Hendrix v. City of Seattle

456 P.2d 696, 76 Wash. 2d 142, 1969 Wash. LEXIS 632

• Court: Washington Supreme Court
• Decided: June 5, 1969
• Docket: 39357
• Status: Published

Opinions

Hale, J.

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

The defendant was charged in two complaints with two distinct violations of the disorderly conduct ordinances of Seattle. In one complaint, the city charged him with the misdemeanor of stealing money from the Milk Barn Car Wash, in violation of ordinance No. 16046, codified as Seattle code, § 12.11.020; the other complaint, brought under the-same disorderly conduct ordinance, accused him of contributing to the delinquency of a 13-year-old girl by accompanying, congregating or loitering with her at 3 o’clock in the morning about the public streets.²

On arraignment before the municipal court on both charges, the court advised the defendant of his right to counsel and offered him time and opportunity to obtain counsel. Defendant advised the court that he had no funds with which to employ an attorney and requested the court to provide him counsel without cost. In denying this application, the court advised the defendant that the municipal court had neither the authority to compel attorneys to serve without compensation nor funds with which to pay attorneys in defending indigent defendants in municipal court. In this connection, it should be noted that we have not been advised that the city of Seattle or any other city of this state has appropriated funds or legislatively authorized the expenditure of public funds for the compensation of counsel for indigent defendants in municipal court.

The case proceeded to trial and, on conviction, defendant was sentenced by the municipal court to serve 180 days consecutively on each charge, making a total sentence of 360 days. He timely filed notice of appeal — so far as the record appears — and separately petitioned the superior court for writ of certiorari to review the municipal court’s refusal to supply him with counsel. The superior court on review sustained defendant’s contentions that he had a constitutional right to appointment of counsel without cost; held that the municipal court had abridged that right; and, setting aside the two convictions, remanded the cause to the municipal court with directions to supply cotmsel to the defendant at public expense. Defendant, thus, at the outset, had simultaneously pending in the superior court his petition for review and his appeals. Before the hearing of his superior court review, however, defendant moved for and the court granted him a dismissal of his appeals. The superior court then, on certiorari, remanded each cause to the municipal court. It was the city’s contention then and now that certiorari did not he to review the municipal court convictions inasmuch as the defendant had filed his appeals and thus had a plain, speedy and adequate remedy at law.

Defendant urged and the trial court ruled that one accused of a serious misdemeanor in Seattle Municipal Court has a constitutional right to the appointment of counsel for his defense under the sixth amendment to the constitution of the United States,³ article 1, section 22, constitution of the state of Washington,⁴ and the fourteenth amendment to the constitution of the United States. Further, he contends that he should be supplied counsel as a matter of judicial policy.

Our approach to the constitutional aspects of the case must be guided by those concepts of judicial restraint which have in such large measure shaped the constitutional history of this country and laid the foundation for separating the powers of government into the legislative, executive and judicial functions, a doctrine upon which individual freedom seems so largely to depend. In keeping with this doctrine, courts ought not abrogate or compel legislative action either directly or indirectly unless the constitutions require it. Where reasonable doubts exist as to a constitutional duty or prohibition affecting the legislative branch of government, they should be resolved in favor of the legislature’s action or inaction.

Since the adoption of the Sixth Amendment, the Supreme Court of the United States has not, despite countless opportunities to do so, declared that one accused of a misdemeanor has a constitutional right to appointed counsel. See Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash. L. Rev. 685 (1968).⁵ The traditional line drawn between felonies and lesser crimes has persisted from our colonial beginnings to the present time, and no authoritative decisions to the contrary have been presented to us which eradicate that distinction. In a nearly unbroken line, the leading cases involving the right to counsel at public expense and the corresponding obligation to furnish counsel depend upon the marked distinction between felonies and lesser offenses.

For example, Gideon v. Wainright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963), cited by the defendant, involved the felony of burglary. That case simply declared a constitutional rule for all courts — a rule never doubted in the state of Washington since earliest territorial days — that on an arraignment for the felony of burglary the court, on request, was under a constitutional duty to appoint counsel for an indigent defendant, and failure to supply counsel on request deprived the court of jurisdiction.

