted, and a contextual reading of subsection (a)(1) together with the other provisions of G.S. 7A-451(a), will demonstrate that the language in question refers only to criminal cases to which the Sixth Amendment is applicable. Resolution of these conflicting contentions requires us to interpret the statutory language in question in light of the applicable canons of statutory construction.

The intent of the Legislature controls the interpretation of a statute. Burgess v. Brewing Co., 298 N.C. 520, 259 S.E.2d 248 (1979). In ascertaining the intent of the Legislature, it is proper to consider judicial decisions affecting the constitutionality of prior statutes dealing with the same subject matter, and legislative changes, if any, made subsequent to such decisions. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E.2d 548 (1967); Ingram v. Johnson, Comr. of Revenue, 260 N.C. 697, 133 S.E.2d 662 (1963). Words and phrases of a statute may not be interpreted out of context; rather, individual expressions must be interpreted as part of a composite whole, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute. Burgess v. Brewing Co., supra; In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978); Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 69 S.E.2d 505 (1952). To this end, a statute must be construed, if possible, so as to give effect to every provision, it being presumed that the Legislature did not intend any of the statute's provisions to be surplusage. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972).

Application of the above principles leads us to conclude that the provisions of G.S. 7A-451(a)(1) apply only to criminal cases. G.S. 7A-451(a) (1979 Cum.Supp.) constitutes the latest legislative determination of the scope of an indigent's entitlement to court appointed counsel. It lists thirteen distinct "actions and proceedings" in which such entitlement exists. The present statute significantly expands an indigent's entitlement to counsel beyond the realm of criminal prosecutions. Subsections (2) through (13) specifically list a variety of civil, administrative, and quasi-criminal proceedings in which the entitlement to counsel applies. This relatively recent expansion of the right to counsel embodied in subdivisions (2) through (13) of G.S. 7A-451(a) tends to obscure the purpose and effect of subdivision (1) in the statutory scheme defining an indigent's right to court appointed counsel. A joint review of legislative history and case law developments in the area of the Sixth Amendment right to appointed counsel leaves no doubt that the purpose of subdivision (1) is to state the scope of an indigent's entitlement to court appointed counsel in criminal cases subject to Sixth Amendment limitations.

As originally enacted in 1969, G.S. 7A-451(a)(1) provided in pertinent part:

"(a) An indigent person is entitled to services of counsel in the following actions and proceedings:

(1) Any felony case, and any misdemeanor case for which the authorized punishment exceeds six months imprisonment or a five hundred dollar ($500.00) fine . . . ." 1969 Session Laws, Chapter 1013, Section 1.

The language adopted by the General Assembly in 1969 codified the holding in State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969). In Morris we reviewed the Sixth Amendment decisions of the United States Supreme Court since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and concluded that the Sixth Amendment right to appointed counsel was applicable to all felony and misdemeanor cases where the authorized punishment exceeded six months in prison and a $500 fine. On June 12, 1972, the constitutional test for entitlement to court appointed counsel was once again changed by Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In Argersinger, the United States Supreme Court held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." 407 U.S. at 37, 92 S.Ct. at 2012. On April 10, 1973, G.S. 7A-451(a)(1) was amended to its present form in order to reflect the new constitutional standard articulated in Argersinger. Accordingly, G.S 7A-451(a)(1) now allows for appointment of counsel in "(a)ny case in which imprisonment, or a fine of five hundred dollars ($500.00) or more, is likely to be adjudged."

It is clear, then, that the purpose of G.S. 7A-451(a)(1), as presently written, is to state the scope of entitlement to court appointed counsel in Sixth Amendment cases in light of current constitutional doctrine. ¹ Use of the phrase "(a)ny case" is responsive to the precise holding of Argersinger, which states that the Sixth Amendment precludes imprisonment of a person for "any offense," however classified, unless he was represented by counsel at his trial. The words "(a)ny case" in G.S. 7A-451(a)(1) must therefore be construed as any criminal case to which Sixth Amendment protections apply. It should be noted that the holding in Argersinger left undisturbed that portion of State v. Morris, supra, in which we held that the right to appointed counsel attaches in felony or misdemeanor cases where the authorized punishment exceeds a five hundred dollar fine. See Argersinger v. Hamlin, supra, 407 U.S. at 37, 92 S.Ct. at 2012. Accordingly, the current version of G.S. 7A-451(a)(1) carries over the provisions in the 1969 version granting entitlement to counsel in criminal cases where a fine in excess of five hundred dollars may be imposed.

We note, moreover, that a contextual reading of G.S. 7A-451(a) confirms our conclusion that the provisions of subsection (a)(1) have application only to criminal cases. As previously noted, G.S. 7A-451(a) lists thirteen distinct "cases and proceedings" in which the entitlement to court appointed counsel exists:

"(1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;

(2) A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;

(3) A motion for appropriate relief under Chapter 15A of the General Statutes if the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment;

(4) A hearing for revocation of probation;

(5) A hearing in which extradition to another state is sought;

(6) A proceeding for judicial hospitalization under Chapter 122, Article 7 (Judicial Hospitalization) or Article 11 (Mentally Ill Criminals) of the General Statutes and a proceeding for involuntary commitment to a treatment facility under Article 5A of Chapter 122 of the General Statutes;

(7) In any case of execution against the person under Chapter 1, Article 28 of the General Statutes, and in any civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes;

(8) In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible;

(9) A hearing for revocation of parole at which the right to counsel is provided in accordance with the provisions of Chapter 148, Article 4, of the General Statutes;

(10) A proceeding for sterilization under Chapter 35, Article 7 (Sterilization of Persons Mentally Ill and Mentally Retarded) of the General Statutes; and (11) A proceeding for the provision of protective services according to Chapter 108, Article 4, of the General Statutes;

(12) In the case of a juvenile alleged to be neglected under Chapter 7A, Article 23 of the General Statutes;

(13) A proceeding to find a person incompetent under Chapter 35, Article 1A, of the General Statutes."

The format of G.S. 7A-451(a) suggests that each numbered subdivision is intended to encompass a distinct type of proceeding for which court appointed counsel has been authorized. This is readily apparent from the legislative decision to define the scope of entitlement by individually listing...