Hendrix v. City of Seattle

ney likewise conceded the correctness of the invoices inso- they represented quantity petro- far as and.value of the coupled leum admissions, received. These with the testi- mony plant Mr. Smith that deliveries from his were through invoiced his office and that he familiar was procedures pursued respondent the methods and in in- voicing plants gave order, deliveries from other his rise appropriate receiving to an foundation for the documents into evidence. Under these find circumstances we no abuse part admitting of discretion on the challenged invoices. judgment affirmed. JJ., J. Pro Finley, Neill, Poyhonen,

Hill, Tem., concur. 39357. En Banc. June

[No. 1969.] City Hendrix, v. The Respondent, Leon Morris et al., Seattle Appellants.* *Reported in 696. 456 P.2d

143' Denny Joseph A. Newbould, L. Anderson, Coleman, E. H. Wayne appellants. and M. Blair, for respondent. John M. Junker Rosen, and Michael H. for Guinn, Vernon J. amicus curiae. saying J. There is an old that hard cases make

Hale, bad law and this case seems to vindicate The case it. invites ruling an unusually extreme because it involves an severe Municipal passed upon sentence in Seattle Court an 18- year-old indigent attorney defendant1 who no had and no employ primary funds question with which to one. The municipal charged whether a defendant in court with serious misdemeanor has a constitutional to counsel at public expense. secondary question, A nearly but one of equal gravity, municipal judge is whether a court has in- judicial authority compel herent either to members indigent municipal bar to serve defendants in court without compensation, municipal or, in the alternative, to bind the treasury pay for such services. complaints

The defendant was in two with two disorderly distinct violations of the conduct ordinances of complaint, city charged In one Seattle. him with stealing money misdemeanor of from the Milk Barn Car Wash, violation ordinance No. codified Seat- complaint, § brought code, 12.11.020; tle the other under the- disorderly same ordinance, conduct him accused of contrib- 1Respondent municipal pur here was defendant court. For opinion, poses he retains the of this title defendant. accompa- girl by 13-year-old

uting delinquency of loitering nying, congregating her at 3 o’clock or morning public streets.2 about the municipal arraignment both

On before the charges, of his defendant court advised the opportunity to obtain him time and counsel and offered he had no funds counsel. Defendant advised the court attorney requested employ the court with which to denying appli- provide cost. him counsel without municipal defendant that cation, court advised the attorneys authority compel court had neither the pay compensation nor funds serve without municipal indigent defending attorneys defendants noted that we connection, it should be court. In this city any city other that the Seattle not been advised legislatively appropriated author- funds this state compensation expenditure funds ized the indigent court. defendants of counsel proceeded conviction, and, on defendant to trial The case days municipal court to serve 180 the was sentenced making charge, consecutively a total sentence each on appeal timely days. far as the filed notice He —so superior separately petitioned appears the record —and municipal court’s to review the of certiorari court writ superior supply The court on counsel. him refusal con- that he had a contentions defendant’s sustained review appointment right cost; of counsel without stitutional abridged right; municipal and, court had the held that convictions, remanded the cause to setting two aside the supply municipal cotmsel to the directions court with the expense. Defendant, thus, outset, at the defendant superior peti- simultaneously pending in the court his had hearing appeals. Before the of his and his review tion for age guardian , child, being parent of ... a minor or not 2“. . . unlawfully willfully accompany, . . . years, did [defendant] at Rainier Avenue South congregate minor with such or loiter public place, hour o’clock Street, after the of 10:00 Genesee South express consent said minor’s wit, P.M., A.M. without 3:00 guardian, parent . . . .” or for and superior moved review, however, defendant court supe- appeals. granted him of his a dismissal cause to the remanded each then, certiorari, rior court city’s then and now contention court. It was the municipal court did not he to review that certiorari appeals his had filed inasmuch as the defendant convictions remedy speedy adequate plain, at law. and thus had urged one ac- and the trial court ruled that Defendant Municipal Court misdemeanor in cused of a serious Seattle appointment of counsel has a constitutional his defense under the sixth amendment the constitution States,3 of the United article section constitution Washington,4 and the fourteenth amendment to state Further, of the United he contends constitution States. judicial supplied that he counsel as a matter should be policy. approach aspects

Our to the constitutional of the guided by concepts judicial case must be those restraint large shaped measure which have in such the constitutional history country sepa of this and laid the foundation for government rating powers legislative, execu into judicial functions, tive and a doctrine which individ largely depend. keeping ual freedom seems so ought abrogate compel legisla doctrine, courts or directly indirectly tive action either unless the constitu require it. tions Where reasonable doubts exist as to a duty affecting prohibition legislative constitutional prosecutions, enjoy all 3“In criminal accused shall to a jury speedy public trial, by impartial state and district committed, the crime shall been which district wherein shall have previously law, been ascertained and to be informed of the nature against accusation; and cause of the to be confronted with the witnesses obtaining process him; compulsory favor, to have witnesses in his Const., and to the assistance of counsel for his defense.” U.S. have amend. 6. 1, (amendment provides, 10), 4Const.Art. inter alia: § right prosecutions “In criminal accused the shall the to by speedy appear person, counsel, ... to have a defend county jury impartial the an of the in which offense right appeal the to in all to have been committed and cases . . . .”

(cid:127)146 resolved in favor

branch should be government, they the action or inaction. legislature’s the Amendment,

Since the Sixth adoption not, Court of the United States has count Supreme despite so, less to do declared that one accused of opportunities misdemeanor has a constitutional to coun right appointed Junker, to Counsel in Misdemeanor Right sel. See Cases, L. Rev. 685 The traditional line (1968).5 Wash. crimes has persisted felonies lesser drawn between time, to the and no beginnings present from our colonial have been contrary presented authoritative decisions that distinction. In a nearly us which eradicate unbroken line, cases the involving counsel leading and the to furnish public expense corresponding obligation marked distinction counsel between felo depend upon nies and lesser offenses. Gideon v. Wainright,

For L. U.S. example, (1963), 2d Ct. 93 A.L.R.2d 733 cited by Ed. S. defendant, That case felony burglary. involved all declared a constitutional rule for courts —a rule simply since earliest Washington never doubted the state for the days arraignment felony territorial on —that court, request, was under constitutional burglary defendant, counsel for an duty indigent appoint counsel on request deprived failure to court of supply jurisdiction.

On this Court has very point, Supreme recently twice a refusal in state appoint declined review a denial of cer- Although court misdemeanor prosecutions. has not been tiorari Court deemed to Supreme declaration, to a modification of a repudiation amount rule, totally significance especially it is not without where highlight refusal. We thus should dissenting opinions that, circumstances not after juridical long ignore the Gideon decision, Court two cases where oj)ens comprehensive Junker his treatise with the 5Professor state indigent appointed yet “The misdemeanant’s counsel has ment: recognition explicit the United to receive constitutional States Su preme Court.”

147 appoint counsel at expressly to refused courts had state vigor despite prosecutions, public expense in misdemeanor very point at certiorari to review denied dissents, ous 397 1151, S.W.2d Beck, 239 Ark. v. us. Winters issue before 137, 87 2d S. (1966), 17 L. Ed. denied, 907, 385 cert. U.S. 364 222 DeJoseph, 624, (1966); Conn. Cir. 3 v. 207 State Ct. 443, (1966), 982, 17 L. Ed. 2d denied, 385 cert. U.S. 752 A.2d 87 S.Ct. 526 immoral Winters, defendant was

In city De- ordinance; in under a conduct, a misdemeanor doubly charged Joseph, the misde- was the defendant pretenses obtaining money under false meanor attorney. holding falsely case, each himself out to be public ex- at furnish counsel courts declined to the trial supreme Denial of cer- pense affirmed. courts and the state following af- Gideon cases hard tiorari in those two analyze question logical to us a basis which forded right appointed counsel in misde- to as to the constitutional squarely, put question and in meanor cases. Those cases Supreme denying Court resolved some certiorari the portended ambiguity Gideon, think said to reside we Rhay, Mempa 128, 19 L. v. 389 U.S. the later statement in Wainwright (1967), Gideon v. 336, 88 Ct. 254 Ed. 2d S. right appointment an absolute held “that there was (Italics ours.) “felony,” felony The term counsel in cases.” nor obiter dictum. think neither inadvertent we was Supreme no constitutional Court has discovered That the supply compelling public free of counsel mandate prosecutions charge in other be seen in misdemeanor involving counsel. failure Whenever cases jurisdictional, made supply to be it is has been held counsel felony. charge v. a Johnson amounted to clear that (1938), 1461, 82 L. Ed. 58 Ct. 1019 S. Zerbst, 304 U.S. Uveges money, felony. uttering counterfeit involved Pennsylvania, 184 93 L. Ed. Ct. S. U.S. accept improper (1948), for the trial court to held that it was guilty separate boy pleas 17-year-old four counts from youthful offering provide burglary de first without Burglary expense. public un- was fendant with mistakably felony Pennsylvania under maxi- law years petitioner mum could have confinement been actually 20 nor sentenced to not less than more than was years’ imprisonment. many

On occasions, other Court has made it clear that the to counsel at ex- constitutional felony Chewning pense prosecutions. v. limited to Cunningham, 498 443, 442, 368 U.S. 7 L. 2d 82 Ct. Ed. S. (1962), involving charges, a state case habitual criminal duty appoint Court held that the trial court’s to only, saying, counsel in felonies at 447: existed only charge being We habitual criminal is such a tag, conclude that a trial a of a (Chandler one Fre v. serious 3), presented Virginia’s 348 the issues under U.S. complex, potential prejudice resulting statute so and the great of from the have other counsel so we absence that the rule concerning appointment followed counsel types equally applicable of criminal trials is here. (Footnote omitted.)

Again, declaring duty supply in two other cases a public expense, explicitly counsel at that court made it Carnley crimes v. clear that the involved were felonies. (1962); 70, 8 Cochran, 506, L. Ed. 82 369 U.S. 2d S. Ct. 884 Maryland, 373 Ed. 59, 193, White v. U.S. 10 L. 2d 83 Ct. S. (1963). Extraordinary circumstances, 1050 course, such ybuthfulness, illiteracy, inability retardation, mental right English, usually sup understand buttress the cogent deciding ply a factor whether there has a been t.6 righ Nor explicit of the should overlook we waiver requirement appoint indigent 6The counsel for an leans defendant heavily special on the existence circumstances which warrant such by the court: action Gravity offense, i.e., capital non-capital: 1. whether Wil Kaiser, 471, 398, (1945); v. U.S. 89 L. Ed. 65 liams 323 S. Ct. 363 Missouri, 485, 407, (1945); v. U.S. 89 L. 65 Tomkins 323 Ed. S. Ct. 370 Alabama, 52, 114, (1961). U.S. Hamilton v. 7 L. Ed. 2d 82 S. Ct. 368 157 against charge Complexity Olson, the defendant: Rice 2. v. 786, 1367, (1945); 65 S. Ct. 989 U.S. 89 L. Ed. De Meerleer v. 324 Michigan, 584, (1947); 663, 91 L. Ct. 596 329 U.S. Ed. 67 S. McNeal v. Chewning Culver, 445, (1961); U.S. 109, 5 L. Ed. 2d 81 S. Ct. 413 365 442, Cunningham, 443, (1962); 7 L. Ed. 2d 82 S. Ct. 498 368 U.S.

