Respondents Brief — Argersinger v. Hamlin

—- see cla ; FiLe&n

SEP 7 197

E, ROBERT SEAVER, C

IN THE

Supreme Court of the United

OCTOBER TERM, 1971

No. 70-5015 (5798)

JON RICHARD ARGERSINGER,

Petitioner,

-vs-

RAYMOND HAMLIN,

Respondent.

On Writ of Certiorari to the.

Supreme Court of Florida

BRIEF OF RESPONDENT

ROBERT L. SHEVIN

Attorney General

RAYMOND L. MARKY GEORGE R. GEORGIEFF

Assistant Attorneys General

~

Counsel for Respondent

~

The following States, by their respec-

tive Attorneys General, wish to join in

the views expressed herein:

STATE

Arizona

Georgia

Idaho

Louisiana

Maine

Montana

Nevada

North Carolina

North Dakota

South Carolina

ATTORNEY GENERAL

Gary K. Nelson

Arthur K. Bolton

W. Anthony Park

Jack P. F. Gremillion

James S. Erwin

Robert L. Woodahl

Robert List

Robert Morgan

Helgi Johanneson

Daniel R. McLeod

TOPICAL INDEX

OPINION BELOW

-JURISDICTION

QUESTION PRESENTETr

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

CERTIFICATE OF SERVICE

22

23

TABLE OF CITATIONS

Alvis v. Kimbrough,

5th Cir. 1971, F.2d ;

Opinion filed July 8, 971,

not yet reported

Baldwin v. New York,

399 U.S. 66 (1970)

Beck v. Winters,

8th Cir. 1969, 407 F.2d 125

Boykin v. Alabama,

395 U.S. 238 (1969)

Brinson v. State,

S.D. Fla. 1967, 273 F.Supp 840

Burrage v. Superior Court,

Ariz. 1969, 459 P.2d 313

Cableton v. State,

Ark. 1967, 420 S.W.2d 534

: Cardinale vi. LAs;

399 U.S. 437 (1969)

Duncan v. Louisiana,

391 U.S. 145 (1968)

Fish v. State,

Fla. 1964, 159 So.2d 866

Gideon v. Wainwright,

372 Us6:z. “335° (1.963)

5,10

10

10

20

Ls

iy 2e

TABLE OF CITATIONS (Cont'd)

Page

Goldberg v. Kelly, 21

379 U.S. 254 (1970)

Harvey v. State of Mississippi 11

5th Cir. 1965, 340 F.2d 263

Hendrix v. City of Seattle, 10

Wash. 1969, 456 Pl2d 696

Hortencio v. Fillis, 10

Utah 1970, 475 P.2d 1011

In Re Gault 17,21

387 U.S. 1 (1967)-

James v. Headley, LZ

5th Cir. 1969, 410 F.2d 325

LaClair v. U.S., 22

7th Cir. 1967, 372 F.2s. 486

MacDonnel v. Commonwealth, 10,17

Mass. 1967, 230 N.E.2d 821

Newell v. State, 10,14

Me. 1971." 277: Av2za 731i

Powell v. Alabama, 17

287 U.S. 45 (1932)

Queor v. Lee, za

oer Cir. 1967. 382 Fo2da- 1017

Roach v. Bennett, 22 “

Stn Cis. 1968,°-392 F. 2a 743

-1ii-

TABLE OF CITATIONS (Cont'd)

Page

Sandes v. United States, 21

373 U.S. 1 (1963)

State v. DeJoseph, 10,17

Conn.App. 1966, 222 A.2d 752

cert. den. 385 U.S. 982

State v. State Dept. of Health 10,17

and Social Services,

Wis. 1968, 155 N.W.2d 549

Tate v. Short, ll

401 U.S. 495 (1971)

Wall v. Purdy, 10,13

| S.D.Fla. 1971, 321 F.Supp 367

Williams v. Illinois, . 22

399 U.S. 235 (1970)

Winters v. Beck, 10,17

D.C.Ark. 1968, 281 F.Supp 793

Wooley v. Jacksonville, 12

5th Cir. 1970, 433 F.2d 980

OTHERS

Page

18 U.S.C. §1(3) ll

18 U.S.C. §3006 A ll

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No. 70-5015 (5798)

JON RICHARD ARGERSINGER,

Petitioner,

RAYMOND HAMLIN,

Respondent.

