*1
Argued February
September
affirmed
HOLZMAN, Appellant.
Respondent,
STEVENSON,
BOGGS, Respondent,
HOLZMAN, Appellant.
Charles J. Merten, the cause and Portland, argued filed a brief for respondents.
Marian C. Rushing, City Attorney, and Portland, other city filed attorneys a brief amici curiae on be- half of appellant.
Robert B. ConMin and Jack B. Schwartz, Portland, filed a brief amici curiae on behalf of the American Civil Liberties Union.
Before Perry, Chief Justice, McAllister, and Holman, Sloan, O’Connell, Goodwin, Denecke, Justices.
McAllister, J.
The question presented by this appeal whether an indigent accused of the person violation of a munic- ordinance has ipal a constitutional to the right assist- ance of counsel at public expense. was petitioner in the charged Municipal
of Portland with the crime of disorderly conduct. ‹ He pleaded guilty, was tried, convicted and sentenced jail. › to six months in It is conceded that at the time ‹ any person “It shall any be unlawful for violent, to commit disorderly publicly riotous or person encourage act or any entice or other presently any violent, disorderly commit act, riotous or any profane, language or to use any abusive or obscene street, place whereby peace quiet city house or or of the be any disturbed, or commit practice.” indecent or immoral act or City Oregon Portland, Police Code of the (May 1, 1960) § (Disorderly Conduct). 16-601 › “Any person violating any provisions of this Code upon punished by shall five hundred dollars six conviction thereof exceeding exceeding a fine not ($500) by imprisonment or for not (6) months, imprisonment.” or such fine both Police City Portland, Oregon (May 1960) Code of the 16-201 § (Penalty).
petitioner was court inform convictéd the did not ac- persons they employ cused if were unable would,appoint represent counsel the court counsel appoint them and the court did counsel for not, fact, , n : .:, indigent defendants. Claiming that he denied had been his constitutional sought petitioner to the assistance counsel, corpus writ of habeas in the Circuit Court Mult- County, granted. nomah which writ was Defendant appeals. petitioner
No contention is made here that was not indigent or that he his to counsel. waived argues only charged person that a defendant with vio- municipal ordinance has no of a constitutional lation court-appointed counsel. Oregon and the Both Constitution Consti *3 guarantee the tution of the United States to petitioner constitution entitled If either in counsel. appointment of counsel we must this case the affirm court. the trial first the will consider Constitution of
We the provides, Sixth inter States. United that: alia, prosecutions, all the accused “In criminal shall * * *
enjoy to have the Assistance of the defense.” for his Counsel binding cap on the provision was made states in This 53 Alabama, 45, Powell v. US S Ct cases ital (1932). In ALR Gideon v. Wainw 158, L ed 55, 77 L right, 792, 83 S ed 335, 799, Ct 372 US binding (1963), made on it was the states ALR2d to, pause need not offenses. We serious here in all period and when Powell Gideon between consider Brady fi prevailed. v. of Betts rule the aberrational requiring interpreted Gideon have courts Some prosecu appointment all of counsel that was not Gideon think but we tions, only that place asked the first Gideon broad. In prosecutions Brady be abandoned of Betts v. rule criminal offense.” fl Secondly, Mr. Jus for “a serious concurring opinion that assumed tice in his Harlan “carry pos only applied to offenses Gideon sibility prison He said: sentence.” of a substantial to all criminal cases rule should extend “Whether the Lastly, L 2d at need not now be decided.” 9 ed 809-810. denied certiorari in at least Court has squarely presented question cases which three to misdemeanors. (cid:176) applied In Winters whether Grideon dissenting, supra, n Beck, Stewart, v. Mr. Justice said: Wainwright, supra, “In we said that Gideon
