Tetro v. Tetro

• Citation: 86 Wn.2d 252,544 P.2d 17
• Decision Date: 18 December 1975
• Docket Number: No. 43479,43479
• Parties: Eleanor TETRO, Respondent, v. Napoleon Bonaparte TETRO, Jr., Appellant. State of Washington ex rel. Linda M. SMITH, Respondent, v. Edward SCOLLARD, Petitioner.
• Court: United States State Supreme Court of Washington

Page 252

86 Wn.2d 252

544 P.2d 17

Eleanor TETRO, Respondent, v. Napoleon Bonaparte TETRO, Jr., Appellant.

State of Washington ex rel. Linda M. SMITH, Respondent, v. Edward SCOLLARD, Petitioner.

No. 43479.

Supreme Court of Washington, En Banc.

Dec. 18, 1975.

Roger Coombs, Norman R. McNulty, Jr., Christopher John Sheldon of Spokane County Legal Services, for appellant.

John D. MacDougall, Pros. Atty., Stevens County, Colville, Slade Gorton, Atty. Gen., Garry E. Wegner, Asst. Atty. Gen., Seattle, for respondents.

Sidney E. Wurzburg and Jeffrey H. Hartje, amici curiae on behalf of Gonzaga University School of Law.

UTTER, Associate Justice.

This consolidated appeal and petition for certiorari raise the question of the right to appointed counsel of indigent persons charged with contempt for noncompliance with a child support order. Appellant Napoleon Bonaparte Tetro, Jr., was sentenced to 30 days in jail for failing to make court-ordered support payments, in a summary hearing at which he was not advised of any right to have an attorney appointed to represent him. Petitioner Edward Scollard was ordered to appear and show cause why he should not be held in contempt for violating a support decree, and was denied court-appointed counsel upon his motion therefor. In both appellant and petitioner's cases the trial court specificially ruled that there is no statutory or constitutional right to state-paid counsel in show cause hearings. We find there is such a right whenever a contempt hearing may result in a jail sentence, and reverse the trial court.

The right of indigents to have counsel appointed to represent them in judicial proceedings has several constitutional sources. Where criminal charges punishable by loss of liberty are involved, the Sixth Amendment to the United States Constitution applies and requires that defendants who cannot afford to hire an attorney be provided one by the state. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The same requirement inheres in Const. art. 1, § 22 (amendment 10) and is implemented by several sections of our Code (RCW 10.01.110, 10.40.030, 10.46.050) and Court Rules (CrR 3.1, JCrR 2.11). McInturf v. Horton, 85 Wash.2d 704, 538 P.2d 499 (1975).

Outside the purely criminal area, the right to legal representation is somewhat less broad and well defined. Absent special statutory guarantees, the appointment of counsel is constitutionally required only when procedural fairness demands it. In proceedings civil in form but criminal in nature--such as juvenile delinquency or mental commitment hearings--representation is clearly part of due process. In re Gault, 387 U.S. 1, 87 S.Ct 1428, 18 L.Ed.2d 527 (1967); Heryford v. Parker,396 F.2d 393 (10th Cir. 1968); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972). But in cases where the individual's right to remain unconditionally at liberty is not at issue--such as child neglect or parole revocation hearings--the right to counsel turns on the particular nature of the proceedings and questions involved. Compare In re Myricks, 85 Wash.2d 252, 533 P.2d 841 (1975) And In re Luscier, 84 Wash.2d 135, 524 P.2d 906 (1974) With Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The appellant and petitioner in these cases were not technically criminal defendants. The prosecutor and court did not proceed against them under RCW 9.23.010, the criminal contempt statute, but under RCW 7.20, which provides for punishing 'civil' contempt. Nonetheless, the proceedings had all the trappings of criminal trials. Defendants were complained against by the county prosecutor, required to appear and defend against charges of past illegal conduct, and, most importantly, faced with the possibility of imprisonment if their defenses were not successful. In the past, we have recognized that contempt hearings such as these are 'quasi-criminal' in nature. Keller v. Keller, 52 Wash.2d 84, 86, 323 P.2d 231 (1958); State ex rel. Dailey v. Dailey, 164 Wash. 140, 144, 2 P.2d 79 (1931). But insofar as the right to counsel is concerned, the label put on proceedings is less important than the threat of imprisonment they entail. It was this threat that the court in Argersinger v. Hamlin, supra, held was determinative of the existence of the right to counsel in criminal cases. We echoed this holding, outside the purely criminal area, in In re Luscier, supra, 84 Wash.2d at 138, 524 P.2d at 908:

The distinction to be made in Argersinger is not whether a proceeding is 'civil' or 'criminal,' but whether the individual will be deprived of Liberty.

Whatever due process requires when other types of deprivation of liberty are potentially involved, when a judicial proceeding may result in the defendant being physically incarcerated, counsel is required regardless of whether the trial is otherwise 'criminal' in nature. The grim reality of a threatened jail sentence overshadows the technical distinctions between 'criminal,' ...