On Writ of Certiorari to the

Supreme Court of Florida

BRIEF OF RESPONDENT

OPINION BELOW

The opinion of the Florida Supreme

Court which is subject matter of this

appeal, is reported at 236 So.2d 442.

JURISDICTION

This Court has jurisdiction pursuant

to the provisions of 28 U.S.C. §1257(3).

4

YE ELC - LENGE

QUESTION PRESENTED

WHETHER THE SIXTH AND FOUR-

TEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION

REQUIRE THE APPOINTMENT OF

COUNSEL TO REPRESENT AN IN-

DIGENT DEFENDANT CHARGED

WITH A “PETTY OFFENSE" IN A

STATE court.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitutional provisions involved

in this case, to-wit: the Sixth and

Fourteenth Amendments are reproduced in

Petitioner's brief and will not be re-

peated herein.

1. The Respondent has rephrased the issue

since the parties agreed in the Florida

Supreme Court that the offense was a

petty offense. The Petitioner asserted

that he was entitled to counsel appoint-

ed to represent him notwithstanding the

fact that he was charged with only a

petty offense. Even the main brief

filed herein considers the charge as a

petty offense for counsel candidly ad-

mits that if this Court meant to settle

the issue by adoption of the Rules of

Procedure for the Trial of Minor Offenses

Before Magistrates "...then all is lost

for the petitioner..." (brief at page 35)

-

STATEMENT OF THE CASE

The statement of the case as set forth

on page three and four of Petitioner's

brief is acceptable to the Respondent

except the Respondent wishes to note that

it was affirmatively alleged that Petition-

er was above average intelligerce and fully

capable of understanding the nature, quali-

ty and consequences of his acts. (App. 5,

par.VII) This allegation was never contra-

dicted or denied by Petitioner and thus

must be assumed as true. Moreover, it was

not alleged by Petitioner that he was not

advised of his right to retained counsel.

(App. 2) It was conceded that he was not

advised of his right to appointed counsel.

The fact that the record is silent can be

of no benefit togPetitioner for the State

announced, in open court, before the Flori-

da Supreme Court that there was a violation

of Boykin v. Ala., 395 U.S. 238 (1969), but

Mr. Shea orally waived that deficiency in

order to obtain a resolution of the issue

presented to this Court. Indeed, he was .

asked by the court whether he had authority

to waive the defect and he assured the

court that he did. Accordingly, he cannot

now seek to use the absence of a record to

his benefit, either directly or indirectly.

QUESTION PRESENTED

WHETHER THE SIXTH AND FOUR-

TEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION

REQUIRE THE APPOINTMENT OF

COUNSEL TO REPRESENT AN IN-

DIGENT DEFENDANT CHARGED

WITH A "PETTY OFFENSE" IN A

STATE COURT.

ARGUMENT

The Florida Supreme Court held there

was no absolute organic right to appoint-

ed counsel for indigents charged with a

“petty offense" thereby rejecting the

position advanced by the Petitioner to-

wit: that counsel must be appointed where-

ever there may be "involuntary incarcera-

tion for 10, 20, 30 or 60 days." The

Florida Supreme Court, at the urging of

Respondent, receded from the misdemeanor-

felony dicotomy upon which their prior

decisions rested--Fish v. State, Fla. 1964,

159 So.2d 866, and held that in instances

where the maximum penalty authorized was

six months or less appointed counsel was

net required. The Court did not conclude

that a trial judge lacked authority, in

the exercise of his discretion, to appoint .

counsel to represent an indigent person

where the nature of the charges and/or the

education, experience and ability of the

accused is such that he is incapable of

understanding or appreciating the nature

thereof or presenting an intelligent de-

fense thereto. That was unnecessary to

a disposition of the case since there

were no allegations by Petitioner that he

was unable to understand the nature of

the charges against him.

