State v. Barklind

Dolliver, J.

(dissenting)—In 1974, this court held in State ex rel. Brundage v. Eide, 83 Wn.2d 676, 521 P.2d 706 (1974), that an indigent defendant’s Sixth Amendment right to counsel was unconstitutionally impaired by a district court order requiring defendant to pay attorney’s fees. The order was issued at the time counsel was appointed and required that the fees be repaid if, within 6 months, the defendant found employment enabling him to do so. In the present case, the majority holds that if the order of repayment is imposed at the time of granting probation, rather than at the time the right of counsel attaches, no constitutional impairment exists. This is a distinction with which I am unable to concur.

The majority, following Fuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974), sets forth an elaborate series of tests by which the repayment order made at the time of probation may become valid. This simply misses the point. The question is not the nicety of the rules which require repayment or whether the defendant can at some future date pay for legal services. Rather, it is whether at the time an indigent defendant requests counsel there is the knowledge that at some time during that judicial process reimbursement may be required as a condition to the granting of a benefit by the court. As stated by the California Supreme Court in In re Allen, 71 Cal. 2d 388, 455 P.2d 143, 78 Cal. Rptr. 207 (1969), and quoted with approval in State ex rel. Brundage v. Eide, supra at 681, “This knowledge is quite likely to deter or discourage many defendants from accepting the offer of counsel despite the gravity of the need for such representation . . .” If it becomes the law of this state that at some juncture, whether as in Eide, or as in this case, or at some other point during the proceeding, a reimbursement may be required of the defendant, then the constitutional right of an indigent to counsel and our rule approved in Eide become stripped of their meaning.

*823In interpreting a state constitution, a state court is not bound by a federal court’s interpretation of a comparable constitutional provision. Herr v. Schwager, 145 Wash. 101, 258 P. 1039 (1927); State v. Moore, 79 Wn.2d 51, 66, 483 P.2d 630 (1971) (Rosellini, J., dissenting opinion). We need not bind ourselves to the interpretation given to the Sixth Amendment by the United States Supreme Court (e.g., Fuller v. Oregon, supra), when we interpret the similar language of Const, art. 1, § 22. We need not adopt the lower standard of Fuller v. Oregon, supra, as the majority urges, but instead should continue to assert the standard set forth in State v. Eide, supra.

The position of the majority offends precisely the constitutional right we sought to defend 2 years ago. Constitutional rights deserve better treatment. I dissent.

Rosellini, Hunter, and Utter, JJ., concur with Dolliver, J.

Petition for rehearing denied January 11, 1977.