*1 Petitioner, v. Wis- County, ex rel. Milwaukee State others, Justice, on Criminal consin Council Respondents. Argued April 12, 1976.
No. 75-584. Decided June 485.) reported (Also 2d in 243 N. W. *2 petitioner by For the there were briefs Robert P. Rus- sell, corporation George counsel, Rice, deputy E. and corporation counsel, argument by and oral Mr. Rice. respondents argued
For the by the cause was Robert RepasJcy, D. attorney general, assistant with whom on the brief attorney general, were Bronson Follette, G. La Lee, Alan M. attorney general. assistant by
Briefs amicus curiae were filed Howard B. Eisen- berg, public defender, state Defender; for Public State by Patrick Milwaukee, J. Devitt of De- Wisconsin Association; by fender Kelly, Walter F. chairperson, Criminal Committee, Justice with Kessler, Joan presi- dent, Stephen Glynn, member executive committee and executive committee liaison to the Criminal Justice Committee, on behalf of the Milwaukee Junior Association; Bar by Nancy Goldberg E. and Marshall Hartman, J. Legal National Aid and Defender Associa- Chicago, Illinois, tion of support respondents. Connor T. county, J. petitioner Milwaukee Hansen, (hereinafter county), rights seeks declaration of be- parties regarding tween the certain devel- oped by the Wisconsin Council on Justice, Criminal respondent (hereinafter WCCJ), indigent defendants in criminal cases. application county for funds program for this was denied the WCCJ.
The action was commenced when filed petition for a writ of certiorari with this court. We granted pre- However, appears the issues the writ. declaratory appropriately addressed as sented are more Therefore, judgment proceeding. of certiorari the writ proceeding an to be is dismissed and we consider this original declaratory judgment. action for
It the execu- is conceded that the is an arm of WCCJ government by executive tive branch of the state created 16.54, governor pursuant order of the to sec. Stats. planning agency required the Omnibus the state 42 U. Code 3701 Act, Crime Control and S. Safe Streets (hereinafter funds Act). administers The WCCJ Enforcement made to the state the Law available LEAA), pro- (hereinafter Assistance as Administration vided in the Act. adopted provid- comprehensive WCCJ
ing indigents 1973, defender for which was services program identified as 19 and entitled “Defender Serv- by LEAA, plan approved The 42 ices.” U. S. Code was 3733, approved, not disburse and once so could the WCCJ subgrant county applicants funds to their like the unless applications plan. conformed the state plan
Briefly, populous counties, as the relates to and provided public it the local defender should have indigent primary responsibility representing de- the ap- fendants, necessity specific judicial without the aof cases, pointment every percent case. In about 25 however, private provided counsel should was indigent represent appoint- defendants. The method private counsel was to be as ment follows: involved, private public bar “In order that the the empowered appoint private defender should be appointments on a basis should be made rotational Such listing willing private from a of the members of the bar approved by participate. The list should be the coun- to ty’s the juvenile court to ensure that criminal and attorneys competent to on it are handle and criminal juvenile cases.” 240 23, were plan plan, program
The 1973 and the 1974 25, substantially program plan, the The 1975 same. The plans to extent. modified the and some 1973 1974 judge ultimate result of the modifications were list, but lawyer could not on rotational make his plan provided must such event the Regardless of doing reasons for record. so a matter of modification, dispute and the remains basic county from has not received a under these the WCCJ. subgrant county application,
The submitted appli- program plan, 19. The funds comprehensive plan and cation did not conform to the WCCJ, was denied executive committee of county pursued appellate procedure The re- then quired by (8) (a) sec. 42 S. established U. Code 3733 governor hearing appointed ex- the WCCJ. The appeal aminer make to hear the recommendations. upholding examiner the denial recommended county’s application. executive committee of governor denied followed these recommendations county’s appeal. county presented then county matter to LEAA. The advised that the state was Act, purposes conformed to aims and and “If has State law been violated the Governor’s action, appear appropriate that an forum in would considering the State could be found for the issues.” The matter is before this court for now resolution. The subgrant application has been denied *4 appeal from county and no taken these denials. The However, case, raises a of issues. as number we view the dispositive issue is a determination of whether plans WCCJ counsel indigent complies with, in criminal cases defendants existing contrary to, law, specifically state sec. 970.- (6), conclude Stats. We that of the WCCJ and invalid therefor contrary to the law requirements on impose invalid cannot that WCCJ receiving subgrantee funds. as a condition Stats., (6), arose, dispute sec. 970.02 At the time this provided: “(6) judge where in all cases shall appoint counsel constitution