149 Ed. 2d Gault, 1, re 18 L. in In U.S. language employed court 527, (1967), juvenile proceeding Ct. S. detention and the offender to several subjecting years’ where, juveniles juvenile discussing counsel, the court said: appointment If he committed an offense to had been over 18 and had he which such sentence would been might apply, under rights entitled to substantial the Constitution the United as well as under Arizona’s laws and States . He constitution. . . would entitled clear advice counsel, and, that he could at least be represented if involved, were felony State would be required if his were unable afford it. provide parents (Italics ours.) to counsel

Basing squarely upon proposition finding Gault amounted to con- delinquency Pennsylvania Claudy, 126, ex rel. Herman v. 350 U.S. L. Ed. S. Ct. 223 Ignorance: O’Grady, 3. Smith v. 312 U.S. 85 L. Ed. 61 S. (1941); Missouri, supra. Ct. 572 Tomkins v. Illiteracy Carnley Cochran, 506, 4. or lack of education: v. 369 U.S. 70, (1962); Culver, 8 633, L. Ed. 2d 82 884 S. Ct. Cash v. 358 U.S. 3 L. 557, (1959). Ed. 2d 432 79 S. Ct. youth experience: Mayo, 5. Extreme or lack of Wade v. 334 U.S. 672, 1647, Uveges (1948); Pennsylvania, 92 L. Ed. 68 S. Ct. 1270 v. 335 437, 127, (1948); Michigan, U.S. 93 L. Ed. 69 S. Ct. 184 Moore v. 355 155, 167, (1957). 2 U.S. L. Ed. 2d 78 S. 191 Ct. Familiarity procedure: Mayo, supra; 6. with court Wade v. McNeal supra. Culver, v. insanity: Ashe, 134, 7. Feeblemindedness Palmer v. 342 96 L. U.S. 154, Massey (1951); Moore, Ed. 105, 72 S. Ct. 191 v. 348 U.S. 99 L. Ed. 135, (1954). 75 S. Ct. 145. Inability English language: Ragen, 8. to understand the Marino v. 561, 170, (1947). 332 U.S. 92 L. Ed. 68 S. Ct. 240 Prejudicial attorney judge, prosecuting 9. conduct trial shown Ragen, 760, 1348, defender: White v. 324 U.S. 89 L. Ed. 65 S. Ct. (1945); Burke, 736, 1690, 978 Townsend v. 334 92 L. Ed. 68 S. Ct. U.S. (1948); Olson, 271, 61, 1252 Hawk v. 116 326 U.S. 90 L. Ed. 66 S. Ct. Reynolds (1945); Cochran, 525, 754, v. U.S. 5 L. Ed. 2d 81 S. Ct. 723 365 (1961); Burke, 773, 1686, Gibbs v. U.S. 93 L. 69 S. Ct. Ed. 337 1247 guilty by jury: .hearing 10. Plea of codefendant within the Carolina, 697, 1500, 80 Hudson v. North 2d Ct. 1314 363 4 L. Ed. S. U.S. . ) 9 6 0 (1 150 “A 36, added, proceeding

viction of the court at felony, found to be where the issue is the child will be whether for of his liberty to the loss ‘delinquent’ subjected felony prosecution” in seriousness to a years comparable (Italics ours.) Powell v.

Other similar cases make the standard: felony 53 55 Alabama, 45, 158, (1932), 287 77 L. Ed. Ct. U.S. S. involved death There the Supreme sentences rape. failure to appoint Court reversed state convictions indi- counsel defendants both illiterate and where the were 398, Ed. 65 Kaiser, 471, Williams v. 323 89 L. S. gent. U.S. Missouri, 485, Ct. 363 Tomkins v. 323 89 L. (1945), and U.S. 407, Ed. 65 Ct. 370 each involved felonies —rob- (1945), S. a murder bery deadly weapon respectively —both Olson, In Hawk v. crimes in Missouri. 326 being capital 61, 116 cited 271, (1945), 90 L. Ed. 66 Ct. which U.S. S. Missouri, Kaiser, Tomkins v. supra, Williams v. supra, De v. 329 Michigan, was murder. Meerleer U.S. charge 663, 584, 91 596 a conviction (1947), L. Ed. 67 Ct. where S. aside, set tried for murder with- 17-year-old boy was was out advised of or allowed his to counsel. being 170, 240 561, Marino v. L. Ed. 68 Ct. Ragen, U.S. S. , an unable to understand (1947) 18-year-old immigrant, English, jury was allowed court waive both through and counsel and Su- plead guilty interpreters. in- conviction, his the case Court overturned but preme volved the murder. felony Ohio, 92 L. Ed. Ct. 302 S.

Haley U.S. stood, defendant, a , 15-year-old boy, (1948) murder, Maryland, is similar. White v. 193, 83 Ct. 1050 holds that in (1963), 10 L. Ed. 2d S. U.S. one cases is entitled capital appointed pre- cases, Other not essential to this discus- hearing. liminary sion, all felonies. involve not in constitu-

The to have counsel apparently right of the exact the to free counsel. right tional law equivalent a situation under our constitu- scarcely imagine One can the an individual does not have right employ tions where but this manifest attorney, right, consult with and does obliged constitutionally signify people that the not public expense less serious him at in the furnish counsel to society Perhaps if the ours would be a better offenses. duty corresponding implied state to to have counsel supply in force contain the constitutions now counsel, but duty impose apparent on the state the no mandate and such only prosecution for felonies. history,

Evidently beginning the from of our colonial the country people frame the of this have seen need within jurisdiction government for courts limited work their designed speedily, economi the lesser offenses to handle cally expeditiously, and the constitutions attest people power to con the reserved unto themselves stitutionally At the establish and maintain such courts. adoption ex constitution, time the of our federal there (See country justice peace Mar isted in the bury of the courts (1 Cranch) Ed. 60 Madison, 2 L. U.S. (1803)), municipal counterparts and we see their modern today carrying greater percentage of now before the judicial systems. constitu business that comes into the tions, of more elabo think, we do not bar the establishment judicial procedures prevent rate nor in misdemeanor cases furnishing public expense; they simply of counsel at do require although Congress, legis Thus, them. state perhaps, municipalities possess and, latures an undoubted power expense provide public constitutional counsel at they question cases, in misdemeanor here is must do so power municipal justice or else forfeit the judiciary try serious misdemeanors. judicial coming annually

The vast volume business justice peace courts in this before the country vindicates wisdom the constitutions leav- ing legislative government branches the deci- supplied counsel should be sion as to whether expense prosecutions for the lesser offenses. Under the constitutions, decision devolves branch government possesses power levy taxes, moneys provide personnel carrying allocate the public .expense municipal counsel at If it out. court is a one, constitutional then the court’s failure or (cid:127) inability supply ipso deprives facto the jurisdiction prosecution and makes it inevitable that quashed. Wainwright, supra. offense Gideon v. although consequence provides And, so dire no basis abridging disparaging any rights granted law for or enjoin upon duty constitution, it does the courts a to cir- cumspectly analyze right if matter and ascertain granted by here asserted is constitutions is of a upon public policy lesser status and rests neither. consequences affecting otherwise, Stated the extreme engendered by providing welfare counsel without prosecutions charges pro- cost in misdemeanor the courts to great imposing upon general ceed with caution before government unanticipated burdens and duties unless the may clearly require constitutions it.

Up legislature county to now, neither the nor the and municipal governments Congress nor even the has assumed there exists a constitutional and a correlative duty supply prosecutions. counsel misdemeanor free judiciary recognize gov- The should that other branches of ernment, as Mr. Justice observed, Holmes “are ultimate guardians people quite of the liberties and welfare of the great degree Ry. as the courts.” Missouri, Kan. & Tex. May, 267, 270, U.S. 48 L. Ed. S. Ct. 638 operate degree Courts must thus under a of re- assuring person every straint which, while each natural every right vouchsafed him the constitutions, enlarge upon rights does way those in such a as to disparage powers legislative the constitutional abridge capabili- executive branches or their constitutional ties. sovereign sovereign United States state

Washington judicial systems came into existence with de- signed prosecutions to administer the criminal law summary lesser offenses in a fashion more than that re- punishable served the more serious kinds crimes long imprisonment prec- terms of or death. No authoritative presented people edents have been here that can no type within constitutionally of this longer courts maintain conditions judicial systems; facts nor do the for courts need society appear reduce modem organ- so jurisdiction. for courts summary Indeed, the need trying criminal serious capable less ized as to be today imperative than dispatch more seems offenses with early days. our (1968), accepts L. Rev. Junker,

Professor Wash. nontraffic misdemeanor 5 million estimate of Silverstein’s brought annually 1 L. See Sil- United States. cases Cases the Criminal Poor in verstein, Defenses of (1965). Com- President’s Courts 123 American State of Justice Enforcement and Administration mission on Law 5 million similarly 4 and are between that there assumes country annually of this the courts misdemeanors filed in Commission the President’s —exclusive cases. See traffic of Justice, of Task Administration Enforcement and Law knowledge Report: Common Force The Courts many this total swell cases would assures us that traffic right counsel in to there is a constitutional millions, and if assuredly would be there misdemeanor one kind of serious Thus, right misdemeanors. in serious traffic the same jurisdiction apparent of limited need for courts efficiently administering justice capable and under of judicial high increased pressure of business of a volume adoption markedly federal consti- of the state and since Fourteenth Amendment. tutions and the (cid:127) although everyone opinion, therefore, that, are of the We not have a counsel, he does has a to of crime accused expense public when counsel at to constitutional municipal court; and the a misdemeanor duty supply is under no constitutional prosecutions. expense in misdemeanor counsel at supplied is left in such cases counsel shall be Whether legislative not the constitutions, think, to the we government. judicial branches courts, as a matter consider whether

Next, we policy and due fundamental fairness in the interests judicial may an inherent process declare law, should power public expense to furnish counsel at mis- serious considering questions policy, demeanors. In as distin- guished principles, from constitutional the burdens must be weighed along possible Policy with the benefits. considera- very bring up tions from their nature the relative merits proposal require demerits consideration sought power limitations as well as the extent of the proclaimed. upon policy If a rule is to be declared reasonably alone, considerations it must be clear that it will good do more than bad. outweigh declaring

That the benefits the detriments in rights powers sought policy grounds here on is not clearly duty If discernible. an inherent exists in courts of jurisdiction supply indigent limited counsel to defend- necessarily ants, these courts have to be clothed with power attorneys compensation to order to serve without corresponding power obligate public treasury pay society, for such services. It well be that as a public policy, matter of sound should counsel free furnish charge poor persons prosecu- in serious misdemeanor policy by tions, but is this not a that should declared be legislative perhaps, and, the executive instead of branches Perhaps, judgment legislative the courts? public may branches, and executive welfare be ad- by providing charge municipal vanced counsel free of in may contrary public court—or it be their view that welfare by preserving quo enacting served better the status policies entirely. legislative and different The new and ex- government,- having ecutive branches of available the vast gathering evaluating machinery government fact and public good conclude that the be served will better providing probation comprehensive officers, more more psychiatric-psychological services, better detention facili- policemen, care, ties and medical more and better trained and that more teachers in smaller classes do more will to society improve furnishing of our the condition than attor- neys justice peace for in and defendants why, That is unless the to free courts. counsel in' right, prosecutions misdemeanor is a constitutional it seems spheres of policy to those leave the decision a wise to affirmatively, government deciding which, if legislation power carry policy. federal out the Recent gives good example of this. us a long Congress recognized long ago, there has

Not legislative legitimate a demarcation between existed deciding judicial powers counsel shall and whether indigent mis- made cost defendants available without Congress passed prosecutions. In 1964, demeanor directing § 3006A, Criminal Justice Act of 18 U.S.C. “place plans operation” for the federal district courts to “furnishing representation fel- for defendants petty as de- misdemeanors, onies or other than offenses (Italics ours.) fined 1 of That statute in section this title.” provide up only comprehensive sets coun- a scheme indigent investigative sel services defendants but experts judgment, the court’s if, the assistance investigative necessary expert such services are to an adequate legislation establishes a schedule of defense. money appropriation fees and authorized the pay unavoidably, premise rests, It on the them.

government duty indigent supply no constitutional public expense can, misdemeanants with counsel but legislation, duty constitutionally provide assume such a discharge arbitrarily it, for it funds with which to provides punishable by counsel in offenses 6 months’ or imprisonment privilege more in cases of withholds imprisonment. Altogether less than 6 months’ the statute superiority legislative demonstrates enactment over judicial providing effectuating policy fiat in a supplies prosecutions serious misdemeanor because it duty, power with a means with method and and funds carry them out. Congress universally on the enacted statute premise legislative accepted constitutional that the branch government power nearly has exclusive to define and Morgan classify Devine, v. 59 L. crimes. U.S. Ed. (1915); Wiltberger, United 1153, 35 Ct. 712 States S. (5 Wheat.) 576, L. Ed. 37 On this U.S. fundamen- concept, arising separation pow-

tal as it out of does Congress proceeded ers, power classify- to exercise this ing (1) punishable by federal crimes as felonies, either imprisonment (2) year; death or for more than one misde- (3) petty meanors, as offenses other than felonies; or offen- carrying punishment ses, as misdemeanors a of not more imprisonment than 6 months’ and a fine more of not than provided public expense Counsel at under $500.7 only punishable by if statute the offense imprisonment. § more than 6 months’ 18 XJ.S.C. 3006A. petty So-called offenses are excluded. of no We know rea- why adopt policy provid- son the states cannot a similar ing free counsel in inferior courts for serious misdemeanors legislation through appropriate money similar carry which to out. vigorously phase policy argu-

It is advanced as a furnishing indigent ment that defendants is not only right practicable right applies only but ifwell misdemeanors a serious nature and is available in charges. accomplish nonserious are thus We asked to larger judicially degree Congress state what legislatively, classify i.e., the federal done for courts differently by statute, crimes than is now done to direct the appointment expense of counsel or rec- without ompense ought bar, in all cases to be deemed distinguish serious misdemeanors and the serious misde- from the of minor meanors thousands even trivial vio- coming annually argu- lations before the courts. But this persuade go beyond essence, tries ment, the court to powers legislative its constitutional and embark a inevitably contemplates program. judicial It an exercise of 1: 7 18 “Notwithstanding § U.S.C. any Congress contrary: Act of “ Any (1) punishable by imprisonment death offense term year felony. exceeding one “ Any (2) other offense is a misdemeanor. Any “(3) misdemeanor, penalty does for which not exceed period imprisonment for a of six months or fine of not more than both, petty $500, is a offense.”