On this very point, the Supreme Court has recently twice declined to review a refusal to appoint counsel in state court misdemeanor prosecutions. Although a denial of certiorari by the Supreme Court has not been deemed to amount to a declaration, modification or repudiation of a rule, it is not totally without significance especially where dissenting opinions highlight the refusal. We thus should not ignore the juridical circumstances that, not long after the Gideon decision, the Supreme Court in two cases where state courts had expressly refused to appoint counsel at public expense in misdemeanor prosecutions, despite vigorous dissents, denied certiorari to review the very point at issue before us. Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364 (1966), cert. denied, 385 U.S. 907, 17 L. Ed. 2d 137, 87 S. Ct. 207 (1966); State v. DeJoseph, 3 Conn. Cir. 624, 222 A.2d 752 (1966), cert. denied, 385 U.S. 982, 17 L. Ed. 2d 443, 87 S.Ct. 526 (1966).

In Winters, the defendant was charged with immoral conduct, a misdemeanor under a city ordinance; in DeJoseph, the defendant was doubly charged with the misdemeanor of obtaining money under false pretenses and falsely holding himself out to be an attorney. In each case, the trial courts declined to furnish counsel at public expense and the state supreme courts affirmed. Denial of certiorari in those two cases following hard upon Gideon afforded us a logical basis on which to analyze the question as to the constitutional right to appointed counsel in misdemeanor cases. Those cases put the question squarely, and in denying certiorari the Supreme Court resolved some of the ambiguity said to reside in Gideon, and we think portended the later statement in Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967), that Gideon v. Wainwright held “that there was an absolute right to appointment of counsel in felony cases.” (Italics ours.) The term “felony,” we think was neither inadvertent nor obiter dictum.

That the Supreme Court has discovered no constitutional mandate compelling the public to supply counsel free of charge in misdemeanor prosecutions may be seen in other cases involving the right to counsel. Whenever failure to supply counsel has been held to be jurisdictional, it is made clear that the charge amounted to a felony. Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938), involved uttering counterfeit money, a felony. Uveges v. Pennsylvania, 335 U.S. 437, 93 L. Ed. 127, 69 S. Ct. 184 (1948), held that it was improper for the trial court to accept from a 17-year-old boy pleas of guilty to four separate counts of burglary without first offering to provide the youthful defendant with counsel at public expense. Burglary was unmistakably a felony under Pennsylvania law for the maximum confinement could have been 80 years and petitioner was actually sentenced to not less than 20 nor more than 40 years’ imprisonment.

On many other occasions, the Supreme Court has made it clear that the constitutional right to counsel at public expense is limited to felony prosecutions. In Chewning v. Cunningham, 368 U.S. 443, 7 L. Ed. 2d 442, 82 S. Ct. 498 (1962), a state case involving habitual criminal charges, the Supreme Court held that the trial court’s duty to appoint counsel existed in felonies only, saying, at 447:

We only conclude that a trial on a charge of being a habitual criminal is such a serious one (Chandler v. Fretag, 348 U.S. 3), the issues presented under Virginia’s statute so complex, and the potential prejudice resulting from the absence of counsel so great that the rule we have followed concerning the appointment of counsel in other types of criminal trials is equally applicable here.

(Footnote omitted.)

Again, in two other cases declaring a duty to supply counsel at public expense, that court made it explicitly clear that the crimes involved were felonies. Carnley v. Cochran, 369 U.S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884 (1962); White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050 (1963). Extraordinary circumstances, of course, such as ybuthfulness, mental retardation, illiteracy, and inability to understand English, buttress the right and usually supply a cogent factor in deciding whether there has been a waiver of the right.⁶ Nor should we overlook the explicit language employed in In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), a juvenile court proceeding subjecting the offender to several years’ detention and where, in discussing the right of juveniles in juvenile court to the appointment of counsel, the court said:

If he had been over 18 and had committed an offense to which such a sentence might apply, he would have been entitled to substantial rights under the Constitution of the United States as well as under Arizona’s laws and constitution. . . . He would be entitled to clear advice that he could be represented by counsel, and, at least if a felony were involved, the State would be required to provide counsel if his parents were unable to afford it.

