dissenting:
I agree with the majority’s conclusion that an indigent prisoner does not have a constitutional right to the appointment of counsel in civil cases. I cannot agree, however, with the court’s expansive interpretation of the statute delineating the duties of the public defender. By allowing trial courts discretion to appoint counsel to prosecute civil matters for indigent prisoners, the court has succumbed to the ever-present temptation to substitute its concept of desirable legislation in place of the objective interpretation of the legislature’s intent and the constitutionality of its action, which should be a court’s only concern.
The statute before the court for interpretation provides:
“The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.” (Ill. Rev. Stat. 1979, ch. 34, par. 5604.)
As recognized by the majority, the legislature clearly has not mandated appointment of a public defender for indigent persons in civil cases under the statute. Moreover, a careful reading of the statute in light of our rules of statutory interpretation fails to reveal any permissible basis for allowing courts to appoint public defenders in civil cases. In Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, this court recently reiterated that “ ‘[i]t is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect.’ ” (72 Ill. 2d 189, 194.) “In ascertaining this intent, the entire statute must be considered (People ex rel. Morrison v. Sielaff, 58 Ill. 2d 91, 93), and also ‘the evil to be remedied and the object to be attained’ (People ex rel. Simpson v. Funkhouser, 385 Ill. 396, 403).” People v. Bratcher (1976), 63 Ill. 2d 534, 543; see also Droste v. Kerner (1966), 34 Ill. 2d 495, 503; People ex rel. Pauling v. Misevic (1964), 32 Ill. 2d 11, cert. denied (1965), 380 U.S. 963, 14 L. Ed. 2d 154, 85 S. Ct. 1107; Lincoln National Life Insurance Co. v. McCarthy (1957), 10 Ill. 2d 489; People ex rel. Barrett v. Anderson (1947), 398 Ill. 480, 485.
The language of the statute restricts the public defender to representing “persons who are held in custody or who are charged with the commission of any criminal offense.” This limitation, in my judgment, clearly reveals that the legislators’ concern related to the due process requirement or providing defendants with counsel in criminal matters.
The legislature demonstrated its ability to clearly express its intent to authorize appointed counsel in civil matters when it enacted the only statute expressly providing for the appointment of counsel in a civil matter, the post-conviction hearing legislation (Ill. Rev. Stat. 1979, ch. 38, par. 122—1). While characterized as civil in nature, even those proceedings are the direct result of the defendant’s criminal conviction and involve only its validity. The fact that the legislature has chosen not to include similarly clear provisions in the statute under consideration is, to me, persuasive evidence that the legislature will indeed be surprised to learn that it intended this statute to authorize courts to appoint the public defender to prosecute civil matters for indigent prisoners.
Moreover, the majority’s expansion of appointed counsel’s duties is not desirable. The offices of the public defenders and the State Appellate Defender are presently experiencing severe problems in coping with their extremely heavy caseloads. (See, e.g., 1982 Fiscal Report, Office of the State Appellate Defender, at 44-48.) In fact, in an effort to reduce existing delay in those offices, this court has considered it necessary to solicit the assistance of volunteers through the organized bar, and a significant number of cases are presently being handled in that fashion. (See 1982 Fiscal Report, Office of the State Appellate Defender, at 2, 44-49.) Rather than add to that burden, thereby increasing the amount of delay, it seems to me that the representation afforded indigent prisoners by such groups as the Illinois Prisoners Association is sufficient to offer these individuals meaningful access to courts for the purposes of prosecuting noncriminal matters. (For a listing of the various groups offering legal services to indigent prisoners, see Directory, Prisoner’s Legal Services, State of Illinois, compiled by the Lawyers Committee for Civil Rights Under Law, Inc. (1978).) Indeed, because of the assistance provided by these groups, indigent prisoners may now enjoy greater access to courts than do law-abiding indigents or even some citizens who are neither prisoners nor indigents.
For the reasons stated, I consider the majority holding expanding the statute to be both undesirable and inconsistent with the well-established rules of statutory interpretation.
RYAN, C.J., and WARD, J., join in this dissent.