The Supreme Court, in the opinion pre-

sently being reviewed, adopted the reason-

ing and conclusions expressed by Judge

Mehrtens in Brinson v. State, S.D. Fla.

1967, 273 F.Supp. 840. Judge Mehrtens in

Brinson, supra, in an exhaustive treatment

of the issue, stated:

",..The Supreme Court, in Gideon

v. Wainwright,has explicitly re-

ceded from the view that right

to counsel depends upon the par-

ticular circumstances of any case.

The facts of the Gideon case, how-

ever, as noted by Mr. Justice

Harlan, 372 U.S. at 351, 83 S.Ct.

792, 9 L.Ed 2d 799, did not re-

quire determination of whether

the rule should extend to all

criminal cases. Therefore it is

doubtful whether Evans v. Rives

compelled the Fifth Circuit in

Harvey to hold that a ‘serious

offense' distinction could not

be applied after Gideon to state

charges not denominated felonies.

Harvey may be limited because of

the particularly flagrant cir-

cumstances involved in the case.

A literal reading of the opinion,

however, would indicate that the

possibility of even a ninety-day

jail sentence is a sufficient

deprivation of liberty to run

afoul of due process unless de-

fendant is given assistance of

counsel.

"In a very similar case involving

a Florida misdemeanor charge, _

McDonald v. Moore, 353 F.2d 106

(Sth Cir. 1965), Judge Jones

speaking for the court stated

that ‘this Court has, we think,

rejected the "serious offense"

rule. We also think that Gideon

has repudiated the Betts v. Brady

ad hoc special circumstances rule

***' Td. at 110. Being of the

opinion that Harvey controlled

the decision due to the similari-

ty of the facts, the McDonald

case was decided purely on the

basis of stare decisis: The

court, however, did not have the

benefit of the Supreme Court's

decision in the Gault case. It

is now evident from Gault that

the seriousness of the offense

charged has direct bearing on

the constitutional right to

counsel.

"Accordingly, this Court holds

that the constitutional right to

counsel in non-felony cases de-

pends upon the maximum possible

penalty under the offense charged,

this being the test whether or

not a ‘serious offense' is in-

volved. In order that rights of

constitutional statute be uniform-

ly applied, I hold that the mini-

mum offense for which counsel must

be provided is one which carries a

possible penalty of more than six

months imprisonment, which is the

line of demarcation drawn in fed-

eral practice. In this case,

Brinson's second and third convic-

tion of leaving the scene of an

accident involving personal in-

juries must be invalidated since

the court failed to notify the de-

fendant of his right to the assis-

tance of counsel.

"This Court has not overlooked the

contention that if the right to

counsel is extended beyond the

holding of Gideon to any misde-

meanor, that a fortiori the right

must be extended to all misdemean-

ors. The right to counsel should

not be treated as an abstrac

theorem, but rather as a meay

for achieving the most perfect

justice possible in a given situa-

tion. The essence of the right

is to protect those charged with

crimes from wrongful conviction.

However, that right is qualified

by practical exigencies.

"If Gideon is extended to all mis-

demeanors, its effect would be

profound and create a tremendous

economic and administrative burden

since only a small minority of

states now require appointment of

counsel for indigents in misde-

meanor cases. The demands upon

the bench and bar would be stag-

ering and well-nigh impossible.

Such a construction could lead to

the appointment of counsel for

misdemeanors not. normally consid-

ered criminal, such as overparking

and other petty traffic offenses,

jaywalking, dropping trash upon

the sidewalk, and like offenses.

