State ex rel. Plutshack v. State Dept. of Health and Social Services

• Decision Date: 02 February 1968
• Citation: 155 N.W.2d 549,37 Wis.2d 713
• Parties: STATE ex rel. Robert F. PLUTSHACK, Jr., Petitioner, v. STATE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent.
• Court: Wisconsin Supreme Court

Page 549

155 N.W.2d 549

37 Wis.2d 713

STATE ex rel. Robert F. PLUTSHACK, Jr., Petitioner, v. STATE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent.

Supreme Court of Wisconsin.

Feb. 2, 1968.

Robert H. Friebert, State Public Defender, Madison, for petitioner.

Bronson C. La Follette, Atty. Gen., William A. Platz and Thomas A. Lockyear, Asst. Attys. Gen., Madison, for respondent.

Joseph F. Preloznik, Madison, for Wisconsin Judicare amicus curiae.

John Koshalek, Madison, for Wis. Civil Liberties Union amicus curiae.

Dennis J. Purtell, Milwaukee, for Milwaukee Jr. Bar Assn. amicus curiae.

CONNOR T. HANSEN, Justice.

The issues raised by the petitioner and the respondent cause us to direct our attention to three specific situations.

(1) Is an indigent defendant entitled to appointment of counsel, at public expense, when he is charged with a misdemeanor as defined by the Wisconsin statutes?

The question is as perplexing as it is controversial and has caused much difficulty throughout the country.

Any consideration of this question today must start with Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Factually, the Gideon case involved a felony conviction. While the denial of a writ of certiorari may not be considered as precedent, it is of interest to note that on three recent occasions the Supreme Court of the United States has declined to review cases involving the question of appointment of counsel for misdemeanants. In Cortinez v. Flournoy (1966), 385 U.S. 925, 87 S.Ct. 314, 17 L.Ed.2d 222, the court declined to review a decision of a Louisiana court; likewise in DeJoseph v. Connecticut (1966), 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443, the court denied certiorari in a case decided by a Connecticut court. The same situation prevailed in Winters v. Beck (1966), 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137, in which case the court was aware that in Arkansas some offenses denominated misdemeanors may be punished by imprisonment for as long as three years. 385 U.S. 907, at 908, 87 S.Ct. 207, footnote 1.

Also, it is noted that in two recent decisions of the United States Supreme Court, both decided in November, 1967, and relating to the appointment of counsel for indigent defendants at various stages in criminal proceedings, the court appears to have restricted its rulings to felony cases. Mempa v. Rhay (1967), 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; Burgett v. State of Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.

The aftermath of Gideon, supra, has produced a variety of results when state courts have endeavored to interpret its holding as it might affect persons charged with misdemeanors.

Several jurisdictions have decided that an accused is not entitled as a matter of right to state appointed counsel in misdemeanor cases. Fish v. State (1964), Fla., 159 So.2d 866; City of Toledo v. Frazier (1967), 10 Ohio App.2d 51, 226 N.E.2d 777; Winters v. Beck, supra.

Other states have held to the contrary. In re Johnson (1965), 42 Cal.Rptr. 228, 398 P.2d 420; City of Tacoma v. Heater (1966), 67 Wish.2d 733, 409 P.2d 867 (traffic offense); Taylor v. City of Griffin (1966), 113 Ga.App. 589, 149 S.E.2d 177; State of Minnesota v. Borst (filed December 1, 1967) Wis., 154 N.W.2d 888 (all misdemeanors).

Still a third position, one of a somewhat middle ground, and one upon which we look with favor, has been followed in other states. State v. Hayes (1964), 261 N.C. 648, 135 S.E.2d 653; Creighton v. State of North Carolina (E.D.N.C.1966) 257 F.Supp. 806; State v. Anderson (1964), 96 Ariz. 123, 392 P.2d 784; State v. DeJoseph, supra.

These cases are authority for the proposition that state appointed counsel in misdemeanor cases is required only when the accused is charged with a misdemeanor of such gravity, and under such circumstances, that the trial court in the exercise of its sound discretion, deems that justice so requires.

Sec. 7, art. I, of the Wisconsin constitution, provides in part:

'In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel * * *.'