157 city power compel furnish Seattle which will attorneys expense upon that, public basis at whimsical legally although literally invite thousands of violations actually punishment, only it. serious few warrant require policy the courts to The declaration such a will powers they in exercis- assume additional do not have and degree legislative ing usurp execu- them in some government. urged powers carry policy To out the tive upon courts have us, the court must decree that only power an inherent not to order counsel to serve with- compensation, out also to direct the disbursement but public appropriation and, further, to re- funds without classify already legisla- crimes defined and classified Parenthetically, passing, point should, tive branch. we opinion Heater, out that our in Tacoma v. Wn.2d (1966), proposition P.2d 867 does for the not stand that the provide counsel, court in misdemeanors must but rather to consult one’s own retained counsel. power legislative government, as branch prescribe punishment earlier define noted, to crimes and is virtually nearly practically exclusive, unlimited, and leaves power Morgan no correlative to do the same in the courts. supra; supra. Wiltberger, Devine, United States v. It legislature legislative and subordinate bodies and punishment, subject only the courts which ordain the inhuman, limitations that it be neither cruel nor nor call § for excessive fines. Am. Jur. 2d Criminal Law days, Washington along Since territorial with most — Congress recently classified states and until —has gross misdemeanors, crimes as misdemeanors and felonies according punishment prescribed stat- to the maximum Resting they largely prescribed ute. do on fixed and present punishments, classifications maximum these certainty fairly greater of far than the exact standard appellant. If advocated the decision standards now supply cost rests on consideration of counsel suggests policy constitution, and not appointed only can rea- in those cases counsel be where sonably charge which, be said that the a serious one-—one jail on conviction, calls for a substantial sentence. other classify judicially words, the courts are asked to some mis- prima petty demeanors facie as much as Con- offenses, gress legislatively has done Justice Act of the Criminal § 1984,18 U.S.C. 1.

Any necessarily evaluation, course, such would very early to be made in advance of or trial. We municipal asked to declare a rule shall, it that the court deciding guilt judicially innocence, before or determine not only charged, probable the seriousness of crime the but the basing punish- sentence, minimal its conclusions not on the prescribed by ment from law but rather the nature charges jail and the likelihood of a substantial sentence questionable power conviction. Aside from our to direct consequence policy this, the inevitable of such a com- will pel judicial system proceed, the busiest courts in our study carefully case-by-case, to in innumerable cases ad- only vance trial and ascertain not whether the offense charged minor, as serious or shall be classified but also will, conviction, the defendant on trial de- whether how, serve a or minor sentence. Just or serious at what municipal judge point proceedings, a would deter- enough require mine the case on trial is serious appointment of counsel has not been made clear to us—un- preadvised has been and come to course, less of the court gravity prejudgment as of the offense kind of some history degree personal involve- and the defendant’s proposal, punish- the maximum defendant’s ment. Under prescribed afford the court a law will not basis ment deciding just case how serious the be. charged complaint pursuant one-

Defendant here was congregating accompanying, 16046, to ordinance 13-year-old p.m., loitering a.m., after 10 to 3 child express, mi- public consent without streets complaint guardian. parents other under the or nor’s charged city misde- defendant with the ordinance, the same larceny. petty case Not until the had been tried meanor known whether the offenses court have could curfew more than a breach were serious cognizable charges, in mu pilfering. moreover, were Both disorderly nicipal 16046, conduct ordinance under denouncing § all kinds ordinance code, 12.11.020—an Seattle (cid:127) Franklin, 191 Seattle v. misconduct, serious and trivial. (1937); Belt Ken ex rel. P.2d State Wash. nan, 25 P. 62 Wash. preadvised come to some had been

Unless the court prejudgment, not, before trial and convic- kind of a could comparative judged here, seriousness tion arising disorderly ordi- All offenses under conduct offenses. disturbing fighting, drunkenness, nance such as language, profane, peace, or use of obscene abusive any practice or acts, commission of immoral indecent or tending engage or to morals, conduct to debauch the any carry disorderly conduct, the same maxi- riotous jail punishment fine mum to exceed 6 months in and a —not of $500. prescribed by pro penalty law, therefore, is the

It classifying crimes. vides the basis Court holding by jury mandatory so where held simple battery punishable 2 under law Louisiana was imprisonment. years’ Duncan Loui The court said in v. (1968), siana, 145, 491, 20 L. 88 1444 391 Ed. 2d Ct. U.S. S. 159: carrying possible penalties up

Crimes to six months do require jury they qualify petty a trial as not if otherwise (1966). Schnackenberg, offenses, 373 U.S. Cheff particular penalty of authorized for crime is But the determining major or whether it is serious relevance subject may enough, itself, if severe the trial not and of the Amendment. District to the mandates Sixth of (1937). Clawans, Columbia v. U.S. system The now a new classifica- defendant advances guilt inevitably requiring tion, one the has court, before example, decide, been if the drunkenness established petty, fighting serious or serious will be language, petty, profane either, or abusive use petty or' or disturbance of serious whether the breach —or peace charged petty. This, course, was serious or ais judgment judicially the court cannot make in- most upon stances until evidence, heard the decided guilt or innocence of the accused, and has been advised as personal the circumstances of the crime and defendant’s history. may, One act of drunkenness in the court’s judgment, petty be a matter —but the court well re- gard the 100th offense as serious Hill, indeed. See Seattle v. Wn.2d 435 P.2d 692 policy

If we misdemeanor, follow the here, advocated diagnosed by then, must be court in advance ordinary, petty, serious, either as trivial, minor or depending punishment the maximum allowable judge law rather on but how fair-minded with no knowledge history- of the defendant’s or the circumstances alleged gauges of the offense the seriousness of crime and whether the defendant conviction deserves substan- jail. tial time multitude ordinances of Seattle prescribe jail thereof, sentences for violations we prevent rationally accomplish- think, would from ing discharge judicial this in the of its duties. study city nearly

A code indeed all Seattle —and city and state codes—we think maxi- that the same shows prescribed mum sentences are for innumerable and differ- fairly ent offenses. How the court from could determine complaint ordinary, serious, before it whether the offense is petty minor, evidence, or trivial until it has heard surrounding learned the circumstances the commission of personal offense, advised defendant’s history. parking may overtime Even warrant a substantial jail repeatedly if sentence when done the traffic tickets ignored by recipient. their been way

By samples illustration, here are some random legislation § such Under ordinance Seattle: intoxicating liquor § 16.04.060,sale of mi- code Seattle merely prohibited; unlawful in a nors is it likewise be unlawfully kept place liquor for sale. code where Seattle punishable § 37916.Each offense is 16.04.080, ordinance (16.04.110) jail days or both in of or 90 fine $300 —as- it. penalty receives suredly one who a serious garbage, disposition swill Illegal example: Another improper disposing times at or matter and waste 1907, ordinance places ordinance the old under in enacted ordinance modern 14.10.010,and the code Seattle dump garbage fees, prescribing 14.12, code, ch. 1955,Seattle days’ imprison- carry punishments fine and alike $300 put case to decide in either hard ment. One would be hearing all of the evi- gravity first of the offense without prior history behavior. of the defendant’s and a dence (1923), ordinance-45860 code, 12.14, ch. Or, under Seattle president any effigy portrait, or name deceased or call advertise attention used to United States any of medical treatment. or method medicine, nostrum perhaps, offense a second third or, for a first even This, yet § ordinance, may, 3 of serious, face, on its not seem punishment provides fine for a maximum 12.14.030, $300 applies days jail. punishment to solicit- same subscriptions ing magazine or side- on the streets seq. delivery. 12.15.010,et code for future Seattle walks purports Similarly, ch. to make it a seri- code 12.17 Seattle Sunday Seattle, on to sell automobiles ous misdemeanor days jail fixing punishment a maximum 90 separate making day’s offense each violation a fine and $300 April 23,1957. —all ordinance 86065 under selling enough, although Curiously unclean, unhealthful might a more serious of- meat seem to be or adulterated Sunday, yet selling punishment cars fense than January § doing 94465, 35, of under ordinance either Seattle § 13.08.350,carries the same maximum 6, 1966, code Seattle punishment jail days fine. The same of 90 and $300 selling poultry applies adulterated and fish unclean and 13.12) (ch. 13.24.585, and milk. ordinance government legislative branch of takes a.rather Seattle’s evasion, a misde- of tax too. It made it serious view days’ imprisonment city jail punishable meanor offering cabarets, theaters, and fine of others and a $300 entertainment to fail to collect or remit on authorized re- city (11.04.140, turns, § amusement tax ordinance 72495, (1943)), pay occupation and to the business and tax. § 11.08.310, ordinance 72630,

Leaving examples punishable by these of offenses days’ imprisonment and a fine, next refer a we to few $300 samples random of even more serious offenses in the Seat- chapter obviously tle code. Violations of 12.11 are more just they carry serious than the offenses described because greater punishment; they punishable a much maximum are up jail sentences to 6 months in in fine or $500 chapter both. Misdemeanors under 12.11 include of- such habitually idling away places fenses as one’s time in where intoxicating liquors fighting by agree- sold, are 12.11.110; (the happens ment section does not indicate what if one of agree), participants prowling does not 12.11.070; or loi- tering by soliciting felons, 12.11.100; convicted alms, operating employer place open 12.11.130;or as an public intoxicating liquor; allowing the sale or caus- ing any employee appear upper female with the and/or wholly substantially exposed lower torso or February 12.11.175, view, 21, 1966; ordinance or for any away any person male to idle his time in house ill fame, 12.11.120.All such violations in the court’s discretion jail up to 6 months in or draw sentences fine or $500 both. jail punishable offenses, 6 months in

Other and $500 fine involve a miscellaneous assortment of violations under injuring foliage such as another’s flowers, code Seattle shrubbery, allowing 12.11.560; minors under 18 to loi- pool play rudely or room, 12.11.530; in one’s billiard ter or throwing things mischievously any building house, or or annoyance, wearing anyone’s 12.11.510; or hats vehicle any any during performance in or for theater theater any manager his customers to wear allow hats bon- give theater, .420; 12.11.410and or to sell or nets anyone age any years, form to under the of 18 tobacco (1958). Along these, ordinance 87651 12.11.430, we plethora ignore of offenses defined in the should municipal codes which traffic motor statutes and vehicle throughout annually generate of cases tens of thousands jail punishable substantial state, all which sentences. study municipal particularly

A will show codes designated police city they courts, whether justice peace courts, courts district effectively fairly designed courts, have been to handle large judicial at minimum cost and volumes business delay. suggested legislative that, sanction It now without virtually mandate, in of and the absence constitutional we inevitably of convert these courts into courts record— bringing change delays, expenses, with this the attendant indigenous to so dra- and traditional inefficiencies but now matically burdening throughout of the courts record the country. directing ap-

There is a likelihood that a decision the pointment beginning. of counsel here mark would but public expense in to counsel at courts limited jurisdiction inevitably in serious misdemeanor cases will give corresponding duty city only upon rise to a the augment furnish counsel but to and render counsel’s efforts superior more effective—as is in fur- now done courts— nishing psychiatric reporters examinations, court and labo- ratory providing services, and clinical and in some instances investigators. any provide The decision to of these serv- jurisdiction, think, ices in without cost courts limited we preempted by should not be the courts but left with that government levy power branch of which has the the appropriate money employ pay per- taxes, job. sonnel for in courts, essential to do the It is not generating policy, great to cast another load new judicial system they ways carrying until have found judicial system long the ones that have been with the for so public belongs a time. The decision to afford such services judicial legislative govern- and not branch ment. long ago adopting court, Rules for

Not Courts tacitly acknowledged Jurisdiction, Limited RCW vol. 16.4 counsel, public expense prosecution

that: conferred, misdemeanors is to be .all, if at legisla- ture and does not rest constitutional or arise principles from a judicial policy. Nowhere inti- those rules it mated that courts of jurisdiction limited obliged, to order power, to serve indigent persons without Not until compensation. now seriously been contended in this courts, state that justice the peace courts com- police courts possess power to serve without no pel attorneys constitu- recompense, tional or historical has been us that these authority shown courts such If, as a possess powers. matter judicial pol- it is icy, held that these courts such it may possess powers, abe forward in the administration of criminal step justice, but there are possible detriments such a policy considered, which must be too.