(Italics ours.)

Basing the right to counsel squarely upon the proposition that the finding of delinquency in Gault amounted to conviction of felony, the court added, at 36, “A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution” (Italics ours.)

Other similar cases make felony the standard: Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55 (1932), involved death sentences for rape. There the Supreme Court reversed state convictions for failure to appoint counsel where the defendants were both illiterate and indigent. Williams v. Kaiser, 323 U.S. 471, 89 L. Ed. 398, 65 S. Ct. 363 (1945), and Tomkins v. Missouri, 323 U.S. 485, 89 L. Ed. 407, 65 S. Ct. 370 (1945), each involved felonies — robbery with a deadly weapon and murder respectively — both being capital crimes in Missouri. In Hawk v. Olson, 326 U.S. 271, 90 L. Ed. 61, 66 S. Ct. 116 (1945), which cited Williams v. Kaiser, supra, and Tomkins v. Missouri, supra, the charge was murder. De Meerleer v. Michigan, 329 U.S. 663, 91 L. Ed. 584, 67 S. Ct. 596 (1947), where a conviction was set aside, a 17-year-old boy was tried for murder without being advised of or allowed his right to counsel. In Marino v. Ragen, 332 U.S. 561, 92 L. Ed. 170, 68 S. Ct. 240 (1947) , an 18-year-old immigrant, unable to understand English, was allowed by the trial court to waive both a jury and counsel and plead guilty through interpreters. The Supreme Court overturned his conviction, but the case involved the felony of murder.

Haley v. Ohio, 332 U.S. 596, 92 L. Ed. 224, 68 S. Ct. 302 (1948) , in which the defendant, a 15-year-old boy, stood, charged with murder, is similar. White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050 (1963), holds that in capital cases one is entitled to appointed counsel at a preliminary hearing. Other cases, not essential to this discussion, all involve felonies.

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

Evidently from the beginning of our colonial history, the people of this country have seen a need within the framework of their government for courts of limited jurisdiction designed to handle the lesser offenses speedily, economically and expeditiously, and the constitutions attest that the people have reserved a power unto themselves to constitutionally establish and maintain such courts. At the time of the adoption of our federal constitution, there existed in the country justice of the peace courts (See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)), and we see their modern municipal counterparts today carrying on now as before the greater percentage of business that comes into the judicial systems. The constitutions, we think, do not bar the establishment of more elaborate judicial procedures in misdemeanor cases nor prevent the furnishing of counsel at public expense; they simply do not require them. Thus, although the Congress, state legislatures and, perhaps, municipalities possess an undoubted constitutional power to provide counsel at public expense in misdemeanor cases, the question here is must they do so or else forfeit the power of the municipal and justice court judiciary to try serious misdemeanors.

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

Up to now, neither the legislature nor the county and municipal governments nor even the Congress has assumed that there exists a constitutional right and a correlative duty to supply free counsel in misdemeanor prosecutions. The judiciary should recognize that other branches of government, as Mr. Justice Holmes observed, “are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, Kan. & Tex. Ry. v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 24 S. Ct. 638 (1904). Courts must thus operate under a degree of restraint which, while assuring to each person every natural right and every right vouchsafed him by the constitutions, does not enlarge upon those rights in such a way as to disparage the constitutional powers of the legislative and executive branches or abridge their constitutional capabilities.

The sovereign United States and the sovereign state of Washington came into existence with judicial systems designed to administer the criminal law in prosecutions for lesser offenses in a fashion more summary than that reserved for the more serious kinds of crimes punishable by long terms of imprisonment or death. No authoritative precedents have been presented here that the people can no longer constitutionally maintain courts of this type within the judicial systems; nor do the facts and conditions of modem society appear to reduce the need for courts of summary jurisdiction. Indeed, the need for courts so organized as to be capable of trying the less serious criminal offenses with dispatch seems more imperative today than in our early days.