It is urged that this constitutional provision, in effect, requires state appointed and state compensated counsel for indigent defendants in all misdemeanor cases. We recognize that some jurisdictions, when called upon to do so, have so interpreted similar constitutional provisions. Other jurisdictions have not so construed similar constitutional provisions. The Ohio Supreme Court in City of Toledo v. Frazier, supra, held that a similar constitutional provision did not ipso facto require state appointed and state paid counsel for indigent defendants in all misdemeanor cases.

The rationale of In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, which addresses itself to the appointment of counsel for juveniles in juvenile court proceedings is also significant in that it elucidates the concern of the United States Supreme Court for the seriousness of the offense or possibility of substantial confinement.

In re Gault, supra, p. 29, 87 S.Ct. p. 1444:

'* * * If he had been over 18 and had committed an offense to which such a sentence might apply, he would have been entitled to substantial rights under the Constitution of the United States as well as under Arizona's laws and constitution. The United States Constitution would guarantee him rights and protections with respect to arrest, search, and seizure, and pretrial interrogation. It would assure him of specific notice of the charges and adequate time to decide his course of action and to prepare his defense. He would be entitled to clear advice that he could be represented by counsel, and, at least if a felony were involved, the State would be required to provide counsel if his parents were unable to afford it. If the court acted on the basis of his confession, careful procedures would be required to assure its voluntariness. If the case went to trial, confrontation and opportunity for cross-examination would be guaranteed. So wide a gulf between the State's treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliche can provide. * * *' (Emphasis added.)

A basic concern of this court must be to strive for greater fairness in the administration of criminal justice. This contemplates protection of the innocent from wrongful conviction, and a concern for the poor as well as for the affluent. A correlative consideration, nevertheless, must be to protect society from burdens that, if intolerable, might impair the administration of justice. Achieving the proper equilibrium between these important considerations inherently requires that standards be established, thus presenting a situation in which it is difficult to achieve an ideal result.

August 20, 1964, after Gideon, supra, the United States Congress enacted the Criminal Justice Act of 1964, Pub.L. 88, 455, 78 Stat. 552, as amended, now 18 U.S.C.A. § 3006A.

Subsection (b) 18 U.S.C.A. § 3006A provides as follows:

'(b) Appointment of counsel.--In every criminal case in which the defendant is charged with a felony or a misdemeanor, other than a patty offense, and appears without counsel, the United States commissioner or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, the United States commissioner or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. The United States commissioner or the court shall appoint separate counsel for defendants who have such conflicting interests that they cannot properly be represented by the same counsel, or when other good cause is shown. Counsel appointed by the United States commissioner or a judge of the district court shall be selected from a panel of attorneys designated or approved by the district court.' (Emphasis added.)

18 U.S.C.A. § 1(3) defines 'petty offense' as any misdemeanor, the penalty for which does not exceed imprisonment of six months or a fine of not more than $500, or both.

The obvious and fundamental purpose of the Criminal Justice Act is to provide legal assistance to indigent defendants in criminal cases. See Preamble to Criminal Justice Act, supra.

'The Criminal Justice Act is a means of implementing what the courts have declared to be a constitutional demand (right of counsel) under the Sixth Amendment and its inclusion in the due process clause of the Fourteenth Amendment.' Ray v. United States (1966), 8 Cir., 367 F.2d 258, 264.

This legislative recongition has apparently presented a solution, although perhaps only of an interim nature, to the many practical questions which have arisen and undoubtedly inhibited the extension of Gideon. Judge Blumenfeld, in the recent case of Arbo v. Hegstrom (1966), D.C., 261 F.Supp. 397, 400, discussed this very point.

'Of course, from a pragmatic point of view, one can not help but struggle to find some rational line beyond which the absolute right to counsel becomes merely a privilege to be provided only as the particular tribunal sees fit. Although the administration of criminal justice is cloaked in abstract principles, these principles are jeopardized if the system could conceivably break under the sheer weight of the demands which it imposes. On a federal level, the recent Criminal Justice Act of 1964, 18 U.S.C. § 3006A, in recognition of the heavy burden which a requirement of counsel in every criminal case would impose, has made a practical and fair compromise with an absolute rule by prescribing appointment of counsel in other than 'petty offense' cases.'

The provisions of the Criminal Justice Act received recent recognition in Brinson v. State of Florida, County of Dade (1967), D.C., 273 F.Supp. 840,...