State Ex Rel. Milwaukee County v. Wisconsin Council on Criminal Justice

243 N.W.2d 485, 73 Wis. 2d 237, 1976 Wisc. LEXIS 1138
CourtWisconsin Supreme Court
DecidedJune 30, 1976
Docket75-584
StatusPublished
Cited by22 cases

This text of 243 N.W.2d 485 (State Ex Rel. Milwaukee County v. Wisconsin Council on Criminal Justice) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Milwaukee County v. Wisconsin Council on Criminal Justice, 243 N.W.2d 485, 73 Wis. 2d 237, 1976 Wisc. LEXIS 1138 (Wis. 1976).

Opinions

Connor T. Hansen, J.

Milwaukee county, petitioner (hereinafter county), seeks a declaration of rights between the parties regarding certain state plans developed by the Wisconsin Council on Criminal Justice, respondent (hereinafter WCCJ), for the appointment of counsel for indigent defendants in criminal cases. The application of the county for funds for this program was denied by the WCCJ.

The action was commenced when the county filed a petition for a writ of certiorari with this court. We [239]*239granted the writ. However, it appears the issues presented are more appropriately addressed as a declaratory judgment proceeding. Therefore, the writ of certiorari is dismissed and we consider this proceeding to be an original action for declaratory judgment.

It is conceded that the WCCJ is an arm of the executive branch of the state government created by executive order of the governor pursuant to sec. 16.54, Stats. It is the state planning agency required by the Omnibus Crime Control and Safe Streets Act, 42 U. S. Code 3701 (hereinafter the Act). The WCCJ administers funds made available to the state by the Law Enforcement Assistance Administration (hereinafter LEAA), as provided in the Act.

The WCCJ adopted a comprehensive plan for providing defender services for indigents for 1973, which was identified as program 19 and entitled “Defender Services.” The plan was approved by LEAA, 42 U. S. Code 3733, and once so approved, the WCCJ could not disburse funds to subgrant applicants like the county unless their applications conformed to the state plan.

Briefly, and as the plan relates to populous counties, it provided that the local public defender should have the primary responsibility for representing indigent defendants, without the necessity of a specific judicial appointment in every case. In about 25 percent of the cases, however, it was provided that private counsel should represent indigent defendants. The method of appointment of private counsel was to be as follows:

“In order that the private bar be involved, the public defender should be empowered to appoint private counsel. Such appointments should be made on a rotational basis from a listing of the members of the private bar willing to participate. The list should be approved by the county’s criminal and juvenile court judges to ensure that the attorneys on it are competent to handle criminal and juvenile cases.”

[240]*240The 1973 plan and the 1974 plan, program 23, were substantially the same. The 1975 plan, program 25, modified the 1973 and 1974 plans to some extent. The ultimate result of the modifications were that the judge could appoint a lawyer not on the rotational list, but in such event the plan provided the judge must make his reasons for doing so a matter of record. Regardless of the modification, the basic dispute remains and the county has not received a grant under these plans from the WCCJ.

The county submitted a subgrant application, 1998, for funds under the 1973 plan, program 19. The application did not conform to the comprehensive plan and was denied by the executive committee of the WCCJ, The county then pursued the appellate procedure required by sec. 42 U. S. Code 3733 (a) (8) and established by the WCCJ. The governor appointed a hearing examiner to hear the appeal and make recommendations. The examiner recommended upholding the denial of the executive committee of the county’s application. The governor followed these recommendations and denied the county’s appeal. The county then presented the matter to LEAA. The county was advised that the state plan conformed to the aims and purposes of the Act, and “If State law has been violated by the Governor’s action, it would appear that an appropriate forum in the State could be found for considering the issues.”

The matter is now before this court for resolution. The 1975 subgrant application of the county has been denied and no appeal taken from these denials. The county raises a number of issues. However, as we view the case, the dispositive issue is a determination of whether the plans of the WCCJ for the appointment of counsel for indigent defendants in criminal cases complies with, or is contrary to, existing state law, specifically sec. 970.-02 (6), Stats. We conclude that the plans of the WCCJ [241]*241are contrary to the state law and therefor invalid and that the WCCJ cannot impose invalid requirements on a subgrantee as a condition to receiving funds.

At the time this dispute arose, sec. 970.02 (6), Stats., provided:

“(6) The judge shall in all cases where required by the U. S. or Wisconsin constitution appoint counsel for defendants who are financially unable to employ counsel, unless waived, at the initial appearance. The judges of courts of record in each county shall establish procedures for the appointment of counsel in that county; . . . except that in any county having a population of 500,000 or more in any case not triable in the county court, the judge before whom the defendant initially appears shall transfer the case to the circuit court for the county and the clerk shall assign it to one of the criminal branches of that court. In such counties, an initial appearance may be before the circuit court. A determination of whether the defendant is financially able to employ counsel shall thereupon be made, and counsel appointed, if necessary, and the case remanded to the county court for a preliminary examination. The defendant may waive preliminary examination and the case need not be remanded for such waiver.” (. . . added.)

Ch. 39, sec. 709m, Laws of 1975, published July 30, 1975, amended sec. 970.02 (6), Stats., by deleting that portion thereof following the ... in the above-quoted statute.

The language of this statute is clear and unambiguous. When the statutory language is clear and unambiguous no judicial rules of construction are permitted, and the court must arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. Recht-Goldin-Siegel Const. v. Dept. of Revenue (1974), 64 Wis. 2d 303, 306, 219 N. W. 2d 379. “It is impermissible to apply rules of statutory construction to ascertain legislative intent when the legislation is clear on its face,” Honeywell, Inc. v. Aetna Casualty & Surety [242]*242Co. (1971), 52 Wis. 2d 425, 429, 190 N. W. 2d 499. “. . . We cannot, of course, by liberal construction change the wording of a statute to mean something which was not intended by the legislature or by the plain language used.” Lukaszewicz v. Concrete Research, Inc. (1969), 43 Wis. 2d 335, 342, 168 N. W. 2d 581. The popular or reasonable import of words furnishes the general rule for the interpretation of public laws and in construing a statute the court is not at liberty to disregard the plain clear words of the statute. A. O. Smith Corp. v. Department of Revenue (1969), 43 Wis. 2d 420, 429, 168 N. W. 2d 887.

The statute here under consideration says that the judge shall in all cases appoint counsel and that the judges of courts of record shall establish procedures for the appointment of counsel in that county. This is a clear and unambiguous statement of legislative intent. We see no way in which the language of the statute can be construed to authorize or permit the executive branch of the government to impose conditions or sanctions upon the judiciary in the exercise of this statutorily created obligation.

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Bluebook (online)
243 N.W.2d 485, 73 Wis. 2d 237, 1976 Wisc. LEXIS 1138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-milwaukee-county-v-wisconsin-council-on-criminal-justice-wis-1976.