Professor Junker, 43 Wash. L. Rev. 685 (1968), accepts Silverstein’s estimate of 5 million nontraffic misdemeanor cases brought annually in the United States. See 1 L. Silverstein, Defenses of the Poor in the Criminal Cases in American State Courts 123 (1965). The President’s Commission on Law Enforcement and Administration of Justice similarly assumes that there are between 4 and 5 million misdemeanors filed in the courts of this country annually —exclusive of traffic cases. See the President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 55 (1967). Common knowledge assures us that traffic cases would swell this total by many millions, and if there is a constitutional right to counsel in one kind of serious misdemeanor assuredly there would be the same right in serious traffic misdemeanors. Thus, it is apparent that the need for courts of limited jurisdiction capable of administering justice efficiently and under the pressure of a high volume of judicial business has increased markedly since the adoption of the state and federal constitutions and the Fourteenth Amendment.

• We are of the opinion, therefore, that, although everyone accused of crime has a right to counsel, he does not have a constitutional right to counsel at public expense when charged with a misdemeanor in municipal court; and the municipal court is under no constitutional duty to supply counsel at public expense in misdemeanor prosecutions. Whether counsel shall be supplied in such cases is left by the constitutions, we think, to the legislative and not the judicial branches of government.

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

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

Not long ago, Congress recognized that there has long existed a legitimate demarcation between the legislative and judicial powers in deciding whether counsel shall be made available without cost to indigent defendants in misdemeanor prosecutions. In 1964, the Congress passed the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, directing the federal district courts to “place in operation” plans for “furnishing representation for defendants charged with felonies or misdemeanors, other than petty offenses as defined in section 1 of this title.” (Italics ours.) That statute sets up a comprehensive scheme not only to provide counsel for indigent defendants but for investigative services and the assistance of experts if, in the court’s judgment, such investigative and expert services are necessary to an adequate defense. The legislation establishes a schedule of fees and authorized the appropriation of public money to pay them. It rests, unavoidably, on the premise that the government has no constitutional duty to supply indigent misdemeanants with counsel at public expense but can, by legislation, assume such a duty and constitutionally provide the funds with which to discharge it, for it arbitrarily provides counsel in offenses punishable by 6 months’ or more imprisonment and withholds the privilege in cases of less than 6 months’ imprisonment. Altogether the statute demonstrates the superiority of legislative enactment over judicial fiat in effectuating a policy of providing counsel in serious misdemeanor prosecutions because it supplies a means with a method and a power with a duty, and funds with which to carry them out.

Congress enacted that statute on the universally accepted constitutional premise that the legislative branch of government has nearly exclusive power to define and classify crimes. Morgan v. Devine, 237 U.S. 632, 59 L. Ed. 1153, 35 S. Ct. 712 (1915); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 5 L. Ed. 37 (1820). On this fundamental concept, arising as it does out of the separation of powers, Congress proceeded to exercise this power by classifying federal crimes either as (1) felonies, punishable by death or imprisonment for more than one year; (2) misdemeanors, as offenses other than felonies; or (3) petty offenses, as misdemeanors carrying a punishment of not more than 6 months’ imprisonment and a fine of not more than $500.⁷ Counsel may be provided at public expense under this statute only if the offense charged is punishable by more than 6 months’ imprisonment. 18 XJ.S.C. § 3006A. So-called petty offenses are excluded. We know of no reason why the states cannot adopt a similar policy of providing free counsel in inferior courts for serious misdemeanors through similar legislation and appropriate the money with which to carry it out.

It is vigorously advanced as a phase of the policy argument that furnishing counsel to indigent defendants is not only right but practicable as well if the right applies only to misdemeanors of a serious nature and is not available in nonserious charges. We are thus asked to accomplish for the state judicially what in larger degree the Congress has done for the federal courts legislatively, i.e., to classify crimes differently than is now done by statute, to direct the appointment of counsel at public expense or without recompense to the bar, in all cases which ought to be deemed serious misdemeanors and to distinguish the serious misdemeanors from the thousands of minor and even trivial violations coming annually before the courts. But this argument, in essence, tries to persuade the court to go beyond its constitutional powers and embark upon a legislative program. It inevitably contemplates an exercise of judicial power which will compel the city of Seattle to furnish attorneys at public expense upon the whimsical basis that, although literally thousands of violations may legally invite serious punishment, only a few actually warrant it.