‘any poor person is too court, haled into who hire lawyer, fair trial unless coun- cannot be assured a provided This seems to us be an him. sel permitted should be truth.’ No State obvious by arbitrarily attaching repudiate those words offense. I think ‘misdemeanor’ a criminal label duty to resolve the conflict has a and this Court Wainwright. clarify scope I do not Gideon prob- suggest the ultimate resolution this what suggest I do that the answer be, but should lem depend upon artificial or arbi- made cannot fi 316 US (1942). L Ct ed 1595 62 S fl Kamisar Right Choper, to Counsel in Minnesota: Legal-Policy Observations, Findings 48 Minn L *4 Field Some 62, 1, 270. n Rev (cid:176) Winters 907, 207, Beck, Ct US 87 S 17 L ed 2d 385 137 v. Flournoy, 925, 314, 385 US 87 S Ct L17 ed 2d (1966); v. Cortinez Connecticut, DeJoseph infra. (1966); v. 222
98
trary ‘felony’ labels of or ‘misdemeanor’ attached by to criminal offenses different 50 States. What- may appropriate one’s ever be as exer- view jurisdiction, surely of this cise Court’s certiorari it duty guarantee least our it is at see to that a vital of the. United States Constitution is accorded with all an even hand in L 2d the States.” 17 ed at 138. DeJoseph also, Mr. See, Justice Stewart’s dissent in v. Connecticut, L 982, Ct 526, 385 US 87 S 17 ed 2d 443 (1966). right equated
If the to counsel could be with the right jury, guaranteed to trial also the Sixth question our Amendment, would be answered. The Supreme equivocation Court has held without that the jury apply “petty to a trial does not offenses.” In v. Frank United States, 147, 395 US 89 Ct 23 1503, S (1969), L ed 2d 162, 166 said: the court “The Sixth the Constitution gives criminal by jury defendants a to a trial in ‘all
prosecutions.’
long
it has
However,
been
‘petty’
rule that
so-called
offenses
be tried
jury.
g.,
a
without
See, e. District of Columbia v
L Ed
Clawans,
617,
300 US
81
57
843,
S Ct 660
(1937).
purposes
by jury,
For
to trial
contempt
just
is treated
like all other
criminal offenses.
jury
defendant
is entitled to a
particular
trial unless the
can
offense
be class
Dyke
Taylor
‘petty.’
Implement Mfg.
ified
v.
L
216,
20
Ed 2d
Co.,
538,
US
99 period or imprisonment of six months a a exceed * * *” or Frank See $500, of not more than both. fine supra, at n 3. States, 167, v. United agree, courts that have with those however, We right to fair more essential a that the to counsel is held jury. distinction has been to a trial than pointed clarity by C.J., in v. Knutson, out with State (1967), as 888, 278 Minn 154 894 Borst, 388, NW2d follows: though rights the they “But even derive from two provisions our Constitution, same Federal significance equal it not of when comes
are obtaining a fair trial. It is conceivable matter impartial an that a fair trial judge be had before hardly jury, without a but it conceivable ignorant person the field law can ade- quately without defend himself the assistance of Consequently, we do not consider the cases counsel. jury involving controlling to a trial in this area.” Headley, (5th 325, v. 410 F2d 331 also, James Cir
See, 1969). “petty apply offense rule” does not
That the all guarantees is illustrated constitutional Williams L 1818, S Ct ed Oklahoma, 458, US Supreme applied (1969) equal in which the Court protection Illinois, doctrine US Griffin (1956) 55 ALR2d 100 L ed to the S Ct driving delinquent appeal conviction of a under an City municipal ordinance where the defend- Oklahoma days jail to 90 and a sentenced fine. The $50 ant was “petty opinion did not mention offense rule” reaf- earlier Frank v. States, three weeks United firmed supra. ques- has not decided the
Since tion, we must ourselves decide whether the Sixth prosecutions to counsel extends to misdemeanors, which term we use here include municipal violations of ordinances all criminal prosecutions We, amounting to felonies. hold that persuaded it does are to our conclusion im two portant important considerations. most is the recognition that the assistance of counsel is a neces sary ingredient regardless of a fair trial of the serious *6 ness of the crime. As the said in Wainwright, supra: Gideon v. “* * * lawyer A defendant’s need a is no- of moving
where better stated than in the words Mr. Justice Sutherland in Powell Alabama: “ many ‘The be, cases, be heard would comprehend of little avail if it not did intelligent heard be counsel. Even the and edu- layman cated has small and no skill in sometimes charged the science of law. If crime, with he is in- capable, generally, determining of for himself good whether the indictment is or is un- bad. He familiar with the rules of Left evidence. without put the aid of counsel he on trial a without proper charge, upon incompetent and convicted or evidence to the or evidence, irrelevant issue inadmissible. He lacks both the skill and otherwise knowledge adequately prepare his even defense, though perfect requires He he have one. guiding every step pro- hand of counsel at in the against ceedings though him. Without it, he be danger guilty, faces he conviction because he ” not know how to his does establish innocence.’ 805-806. L ed at objective every is to insure a fair trial
