Hendrix v. City of Seattle

Finley, J.

(dissenting) — I concur substantially in Justice Rosellini’s dissent; nevertheless, I feel compelled to present an alternative analysis as to certain facets of that dissent. In addition, I feel some critical comment is relevant and must be presented as to the background or foundation of certain assumptions and conclusions embraced in the majority by Hale, j.

With some literary license, it may be said that the majority’s disposition of this appeal is painted in bright and spritely colors with broad and dazzling brush strokes. The result is scintillating. At first blush, it is almost spectacular. But even spectaculars in the creative arts can change hues and lose lustre on close examination. I am not disturbed by the color and vigor of Justice Hale’s' opinion. I am concerned by skips and misses on the canvas — skips and misses not masked by striking colors and dubious ápocalyptic visions of chaos in the administration of justice in Washington.

*186In contrast, the dissent by Justice Rosellini does not rely upon shock value. Its formulation rests on solid ground— namely, the ideals and objectives of our state and federal constitutions, rationally interpreted and applied in the context of our crowded, complex, modern industrial and urban society. I find no shaky premises in the dissent, no irreparable flaws in design or in results. I do disagree with certain aspects of its focus. Frankly, I believe it relies too heavily on anachronistic legal concepts. There is a real danger that the factors proposed by the dissent for limiting the right to counsel would place emphasis upon the accidents of legal history rather than upon the realities of existing society.

Before turning to the reasons which lead me to have certain reservations as to the factors which Justice Rosellini has isolated and emphasized in regard to appointment of counsel, I think it essential to stress two points with regard to Justice Hale’s majority opinion. That opinion first takes a national estimate of need for publicly provided counsel, inflates it by including all traffic offenses, and points to the resulting caseload with something akin to horror. Secondly, the opinion samples the Seattle City Code’s criminal ordinances to establish the proposition that there is little relationship between the seriousness of the offense and the maximum sentence prescribed by ordinance.

I believe that the majority opinion ignores available statistics. It needlessly discounts the creative ability of municipal officers to inaugurate appropriate redesigning of municipal ordinances.

Readily available statistics place the need for publicly provided counsel at trial in misdemeanor cases in King County, excluding those traffic offenses for which imprisonment is rarely imposed and public drunkenness prosecutions, at 10,562 cases per year.12 The number in the municipal courts of Seattle, with which this case is directly concerned, is 6,219 cases per year.13 Use of sanctions other than *187imprisonment against those unable to pay traffic fines would reduce the total in Seattle municipal courts to 4,505 cases per year.14 The above figures represent cases in which a substantial probability of loss of liberty presently exists.15 The effect of revision of the present scheme of penalties to create special maximum sentences for repeated offenses and recognition of aggravated degrees of existing offenses is speculative. However, this could produce some further reduction of the above figures. In short, the actual need for publicly provided counsel falls considerably short of the picture painted by Justice Hale, and an attempt to meet that need is unlikely to cause the collapse of our legal system.

Given the existing punishments, equated with a requirement for publicly provided counsel, it is apparent that our municipalities would be faced with a burden in the latter respect greater than that suggested by the above figures, particularly as to traffic offenses. Several suggestions have been made as to appropriate means of reducing that burden.16 It has been suggested that consideration be given to the actual probability of imprisonment on a case-by-case basis in defining the right to publicly provided counsel. It has also been suggested that the probability of imprisonment be considered as to each offense, without attention to the circumstances of the particular defendant. Finally, the suggestion has been made that the solution lies in a legislative revision of authorized imprisonments to conform with actual existing sentencing practices.

“Substantial probability of imprisonment” is not a desirable standard for application on a case-by-case basis by individual judges.17 If the same standard is applied on an *188offense-by-offense basis, two problems arise. First; aggravated or repeated offenders are denied counsel, even though they may receive the maximum punishment instead of the usual punishment. Second, application of an offense-by-offense standard amounts to an assertion that courts have a privilege to suspend enacted law by customary sentencing practices.18 While courts may in some cases have the power to act in this manner, sound judicial discretion restrains its • use. A far more sound solution is to redraft municipal codes to remove or reduce punishments which are never imposed, and to provide separate charges and punishments for aggravated offenses. In many cases, this revision would amount to no more than drafting existing sentencing practices into the written law.19

Justice Hale has adequately described the present crazy-quilt confusing pattern regarding authorized maximum punishments for ordinance offenses. These ordinances have simply accumulated over time. An attempt to legislatively define the appropriate relationship between the maximum punishments authorized is overdue. However, the legislative task of balancing the cost of providing counsel against the authorized punishments is not beyond the competence of responsible officials. They need do no more than reduce below the level of a substantial deprivation of liberty the maximum sentence for offenses which they consider to be minor. If such offenses are not the source of significant opprobrium, provision of counsel for their trial would not be required.