The declaration of such a policy will require the courts to assume additional powers they do not have and in exercising them to usurp in some degree the legislative and executive powers of government. To carry out the policy urged upon us, the court must decree that municipal courts have an inherent power not only to order counsel to serve without compensation, but also to direct the disbursement of public funds without an appropriation and, further, to reclassify crimes already defined and classified by the legislative branch. Parenthetically, we should, in passing, point out that our opinion in Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966), does not stand for the proposition that the court in misdemeanors must provide counsel, but rather for the right to consult one’s own retained counsel.

The power of the legislative branch of government, as earlier noted, to define crimes and prescribe punishment is virtually exclusive, nearly unlimited, and leaves practically no correlative power to do the same in the courts. Morgan v. Devine, supra; United States v. Wiltberger, supra. It is the legislature and subordinate legislative bodies and not the courts which ordain the punishment, subject only to the limitations that it be neither cruel nor inhuman, nor call for excessive fines. 21 Am. Jur. 2d Criminal Law § 590 (1965).

Since territorial days, Washington — along with most states and until recently the Congress — has classified crimes as misdemeanors, gross misdemeanors and felonies according to the maximum punishment prescribed by statute. Resting as they do largely on fixed and prescribed maximum punishments, these classifications present a fairly exact standard of far greater certainty than the standards now advocated by the appellant. If the decision to supply counsel at public cost rests on consideration of policy and not upon the constitution, counsel suggests that counsel be appointed only in those cases where it can reasonably be said that the charge is a serious one- — one which, on conviction, calls for a substantial jail sentence. In other words, the courts are asked to classify judicially some misdemeanors prima facie as petty offenses, much as the Congress has done legislatively in the Criminal Justice Act of 1984, 18 U.S.C. § 1.

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

Defendant here was charged in one- complaint pursuant to ordinance 16046, with accompanying, congregating and loitering with a 13-year-old child after 10 p.m., to 3 a.m., in the public streets without the express, consent of the minor’s parents or guardian. In the other complaint under the same ordinance, the city charged defendant with the misdemeanor of petty larceny. Not until the case had been tried could the municipal court have known whether the offenses charged were more serious than a breach of curfew and pilfering. Both charges, moreover, were cognizable in municipal court as disorderly conduct under ordinance 16046, Seattle code, § 12.11.020 — an ordinance denouncing all kinds of misconduct, • serious and trivial. Seattle v. Franklin, 191 Wash. 297, 70 P.2d 1049 (1937); State ex rel. Belt v. Kennan, 25 Wash. 621, 66 P. 62 (1901).

Unless the court had been preadvised and come to some kind of a prejudgment, it could not, before trial and conviction here, have judged the comparative seriousness of the offenses. All offenses arising under disorderly conduct ordinance 16046, such as fighting, drunkenness, disturbing the peace, use of profane, abusive or obscene language, the commission of indecent or immoral acts, or any practice or conduct tending to debauch the public morals, or to engage in any riotous or disorderly conduct, carry the same maximum punishment — not to exceed 6 months in jail and a fine of $500.

It is the penalty prescribed by law, therefore, that provides the basis for classifying crimes. The Supreme Court has so held in holding trial by jury mandatory where a simple battery under Louisiana law was punishable by 2 years’ imprisonment. The court said in Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), at 159:

Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses, Cheff v. Schnackenberg, 384 U.S. 373 (1966). But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment. District of Columbia v. Clawans, 300 U.S. 617 (1937).

The defendant now advances a new system of classification, one inevitably requiring the court, before guilt has been established to decide, for example, if the drunkenness charged will be serious or petty, the fighting serious or petty, the use of profane or abusive language, or either, serious or' petty — or whether the breach or disturbance of the peace charged was serious or petty. This, of course, is a judgment the court cannot make judicially in most instances until it has heard the evidence, decided upon the guilt or innocence of the accused, and has been advised as to the circumstances of the crime and defendant’s personal history. One act of public drunkenness may, in the court’s judgment, be a petty matter — but the court may well regard the 100th offense as serious indeed. See Seattle v. Hill, 72 Wn.2d 778, 435 P.2d 692 (1968).