In all the advent of probability, counsel at public expense will, all serious misdemeanors in the course indigents time, cases increase the volume of contested enormously lengthen our delays already overburdening judicial It such an in the costs of system. may engender increase these courts that officials running will prosecuting dismiss, the forced to innumerable cases rather than incur and involved counsel at expense delay public supplying And, there is another expense.- problem probability —the that the sheriffs’ segments police, deputies, substantial and other law enforcement agencies state will patrol of their immobilized because attendance required partially waiting overlong testify in courts of limited jurisdiction time should be and is better spent going when their the public peace safety. their duties preserving about him examine If doubts these consequences, let anyone to the Court recent appeals Supreme the rise in criminal 1962, an enormous increase appeals Since years. increasing per- has a steadily Court taken place, Supreme at Should this brought public expense. centage the rate under present existing at proce- trend continue and- of this court’s time will be energy all dure, nearly of; cases .to exclusion- criminal practically the preempted appointed providing of likelihood, the all others. all justice add municipal courts will courts and counsel in bringing commensurate cases number contested the superior appeals and thence increase therefrom to. public expense.8 Supreme at Court—all is forced and burdens disabilities think none of these We as a nor should be constitutions the courts ag- indigent feels judicial policy. accused If an matter he grieved court, of his trial in results special or may appeal superior If, because court. inexperience, disabling youth, circumstances such superior of the physical disabilities, court is or mental of such seriousness misdemeanor is view both affecting special the defendant warrant circumstances expense may appoint court counsel at it, that sound exercise of its discretion.

The cause is reversed with directions the defend- superior appeal he be court be reinstated and ant’s prosecute allowed it.

Hunter, C. J., concurs. JJ., Tem., J.

Neill Pro Donworth, McGovern, concur in the result. (dissenting) majority J.

Rosellini, —The young offense man, with an determined that following Supreme records Clerk of the Court show 8The appeals filed in the Court and the numbers criminal years: following percentages indigent appeals for the *- Percentage indigent appeals. total ** January through 30, months, For 6 1 1968. June 166 punishment may deprivation liberty which the mean year

for a represented of his life, is not entitled to be pay lawyer’s counsel unless he can afford to fee. In doing recognized so, it has that, if the defendant were a year younger brought juve- or so and had been before the nile court for his he offense, would have been entitled to appointment public expense of counsel at if he could pay counsel; afford to that, if his offense had been slightly punishable by

of a more serious nature confine- penitentiary city jail, ment in the state rather than in the right. he would have But, had the same because the United Supreme passed question, States Court has not on the majority suppose finds it convenient that court significant peculiarity plight would find some in the protection defendant which him would exclude from the the constitution. currently “coddling”

Courts are under attack for crimi- nals, and the United States Court takes most the brunt of this. It seems to me that the reason for this is that state courts have too often been reluctant to enforce plain provisions preferring pass of the constitution, highest the “onus” on to the court in the land.9 It has never supposed popular been that courts make would themselves by giving guarantees, effect to the constitutional but that any duty does not make the less their to do so. It was recognized because the “get framers zeal to culprit” adoption would stimulate the of shortcuts calcu- giving 9The fact that this court has been timid in effect to constitu rights hardly ignored. past tional years, highest can In the 10 necessary in the land has found it to reverse or remand for opinions following involving reconsideration of this court cases rights Eskridge Washington of criminal defendants: v. State Board of Paroles, 214, Prison 1269, Terms & 357 U.S. 2 L. Ed. 2d 78 S. Ct. 1061 (1958); Schneckloth, 575, 1547, Ross v. 2 357 U.S. Ed. L. 2d 78 S. Ct. (1958); Rhay, 575, 1547, In re v. 2 Woods 357 U.S. L. 2d Ed. 78 S. Draper (1958); Washington, 487, 899, Ct. 1387 v. 372 U.S. 9 L. Ed. 2d Haynes (1963); Washington, 503, 513, S. Ct. 774 v. 373 U.S. L. Ed. 2d (1963); Seattle, 541, 943, 83 S. Ct. 1336 See v. 387 U.S. 18 L. Ed. 2d Mempa (1967); Rhay, 336, S. Ct. 1737 389 U.S. 19 L. Ed. 2d 88 S. (1967); Rhay, Rhay, Ct. 254 and McConnell v. Stiltner v. 393 U.S. Ed. 2d L. 89 S. Ct. 32 injustice, safe- constitutional the lated to result only piece of guards a But the constitution were enacted. give intent

paper effect to its true courts if the will they meaning; afford that, cannot if courts are to do disapproval. public fear of let themselves be deterred Judges disapproval of the result must realize that such public ignorance, any under- of the who and that member history country will of and its constitution stands the his dismayed rejoice the he knows that when not be but will rights protecting individual the are firm in courts liberty. organized society power his threatens when say majority it fears that does not While the holding superior case court in this would sustain the of the indignation, for me to avoid it is difficult incite I fear influenced the decision. conclusion that such a say only positive find in the I can rationale because furnishing majority opinion of counsel to indi- is that the charged gent persons is, misdemeanors —that serious liberty involving possible loss misdemeanors —would expeditious expensive han- interfere with the be and would dling are reasons offered of misdemeanor cases. The other negative import: (1) question de- The has not been all of Supreme far Court, so cided the United States (2) only felony exists, cases; if such a has entertained implement legislature seen it with has not fit (3) pay appropriation has not counsel; and of funds to indigents in misde- furnish counsel to been the custom to meanor cases. any considerations, either

I not believe that these do bearing negative, on positive much they certainly question should us, before merits lan- of the the discussion Where is not be determinative. provisions? provisions guage of the constitutional only no footnote, and further are forth in a themselves set Conceding paid that there contents. to their attention is directly point, Court decisions no United States felony reasoning employed certainly cases would arriving proper interpretation of the at a be of interest question. provisions meaning Is not constitutional judicial technique reasoning by analogy traditional analogous available? One must assume that if there are they majority they cases, do view, not aid the else would surely quoted. legal opinion, they be cited and In would considerably persuasive argu- more than an economic majority ment, which the concedes if cannot control a con- stitutional is found to exist. majority- opinion any

Nowhere in the Ido find discussion why might the reasons be needed in misde- why justice meanor or, cases hand, the other it is that can be obtained so defendant aid of without “summary” counsel. If per- counsel is not needed in courts, haps superior efficiently courts could be more if conducted summary procedures adopted court were there. This would greater expediting result in an even of criminal cases and a great saving- public. Unfortunately exponents to the for the efficiency, Supreme of unfettered the United States Court spoken has matter, this and this reform cannot inau- be gurated under the constitution as it now stands. jurisdictions supposedly

There are in cases other which support majority view. A cited, few them are since they are the cases which the United States expect Court denied certiorari. One would to find majority opinion judicial reasoning some morsels of gleaned opinions, apparently they from those but were not sufficiently impressive quoting. found to be I merit will return to them later this dissent. only majority opinion lacking

Not is the in the usual fortifying adopted cases, discussion also at least “statutory one rule of new, construction” is which at least supported by precedent. to me, is not citation of opinion I refer to the inference inherent in the if that, legislature implement alleged has not seen fit to an consti- right, right probably tutional does not exist. This is by judicial accomplished gymnastic whereby the rule that legislature presumed acts of the constitutional does a put flip backward with a' side twist and comes read, “If right, presumed legis- there a is constitutional it is that legislature implement does if .not it; lature will right.” implement alleged right, ipso no an facto there is legislature, this, course, is The result of that it is now the responsibility court, and not the which is interpreting the constitution. fungus concept appears growing This on the little to be a appoints that, roots of idea if the counsel to indigent, represent paid counsel must paid appropriation. no cannot be if there is fal- basic lacy, assumption course, is the that, before the court can court-ap- decide whether defendant entitled to have pointed counsel, it must ascertain how whether counsel paid. assumption by-product will be This another approach interpretation. economic to constitutional Under approach, this it is not the court’s function to declare the meaning of in the constitution, words found but deter- problem presented mine solution to what will be the expensive adjust public, least and to the constitution course, accommodate that solution. Of the court has a advantage making distinct of determination, kind investigative powers since it has rather limited and thus is required through conflicting to sift a lot of dull and reaching conclusion, data before can but do it on the basis brought of whatever information has been before it litigants, plus judicial knowledge briefs a little' and in- stinct. question do conceive

I not that the of how and whether paid counsel will is before the be court. The fact is that the ready willing apparently court and is and able to disputes appoint right counsel. No one it. If the exists, and for it is this court declare whether it not, does or it will implemented, barring a breakdown overthrow of the government.10 interesting King County 10It judges is note that Justice Court judges recognize Municipal

Seattle Court the constitutional attorneys indigents. appointment King County, County In provided the Board of Commissioners has requesting appointed for each District Court funds for $500 counsel. judge indigent qualification The the of each district sets standards ques- the matter material I do not consider While misdemeanor I statistics court, the think the tion before by majority quoted so much a comment since deserve opinion. importance The number attached to them in is in recent heard cases traffic cases of misdemeanor and/or segregate attempt any years there forth set without involving involving indigent those defendants from those cita- even a There is not to afford counsel. defendants able actually represented coun- tion of the number who were majority all that contention of Unless it is the sel. indigent, the statis- offenders are and traffic misdemeanants conception great deal to the court’s a do not contribute tics impact cases probable the trial of misdemeanor nonindigents indigents are entitled holding as well as that citing ac- of statistics Yet it is this to counsel. leading opinion, highest position honor in the corded paragraph holding impassioned forth set it. which follows majority opinion. quibbling enough with of this

But the merits! On to cases, Court, in a series United States charged person crime to aof defined the Zerbst, In Johnson in his defense. of counsel

assistance (1938), 1461, 58 Ct. L. Ed. S. 462-63, 304 U.S. charged district in federal had been the defendant money. requested He passing uttering counterfeit appointed him, and was defend should be appoint defendant counsel for a did the court told that capital He tried crime. was awith he was unless in the federal and confined counsel, without and convicted corpus, of habeas petitioned a writ He penitentiary. attorneys panels who have indicated from appoints local counsel capacity. willing they in to serve proposed approach slightly has been Seattle, different City approved Council. Judges With Municipal Seattle employ Municipal one Court will approved, $25,000 the Seattle fund of attorney $3,000 part-time at $13,500 attorney and one full-time attorney time to his most of will devote The first defenders. screening applicants. of his time most trials, devote will the second young support from Seattle hope judges additional In addition attorneys. by the The United which was denied lower federal courts. speaking Supreme court, States Court reversed. The through Black, Mr. Justice said: guarantees “In that all criminal Sixth Amendment

prosecutions, enjoy right ... the accused shall This Assistance Counsel his defence.” is the. safeguards one of the deemed the Sixth Amendment necessary liberty. rights to insure of life fundamental human originally

Omitted from the Constitution as adopted, provisions of this and other Amendments were Congress submitted the first convened under that against arbitrary Constitution as essential barriers or un- just deprivation rights. of human The Sixth Amendment stands as a constant admonition that if the constitutional safeguards provides justice lost, be will not “still be recognition done.” It embodies a realistic of the obvious average truth fessional pro- defendant does not have the legal protect brought skill to himself when be- power liberty, fore a tribunal with to take his life or prosecution presented by experienced wherein the simple, orderly learned counsel. That which is and neces- sary lawyer, layman may appear the untrained complex mysterious. Consistently intricate, with the policy wise our parts Sixth Amendment and other pointed fundamental charter, this Court has policy “. . . the humane of the modern criminal . . law .” provides which now that a defendant if “. . . he be poor, . . . have counsel furnished him infrequently . state . . not . .. more able than at- torney for the state.” . . . The Sixth Amendment withholds from federal proceedings, power courts, in all criminal and author- ity deprive liberty accused of his life or unless he has waives the assistance of counsel. (Footnotes omitted.)