Further, to hold that the right

to court-appointed counsel exists

in all misdemeanor cases would in

effect also be to hold that the

portion of the Criminal Justice

Act relating to petty offenses is

unconstitutional, since surely the

federal courts must be held to the

same standards they impose upon

the state courts under the Sixth

and Fourteenth Amendments...”

teed by the Sixth and Fourteenth

Amendments is not an absolute

right, nor are any of the rights

guaranteed by the Constitution

‘absolute.’ See Creighton v.

State of North Carolina, 257 F.

Supp. 806 (E.D.N.C. 1966). As

stated in that case, the Consti-

tution was not written to provide

an exercise in abstract idealism

but as a practical guide for the

management of the affairs of this

country and the protection of the

rights of its citizens. In today's

complex society there can be no

truly ‘absolute' rights. Thus,

the right to free exercise of

the religion of one's choice is

on its face absolute, but in ap-

plication is limited since a

religion requiring illegal acti-

vities would not be constitution-

ally protected. One cannot re-

fuse to pay taxes because of re-

ligious scruples, nor can one en-.

gage in polygamy or any other prac-

tice directly harmful to the safety,

morals, health or general welfare.

West Va. State Board of Education

v. Barnette, 319 U.S. 624, 63 S.

Ct. 1178, 87 L.Ed. 1628 (1942);

Late Corporation of the Church of

Jesus Christ of Latter Day Saints

v. United States, 136 U.S. 1, 10

S.Ct. 792, 34 L.Ed. 478 (1889);

Reynolds v. United States, 98 U.S.

145, 25 L.Ed. 244 (1878). The

‘absolute right' to free speech

has been qualified and curtailed

by libel and slander laws. Such

right, on occasion, must be sub-

ordinated to other valués and con-

siderations. Dennis v. United

States, 341 U.S. 494, 71 S.Ct.

S37,-95 &.8d.. 1137.. (1950) .:. Fe

does not confer the right to per-

suade others to violate the law.

Bullock v. United States, 265 F.

2d 683 (6th Cir. 1959); cert. den.,

700 .U.5. 90S, 79 S.Ce, J254. 2. bh.

Ed. 1260. Neither does such right

preclude Congress from excluding

obscene matter from the mails or

from punishing persons advocating

10

overthrow of the government by

force. United States v. Bryan,

S3 U.S. App. D.C. 127, 167 F.2d

241; cert. den. 334 U.S. 843, 68

S.Ct. 1511, 92 L.Ed. 1767. Like-

wise, the ‘absolute right' to

counsel in all criminal prose-

cutions must be qualified by

practical exigencies and, unless

this is done, the necessities of

sound judicial adminstration

would be disregarded and the ad-

ministration of justice thrown

into senseless chaos." (Emphasis

supplied)

The same conclusions have been reached

by other courts which have dealt with this

issue. State v. DeJoseph, Conn.App. 1966,

222 A.2d 752, cert. den. 385 U.S. 982;

Cableton v. State, Ark. 1967, 420 S.W.2d

534; Hendrix v. City of Seattle, Wash.

1969, 456 P.2d 696, cert.den. 397 U.S.

948 (1970); State v, State Dept. of Health

and Social Services, Wis. 1968, 155 N.W. 2d

549; MacDonnel v. Commonwealth, Mass. 1967,

230 N.E.2d 821; Burrage v. Superior Court,

Ariz. 1969, 459 P2d 313; Hortencio v. Fillis,

Utah 1970, 475 P.2d 1011 (1970); Newell v.

State, Me. 1971, 277 A.2d 731; Wall v. Purdy,

§.D.Flia. 1971, 321 F.Sapp. 367 (1971); cf.

Winters v. Beck, D.C.Ark. 1968, 281 F.Supp.

793, aff'd Beck v. Winters, 8th Cir. 1969,

407 7:2 iz.