If we follow the policy advocated here, a misdemeanor, then, must be diagnosed by the municipal court in advance of trial either as serious, ordinary, petty, minor or trivial, depending not upon the maximum punishment allowable by law but rather on how a fair-minded judge with no knowledge of the defendant’s history- or the circumstances of the alleged offense gauges the seriousness of the crime and whether the defendant on conviction deserves substantial time in jail. The multitude of ordinances of Seattle which prescribe jail sentences for violations thereof, we think, would prevent the court from rationally accomplishing this in the discharge of its judicial duties.

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

By way of illustration, here are some random samples of such legislation in Seattle: Under ordinance 63192, § 2, Seattle code § 16.04.060, sale of intoxicating liquor to minors is prohibited; it is likewise unlawful merely to be in a place where liquor is unlawfully kept for sale. Seattle code § 16.04.080, ordinance 37916. Each offense is punishable by a fine of $300 or 90 days in jail or both (16.04.110) — assuredly a serious penalty to one who receives it.

Another example: Illegal disposition of garbage, swill and waste matter or disposing of it at improper times and places under the old ordinance of 1907, ordinance 15957, Seattle code 14.10.010, and the modern ordinance enacted in 1955, Seattle code, ch. 14.12, prescribing garbage dump fees, alike carry punishments of $300 fine and 90 days’ imprisonment. One would be hard put in either case to decide the gravity of the offense without first hearing all of the evidence and a history of the defendant’s prior behavior.

Or, under Seattle code, ch. 12.14, ordinance-45860 (1923), the portrait, effigy or name of any deceased president of the United States may not be used to advertise or call attention to any medicine, nostrum or method of medical treatment. This, for a first or, perhaps, even a second or third offense may, on its face, not seem serious, yet § 3 of the ordinance, 12.14.030, provides for a maximum punishment of $300 fine and 90 days in jail. The same punishment applies to soliciting magazine subscriptions on the public streets or sidewalks for future delivery. Seattle code 12.15.010, et seq. Similarly, Seattle code ch. 12.17 purports to make it a serious misdemeanor to sell automobiles on Sunday in Seattle, fixing the punishment at a maximum of 90 days in jail or $300 fine and making each day’s violation a separate offense —all under ordinance 86065 of April 23,1957.

Curiously enough, although selling unclean, unhealthful or adulterated meat might seem to be a more serious offense than selling cars on Sunday, yet the punishment for doing either under Seattle ordinance 94465, § 35, of January 6, 1966, Seattle code § 13.08.350, carries the same maximum of 90 days in jail and $300 fine. The same punishment applies to selling unclean and adulterated poultry and fish (ch. 13.12) and milk. 13.24.585, ordinance 84106 (1955).

Seattle’s legislative branch of government takes a.rather serious view of tax evasion, too. It has made it a misdemeanor punishable by 90 days’ imprisonment in city jail and a fine of $300 for cabarets, theaters, and others offering entertainment to fail to collect or remit on authorized returns, the city amusement tax (11.04.140, ordinance 72495, § 13 (1943)), and to pay the business and occupation tax. 11.08.310, ordinance 72630, § 30 (1943).

Leaving these examples of offenses punishable by 90 days’ imprisonment and a $300 fine, we next refer to a few random samples of even more serious offenses in the Seattle code. Violations of chapter 12.11 obviously are more serious than the offenses just described because they carry a much greater maximum punishment; they are punishable by sentences of up to 6 months in jail and $500 in fine or both. Misdemeanors under chapter 12.11 include such offenses as habitually idling away one’s time in places where intoxicating liquors are sold, 12.11.110; fighting by agreement (the section does not indicate what happens if one of the participants does not agree), 12.11.070; prowling or loitering by convicted felons, 12.11.100; soliciting alms, 12.11.130; or operating as an employer a place open to the public for the sale of intoxicating liquor; allowing or causing any female employee to appear with the upper and/or lower torso wholly or substantially exposed to public view, 12.11.175, ordinance 94554, February 21, 1966; or for any male person to idle away his time in any house of ill fame, 12.11.120. All such violations in the court’s discretion draw sentences of up to 6 months in jail or a $500 fine or both.

