State ex rel. LaFollette v. Circuit Court of Brown County, Br. I

• Decision Date: 22 December 1967
• Citation: 155 N.W.2d 141,37 Wis.2d 329
• Parties: STATE ex rel. Bronson C. LaFOLLETTE, Atty. Gen., Relator, v. CIRCUIT COURT OF BROWN COUNTY, BR. 1, Hon. Donald W. Gleason, Judge et al., Respondents.
• Court: Wisconsin Supreme Court

Page 141

155 N.W.2d 141

37 Wis.2d 329

STATE ex rel. Bronson C. LaFOLLETTE, Atty. Gen., Relator, v. CIRCUIT COURT OF BROWN COUNTY, BR. 1, Hon. Donald W Gleason, Judge et al., Respondents.

Supreme Court of Wisconsin.

Dec. 22, 1967.

Bronson C. La Follette, Atty. Gen., Robert E. Sutton, Asst. Atty. Gen., Madison, for relator.

Cohen, Parins, Cohen & Grant, Green Bay, for respondents.

CURRIE, Chief Justice.

We have before us these three issues:

(1) Will prohibition lie to prevent a circuit court from discharging, without remand to the committing juvenile court, a substantial number of inmates of the state reformatory, where it is claimed in behalf of the state that such absolute discharge is contrary to law?

(2) Is In re Gault retroactive, in regard to a juvenile's right to counsel at a delinquency hearing?

(3) Does a habeas court have the authority and the duty to remand to the jurisdiction of the juvenile court of originating commitment petitioners who have successfully challenged their juvenile commitments?

Prohibition.

Sec. 3, art. VII of the Wisconsin Constitution grants to this court general superintending control over all inferior courts. ² In State ex rel. Reynolds v. County Court, ³ this court stated:

'The superintending power includes the review of judicial actions of inferior courts and extends to judicial as well as jurisdictional errors committed by them. In exercising this power of superintending control, this court is not restricted to the use of common-law writs and is limited only by the necessities of justice. It may use such common-law writs and means as are applicable, or expand the ordinary use of such writs to meet the exigencies and necessities of the case before it. * * *' ⁴

While it is the general rule that prohibition will not lie where there is an adequate remedy by appeal, ⁵ this is subject to the exception that it is a proper remedy where the relief by appeal would come too late for effective redress and grave hardship would result if the writ were not issued. ⁶ Here, the attorney general represents the interests of the state. Great public harm might result, if a large number of juveniles, who have committed offenses which would have subjected adult perpetrators to long terms of imprisonment, were to be absolutely discharged instead of remanded to the committing juvenile courts, pending the time for appellate review of the order in Napoleon v. Skaff. This is clearly a case where the redress by way of appeal might well be too late to accomplish the objective sought by the instant action.

We have no hesitancy in determining that prohibition will lie here.

Retroactivity.

The state concedes that Gault must be retroactively applied, at least as far as the right to representation by counsel at the critical stage of the delinquency hearing. The pleadings in this action establish that there are approximately 150 juveniles confined in the state reformatory who, as indigents, are presently processing petitions for the appointment of counsel so that they may commence habeas corpus actions based upon Gault.

In Gideon v. Wainwright ⁷ the United States Supreme Court decided that due process required that an adult have the right to the assistance of counsel at the critical stage of trial in a criminal prosecution. This decision has been given retroactive effect by the United States Supreme Court. ⁸

While state courts have divided as to whether Gault should be given retroactive effect, ⁹ we consider the better reasoned decisions are those which accord Gault retroactive effect.

In Gault the court made it very clear that the juvenile's right to counsel at the delinquency hearing is as crucial as the adult's right to counsel at trial. The court stated:

'The probation officer cannot act as counsel for the child. His role in the adjudicatory hearing, by statute and in fact, is as arresting officer and witness against the child. Nor can the judge represent the child. There is no material difference in this respect between adult and juvenile proceedings of the sort here involved. In adult proceedings, this contention has been foreclosed by decisions of this Court. (citing Gideon) A proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child 'requires the guiding hand of counsel at every step in the proceedings against him.' Just as in Kent v. United States, supra, 383 U.S. 541 at 561--562, 86 S.Ct. 1045 at 1057--1058, (16 L.Ed.2d 84,) we indicated our agreement with the United States Court of Appeals for the District of Columbia Circuit that the assistance of counsel is essential for purpose of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21.' ¹⁰

The court also stated:

'Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy.' ¹¹

We conclude that the state very properly conceded that Gault must be given retroactive effect by our Wisconsin courts, at least as far as the right to counsel at the delinquency hearing.