If our prosecution need for is counsel not de- by the seriousness of the crime. termined The assist- counsel will avoid in- of' conviction ance best municipal important objective in the nocent—an jurisdiction. general court as a court secondary conclusion for our A consideration application to coun- Amendment of the Sixth Zerbst, 304 US sel in courts. In the federal Johnson (1938) held L the court ed 1461 58 Ct S that <(=::=* « [t]he from Amendment withholds Sixth proceedings, Courts, in all criminal Federal
power authority deprive his an accused of liberty the assistance or unless he has or waives life L ed at Counsel”, and also said: constitutionally “Since Sixth charged assistance of
entitles one with crime compliance with this constitutional man- Counsel, jurisdictional prerequisite an to a date is essential authority deprive court’s an accused Federal liberty.” L his life or 82 ed at 1468. language opinion limiting is no in the the hold- There excluding petty ing to serious offenses or offenses. (US 1942) App
Evans v. 126 F2d 633 DC Rives, *7 petitioner corpus proceeding in which was a habeas juvenile refusing in court of to had been convicted provide support for of a minor child and was year jail. reversing, in in court, sentenced one quoted length from Zerbst and at Johnson v. went on say: suggested by of “It is further the District Co- guaranty
lumbia that the constitutional of the in to the assistance of counsel a criminal case does apply except in event of ‘serious offenses.’ wording differentiation is made in the of No such guaranty itself, and we are cited no author- making ity, purpose know of this distinction. The none, give guaranty is to assurance against deprivation liberty except strictly of life or according petitioner to law. The would be as ef- fectively deprived liberty by of Ms a sentence to a year jail non-support for the crime of of a minor year jail child any as a sentence a for other crime, however serious. And so far as the of the assistance tution for counsel is concerned, the Consti- liberty draws no distinction between loss of period long short a and such loss for a one.” 126 F2d at 638. Amendment Sixth mandate the assistance applies
of counsel alike both state and federal Wainwright, supra. courts, Gideon v. If the Sixth requires appointment of counsel for indigent misdemeanants in the federal courts, it must require appointment Any like in the state courts. other holding unequal justice would result in before the law. person may deprived hold that
We no of Ms liberty who has been denied the assistance counsel guaranteed by the Sixth Amendment. TMs applicable prosecutions, including to all criminal prosecutions municipal violations ordinances. preclude The denial the assistance of counsel will jail imposition of a sentence. persuaded by argument We are not that providing indigent cost of counsel for misdemeanants will be burdensome. See Aschenbrenner and Belt, Cost Study: Indigents The Defense in Misdemeanor Oregon, study in the State 14, 1967. Cases Feb. That providing indigent cost of indicates counsel to Oregon misdemeanants will amount to about $300,- 000, or one-twentieth of about the amount received an nually municipalities. from fines the state and its think the estimated amount is a We modest fee for guaranteeing prosecutions. fair trial in all
103
substantially
holding
the recom
with
conforms
Our
on Law
President’s Commission
of the
mendations
Justice,
Administration
Chal
Enforcement
Society, –
lenge
and with
Free
Crime
prom
relating
providing
defense services
standards
Project
by
on
ulgated
American Bar Association
Justice. †
Minimum
Standards
Criminal
indigent
right of
misdemeanants
constitutional
upheld
court-appointed counsel has been
other
following:
including
Bolkovac v.
229
State,
courts,
(1951);
supra
Borst,
NE2d 250
State v.
Ind
98
294,
supervisory power
(decision
on
rather than on
rested
grounds);
F2d
Moore,
McDonald v.
