Sweeten v. Sneddon

• Decision Date: 22 March 1971
• Docket Number: No. NC 49-70.,NC 49-70.
• Parties: James Michael SWEETEN, on behalf of himself and all others similarly situated, Plaintiff, v. Charles H. SNEDDON and E. F. Ziegler, Judges of the City Court of Ogden City, Weber County, State of Utah, individually and as representatives of all other Utah Judges similarly situated, Defendants.
• Court: U.S. District Court — District of Utah

324 F. Supp. 1094

James Michael SWEETEN, on behalf of himself and all others similarly situated, Plaintiff, v. Charles H. SNEDDON and E. F. Ziegler, Judges of the City Court of Ogden City, Weber County, State of Utah, individually and as representatives of all other Utah Judges similarly situated, Defendants.

No. NC 49-70.

United States District Court, D. Utah, N. D.

January 7, 1971.

On Submission for Final Decision March 22, 1971.

COPYRIGHT MATERIAL OMITTED

Paul D. Vernieu, Ogden, Utah, for plaintiff.

Vernon B. Romney, Atty. Gen., Harry E. McCoy, Asst. Atty. Gen., for the State of Utah, Salt Lake City, Utah, and Robert L. Newey, Asst. Weber County Atty., Ogden, Utah, for defendants.

MEMORANDUM DECISION

CHRISTENSEN, District Judge.

This case involves questions relating to the necessity of convening a three-judge court, the propriety of a class action in such a case as this, whether the named plaintiff has standing at this time to raise, either by injunctive or declaratory action proceedings, constitutional issues growing out of a state court proceeding, and, if so, whether the refusal by a state court judge to appoint counsel for plaintiff in a misdemeanor case violated any constitutional right.

Jurisdictionally founded on 28 U.S.C. § 1343(3) and (4),¹ claim is made of violations of the Civil Rights Act of 1871, 42 U.S.C. § 1983.² While declaratory judgment is sought in reliance upon 28 U.S.C. §§ 2201 and 2202, and the allegations of the complaint and its prayer for relief are limited to such ultimate remedy, plaintiff has asked for the convening of a three-judge court, 28 U.S.C. §§ 2281 and 2284, "since this action attacks the constitutionality of a statute of the State of Utah with general, statewide application."

The plaintiff stands charged before the City Court of Ogden City, Utah, with the misdemeanor of exhibiting a deadly weapon in an angry or threatening manner in violation of Utah Code Ann. § 76-23-3 (1953). Plaintiff's indigent status is clear, but despite an appropriate and timely submission Judge Ziegler denied a motion for the appointment of counsel at public expense on the grounds that inasmuch as plaintiff was not charged with a crime in which the penalty to be imposed could be confinement for more than six months in either jail or prison the court was precluded from appointing counsel by the provisions of Utah Code Ann. § 77-64-2 (Supp. 1969).³ It is alleged that plaintiff's trial without counsel is imminent and that he is unable personally to retain legal representation.

While the offense with which plaintiff is charged is punishable by imprisonment of not to exceed six months, as well as a fine of less than $300, plaintiff points out that his status as a parolee after conviction of a felony will or may be affected by a verdict of guilty on the misdemeanor charge; thus he is confronted by the risk of imprisonment well beyond six months.

A temporary order restraining the misdemeanor trial has been issued and the present question for resolution, beyond procedural matters, is whether this order should be continued in effect as a preliminary injunction pending final determination of the case.

As to the request for a three-judge court, there are two reasons leading to the conclusion that this is not a proper case.

First, it is doubtful that the constitutionality of any state statute really is under attack. Section 2281 of Title 28, U.S.C., provides that an interlocutory or permanent injunction restraining the enforcement, operation or execution of any state statute or of an order made by an administrative board or commission acting under state statute shall not be granted by any federal district court "upon the ground of the unconstitutionality of such statute" unless the application is determined by a three-judge court.

The state statute mentioned in the complaint and quoted hereinbefore in the margin, Utah Code Ann. § 77-64-2 (Supp. 1969), expressly authorizes the appointment of counsel in cases where the potential penalty exceeds six months imprisonment, but does not by its terms preclude the appointment of counsel, in the discretion of the court, in cases involving a lesser maximum penalty. Hortencio v. Fillis, 25 Utah 2d 73, 475 P.2d 1011 (1970). The Utah Legislature has additionally declared, Utah Code Ann. § 77-64-1 (Supp. 1969), minimum standards to be provided by each county for the defense of defendants who are financially unable to obtain an adequate defense in criminal cases in the courts and various administrative bodies of the State of Utah, including, among other things:

"(1) Provision of counsel for every indigent person unable to employ counsel who faces the possibility of the deprivation of his liberty or other serious criminal sanction."