In Wall v. Purdy, supra, Judge Mehrtens

reaffirmed the position he espoused in

Brinson, supra, and correctly observed that

the “federal courts cannot and should not

ll.

require more from the state courts than

the federal government itself has deter-

mined it will provide..." 321 F.Supp. at

373-74. Judge Mehrtens referred to the

fact that the Criminal Justice Act of

1964 (18 U.S.C. §3006 A) as amended, con-

templated the appointment of counsel in

felony or misdemeanor cases but not in

cases falling within those classed as

petty offenses. 321 F.Supp at 373. A

petty offense, as defined by 18 U.S.C.

§1(3) is "[{a]ny misdemeanor, the penalty

for which does not exceed imprisonment

for a period of six months or a fine of

not more than $500, or both,..."

Judge Mehrtens reviewed the decisions

emanating from the Court of Appeals,

Fifth Circuit, and like the Florida Sup-

reme Court, noted the Court of Appeals

has "neither clarified the question,..nor

been of any real assistance to the trial

courts, both federal and state, which are

constantly besieged and beset with this

problem..." 321 F.Supp. at 372 The Fifth

Circuit Court of Appeals in Harvey v.

State of Mississippi, 5th Cir. 1965, 340

2. The amount of the fine is irrelevant

when dealing with the right to counsel

for indigents because the defendant is

unable to pay the fine and imprisonment

in lieu of payment thereof cannot le-

gally exceed the period of authorized

imprisonment. Tate v. Short, 401 U.S.

495 (1971)

12

F.2d 263, refused to apply the "petty

offense" theory on the grounds that there

was no authority to distinguish between

a "serious offense" and a "petty offense",

but has since required the appointment of

counsel in all cases where the defendant

faces a possible 90 day imprisonment or

a $500.00 fine. James v. Headley, 5th

Cir. 1969, 410 F.2d 325; Wooley v. Jack-

sonville, 5th Cir. 1970, 433 F.2d 980,

cert. pending; and Alvis v. Kimbrough,

Sth Cir. 1971, ___ F.2d , Opinion filed

July 8, 1971, not yet reported. Thus the

Court of Appeals, Fifth Circuit,.has recog-

nized the "petty offense” doctrine but has

drawn the line at 90 days rather than six

months. Implicit in such holdings is a

recognition that the right to counsel is

not absolute and the dispute reduces it-

self to where the line should be drawn.

The Respondent suggests it should be

drawn at six months which would be con-

sistent with the line selected by the

United States Congress, the majority of

courts that have considered the question

and the line drawn by this Court in Bald-

win v. New York, 399 U.S. 66 (1970), in

determining when the Sixth Amendment right

to trial by jury was required. Respondent

fails to understand how it could be legally

argued that one standard should govern the

right to a jury trial but a different

standard should be used to determine the

right to appointed counsel. The Sixth

Amendment makes no such distinction and

the right to counsel and trial by jury

are both secured by that same provision.

If the Sixth Amendment right to trial by

13

Jury does not apply to a "petty offense"

case and the decisions of this Court

clearly hold it does not, Duncan v. Loui-

siana, 391 U.S. 145 (1968); Baldwin v.

City of New York, supra, the right to

counsel guaranteed by that same amendment

should not be applicable. Beck v. Winters,

supra. In that case the Eighth Circuit

Court of Appeals, observed:

"It should be remembered that the

Sixth Amendment makes no differ-

entiation between misdemeanors and

felonies. The right to counsel is

not contingent upon the length of

the sentence or the gravity of the

punishment. Rather, it provides

that the guarantee extends to ‘all

criminal prosecutions.' Further-

more, we note that the phrase'‘all

: criminal prosecutions' applies not

; only to the right to counsel but

also to the right to a jury trial.

Logically the phrase should be

accorded the same meaning as applied

to both protections. Thus we be-

lieve significant the Supreme Court's

pronouncements in cases involving

the jury trial guarantee." (Emphasis

added)

See also: Wall v. Purdy, supra, at page

372. Indeed in Baldwin, supra, this

Court held a “petty offense” is not a

“criminal prosecution" within the meaning

of the Sixth Amendment and it seems from

that alone counsel would not be required

since the right to counsel applies only

to criminal proceedings.