Other offenses, punishable by 6 months in jail and a $500 fine involve a miscellaneous assortment of violations under the Seattle code such as injuring another’s flowers, foliage and shrubbery, 12.11.560; allowing minors under 18 to loiter or play in one’s billiard or pool room, 12.11.530; rudely or mischievously throwing things at any house, building or vehicle to anyone’s annoyance, 12.11.510; or wearing hats during the performance in any theater or for any theater manager to allow his customers to wear any hats or bonnets in the theater, 12.11.410 and .420; or to sell or give tobacco in any form to anyone under the age of 18 years, 12.11.430, ordinance 87651 (1958). Along with these, we should not ignore the plethora of offenses defined in the motor vehicle statutes and municipal traffic codes which generate tens of thousands of cases annually throughout the state, all of which are punishable by substantial jail sentences.

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

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

Not long ago this court, in adopting Rules for Courts of Limited Jurisdiction, RCW vol. 0, tacitly acknowledged that: the right to counsel, at public expense in prosecution for misdemeanors is to be conferred, if at .all, by the legislature and does not rest on constitutional principles or arise from a judicial policy. Nowhere in those rules is it intimated that courts of limited jurisdiction are obliged, or have the power, to order counsel to serve indigent persons without compensation. Not until now has it been seriously contended in this state that justice of the peace courts, police courts or municipal courts possess the power to compel attorneys to serve without recompense, and no constitutional or historical authority has been shown us that these courts possess such powers. If, as a matter of judicial policy, it is held that these courts possess such powers, it may be a step forward in the administration of criminal justice, but there are possible public detriments in such a policy which must be considered, too.

In all probability, the advent of counsel at public expense for indigents in all serious misdemeanors will, in the course of time, enormously increase the volume of contested cases and lengthen the delays already overburdening our judicial system. It may engender such an increase in the costs of running these courts that the prosecuting officials will be forced to dismiss, innumerable cases rather than incur the expense and delay involved in supplying counsel at public expense.- And, there is another problem — the probability that substantial segments of the police, sheriffs’ deputies, state patrol and other law enforcement agencies will be partially immobilized because of their required attendance in courts of limited jurisdiction waiting overlong to testify when their time should be and is better spent in going about their duties preserving the public peace and safety.

If anyone doubts these consequences, let him examine the rise in criminal appeals to the Supreme Court in recent years. Since 1962, an enormous increase in appeals to the Supreme Court has taken place, a steadily increasing percentage of which is brought at public expense. Should this trend continue at the present rate under existing procedure, nearly all of this court’s time and- energy will be preempted by criminal cases .to the exclusion- of; practically all others. In all likelihood, the providing of appointed counsel in municipal courts and justice courts will add to the number of contested cases bringing a commensurate increase in appeals therefrom to. the superior and thence to the Supreme Court — all at public expense.⁸

We think none of these disabilities and burdens is forced upon the courts by the constitutions nor should be as a matter of judicial policy. If an indigent accused feels aggrieved at the results of his trial in municipal court, he may appeal to the superior court. If, because of special or disabling circumstances such as the youth, inexperience, or physical or mental disabilities, the superior court is of the view both that the misdemeanor is of such seriousness and the special circumstances affecting the defendant warrant it, that court may appoint counsel at public expense in the sound exercise of its discretion.

The cause is reversed with directions that the defendant’s appeal to the superior court be reinstated and he be allowed to prosecute it.

Hunter, C. J., concurs.

Neill and McGovern, JJ., and Donworth, J. Pro Tem., concur in the result.

1 Respondent here was the defendant in municipal court. For purposes of this opinion, he retains the title of defendant.

2 “. . . not being the parent or guardian of ... , a minor child, age 13 years, [defendant] did willfully and unlawfully . . . accompany, congregate or loiter with such minor at Rainier Avenue South and South Genesee Street, a public place, after the hour of 10:00 o’clock P.M., to wit, 3:00 A.M. without the express consent of said minor’s parent or guardian, . . . .”