Remand.

It is the position of the attorney general that, where a juvenile inmate of the state reformatory establishes in a habeas corpus action prosecuted in circuit court that his commitment by the juvenile court violated his federal constitutional right to counsel, he is not entitled to an absolute discharge but only to a discharge from his confinement in the reformatory with a remand back to the committing juvenile court.

Respondents, on the other hand, contend that the provisions of sec. 292.20, Wis.Stats., require the circuit court in such a situation to issue an order absolutely discharging the juvenile petitioner. This statute provides:

'If no legal cause be shown for such imprisonment or restraint or for the continuance thereof the court or judge shall make a final order discharging such party from the custody or restraint under which he is held.'

We construe the words 'custody or restraint under which he is held' to refer to that of the juvenile's confinement at the reformatory. There is no requirement that the discharge reach further back than the point at which the constitutional error occurred. If such error invalidated the juvenile court delinquency proceeding from its inception, the discharge should be absolute. On the other hand, if such court validly had jurisdiction over the custody of the juvenile by reason of his presence in juvenile court at the time the constitutional error occurred, then the discharge should only extend to the custody at the reformatory and there should be a remand to the juvenile court. We ground this determination upon the interpretation of secs. 292.20 and 292.24, Stats., made in State ex rel. Doxtater v. Murphy ¹² and State ex rel. Drankovich v. Murphy. ¹³

This court, in the past, has sought to make clear the process of habeas corpus in Wisconsin. In In re Exercise of Original Jurisdiction, ¹⁴ this court suggested the procedure to be followed by attorneys in preparing habeas corpus petitions. In State ex rel. Doxtater v. Murphy this court denied the petition for habeas corpus, because the petitioner had a complete and adequate remedy of appeal or writ of error. However, the court, to be of assistance to counsel in preparing habeas corpus petitions, went on to discuss the erroneous strategy employed by the petitioner's counsel. The court stated:

'Counsel for petitioner apparently was of the view that by appealing or suing out a writ of error, the petitioner would waive jeopardy. That is undoubtedly true. However, the proceedings in this case were regular so far as arrest and holding the petitioner for trial were concerned. So that whether he were here on an appeal or pursuant to a writ of habeas corpus, he would in either event be remanded for further proceedings in the trial court, it being within the power of the appellate court to remand him, to discharge him, or admit him to bail as the circumstances of the case may require. This is not a case where the statute under which he was prosecuted was void because unconstitutional or where the court failed to gain jurisdiction by reason of some defect in the proceeding but is a case where the court by reason of jurisdictional error pronounced an invalid sentence. See State v. Bloom, 1863, 17 Wis. 521.

'It is only when no legal cause is shown for the imprisonment of the petitioner that the court or judge is required to make and file an order discharging the petitioner from custody. (Sec. 292.20, Stats.)

'Sec. 292.24 (Stats.) provides:

"If the prisoner be not entitled to his discharge and be not bailed the court or judge shall remand him to the custody from which he was taken, if the person under whose custody he was, be legally entitled thereto; if not so entitled, he shall be committed to his legal custodian.'

'The procedure prescribed by sec. 292.24 (Stats.) was followed in the Drankovich case, (supra, decided April 12, 1946).' (Emphasis supplied.) ¹⁵

In Doxtater the court stated that the trial court had clearly erred by failing to advise the defendant (charged with the felony of assault with intent to commit rape), upon the arraignment and before plea, of his statutory right to counsel. ¹⁶ However, the court held that he would not have been entitled to an absolute discharge, because '* * * the proceedings in this case were regular so far as arrest and holding the...