What plaintiff seems to be asking here is not to enjoin the operation or execution of either of these statutes as such but to extend their operation, interpretation or application uniformally to misdemeanor prosecutions as well as felony cases, or, independently of any statute, to have this court determine that in any criminal proceeding involving an indigent defendant who faces possible incarceration the failure to appoint counsel would be in derogation of right to counsel vouchsafed by the Constitution of the United States either directly or through the due process clause of the Fourteenth Amendment.

It has been suggested in another context, in comments concerning Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), that the Supreme Court has left unanswered the question whether state action may be found in the statutory elimination of a remedy, thus rendering the discrimination encouraged by the absence of the remedy actionable under the Civil Rights Acts, 42 U.S.C. § 1983. The Supreme Court, 1969 Term, 84 Harvard L.Rev. 1, 81 (1970). It is pointed out that once it has been decided, as a matter of federal constitutional law, that a certain interest is to be protected by the Constitution, it is arguable that the failure of a state to have provided a remedy for the vindication of that interest should itself be held to constitute the sort of state action required to call into play federal remedies under the Civil Rights Acts. But to extrapolate from such a rationale the proposition that a three-judge court also could be brought into play would be unjustified.

A second negation of any necessity for a three-judge court is that a restraint or injunction against the enforcement of any state statute is not sought in the complaint. While the claim is made that the section 77-64-2 limitation to felonies is arbitrary, illegal, unconstitutional and void as it denies to plaintiff and his class the constitutional right to the assistance of counsel at public expense, the plaintiff's claim and prayer are limited to injunctive relief against being prosecuted in the court without the assignment of counsel and a declaration of the right to appointed counsel under such circumstances. If we disregard the class action element of the case this may mean simply that the facts peculiar to the present case present such a special situation that the power of the court recognized in Hortencio, supra, to appoint counsel in cases involving sentences less than six months must be applied as an element of due process. Be this as it may, the fact remains that no injunction against the enforcement of the state statute is sought.

The convening of a three-judge court under these circumstances would be improper and the single judge to which the case is assigned has jurisdiction to dispose of the case as the facts and the law may warrant. See Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970); Tyler v. Russel, 410 F.2d 490 (10th Cir. 1969); Board of Education v. Oklahoma, 409 F.2d 665 (10th Cir. 1969). Cf. Petuskey v. Rampton, 431 F.2d 378 (10th Cir. 1970). The three-judge court statute should not be construed liberally as a measure of broad social policy; it is a technical enactment to be applied as such. Phillips v. United States, 312 U.S. 246, 250-251, 61 S.Ct. 480, 85 L.Ed. 800 (1941). It would hardly be faithful to such (a literal) construction to read the statutory term "injunction" as meaning "declaratory judgment". Notwithstanding the commencement of the action nominally as one for three judges, the single judge to whom the case is assigned continues with jurisdiction to make such declaratory determination as may be within the competence of the district court apart from the three-judge court statute. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed. 2d 644 (1963); New Orleans Book Mart, Inc. v. Mitchell, 318 F.Supp. 352 (M.D. Fla. 1970). Cf. Rosado v. Wyman, 397 U.S. 397, 401-405, 90 S.Ct. 1207, 25 L.Ed. 2d 442 (1970). We shall proceed, therefore, to a consideration of the other questions involved here.

The constitutional necessity and justification for assistance of counsel in criminal cases in general and in felony cases in particular is too well and authoritatively supported and documented to justify further comment here. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

Whether the right to counsel must be extended to misdemeanor charges such as this presents no frivolous or light problem to be regarded at this stage of the proceeding as insubstantial. On the contrary, it may well be that the right to appointed counsel cannot be parceled out to those who are in jeopardy of losing their liberty for more than six months and denied those who may be jailed up to six months without encountering insurmountable obstacles under the equal protection guaranty of the Fourteenth Amendment or be denied at all to the latter class among others by reason of the Sixth Amendment. Matthews v. Florida, 422 F.2d 1046 (5th Cir. 1970); Capler v. City of Greenville, 422 F.2d 299 (5th Cir. 1970); James v....