14

In Newell v. State, supra, the Supreme

Court of Maine,after noting this Court's

recent adoption of the Rules of Procedure

for the Trial of Minor Offenses before

Magistrates issued on January 27, 1971

(39 L.W. 3330) concluded:

"We are convinced that the time

has come when due process demands

that we abandon the felony-misde-

meanor distinction as a basis for

appointment of counsel and construe

our own constitution to require

appointment of counsel for needy .

persons charged with serious mis-

demeanors, unless waived.

"Our statutes define '‘felony' as

including every offense punishable

by imprisonment in the State Prison.

15 M.R.S.A. §451. We know that

the distinction between misdemeanors

and felonies is often only a con-

venient method of classification

with little real significance and

that in many instances the maximum

possible confinement in a County

Jail provided by a statute for

some misdemeanors may be only 30

days shorter than the minimum

period of imprisonment in our

State Prison provided for most

felonies. Using the category

titles of felony and misdemeanor

in determining right to counsel

“is particularly unconvincing in

this state where 34 M.R.S.A. §802

provides that any male between

the age of 17 and 26, upon con-

viction of any misdemeanor which

is punishable by imprisonment in

SS

15

the county jail (as most are),

may be. committed to the Men's

Correctional Center for an in-

determinate period which can

last as long as three years.

34 M.R.S.A. §853 makes a simi=

lar provision for sentence to

the Women's Correctional Center

of women between the ages of 17

and 40. These people, although

charged with misdemeanors, face

possible confinement for longer

terms than can be imposed on con-

victions of at least one felony.

17 M.R.8.A. §3152.

"The defense of many misdemeanor

charges may demand professional

assistance as urgently as that of

many felony trials and may result

in loss of liberty. While no

loss of liberty can be considered

trivial, it seems to us that the

individual's need for legal assis-

tance must be weighed carefully

against society's ability reason-

ably to furnish it.

"We know that during this century

the legislature has created a

great many new misdemeanor offenses

which are of relatively minor na-

ture, such as some traffic and

fish and game violations, for ex-

ample. Many thousands of such

violations come before our District

Courts yearly and we are convinced

that to extend.the obligation to

provide counsel to minor charges

16

of these types would impose a pre-

sently insupportable burden upon

the court system and the bar with

a seriously adverse effect upon

all litigants' rights to prompt

attention to their problems in the

courts. No right is absolute and

a fair standard must be found upon

which to balance the public interests

and the individual's rights under

due process.

"We conclude that this balance can

best be achieved by distinguishing

between petty and serious misde-

meanors using as a satisfactory

guideline the rules that the United

States Supreme Court saw fit to

prescribe only three months ago.

We consider that the distinction

between 'petty' and ‘'serious'

satisfies the demands of due pro-

cess and that it serves a proper

governmental purpose and achieves

a reasonable balance of the public

interests and the individual's

rights to the satisfaction of the

equal protection clause,

"Therefore, we hold that all indi-

gent persons who are without at-

torneys and who are facing criminal

charges which might result in the

imposition of a penalty of impri-

sonment for a period of more than

six months or a fine of more than

$500 or both (including those per-

sons subject to potential confine-

ment in either the Men's or the

17

Women's Correctional Center) must

be informed by the Court of their

right to appointed counsel and

must have such counsel appointed

unless they waive this right."

The Respondent agrees with the foregoing

except with respect to the amount of the

fine determining the right to counsel

since it is irrelevant to an indigent

(see Footnote 2), and urges that this

Court hold an indigent is not entitled to

appointed counsel as a matter of right in

those cases where the maximum period of

authorized confinement is six months or

less, unless, of course, the nature of

the charge itself prevents it from being

considered "petty" notwithstanding -the

punishment authorized. This does not mean

the trial courts would not be authorized

and indeed, in some instances, required

to appoint counsel because of "special

circumstances." In "petty offense" cases

the courts should exercise discretion and

should appoint counsel where the circum-

stances and justice requires it. State v.