the U. orS. Wisconsin employ financially unable to who are defendants unless courts judges of appearance. The waived, at initial proce- county shall establish of record in each county; in dures for . county having population of any except . in . 500,000 court, any case not triable or more initially defendant whom before court appears county to the circuit the case shall transfer assign the criminal it to one of and the clerk shall ap- counties, an initial In of that court. such branches may A determina- pearance circuit court. be before financially able to tion of whether the defendant made, employ thereupon and counsel counsel shall appointed, county fendant necessary, remanded to if and the case preliminary de- court for a examination. The may preliminary the case examination and waive added.) (. . . for such waiver.” need not be remanded July 30, 1975, published 39, 709m, Laws of Ch. deleting Stats., by 1975, (6), amended sec. 970.02 following above-quoted portion thereof ... statute. language unam this statute is clear and language
biguous. statutory clear and unam When biguous permitted, judicial rules of construction are legis the court must arrive at the intention language giving ordinary accepted its lature meaning. Recht-Goldin-Siegel Dept. v. Const. Revenue 306, 2d “It (1974), 64 2d 219 N. W. Wis. statutory apply impermissible to rules of construction to legislation legislative intent when the is clear ascertain Surety Honeywell, Casualty Inc. v. face,” Aetna & on its *5 242 425, 429, 2d (1971),
Co. 2d N. 499. 52 190 W. Wis. course, by cannot, “. . . construction We of liberal something change wording the of a mean statute to legislature by plain which was not intended the the language Research, v. Inc. used.” Lukaszewicz Concrete (1969), 335, 342, 168 2d Wis. 2d N. W. 581. popular import the reasonable of furnishes words general interpretation public of rule laws construing liberty the court at statute not disregard plain A. clear of statute. O. words Corp. Department (1969), Smith v. Revenue 43 Wis. of 429, 168 2d 2d N. W. says The statute here under consideration shall in all cases counsel and that procedures of courts of record shall establish county. of counsel in This is unambiguous legislative clear and statement of intent. way language see We no which the can statute permit be construed to authorize or the executive branch government impose or sanctions conditions upon judiciary statutorily in the of this exercise obligation. created place various the WCCJ conditions
precedent subgrants receipt on to the which are inconsistent with and not authorized (6), They are, therefore, 970.02 Stats. invalid because say violate the statutes. We believe reasonable hearing opinion officer was the plans imposed conditions exercise judges. He chose to describe condi accountability” by tions as “a mild form of judges. Assuming description such of the conditions to be correct, do, which we simply language do there is give which statute would the WCCJ such author ity. county’s is not of whether the applica tions are inconsistent with the mandates WCCJ state *6 plans. plans It violative of whether by adherence, they require sub- law in that in sub- applicants, results the absence which argued consequences. It also stantial adverse personal require involvement statute does direct judge for each appointment in counsel requires the not; course, case. it individual Of does judges appointment of procedures to establish any support inference that It does not delegate extralegislatively au- can be to thority any particular plan in their establish- adopt or to procedures appointment of counsel. ment of for the rel. parties ex Fitas Both direct our attention State County 130, 221 (1974), v. 2d W. Milwaukee N. Wis. support position. find the case 2d in of their We presented of little Fitas assistance to WCCJ. necessary that counsel be a situation where we found ap- appointed. statutory provision for There was no present. pointment of in there counsel the situation was, therefore, upon incumbent this court to establish desig- procedure appointment and we doing so, it public nated In the state defender. was page stated at 133: in “We find clear-cut delineation the statutes any respect parties in