It supra, will noted applied that Johnson Zerbst, v. prosecutions criminal courts, and did not involve federal in the state trials court. Uveges Pennsylvania,

In the case of U.S. (1948), 93 L. Ed. 69 S. Ct. 184 the court referred to a opinion among difference of members of the being person Court, one view where court, serious offense state the court must offer counsel -172 him of to do so defense, deprives

for his and failure that the other view where being capi- constitutional right; to involved, the constitutional tal is not punishment of the particular the circumstances depends upon counsel The court said: case. of these views that

The behind both philosophy or the of the Fourteenth Amendment due clause process all for persons requires Fifth Amendment crimes, necessary for their serious when with charged such defense, may in that persons order adequate to conduct their trials. advised how v. Wainwright, 799, 83 In Gideon 9 L. Ed. 2d 372 U.S. Court 792, 93 A.L.R.2d 733 (1963), Ct. S. Brady, decision in Betts U.S. overruled its prior had held that (1942), Ct. 1252 which Ed. 62 S. L. to indigent to furnish counsel not states were bound in court, The a criminal offense. defendants with charged a con have indicated to which should referring precedents v. Brady, supra, Betts 344: said, at in result trary and reflection also reason these but only Not precedents adversary our system to us recognize require criminal court, is too who haled into justice, any person a fair hire cannot be assured lawyer, poor him. seems to us to be This unless counsel is provided federal, and Governments, both state an truth. obvious to establish money vast sums quite properly spend of crime. Lawyers defendants accused machinery try essential are deemed everywhere protect to prosecute orderly society. Similarly, an interest public’s crime, in- are with few charged there few defendants hire can lawyers they get fail the best deed, who That government their defenses. present prepare and defendants who have lawyers hires to prosecute strongest hire to defend.are indica- lawyers money criminal lawyers belief widespread tions necessities, one luxuries. The courts may crime to counsel not be deemed’funda- charged countries, to fair trials in some but mental essential our state na- ours. From the very beginning, have,laid and laws great,emphasis tional-constitutions substantive, safeguards designed, to procedural assure tribunals de- fair trials before impartial every ideal equal This noble the law. fendant stands before crime poor man realized if the cannot be has to lawyer to assist him. face his accusers without a 2d L. Ed. 436, 472-73, Arizona, In Miranda v. 384 U.S. (1966), held that when 694, 86 Ct. 1602 the court S. person offense, a criminal is arrested in connection with they police question him him must advise before “right rights, including of his constitutional attorney, appointed.” presence The either retained court further said: protect privilege for the need counsel in order to indigent fact,

exists as the affluent. well rights to those were we limit these constitutional to who attorney, today can an retain our decisions would be significance. little The cases before us as well as the vast majority of confession cases with which we have dealt past involve those unable to retain counsel. While required authorities are not to relieve the accused of his poverty, they obligation advantage have the not to take indigence justice. administration Denial indigent interrogation counsel to the at the time of while allowing attorney an to those who can afford one would supportable by logic no be more reason or than the simi appeal lar situation at trial and on struck in Gideon down Wainwright, (1963), Douglas v. fornia, 335 U.S. v. Cali (1963). U.S. 353 fully apprise person interrogated In order of rights system extent his under then, this is neces- sary only right to warn him that he has the to con- attorney, indigent sult but also if he lawyer appointed represent will be him. (Footnotes omitted.) See also Patterson v. Warden, 372 U.S. 10 L. Ed. 2d 83 S. Ct. 1103 (1966), Heater, In Tacoma v. 733, Wn.2d P.2d 867 person driving held we arrested for drunken was employed immediately entitled to the services of counsel. charged, (amend he under after was article section 22 10.) Washington ment of the Constitution sixth and the to the United States Constitution. We amendment observed Wainwright, supra, .court, the fact tha.t the Gideon v. .in felonies, made no distinction between and misdemeanors .in right its discussion of the constitutional assist- prosecutions. ance of criminal language supra, While the per- Heater, in Tacoma v. haps require, broader than the facts the case the court in necessary interpret this case did not find it it as holding right that there is a to counsel in all misdemeanor cases, authority but deemed it sufficient that it was for the proposition prosecu- that there is a to counsel in all involving they tions serious offenses, whether be felonies or although misdemeanors. The case, offenses in this designated “disorderly larceny conduct,” were in fact contributing delinquency minor, of a both of which are embraced within the criminal law of this state. RCW seq.; 9.54.010,et RCW 13.04.170.

Upon authority of the cited decisions of the United pertaining States Court, to felonies not re- but language stricted in their crimes, to such and Tacoma v. supra, holding employ Heater, that the counsel of choosing one’s own exists misdemeanor cases as well as felony join concluding I cases, the trial court in that the respondent appointed was entitled to have counsel expense charges him in assist his defense serious brought against though they him in case, even were disorderly labeled conduct. appellant following authority cites cases proposition indigent that an is not entitled have

appointed prosecution (1) counsel in a for a misdemeanor: (1966), Beck, 1151, Winters v. 239 Ark. 397 S.W.2d 364 cert. (1966), 907, 137, denied 385 17 L. Ed. 2d 87 U.S. S. Ct. 207 Supreme the Arkansas Court to extend the wherein holding refused misdemeanor cases. The defendant of Gideon to guilty “immorality” days found and sentenced to 30 was opinion jail a fine The not does state $254. statutory “immorality” crime of in Ar- is whether there (2) I of none in this state or at common kansas. know law. (1963), 197 A.2d 668 257, 2 Conn. Cir. Davis, v. State it need not consider a the court held that conten- wherein obtaining money charged with under of a defendant tion attorney impersonating pretenses that he was false court-appointed he as denied counsel inasmuch his or claimed had the issue at the level not raised opinion that denial as error in A his brief. statement charged a matter entitled, one a misdemeanor not is dictum, right, appointment of counsel therefore was right, holding he that, was at to avail himself of the most a (3) DeJoseph, 3 claim it at the trial level. v. must State (1966), Conn. Cir. 222 A.2d 752 cert. denied U.S. (1966), 17 L. Ed. it was 2d 87 S. Ct. 526 wherein indigency proved, held and there that the fact of not was fore the in re trial court did not commit reversible error fusing appoint charged nonsup counsel for a man 1965). port. (4) (Fla. (5) Morris, v. Watkins So.2d (Fla. 1964). State, Fish v. 159 So.2d 866 The last two cases rights were decided the court which had denied altogether surprising Gideon, defendant in pronouncement that it refused to read that of the United any applicable States Court as crimes other alleged The than felonies. misdemeanor Watkins v. Mor supra, driving ris, was intoxicated while and reckless driv ing. holding In that case the court also based its on the fact actually that the defendant did not claim that he was indi gent. The nature of the offense State, Fish v. supra, opinion. not revealed in only

It will be seen that in two of the cases cited appellant squarely indigent charged it was held that an a with misdemeanor was not entitled to counsel. Neither them opinions offense, involved a serious so far as the Assuming, reveal. however, that the offense involved in the last cited Florida case serious, been I must also opinion note that neither that case nor the other any Florida case cited contains discussion of the constitu- provisions. In effect, cases, tional in both the court refused to consider the contentions of the defendant. I do not find authority. persuasive them following respondent cites cases in which federal applies held that the

courts have in misde prosecutions. (D.C. Rives, meanor Evans 126 F.2d Harvey 1942); Mississippi, (5th 340 v. F.2d Cir. Cir. 1965) (5th 1965). Cir. Moore, McDonald v. F.2d 106 supra, Warden, He Patterson v. also calls our attention to per opinion re- where the Court in a curiam light manded a case reconsideration in the of Gideon v. for Wainwright, supra. request The the defendant in that involving 2-year charged sen- case, with misdemeanors appoint represent him, court had tence, that the counsel to denied. been supra, Rives,

The court in Evans v. held that the Harvey v. exists in all misdemeanor cases. The cases of supra, supra, Mississippi, Moore, and McDonald v. are not language, they attempt so their but do not broad general terms the of the constitu- delineate boundaries right to the assistance of counsel. tional appellant there concedes that be misdemeanors indigent charged that an defendant of such a serious nature guaran- enjoy the one of them should amendment to the United Constitu- the sixth States teed (amendment 10) and article section tion suggests Washington It that the definition con- Constitution. 1(3) (1965) appropriate. § That sec- tained in 18 U.S.C. provides: tion penalty

Any for ex- misdemeanor, which does not period imprisonment fine of for a of six months or a ceed petty $500, both, is a offense. not more than recognized provision that It is true that (1966), George Day, 836, 420 P.2d 677 and held 69 Wn.2d drunken and reckless driv- that a defendant (in municipal city ing, penalty court in class) days jail, could not exceed or 90 the third $300 jury apply did not entitled to a trial. We discuss or was “severity penalty” any other than the standard determining petty. offense was serious whether respondent proposes adopt also court should

'The solely suggests penalty, he related but a standard involving possible liberty, charge any loss of bring play any period into time, should constitutional provisions. . . Supreme has not Court the United States as

Inasmuch subject rights opinion an yet on the of the an rendered analogy indigent for assist- misdemeanant, I must look to scope my the intended' to determine endeavor ance in fortunately opin- I am provisions, and aided two these regard. court in this of that ions 1, 41, 18 L. Ed. Gault, re U.S. of these is

The first (1967), holding judge a of a that 87 Ct. 2d S. required a juvenile the constitution advise court was appointed parents that counsel would be and his minor attorney, hire represent afford to an him, if he could not charged delinquent for the commission a he as was where offense. of a minor recognizes Supreme majority that the United States

The charged a a delin- in that case that minor as Court held appointment quent of counsel at entitled is holding suggests expense, that the court’s was based but felony. finding as as a that offense was serious on its alleged child in offense This is not the case. making telephone an call. The “obscene” case was using comparable misdemeanor, “adult” crime was language presence vulgar of a woman or or obscene punishment a fine of from to was child, and $5 $50 imprisonment than 2 months. not more of the offense which concerned the seriousness

It was not punishment. Here is of the the seriousness court, but holding court: Four- Process Clause of the that the Due We conclude respect proceed- requires Amendment teenth may delinquency ings com- result in to determine juvenile’s freedom an institution which mitment to parents his must notified of curtailed, the child and be represented by right to be counsel retained the child’s they counsel, to afford that counsel unable them, if represent appointed to the child. will be Supreme enunciating Court, in The United States holding, toit cases in which the child is did not restrict particular length confinement for threatened that if he be committed to an institution time, said but in which his freedom will curtailed, be he is entitled to counsel.

Jail person jail is such an institution, who sent year just for 1 seriously has his freedom curtailed as if penal he were year. sent to a state institution for a While the United States Court in the Gault case punishment determining made the seriousness of the deciding juvenile factor in whether a accorded should be process, due I do not think that that court would neces- sarily adopt determining this standard in an adult whether appointment offense is entitled to of coun- represent say past, sel him. I this because in the as will presently recognized discussed, that court has a distinc- petty tion between offenses, and serious and held that there right jury ais to a serious, trial if the offense is even though it be classified as a Wilson, misdemeanor. Callan v. light U.S. L. Ed. 223, S. Ct. 1301 of these two I cases, would that assume the United States Supreme Court would hold that a defendant is entitled to appointment indigent, counsel, of he if if is he has been charged punishment a offense, serious or if the is one usually accompanies a serious offense. supra, pertained

The Wilson, case of Callan v. to the by jury, by protected of trial a also the Sixth Amendment, in misdemeanor cases. opinion, Harlan,

Mr. Justice the a writer reviewed in number cases lesser courts had held wherein it been petty that, law, at common there was a class of offenses summarily jury. said, which were triable without a He at 127U.S. 553: many

The of the cases are thus summa- doctrines by Municipal Corpora- rized Mr. Dillon in his work 433): by-laws (Vol. § I, tions “Violations proper, description municipal such as fall the within concerning police regulations, example, as, for those mar- city kets, streets, waterworks, officers, etc., and which in acts omissions that are not relate to embraced legislation legislature general may State, criminal prosecuted summary manner, be in a authorize to by corporation, the name of the and need and in not by jury. omissions are constitutional acts and provide for a trial Such misdemeanors to which or crimes not by jury right of extends.” conspir- charged a in that case was defendant The police union) in (as acy of a trade a member imposed convic- The sentence of Columbia. District days. jail of 30 fine or a sentence a tion was $25 at 127 555: concluded, U.S. Court authorities, con- reference to the further Without ceding, petty offences, or minor is a class that there usually not statutes, and criminal not embraced jury, by grade common law triable at of the class and may, District, under which, if committed Congress, authority the court and without be tried opinion jury, the offence with which are of that we belong A appellant class. to that does charged against conspiracy him his code- such as is petty or trivial offence. no means fendants opinion a discussion of the common There follows conspiracy, concludes, and then the court crime of law 557: 127U.S. petty grade