DeJoseph, supra; MacDonnel v. Commonwealth,

supra; State v. State Dept. of Health and

Social Services, supra; and Winters v.

Beck, supra.

The adoption of this position would

not collide with the prior decisions of

this Court rendered in Powell v. Alabama,

287 U.S. 45 (1932): Gideon v. Wainwright,

372 U.S. 335 (1963); or In Re Gault, 387

U.S. 1 (1967), for every one of those

cases involved "serious" felonies imposing

a death penalty or extensive periods of

t®

18

incarceration. Due process required the

appointment of counsel in those cases.

It does not require’ it in cases involving

petty offenses.

The Petitioner makes much of the fact

that counsel should be provided in petty

offenses since the defendants in those

cases, as in all others, face "the awe-

some prospect of incarceration." This

argument is indeed appealing on its face.

However, an examination of the actualities

of our criminal justice system discloses

that the argument lacks substantial merit

in fact. Respondent would direct the

Court to page 40, footnote 218, of the

Petitioner's brief, which reads as fol-

lows:

"For instance, in New York in

1969, 1,803.049 people were con-

victed;of violations including

jaywalking and speeding and other

traffic infractions. Of this

number a total of forty (40) per-

sons were fined and imprisoned,

given a suspended sentence, or

incarcerated or sent to a re-

formatory. Source: Criminal

Court of the City of New York

Annual Report of Leen, Oy. Los

Table 3, line ll. The same table,

at line 20, reflects that of the

18,615 convictions of vehicular

misdemeanors: driving while in-

toxicated, reckless driving,

leaving the scene of an accident,

332 or 1.8% were incarcerated, in

some way."

19

What this table discloses is that in

New York for the year 1969 slightly more

than twenty-thousandths of one percent of

those persons charged with minor offenses,

including traffic offenses up to speeding

violations, were ever incarcerated in any

manner. Even more importantly, the same

table reflects that a mere 1.8% of those

persons charged with the more. serious of-

fenses of driving while intoxicated and

reckless driving were ever incarcerated

in any way. Surely, based upon these al-

legedly representative statistics, it

would appear that the possibility of any-

one charged with a petty offense ever

actually receiving any incarceration is

covered by the principle of lex non curat

de minimis. Your Respondent would suggest

that based upon these figures, the pro-

spect of incarceration could hardly be

determined "awesome. "

Petitioner argues in the alternative

that the Equal Protection Clause of the

Fourteenth Amendment requires the appoint-

ment of counsel to indigent defendants in

petty offense cases since the state allows

solvent defendants to appear through coun-

sel in these cases. Respondent notes that

this argument was not raised by Petitioner

in the Florida Supreme Court and was there-

fore not passed upon by that tribunal.

Counsel for Petitioner candidly acknowledges

this deficiency. (See Petitioner's brief

20

at page 36). The law is clear that this

Court will not decide federal constitu-

tional issues raised for the first time

on review of state court decisions and

that this Court has no jurisdiction unless

said federal question was raiseiilina de-

cided in the state court below. This prin-

ciple was reaffirmed in the recent case

of Cardinale v. La., 399 U.S. 437 (1969).

Inasmuch as this issue was not presented

to the Florida Supreme Court and was not

passed upon, Petitioner may not raise it

before this Court.

Alternatively, Respondent maintains

that if this argument is true, then the

state actually should be required to ap-

point counsel in all types of law suits

since in all types of law suits solvent

defendants are allowed to appear through

counsel. Taken to its logical conclusion,

acceptance of Petitioner's position in

this regard would be to constitutionally

require "socialized litigation" or "judi-

care." In almost every type of legal or

administrative proceeding, persons who

desire to be represented by counsel are

allowed to do so. If in every instance

where e state allows solvent defendants

to appear through counsel (even though

the person may well be squandering his

money), the state then has the constitu-

tional obligation to appoint counsel to

those who allege they could not afford

same, then indeed "judicare”" has come.

