also dissenting:
I join in Justice Underwood’s dissent. Public defenders’ offices, understaffed and overworked, will be dismayed at the majority’s action. They must now go forward, as the majority puts it, “in the uncharted sea of civil litigation for prisoners.” (92 Ill. 2d at 227.) It is more facilely said than done.
The involved statute, as has been stated, 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.)
The language “for all persons who are held in custody” has been considered to mean those who were in custody and against whom no charges had been placed. Under those circumstances, relatives or friends of the prisoner, or the prisoner himself, might seek a court’s assistance, by way of habeas corpus or otherwise, to have the prisoner released or to have a charge filed against him so that a bond might be set. The language of the statute authorizes the court to appoint the public defender to act as attorney before the court for such persons who are unable to employ counsel. Following the order or the sequence of a criminal case, the statute then goes on to authorize a court to appoint the public defender to act also for persons who have already been charged with the commission of criminal offenses.
I agree with Justice Underwood that there was no legislative intention to authorize courts to appoint the public defender to prosecute civil matters for indigent prisoners. In instances where counsel should be appointed, counsel other than the public defender should be designated.
RYAN, C.J., and UNDERWOOD, J., join in this dissent.