Except of offences called in that class or according law, common offences, which, summarily any legally proceeded against con- tribunal guarantee impartial purpose, of an stituted prosecution, jury criminal conducted accused in a authority of, or under the name, either United enjoy right States, secures to him the moment, in of from the first whatever mode trial charged. put on offence court, he is trial the the of land. It was cited for That case is still the law the required petty jury proposition offen that a trial is leading recently June 1966 in the case, as as ses, as the Schnackenberg, opinion L. 373, 16 Ed. in v. 384 U.S. Cheff by (1966). It also cited this Ct. 1523 was court 629, 2d 86 S. leading Belt Kennan, ex rel. v. case of State in our own holding (1901), that “riotous conduct” 621, 66 P. 62 Wash. “riot”) requiring (not involving petty a offense not was quotation approved by jury. the same This court also trial (4th 1890) § Municipal Corporations ed. Dillon, from made this in significant statement that opinion, at n (cid:127)Wash. 626: It in will be observed discussion the of this qúestion an of and in look examination the the authorities that courts the the offense, nature rather to its than desig- by name, nation so that but profit little is found refin- the ing definition It is the misdemeanors. petty nature of the usage offensé which in the placed juris- diction of and which offenses are not municipalities, usually designated the criminal body law as too, crimes. And, the is made to punishment the fit limited, crime. It is are found where precedents courts have such ordinances adjudged void because the was too severe. The reasons for penalty such summary jurisdiction numerous and and the apparent, custom exists, almost universally and is with the consistent full- est and completest protection of the most sacred guaran- ties constitution.

(Italics mine.)

The case was cited with Hite, approval Bellingham 225 P.2d 895 Wn.2d (1950). This court in that case found it to decide unnecessary whether drunken is driving offense, a serious inasmuch as it held petty defendant’s to trial by was secured to him jury on court.11 This, course, such appeal superior suggested appointment, appeal been 11It has counsel adequate superior proper court to secure defense indigent. only applied argument, Not has this to the of trial rejected jury, Court, the United States been there fallacy. us which illustrates its evidence before indigent appeals municipal Where an defendant from conviction is, superior so, court, judges, court the custom of most if asked to do superior appoint defendant for the trial for the court. This orderly fashion, process be tried in an due is done so that case will likely accorded, and' time saved for be more to be will'be will city attorney jury. court, however, remedy, postconyiction does not eliminate the- This evils of counsel at from the denial level. which result trials, appeals superior court, de fór novo of the’ Studies made Municipal Court,- following’ Criminal conviction 'illustrate Seattle - ., , ,, clearly........ . University group Washington students from the of law gathered concerning ’operation some basic data tlie School of Law 'Municipál' prepared' -the Court 'and á División of Seáttle Criiríinál

181 supra, harmony Wilson, which Callan v. of with out was opinion contrary. of the But this court was held to the had guarantees the constitution of federal the that time that govern- solely powers of the federal on the are limitations Wainwright, supra, to later, decided held v. ment. Gideon supra, longer Bellingham contrary, no Hite, the authority proposition. for that Municipal Corpora- 1 quotation Dillon, from same Survey Regarding King County Report

paper the Need entitled year sample taken the the State. A from Counsel Provided statistical disposed per of in the court were that 78 cent cases 1964 showed Approximately per charges the de- 12 cent of based on of drunkeness. charged charged per cent those and about 30 drunkeness fendants with jail. Approximately one half with misdemeanors were sentenced other charged drunkeness, 11 per and about of one cent of the defendants represent crimes, per counsel other hire cent of those them. working study, A the Seattle- recent conducted volunteers King County Legal Center, appeals the taken from Services concerned municipal police in on court indicated that convictions based 1966.'It police charges municipal approximately appealed from the 390 were sample charges, per that court. Out of of 25 cent of these were closely only charges examined, This means two were drunkenness. police court, appealed approximately that of 390-odd cases the the from charges than drunkenness. were based other using startling Now, background, Of as a statistic is this: charges appealed, had hired were been defended municipal Thus, counsel in thirds of the in court. two cases which were charges, appealed, out or about 253 of 380 which were not drunkenness present municipal figures hired counsel been in court. cer- had These tainly municipal presence seem to of counsel indicate that tremendously important is a factor in the exercise story appeal. But there is more to the than this. charges appealed Of the 94 examined which were average appeal $925.' bond which was set was in excess of It should many charges, appealing noted so that defendants were several that posting appeal often a an bond of as much as defendant was faced with post $2,500, $5,000. and the amount at times reached To such bond require payment premium from would of' $250 $500. indigent jail Undoubtedly, defendant would have remain (cid:127) ... (cid:127) appeal. pending his this, appealed addition examination the cases County King -Superior interval Court there was an shows (cid:127) days- filing municipal approximately appeal between together, superior' court and thé‘ trial de in the court. Taken all novo indigent’ defendant, afford this means the man' who cannot prob'ably 'pay prosecution, also cannot (4th 1890), again § ex tions ed. rel. found State (1964), Towne, O’Brien v. 581, 64 392 P.2d 818 Wn.2d holding charged petty that traffic defendant, the of- with right fenses, was not denied constitutional his re- a when quest jury for a trial In that case, was refused. we also extensively quoted supra. Wilson, from Callan v. The rule recognized also McCaw, 345, was v. 198 347, State Wash. (1939), holding 444 88 P.2d that the where defendant was jury except by trial, entitled a he could not waive it plea guilty charge. or admission of the truth charged defendant in a misdemeanor, that case was contributing delinquency to the of a minor. answer to by (superseded § the Rem. 2309 contention that Rev. Stat. 10.01.060) providing that crimes must tried RCW be jury, applied only felonies, this court said: § § [P. 2253 statute, Stat., 8688],

Our Rem. Rev. C. defines as crimes all acts omissions forbidden law. given degree A different name is to each crime based punishment to be inflicted event con- gross Felonies, misdemeanors, viction. misdemeanors within, meaning are each denominated crimes that of the statute. section Every crime, defendant with a it whether be a

felony, gross misdemeanor, or misdemeanor, must be by jury in tried accordance mandate Rem. § petty Stat., Rev. 2309. There certain crimes and excepted minor offenses which are from the rule stated Kennan, rel. Belt in the statute. State ex v. 25 621, Wash. Wilson, 62; 540, Pac. v. 127 Callan 32 Ed. U.S. L. so, stay premium, poverty, jail his bond because of is forced to pending Thus, days his trial novo. he is de if sentenced to 90 or less in right appeal municipal court, little, his avails him for his sentence superior expire give Or, court can him will before the if relief. he is days, 90-day to more than 90 he is sentenced bound to serve at least though right even he to avail sentence seeks himself to trial de novo. prosecution crucial should indicate how This ,at indigent. level, is not If he afforded counsel that he will suffer postconviction injustice remedy, including right which no novo, This

trial de can correct. illustrates the soundness of the United ruling Wilson, Callan Court’s States U.S. 32 L. (1888), right 223, 8 it held Ed. S. Ct. 1301 when of trial original jurisdiction. jury in the court of must accorded (4th ecL), Municipal Corporations 1301; Ct. 1 Dillon’s S. (2d ed.), Municipal Corporations § 433; McQuillin, § 605, 1163. appears,

It a standard therefore, that there is existence determining crimes are what embraced within gives protection as it Sixth Amendment least insofar right by jury. cases have dis- to trial It is true “petty offenses” and “serious cussed difference between by jury, only of trial in connection with the crimes” traditionally at common law the is said that pun- against municipal corporations petty offenses could be by jury, no and mention is ished without benefit of traditionally, question whether, the defendant made of the appear by But had the counsel. the word “summa- rily” repeatedly in these discussions which we have is used quoted, it and I think reasonable assume that if such they petty do not the services offenses are so that warrant they protection jury defendant, also do for the of the attorney. require not of an the services accordingly, It for evident, is the offenses which the that right to is not must be confined to those counsel available petty. Ordinarily which are indeed it the nature of the severity offense determinative, which is not the penalty. penalty imposed petty But for a offense is if may crime,” too severe or if it not “fit the does be necessary validity penalty provide counsel or the may successfully majority fears that a attacked. If be rule as this will cause confusion in the courts of lim- such jurisdiction, the can ited answer is that such confusion be municipal legislative body makes certain that avoided if the defining petty offenses not include serious its ordinances do punishments prescribed. are offenses that excessive municipal majority complains are courts already other with cases of drunkenness and inundated may deplorable be, I condition minor offenses. However denying simply alleviated fail to see it can be how charged persons more serious offenses. pointed out, one criterion I have cited have the As cases determining petty in nature is its whether offense relation to the criminal law of the state: If the offense is made a crime punished statute, the fact that it is aás petty by municipality offense any does not make it opprobrium less serious. The which follows conviction just great. well as This is another consideration, whether prohibitum it is malum or malum in se. Another factor to consider petty is whether the offense was deemed and was punished summarily Using at common law. these criteria, it should not be too difficult court to deter- 'any-given mine, in case, whether the offenses sufficiently appointment serious warrant of counsel for indigent defendant.

Having arrived at this I conclusion, am confronted with the realization that we have two recent cases which are not harmony my alleged George view. The offense in v. Day, (1966), Wn.2d 420 P.2d 677 and also in Seattle (1966), Rohrer, Wn.2d 420 P.2d 687 was drunken driving. driving gross Drunken is defined as a misdemeanor by RCW 9.91.020.The offense, seriousness while it was not discussed, was nevertheless a factor in this court’s decision in Tacoma v. Heater, 67 Wn.2d 409 P.2d 867 (1966), holding that the defendant had been denied his just constitutional Yet, counsel. in the two cases petty cited, the same offense was held to be because the penalty jail did not exceed 6 months and a fine of $500. they driving

Insofar petty hold that drunken is a I respond- offense, would overrule them and hold having charged larceny ent, been with offenses of and con- tributing delinquency (which to the of a minor are crimes carry under the statutes this state and with them a being se), right guar- serious onus, malum in was denied a anteed the sixth amendment to the United States Con- (amendment 10) stitution and article section 22 of the Washington request appointment Constitution, when his of counsel refused. was appellant complains granted

The that the trial court the respondent’s appeal superior motion to an dismiss to the perfected, proceed court, which he had and allowed him to by way- of- The writ'of .review. writ of was, review respondent only way could obtain course, the question to counsel of the of his determination municipal court. authority proposition appellant for. the'

The cites no respondent improper. procedure It was followed any way by prejudiced in does not claim that it was- appeal. I in this fact of the dismissal of the see.no merit contention. judge regard suggestion had that the authority appoint adopt counsel,

no I the statement superior judge “Any said, who court which power try is a serious defendant who try power conformity crime, has the inherent him in power standards, with constitutional and this includes the appoint indigent an defendant.” judgment. I affirm would and concur in much all JJ. —We but not Hamilton,

Hill certainly line, dissent. We concur in last “I judgment.” would affirm the (dissenting) substantially J. concur in Justice

Finley, —I present compelled dissent; Rosellini’s I nevertheless, feel analysis as alternative to certain facets that dissent. In addition, I feel some critical comment relevant presented background must be foundation assumptions certain and conclusions in the ma- embraced j. jority by Hale, literary major- license, With some it be said that ity’s disposition painted bright appeal of this spritely dazzling colors with broad and brush strokes. scintillating. spectacular. blush, result is At first is almost spectaculars change But even can hues the creative arts and lose on close I lustre examination. am not disturbed vigor opinion. the color Justice Hale’s' I am con- by skips skips cerned and misses on misses canvas— by striking ápocalyptic not masked colors and dubious vi- justice Washing- sions chaos in the administration of ton. contrast, not rely the dissent Justice Rosellini does shock on

upon value. Its formulation rests solid ground— namely, ideals and our state and federal objectives con- constitutions, and in the rationally interpreted applied text of our crowded, modern industrial and urban complex, dissent, I find no no society. shaky premises irrepara- ble or in I certain flaws results. do design disagree I relies too heavily its focus. believe it aspects Frankly, real anachronistic There is a that legal danger concepts. for limiting the factors the dissent proposed by of legal the accidents upon would place emphasis history existing society. rather than the realities Before reasons lead me to have turning Rosel- certain reservations as to the factors which Justice lini has regard isolated emphasized appointment of counsel, I think it essential to stress two points first to Justice Hale’s That regard majority opinion. opinion for takes national estimate need publicly provided offenses, all counsel, inflates it traffic by including akin to caseload with resulting something points City the Seattle samples horror. Secondly, opinion criminal to establish the proposition Code’s ordinances the seriousness there is little between relationship ordi- maximum sentence prescribed offense and the nance. available sta- ignores