21

Petitioner may attempt to state that his

position is different from other defend-

ants since he faces the prospect of in-

carceration but it is submitted your Res-

pondent has already demonstrated through

the Petitionér's own statistics, the di-

minimis nature of that argument. Moreover,

in other cases where this Court: has held,

under the equal protection clause, that

counsel need not be appointed, the harm

facing the litigant can certainly be de-

scribed as no less harsh than those facing

Petitioner, to-wit: the funds which the

litigant needs for he and his family to

continue living. See Goldberg v. Kelly,

379 U.S. 254 (1970). The same might be

said of the indigent civil defendant faced

with a foreclosure action on his home.

This Court has already announced as a

matter of constitutional principle that

where due process is involved "labels" do

not count. In Re Gault, supra. Certainly,

‘in the above-mentioned instances of "civil"

litigation, the awesome consequences facing

the indigent litigant were no less, nay,

they were much more, than the consequences

facing this allegedly indigent litigant.

Moreover, equal protection must be af-

forded to all regardless of whether the

proceedings are "civil" or "criminal".

Petitioner is suggesting that equal pro-

tection requires appointment of counsel

to indigents in-any case where the state

or federal government allows a solvent

defendant to appear through counsel.

There is no authority to support such a

proposition. Indeed, this Court's deci-

sion in Sanders v United States, 373 U.S.

22

1 (1963), decided the same day that Gideon

was decided, stands as authority to the

contrary, for there it was clearly indi-

cated that the appointment of counsel in

a habeas corpus proceeding is discretion-

ary, and lower federal courts have so

‘held, Gtai> vy. U S., 16 cif

374 Paes: Roach v. Bennett,.. StieGar.

1968, 392.F.2d 743 and the cases. G =—

in footnote 3 at p. 748; and Queer

5th Cir. 1967, 382 F.2d 1017. Respondent,

however, knows of no prohibition against

a petitioner in habeas corpus from appear-

ing through retained counsel.

Respondent urges that due process does

not require the appointment of counsel in

petty offense cases and that if due pro-

cess is satisfied then equal protection

is likewise satisfied. To require that

counsel be at least offered to an indigent

in every case would amount to inverse dis-

crimination against solvent individuals.

This is so because every indigent would

accept the services regardless of the

value thereof since he does not have to

personally bear the expense. The solvent

defendant, on the other hand, would con-

tinue to make a practical decision of

whether he would be better off to pay the

fine than to pay an attorney's fee and

the fine. The end result is that all

indigents would have counsel in every

instance whereas solvent persons charged

with petty offenses would frequently ap-

pear without the benefit of counsel.

Respondent respectfully submits that such

a condition would not be equal protection

of the law. Cf. Williams v. Illinois,

399 U.S. 235 (1970).

23

CONCLUSION

For the reasons stated herein and

upon the authorities cited, Respondent

urges that the decision of the Florida

Supreme Court be affirmed.

Respectfully submitted,

ROBERT L. SHEVIN

Attorney General

RAYMOND L. MARKY

Assistant Attorney General

GEORGE R. GEORGIEFF

Assistant Attorney General

24

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and :

correct copy of the foregoing Brief of ©

Respondent has been forwarded, via U. S,

Mail, to

P. A. Hubbart, Esq.

Public Defender ;

Justice Building

1351 N.W. 12th Street q

Miami, Florida |

Of Counsel

j

J. Michael Shea, Esq. :

Post Office Box 2742

Kennedy at Franklin

Tampa, Florida 33601

622 N.W. 62 Street

Bruce S. Rogow, Esq. 7

Miami, Florida 33150

Counsel for Petitioner

this day of September, 1971.

GEORGE R. GEORGIEFF 3

Assistant Attorney General