the duties of hereto appointment compensation of counsel.” continuing page at 134: conclude, difficulty, without “We ought aegis of of to be made or under system. judicial . . .” governor respondent brief, in deci- its his hearing officer, appeal, and the direct sion consider- philosophic policy able attention reasons statutory supporting the versus the WCCJ legislature. method of established Also the National amicus curiae have filed briefs been Legal Association, De- Aid and Defender the Wisconsin defender, public fender all Association and the state generally espousing supporting the policy reasons plans. addition, ABA In to the WCCJ are referred we Study report Standards and Committee of the Citizens Organization governor. report on Judicial to the its arguments legis- policy to the .These are best advanced lature. The court resolution of the before this does issue upon policy, not rest rather the establishment of but application expression of a statute. make no We legislature opinion modify toas whether the should *7 change procedure appointment provided by of sec. (8), public 970.02 Stats. state on a de- Whether program promulgated fender can be that will accommo- existing date LEEA both and the state statute is not province within the of court this to determine. plans
Since we reach the conclusion that the state are contrary statutory law, unnecessary to state questions reach the county. constitutional raised go adoption to the effect of the prece- These of conditions duty dent and the constitutional basis for the of judiciary Only if the did not statute present. exist However, would such consideration be legislature exist. Had does enacted a measure whereby duty responsibility placed were in person agency judiciary, some or other than the then it necessary would be to determine the constitutional issue whether, statute, duty absence of is ex- legislature go clusive. This beyond has not done. To statutory language, then, to the constitutional con- siderations, questions would be to actually address not presented here. alleged departure
Discussion of the of the WCCJ from plans approving in its own submitted other
245 in view Outagamie) not (i.e., is also counties Furthermore, of the issue of our resolution conclusion. per- plan is departure the effect from agency. also It is haps determined the federal best acted necessary us whether WCCJ to determine application denying arbitrarily capriciously subgrant. for a adjudg- granted By Declaratory judgment the Court. — ing (1974), program (1973), program 23 program Crim- (1975) of the Council Wisconsin public setting plans for comprehensive inal Justice forth Stats., contrary (6), defender to sec. services 970.02 and, therefore, invalid. majority opinion (dissenting). J.
Heffernan, programs voids the Council Criminal Wisconsin ground a matter Justice on is erroneous as which law. holding majority opinion that the Wiscon- program be- is invalid
sin Council on Criminal Justice Stats., (6), cause it with 970.02 which conflicts majority judiciary the exclusive contends vests indigent power defendants. of counsel majority states: way language in which “We see no the statute permit can construed the executive authorize *8 government judiciary impose branch of the tions created or sanc- conditions statutorily upon in the exercise of this obligation.” majority The asserts that on Wisconsin Council authority impose Criminal is without Justice its own regarding appointment upon of counsel judiciary, judiciary required because the cannot “to adopt any particular plan in pro- their establishment of for cedures of counsel.” holding understanding This demonstrates a lack of of Council the nature on Justice Wisconsin Criminal and of this case. The Council facts Wisconsin mandatory imposing Criminal Justice is not conditions upon judiciary judiciary’s ad- exercise statutory power mitted state imposing Council Justice is Wisconsin on Criminal upon receipt conditions of a federal Act, Omnibus Control Crime and Safe Streets as explicitly requires. USCA, Act secs. 3733 and 3734. ignored by This difference is fundamental. Yet majority. county requirement any There is no judiciary apply funds; these federal but when county judiciary voluntarily to seek these federal chooses funds, done, county judges as Milwaukee and its have comply must with the conditions established Wisconsin Council on Criminal Justice. Wisconsin extralegis- Council programs on Criminal are not Justice Iative law, they enactments because have general applicability any They federally kind. re- quired apply only party which conditions when a chooses subgrant to become applicant. a federal question simply here whether Milwaukee coun- ty taxpayers its wish Wisconsin to assume the burden annually of over one million dollars constitutionally whether government wish secure such funds from the federal matching
and state applicant funds. If the funds, to secure accept these it must the conditions of grant program. Obviously, expect, we would not permit, nor would we judiciary Milwaukee or the of Milwaukee laws, to violate state purpose relieving even for the taxpayers the local or state paying the burden of constitutionally required counsel.