I the majority opinion believe creative of munic- discounts the ability tistics. It needlessly of mu- redesigning to inaugurate appropriate officers ipal ordinances. nicipal the need publicly available statistics

Readily place cases in King in misdemeanor counsel at provided offenses which imprison those traffic excluding County, drunkenness prosecu rarely ment imposed The number in the munici 10,562 cases tions, per year.12 con this case is Seattle, directly with which courts pal than Use of other sanctions cerned, 6,219 year.13 cases per Organize Association, Legal How Aid Defender National 12See 39-51, at 48 Office a Defender 13Ibid. pay against fines

imprisonment traffic unable to those 4,505 courts total in reduce the Seattle would figures represent per year.14 cases which The above cases liberty presently probability exists.15 of loss of a substantial penalties present of of scheme The effect revision repeated special offenses for create maximum sentences existing aggravated degrees recognition offenses produce speculative. further However, could some this figures. for short, In the actual need reduction of the above considerably publicly provided short counsel falls by attempt picture painted to meet Hale, Justice legal unlikely collapse of our to cause the that need system. existing punishments, equated require-

Given publicly provided apparent counsel, it is that our ment municipalities would be faced with a burden the latter greater suggested by figures, respect than the above particularly suggestions as to traffic offenses. Several reducing appropriate been made as to means of suggested given burden.16 It has been that consideration be probability imprisonment case-by-case to the actual on a defining publicly provided basis counsel. It suggested probability imprison- has also been that the offense, ment be considered as to each without attention to particular Finally, the circumstances of the defendant. suggestion legisla- has been made that the solution lies in a imprisonments tive revision of conform authorized existing sentencing practices. actual probability imprisonment” is not a desir-

“Substantial case-by-case application standard for on a able basis judges.17 applied If the same standard is individual on an 14 Ibid. study any per imprisonment. 15Defined as a 5 cent chance of Right Id., Junker, Cases, 40-41; to Counsel Misdemeanor infra, 685, (1968). 24, But Wash. L. Rev. 711 n. 137 see notes 23 and periods imprisonment may discussing possibility that short constitutionally permissible provision of without counsel. supra Junker, 16See 4 at note 703-15. Brady, 455, 1595, Betts v. 316 U.S. 86 L. Ed. 62 S. Ct. 1252 17Cf. Wainwright, (1942) 2d overruled Gideon v. 372 U.S. 9 L. Ed. 93 A.L.R.2d 733 S. Ct. aggra-

offense-by-offense problems First; basis, two arise. repeated counsel, vated or offenders are denied even though they may punishment receive the maximum instead punishment. application of an offense- Second, the usual by-offense courts standard amounts to an assertion that by customary privilege suspend have a enacted sen- law tencing practices.18 have the While courts some cases power judicial re- manner, this discretion to act in sound (cid:127) A more is to redraft strains its use. far sound solution punishments codes to remove reduce charges imposed, provide separate never aggravated many punishments cases, offenses. drafting existing to no more than revision would amount sentencing practices into the written law.19 crazy- adequately present Hale

Justice described the confusing regarding quilt pattern maximum authorized punishments for ordinance offenses. These ordinances legislatively simply attempt An accumulated over time. appropriate relationship define the maximum between the punishments legisla- However, authorized is overdue. against balancing providing tive task of of counsel the cost punishments beyond competence the authorized not is responsible They of officials. need do no more than reduce deprivation liberty the level of a of below substantial they maximum sentence offenses which consider to be significant minor. If such offenses are the source of not opprobrium, provision of counsel for not their would required. be judicial question of

It is a under the constitution this state and the constitution of the United whether States constitutionally required is of an not counsel at the trial given quantum imprisonment as- offense for which a generates significant sessed, conviction of which social 18Seenote 33 infra. supra Legal Defender-Association, 19See at 40-43. National Aid changes .bring merely law into con In addition to which written

formity sentencing,- open responsi present practice to-the with it is penalty legislative- for certain to reduce substantive- ble bodies n thereby any requirement -resulting offenses, negate from counsel penalty See text alone. infra. confusing legis- judicial opprobrium. In the course with providing questions coun- lative treatment the cost legislative majority opinion usurped func- sel, the has concerning responsibility tion, has denied the this States, United the constitutions this state and the duly queried competence has elected carry officials to out their duties in accord with the consti- guidelines tutional this court and established Su- preme Court United States. application of

Justice has novel Rosellini delineated the interpretation by majority rules of constitutional which topsy-turvy approach has resulted aforementioned posed the constitutional issue in the instant and he case, carefully correctly My that issue. disa- resolved greement his dissent or nature result reasoning publicly provided of his as to the coun- developed sel, but rather with the factors he has implementation right. test the further of that Affirmance of providing the trial court in counsel has the case potential impose significant burdens the administra- jurisdiction. Unquestionably, tion the courts of limited legis- alleviate burdens, these from immediate action local imperative guide- required. lative bodies would It is clearly lines for those bodies be refer- articulated and with objectives ence to actual social realities and involved. opinion,

As I read Justice Rosellini’s he considers three important concluding pro- factors need be (1) vided. Those factors is offense are: the denounced (2) the code; se; state criminal is the offense malum in (3) summarily punishable is the offense one which was not responses at common law. Affirmative to these factors favor right negative responsos the counsel; to to these factors constitutionally required. indicate counsel that is not weigh appropriately court must the factors and determine provided. if counsel must be “petty term, uses Rosellini the term offense.” The

Justice context, right discussing taken from the of-federal cases the 190

to Amendment, trial under the is of jury utility Sixth little terms the counsel.20 right publicly provided

The term has a in relation to acquired special significance different considerations very policy relating specifically case;21 trial. That is not our jury the instant the problem 20Analytieally, requires operation the instant case us to consider the upon guar of the Fourteenth the Amendment Sixth Amendment. The prosecutions by qualified antee of counsel in all criminal is a therefore right particular determination threshold that the to counsel in a class of prosecutions right. Wainwright, supra is a fundamental See Gideon v. balancing right process at 340-41. The which establishes that is right fundamental will balance each different interests as to enumer balancing process jury ated in the Sixth Amendment. The as to trial publicly provided not the same as that as to counsel. See supra Junker, at 704-07. Louisiana, 145, 491, Duncan v. 391 U.S. 2d Ct. 1444 20 L. Ed. S. (1968) jury simply that established trial for certain offenses was right. way supports fundamental It in no a statement the Sixth rights jury publicly provided Amendment trial applied by to the states Amendment. A coextensive the Fourteenth grammatical approach area has to constitutional construction Alabama, 45, 158, been Powell v. 287 U.S. 77 L. Ed. discredited since sufficiently (1932). apparent case, I S. Ct. 55 For reasons from that relating provision believe that of our state constitution by policy to counsel should receive a construction dictated current syntax. considerations as well as Louisiana, supra, 20, Supreme Duncan v. note Court held 21In jury guarantee applicable Illinois, trial Bloom v. 391 U.S. states. 194, 522, (1968), 2d Ct. held a 24-month state 20 L. Ed. 88 S. jury guarantee, contempt commitment criminal of the violative continuing contempts and crimes identification between criminal Schnackenberg, L. 86 S. 384 U.S. Ed. 2d made Cheff including Fortas, Cheff, justices, Justice Ct. In four proposition opinion Clark contained the acceded to the Justice contempt than 6 months need that a for criminal for less commitment contempt require jury (The offense court has as an trial. treated negligible.) proposition opprobrium but That was for which the longer converse, upon 18 U.S.C. 1. Its tressed reliance § require jury trial, of the was laid down as an exercise commitments supervisory power over the federal courts. 384 of the Court binding result, states. 6-month rule is not U.S. at 380. As a approving application rule to Duncan 6-month Dictum in majority joined Justice Fortas’ of the court. See states is not concurrence, 391 U.S. at 211. judicial confusion, light reliance above state extremely appears jury me to be the 6-month rule trial cases and confused rationale of the above to transfer dubious. For this court

191 counsel are of to trial and to right jury provided publicly for signifi- to classes defendants different importance Junker, 4 at 704-08. cantly different reasons. See note supra Justice solely Rosellini used the offense” “petty term for the result by reached purpose labelling weighing three to factors which I have referred. Clarity analy- sis would be enhanced with term. It by dispensing to there suffices is a class to which the say offenses provided right publicly counsel does not attach con- stitutional grounds.22

After careful consideration of the factors Justice which Rosellini has to ascertain the class of offenses to proposed which I right attaches, publicly provided disagree with his re- analysis significant the following spects. he relationship between three factors isolates and the for severity assessed penalty offense is clarified, nowhere elaborated and although that is of major relationship importance.23 I would with agree Justice Rosellini ordinance that an which purports punish an offense (1) denounced code, state criminal (2) se, as malum and (3) classifiable cases to new area without close attention to the interests involved compound would confusion. prosecutions” precedent, 22After a suitable accumulation “criminal (as that term is used the state constitution and is in the Sixth used applicable by Amendment made to the the Fourteenth states Amendment) by precedent can be defined reference to the accumulated regarding right publicly provided A definition counsel. similar regard precedent can be made reference to accumulated jury essentially same, trial. If those definitions will equate simplicity. then be time to them for of doctrinal reasons only meantime, In the this court can confuse the inadvert- law ently importing analogy jury policy considerations judicial system governed born in the federal adminis- different trative, fiscal, and other considerations. days example imprisonment period 23It is clear of 10 imposed by jury trial, be a state is “non- without if the offense petty” Dyke Taylor Implement for reasons than other the sentence. Mfg. Co., 538, Ct. U.S. L. Ed. 2d S. Whether 10-day permissible counsel, when rather than confinement would jury supra trial, denied, had note been raises referred to at issues interests note discussed infra. punishable summarily at common an of- law describes fense to which the constitutional to counsel should opprobrium attach. The attendant conviction such may significant major deprivation an offense as be as a of liberty. descriptive Moreover, on basis, Justice Rosellini’s analysis generally would be for I accurate believe that an experienced judge unconsciously weigh would the fac- suggested by tors appro- Justice Rosellini to arrive at the priate majority solution in the However, of cases. in terms guidance legislative of to bodies and a conscious articula- governing tion of the values, issues and the dissent has significant shortcomings., specific proposed by

I turn now to the factors Justice Rosellini. His first factor refers to the state criminal code. It grant charged will favor a of counsel in the case of felonies by prosecutors appropriately using as misdemeanors the charge disorderly specific device of a of or a more conduct grant ordinance violation. It will also favor a of counsel'in public enough the case of welfare offenses serious subject.of legislation.24 been the state viz., factor, His second is the offense malum in se, incor- extremely porates body of confused law.25it directs at- 24Reference to the criminal state code could be a source of confusion regard. public imposition welfare offenses. The of or strict liability great the-prosecuting criminal vicarious commits discretion may. reasonably expect that, punishable official. One certain offenses regardless may by prosecutorial of the mens rea involved be dealt with rea, of discretion exercised on the basis mens factual intent of repeated statute, and whether or not offenses are involved. policy If substantial exist between differences the enforcement statutory penalty, prosecution under an ordinance modeled on the exacting penalty statute but which does not itself entail a of require provided. not counsel should that counsel The state penalties provide retain desire to severe counsel for offenses as to contrary municipalities desire to take a which course. prevents recognition This court should not construct a rule prosecuted factual difference seriousness between those offenses long prosecuted ordinances, and those under local so as under state law penalty substantially maximum the ordinance de- under does not carry prive liberty and conviction with it the defendant does ' opprobrium. substantial Perkins, 11-.12, 25See R. Criminal Law 692-710 As exam ^n antiquity, ple excursion into of the difficulties raised tentiqn matters, it does so the wrong but proper manner. It would favor a .grant most felonies lesser, misdemeanors, and for degrees more traditional crimes.26 Under the classic interpretation, it would counsel for deny offenses, narcotics spite social offenses seriousness and the severe penalties these provided by law.27