3 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” U.S. Const., amend. 6.

4 Const. Art. 1, § 22 (amendment 10), provides, inter alia:

“In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, ... to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases . . . .”

5 Professor Junker oj)ens his comprehensive treatise with the statement: “The indigent misdemeanant’s right to appointed counsel has yet to receive explicit constitutional recognition by the United States Supreme Court.”

6 The requirement to appoint counsel for an indigent defendant leans heavily on the existence of special circumstances which warrant such action by the court:

1. Gravity of the offense, i.e., whether capital or non-capital: Williams v. Kaiser, 323 U.S. 471, 89 L. Ed. 398, 65 S. Ct. 363 (1945); Tomkins v. Missouri, 323 U.S. 485, 89 L. Ed. 407, 65 S. Ct. 370 (1945); Hamilton v. Alabama, 368 U.S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157 (1961).

2. Complexity of the charge against the defendant: Rice v. Olson, 324 U.S. 786, 89 L. Ed. 1367, 65 S. Ct. 989 (1945); De Meerleer v. Michigan, 329 U.S. 663, 91 L. Ed. 584, 67 S. Ct. 596 (1947); McNeal v. Culver, 365 U.S. 109, 5 L. Ed. 2d 445, 81 S. Ct. 413 (1961); Chewning v. Cunningham, 368 U.S. 443, 7 L. Ed. 2d 442, 82 S. Ct. 498 (1962); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 100 L. Ed. 126, 76 S. Ct. 223 (1956).

3. Ignorance: Smith v. O’Grady, 312 U.S. 329, 85 L. Ed. 859, 61 S. Ct. 572 (1941); Tomkins v. Missouri, supra.

4. Illiteracy or lack of education: Carnley v. Cochran, 369 U.S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884 (1962); Cash v. Culver, 358 U.S. 633, 3 L. Ed. 2d 557, 79 S. Ct. 432 (1959).

5. Extreme youth or lack of experience: Wade v. Mayo, 334 U.S. 672, 92 L. Ed. 1647, 68 S. Ct. 1270 (1948); Uveges v. Pennsylvania, 335 U.S. 437, 93 L. Ed. 127, 69 S. Ct. 184 (1948); Moore v. Michigan, 355 U.S. 155, 2 L. Ed. 2d 167, 78 S. Ct. 191 (1957).

6. Familiarity with court procedure: Wade v. Mayo, supra; McNeal v. Culver, supra.

7. Feeblemindedness or insanity: Palmer v. Ashe, 342 U.S. 134, 96 L. Ed. 154, 72 S. Ct. 191 (1951); Massey v. Moore, 348 U.S. 105, 99 L. Ed. 135, 75 S. Ct. 145. (1954).

8. Inability to understand the English language: Marino v. Ragen, 332 U.S. 561, 92 L. Ed. 170, 68 S. Ct. 240 (1947).

9. Prejudicial conduct shown by trial judge, prosecuting attorney or public defender: White v. Ragen, 324 U.S. 760, 89 L. Ed. 1348, 65 S. Ct. 978 (1945); Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948); Hawk v. Olson, 326 U.S. 271, 90 L. Ed. 61, 66 S. Ct. 116 (1945); Reynolds v. Cochran, 365 U.S. 525, 5 L. Ed. 2d 754, 81 S. Ct. 723 (1961); Gibbs v. Burke, 337 U.S. 773, 93 L. Ed. 1686, 69 S. Ct. 1247 (1949).

10. Plea of guilty by codefendant within the .hearing of the jury: Hudson v. North Carolina, 363 U.S. 697, 4 L. Ed. 2d 1500, 80 S. Ct. 1314 (1960).

7 18 U.S.C. § 1:

“Notwithstanding any Act of Congress to the contrary:

“ (1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.

“ (2) Any other offense is a misdemeanor.

“(3) Any 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, is a petty offense.”

8 The records of the Clerk of the Supreme Court show the following numbers of criminal appeals filed in the Supreme Court and the percentages of indigent appeals for the following years:

*- Percentage indigent of total appeals.

** For 6 months, January 1 through June 30, 1968.