Thus, government is not whether the agency, an executive Wisconsin Council on Criminal Justice, legislating judiciary it is not— —for *9 present permits 'the utilization law but whether grant conditions. the offered under the funds judges majority that the opinion purports hold The to they obliged contrary to statute were would be to act to grant In operate an effort to the conditions. majority support patently position, its untenable majority states: facts in the record. assumes not require argued does “It also that not is the statute ap- judge in the personal direct and involvement of course, pointment case. Of for each individual counsel not; requires judges procedures to establish it does for the any support appointment not of counsel. does required extra-legislatively judges that can be inference particular plan delegate adopt any authority to that or to procedures in their establishment (Emphasis supplied.) counsel” record, contrary it as- This statement “required plan judges that the sumes trial under the are delegate” appointments of authority their to make adopt required they and it assumes are “procedures.” (1) Under statement for two reasons: incorrect only potential plan placed all on list judges, (2) no approval
with there any requirement judges anything adopt do May procedure question judges whatsoever. is: proposed acquiesce in under state wish law if judiciary do conditions? The anything phrase if it want To does not to. differently: May on own the Milwaukee their agree plan procedures? and its volition to the nothing Clearly they There is incon- can. plan, attorney is with the statute. Under the sistent panel ap- judicial placed without plan provides private list of proval. The at- torneys “approved county’s must be utilized *10 the juvenile judges criminal tliat to ensure court attorneys competent on criminal and it are to handle juvenile cases.”
Thus, by provision upon the the the relied of statute majority, judge . . . “The shall in all cases counsel,” by attorneys Only appointed is satisfied. those judges permitted the to serve. ignored
The completely second ma- the jority, importance, is which is of considerable procedure whether the counsel for the is within the limits of law.
From statute, apparent the the face that legislature wished, judges might, they intended that if practice appointing deviate from the ad hoc counsel legislature for each individual defendant. The stated judges procedures appoint- “shall establish for the provision ment of counsel.” This of the statutes indeed gives judges right of Milwaukee to ini- procedure might procedure they tiate or to veto con- gives unacceptable, right sider but it also them ratify accept procedure for the grant. proposed counsel set in forth As I view (6), Stats., then, 970.02 judges right retain the to ini- tially “appoint” only placing lawyers counsel of their right choice on panel. plan. This is untouched sequential lawyers particular utilization of in procedure cases judges which the of Milwaukee county may adopt they wish, if but an individual may also, plan, lawyer decline to utilize the sequence next if he considers inappropriate particular Judges case. preroga- thus retain the reject tive
True, plan requires summary explain- statement ing sequence. the deviation from the This appear does not an be onerous judges condition. Some trial have objected to this might condition because fear competency unfairly reputation on hurt or reflect lawyers. exemplary, inexperienced, otherwise but under- respect judges in this position trial of these reason subjective may well a valid standable and nothing reject plan. But impel would them to illegal procedure under Wiscon- statutes would make that sin law. illegal. nothing judges
Thus, plan requires to do the law dependent, approval of this willingness the Milwaukee Wisconsin, but on the the re- They accept apparently feel it. *11 objectionable, to quirements personally are onerous a million to over opportunity secure the extent that financing al- operations is to be of court dollars given away. to them slip to This is choice lowed plan’s may, they wish, decline the They if statutes. independence in procedure in to retain individual order yield up than to appointment of rather organized duty procedure of the entire an in favor of law to make But not local bench. nothing illegal plan. about the that choice. There is county and the Milwaukee Milwaukee It is the choice of forego oppor- reject and to approximately million dollars tunity one to secure community. funds federal state complies present proposed plan with I that the conclude declaratory judgment so issue the law and would holding.1 foregone opportunity to belabor the obvious— have We legislative expression (6), Stats., of a is not
sec. 970.02 power judiciary to It is exclusive duty legislative expression court’s under constitution by appointing other protect when one a defendant defendant’s friends others. made available wise constitutionally important. A court right have counsel “right” appointment, to make an and no no constitutional has right appointments apparent to make exclusive (6). 970.02
I am authorized to state that Mr. Chief Beil- Justice joins in this dissent. fuss
Day, J., part. took no City others, Appellants, Washington, Town of v. another, Altoona, Respondents.† Argued May 4, No. 75-10. 1976. Decided June (Also reported 404.) in 243 N. W. 2d *12 rehearing denied, costs, August Motion for without †