The third factor me seems to If the totally misleading. offense was common law, unknown at this factor is of no If help.28 the offense was law, known at common the reasons City offense denounced in Seattle Code 12.11.175 malum in se? § owners; operators managers, public places ordinance forbids or beverages sold,, served, where alcoholic or consumed know- from ingly permitting causing “topless” go-go or therein a or “bottomless” performance. Regárdless morality, of our own Victorian standards general power judges punish corruption of common law inquiry morals, essentially spurious. attempting The difficulties involved to apply the malum in prohibitum dichotomy existing exemplified to law se/malum are Perkins, Offense, The (1952). Ought Civil 100 U. Pa. L. Rev.' 832 we appointment charge conclude that of counsel on a of violation of Seattle City (possession narcotics) upon Code 17.04.030 § of turns the existence comparable spite a provision, state criminal of the absence of both import present (RCW other 69.33.410) (fel- factors? Of what are the ony) proposed (gross misdemeanor) and punishment provisions? state At common law all felonies were malum in se. inquire It required would be far more useful to into the mens rea conviction, doing for and then ask if the forbidden áct with the' requisite reputation. intent would lead to a substantial loss This dispenses spurious inquiry, with a historical and focuses on the real Grosser, issue. (3d 1964) discussing W. Torts 773-74 ed. § Cf. “major disgrace” per social with relation to slander se. 26E.g., degree,' 9.11.030; petty larceny, assault in the third RCW RCW 9.54.090. Whether it would to favor counsel as such offenses lewdness, 9.79.120, as liberties, 9.79.080, or indecent RCW RCW disre garding penalty provisions, entirely for the moment is not clear. Williams, 69, 83, See (1961); Perkins, G. Criminal Law 189-90 R. §§ supra accompanying. note at 698 n.31 and text 69.33.4Í0; City 17.04.110, 17.08.060,

27RCW Seattle Code 17.12.030. §§ only 28Most welfare offenses can be considered as known at by application analogy common law not favored as to —which statutory result, criminal statutes. As a found offenses to be unknown prohibita. at common law will be modern mala The factor is somewhat duplicative applied second factor when but denies counsel for wholly large reasons which are fortuitous'as toa class of offenses. only many why summarily punishable are in cases was antiquarian cases, concern.29 some those reasons express policies utterly are at variance with social reasons.30 our own or are unenforceable constitutional Obviously England. Just we do live in Tudor or Stuart obviously present this court should concern itself with day punishable If an realities. offense is to declared be justified counsel, should without decision existing peculiarities of social on conditions—not society. Tudor or Stuart language

The of the state and federal constitutions prosecutions.31 speaks provisions of criminal with which rights in we are concerned are enumerations of individual prosecutions. appears provisions such to me these It designed safeguard prosecutions jeopard- what such liberty reputation and that a decision as to what ize— is —and prosecution purposes or is not a criminal these safeguards ought significant deprivation turn liberty injury reputation.32 analysis punish first direct itself to

Such would following summary preaching, 29As the cases of the offenses: religion having dissenting allegiance, taken the oath of ad without prophesy false of fond fanatical or the disturbance vancement grass. realm, motherhood, and of bent See unmarried destruction Petty Corcoran, Federal and Constitu Frankfurter Offenses Guaranty by Jury, Rev. tional Trial Harv. L. I, respectively Charles law statutes concerned date from The common George I, I, II. Elizabeth James summarily England 30Vagrancy punishable the like were both supra Corcoran, 29: Frankfurter note America. See and colonial vagueness for their and the wide discretion offenses are notorious These enforcing Comment, Constitutional Attacks officer. See vested the (1968); LaFave, Vagrancy Laws, Rev. 782 Arrest 20 Stanford L. W. Vagrants, Rogues Vagabonds (1965); Sherry, 87-88, 354-55 —Old Revision, Concepts Calif. L. 557 Rev. in Need of Const, prosecutions, accused “In amend. 6: all criminal 31U.S. for his enjoy of counsel . have assistance to . . shall defense.” Const, prosecutions 1, the accused shall 22: “In criminal art. § by person, counsel, appear . . .” defend supra Schnackenberg, (Douglas, J., dissent 32See v. note Cheff ing). ment which conviction —the author maybe imposed upon ized maximum This sentence. measures the clearly threat of a direct and substantial of In deprivation liberty.33 event that the punishment authorized does not involve substantial deprivation the mens rea liberty,34 requisite for conviction should be considered to if ascertain adverse social attach to a consequences determination that the ac cused possesses that state mind.35 If such adverse conse- imprisonment case-by- 33Use of an actual threat of standard aon judges obviously inappropriate. case basis individual Betts v. Cf. Brady, supra customary note sentencing 17. Use of a standard based on practices offense-by-offense usurps legislative on an basis decision appropriate punishment. legislative as to the maximum If bodies desire punished manner, that certain offenses be certain the constitutional consequence, viz., right publicly provided counsel, must be faced. sentencing pleasure Judicial legisla discretion in survives at the mandatory ture which could create for sentences all It offenses. would customary be sentencing an abuse practice of that discretion to create a contrary legislatively specified which was purpose sentences for the evading constitutional issues. yet, offense-by-offense deny Worse standard would imprisonment some offenders whom substantial would in be fact imposed. 34Dyke Taylor Implement Mfg. Co., 216, v. 538, 391 U.S. 20 L. Ed. 2d (1968) (7-2) jury purposes S. Ct. 1472 held that for a sentence days jail imposed of 10 and a fine of in state court was $50 punishment petty appears of a offense. dictum the court to consider similarly “petty.” regard a 6-month commitment In this it should supra Schnackenberg, recalled that both this case and note Cheff contempt. dealt with criminal period days produce As confinement for a is certain to over employer relations, adverse results with an and disturbance of familial I am inclined to believe that on a realistic a confinement basis such represents point liberty deprivation at which a substantial clearly begins. grounds holding, There well be for as would Dyke, supra, beginning point dissenters that is with some lesser quantum imprisonment. Project See ABA on Minimum Standards Providing Justice, (Tent. 1967) Criminal 4.1 Draft Services § Defense thereto, arguing appointment pro- and comment in “all criminal ceedings punishable liberty, except types for offenses loss those punishment likely imposed.” offenses for which such is not to be (Italics mine.) quite exception The comment makes it clear case-by-case offenses, approach. relates to a classification not on a eminently reasonable, I While find such classification I believe questions making legisla- raised in the course of in essence supra. accompanying text, tive. See note note 19 and and note 35E.g., larceny. the mens rea of

196 consid- attach,36 do not reus should quences actus be ered, if did ascertain a determination the accused ' act social forbidden carries with adverse consequences.37 ' realistic en- Such a of what criminal prosecution view tails subject charge should not this court to a of usurpation of power.

It be of a recognition must admitted that in these cases will could be involve That expense. expense borne an associa- by members the bar as individually bodies, tion, or for provided legislative be appropriate justice mak- Hale has dwelt as involved expense the issue before us one for the I ing agree must legislature. compensation that the manner in is to be provided for the but whether counsel is to legislature; be .publicly the constitution is under provided unequivocally question for government.38 branch of Justice Rosellini judicial 36E.g., rea,” or, properly speaking, thereof, “mens more absence comprised associated conviction violation of the third offense prohibition (negligent within the three-fold of RCW 46.61.520 homicide by operation disregard safety others), viz., ob of vehicle with jective negligence. Eike, P.2d State v. criminal See 72 Wn.2d my (1967) and dissent thereto. easily among examples can crimes of strict Other be found drug liability, the most of which the food acts are vicarious obvious. 37Usually opprobrium the crime derives the mens rea of social from general specific public criminal But some welfare —from intent. overwhelming impact to create offenses so their as are examples, regardless outrage, of mind. As the defendant’s state (De Morinaga milk and the scandal. consider the thalidomide scandal Liability Transactions, Cosway, in Sales Products

scribed in Niibori (1967).) The circumstances such 487-89 L. Rev. Wash. usually usually indigent prosecuted are not defendants bearing penalties jurisdiction general serious for offenses courts of occurring indigents analogous us to an should situation not blind bearing punishments. lesser for offenses legislature regard, labor the same does under 38In this appears 10.01.110 have baffled Hale. Justice RCW confusion which following:, adding was amended in the session proceed- also,apply Provided, to such other That this section shall constitutionally, required. ings other be and at such time 1965,,ch. .1. Laws of § blush, appear than do. no would at first

The amendment more. require precedential has detailed the considerations which that the I his decision below affirmed. am in accord with interpretation constitutionally required Be- decision. require cause the result the constitution dictated would judges jurisdiction of courts of confront a limited to complex problem, attempted novel and I have to isolate guidelines relevant for their consideration. I do not mean by critique extended the factors Justice discussed express any way disagreement Rosellini to with that portion opinion of his which establishes the constitutional reasons which the decision must below be affirmed. Apart appears unnecessary from what to me an identifica- “petty jury purposes tion of offenses” for with the provision class of offenses in which the of counsel is not constitutionally required, fully I am in accord his reasoning right publicly as provided to the source of the to counsel.39 summary, right publicly

In provided to counsel in this case arises from the circumstance that the defendant deprivation was faced liberty upon with a substantial significant conviction. A opprobrium threat social result- ing from conviction right would have also caused the to right arise. The operation doctrinal source of is the against Fourteenth Amendment, which secures state interference those Rights liberties mentioned in the Bill of anticipate Arizona, the result 436, of Miranda v. 384 U.S. 16 L. Ed. 2d 1602, (1966), 86 S. Ct. 10 A.L.R.3d 974 which was then on certiorari before However, the United States Court. it should Heater, also be recalled that Tacoma v. 67 Wn.2d 409 P.2d 867 (1966) appeal; was before this court on and that the reach of the decision Gideon was a speculation. Junker, supra matter of See note 4 at 690-91. ' circumstances, legislature clearly In these deferred to this authority granting open-ended authority court’s constitutional appoint very in, least, stages felony counsel at the proceeding, all of a provided compensation. their 39"As to the doctrinal considerations which dictate that the federal precedent “petty concept presently to the as offense” does riot bind this court, policy weigh against according and the considerations which precedent persuasive delimiting right, effect in the reach of the instant supra. 20, 21, see notes balancing rights. of interests The

which are fundamental Rights right appearing in the Bill if a which determines right, protected interference, is from state is a fundamental my judgment, judicial function under the constitution. a- ought mis- never masked a function which to be it is length leading analogies. specified results I analogy existing application Justice of the drawn law misleading respects. I consider some Rosellini, which right— analogy scope of of the weakness nothing concept “petty to do whatever offense” —has argument. argu- That Rosellini’s the rest Justice analyzed appropriately the interests and ment balanced provided publicly legal counsel. As a basis greater part con- of this concurrence been result, the limiting analysis the factors weaknesses fined to proposed by provided publicly Justice analysis limit of an alternative Rosellini, discussion attempt point right, scope out that and to an of the upon misplaced emphasis majority its cost. liberty begins sensitive of ordered The defense A implementation of the constitution. of the text rational justice, tag democracy place price on criminal cannot spirit of American consti- letter and abandons the do so ought government. remember that civil dis- We tutional ought forget early injustice. that We order feeds necessary Anglo-American history culture was sell, none “to will we armed rebellion to establish delay, right justice.”40 deny to none will we ringing pronouncement implementation of that The society just rule a self-in- between the difference perfect society in our own is less than fraction of terested Report on the Causes and Commission of the See time. and Violence Wash- Disorder, Race of Civil Prevention have, opportunity, judges ington we As State appro- responsibility for constitutional power, making. priate decision negabimus, aut vendemus, rectum aut nulll 40“Nulli differemus

justiciam.” Magna Carta. over- long decision court below significant due. It should affirmed. Department 39566. One. June

[No. 1969.] v. R. J. Lind et Appellant, al., Respondents.* Henry, Lavine Alec Duff, for appellant.

Guttormsen, Scholfield, & Frank D. Ager, Willits Howard and K. Douglas Haughton, respondents. J. This case seems to prove old saying

Hale, ¡drew actions louder than speak words. Although parties their own contract and now as to its disagree meaning, they did act on it and look we to their conduct to ascertain their intentions. and Lavine

Harvey sold their Henry small advertising defendants, business and their home to the Reuben Lind, Mary wife, husband and on a written agreement pre- pared by Mr. Henry. typewritten contract said part

*Reported in 455 P.2d 927.

Case Details

Case Name: Hendrix v. City of Seattle

Court Name: Washington Supreme Court

Date Published: Jun 5, 1969

Citation: 456 P.2d 696

Docket Number: 39357

Court Abbreviation: Wash.