353
constitutional
1965);
Headley, supra;
(5th
Beck v.
Cir
James v.
106
(8th
1969).
407
125
Winters,
F2d
Cir
Cases
following:
contrary
City
include the
Hendrix
(Wash. 1969)
City
P2d
696;
Seattle
456
Toledo
App2d
(1967);
10
†
cases.
“4.1 Criminal
provided
proceedings
in all criminal
“Counsel should
types
punishable
liberty, except
loss
those
of of-
offenses
punishment
likely
imposed,
to be
for which such
fenses
regardless
felonies,
denomination as
of their
misdemeanors or
Relating
Providing
Services,
Standards
Defense
otherwise.”
Draft, 1968, pp
Approved
37-38.
*9
* * *
by
accused shall
to
have the
be heard
* * *
himself and
think
fore-
counsel;
.” We
the
going provision, no
than the
less
Sixth Amendment,
indigent
appointment
mandates
of counsel for all
the
defendants whose
in
conviction
result
a loss of
by
liberty.
presaged
has
Such a
been
recent
following: Perry
including
decisions,
the
v. Williard,
(1967);
Mayes,
P2d
Or
State
(1966);
421 P2d
Gladden,
Or
Gebhart
(1966);
Or
P2d 29
Blank,
State v.
PERRY, C.J., agree I to am unable with the conclusion reached by majority in the these cases. opinion they majority
It is clear from the find ground upon no solid federal constitutional which to require appointment counsel in misdemeanor imposed cases where sentence not does exceed six months fine As admitted, $500. imposed
Court of the has not United States this obli- gation upon through the states the Fourteenth Amend- charge petty ment where is a Nor offense. has by opinion required appointment upon court of counsel district courts. the federal only Congress
It was after the of the United States provide indigent acted to funds counsel for de- that Rule 44 of fendants the Federal Rules of Criminal adopted .assigned was extend Procedure petty right.to assigned counsel offenses. The coun'- petty sel in the as to offenses rests, federal courts rights, upon therefore, federal constitutional but upon public policy. § 11 of I,
Article State Constitution Oregon reads as follows: prosecutions, “In all shall the accused jury impartial public
have in trial an eoxmty the offense shall have been which counsel; heard himself and committed; demand the nature and cause the accusation against copy and to him, have a meet thereof; compulsory the witnesses process and to face, face have obtaining pro- in his favor; witnesses any person, *10 that in other vided, however, accused capital eases, than consent of the trial with the judge, may to by jury elect waive trial and consent judge tried court alone, be the such writing; provided, election to inbe that however, jury may in circuit court ten of the members the guilty guilty, of or render a verdict not save except guilty degree of a verdict first murder, only by which shall be found unanimous verdict, provided and not otherwise; further, that exist- the provisions laws and constitxitional relative ing prosecutions shall be continued and re- prosecutions main in effect as all for crimes taking the committed before effect of this amend- ment.” reading pro- from clear this
It is constitutional only it treats of felonies which can vision that be tried in circuit courts this state and has no the reference jurisdiction, municipal inferior to courts of such as courts, courts or recorder’s which are not courts of provision and which often make no for record trial jury. may good agree public policy provide that it
I be they indigents charged counsel for where are with in- is not but since a constitutional petty crimes, this court should not fringed attempt by judicial upon, fiat That determine the of the state. public policy is not courts. duty imposed upon people, Oklahoma, to Williams v. refer majority au 1818, 23 L ed2d 440 as some (1969), US 89 S Ct for thority However, taken. position has Washington accepted State views in an in dissent, this that expressed who from digent have an his conviction appeal court is not entitled to free counsel municipal court. Hendrix v. City Seattle, 76 Wn municipal P2d 142, 456 696 (1969). Provisions an from the appeal court, municipal which is not a court of to the circuit court record, for each of provided the offenses If it was charged. here charged defendants were unable to ap- because of their peal or were in indigency anywise obstructed attempting then a appeal, constitu- Williams would be before this tional under question court. Such, however, are not the facts us, and, before the writ of therefore, habeas should corpus sub- stituted an appeal.
For the reasons above I would expressed, reverse.