It is a judicial question under the constitution of this state and the constitution of the United States whether or not counsel is constitutionally required at the trial of an offense for which a given quantum of imprisonment is assessed, or conviction of which generates significant social *189opprobrium. In the course of confusing judicial with legislative questions by treatment of the cost of providing counsel, the majority opinion has usurped the legislative function, has denied the responsibility of this court concerning the constitutions of this state and the United States, and has queried the competence of duly elected municipal officials to carry out their duties in accord with the constitutional guidelines established by this court and the Supreme Court of the United States.

Justice Rosellini has delineated the novel application of rules of constitutional interpretation by the majority which has resulted in the aforementioned topsy-turvy approach to the constitutional issue posed in the instant case, and he has carefully and correctly resolved that issue. My disagreement with his dissent is not with the result or nature of his reasoning as to the right to publicly provided counsel, but rather with the factors which he has developed to test the further implementation of that right. Affirmance of the trial court in providing counsel in this case has the potential to impose significant burdens on the administration of the courts of limited jurisdiction. Unquestionably, to alleviate these burdens, immediate action from local legislative bodies would be required. It is imperative that guidelines for those bodies be articulated clearly and with reference to actual social realities and objectives involved.

As I read Justice Rosellini’s opinion, he considers three factors important in concluding that counsel need be provided. Those factors are: (1) is the offense denounced in the state criminal code; (2) is the offense malum in se; and (3) is the offense one which was not punishable summarily at common law. Affirmative responses to these factors favor the right to counsel; negative responsos to these factors indicate that counsel is not constitutionally required. The court must weigh the factors appropriately and determine if counsel must be provided.

Justice Rosellini uses the term “petty offense.” The term, taken from the context, of- federal cases discussing the right *190to jury trial under the Sixth Amendment, is of little utility in terms of the right to publicly provided counsel.20

The term has acquired a special significance in relation to very different policy considerations relating specifically to jury trial. That is not our problem in the instant case;21 the *191right to jury trial and to publicly provided counsel are of importance to different classes of defendants for significantly different reasons. See Junker, supra note 4 at 704-08. Justice Rosellini has used the term “petty offense” solely for the purpose of labelling the result reached by weighing the three factors to which I have referred. Clarity of analysis would be enhanced by dispensing with the term. It suffices to say that there is a class of offenses to which the right to publicly provided counsel does not attach on constitutional grounds.22

After careful consideration of the factors which Justice Rosellini has proposed to ascertain the class of offenses to which the right to publicly provided counsel attaches, I disagree with his analysis in the following significant respects. The relationship between the three factors which he isolates and the severity of the penalty assessed for the offense is nowhere elaborated and clarified, although that relationship is of major importance.23

I would agree with Justice Rosellini that an ordinance which purports to punish an offense (1) denounced in the state criminal code, (2) classifiable as malum in se, and (3) *192not punishable summarily at common law describes an offense to which the constitutional right to counsel should attach. The opprobrium attendant upon conviction of such an offense may be as significant as a major deprivation of liberty. Moreover, on a descriptive basis, Justice Rosellini’s analysis would be generally accurate for I believe that an experienced trial judge would unconsciously weigh the factors suggested by Justice Rosellini to arrive at the appropriate solution in the majority of cases. However, in terms of guidance to legislative bodies and a conscious articulation of the governing issues and values, the dissent has significant shortcomings.,

I turn now to the specific factors proposed by Justice Rosellini. His first factor refers to the state criminal code. It will favor a grant of counsel in the case of felonies charged as misdemeanors by prosecutors appropriately using the device of a charge of disorderly conduct or a more specific ordinance violation. It will also favor a grant of counsel'in the case of public welfare offenses serious enough to have been the subject.of state legislation.24

His second factor, viz., is the offense malum in se, incorporates an extremely confused body of law.25 it directs at*193tentiqn to proper matters, but it does so in the wrong manner. It would favor a .grant of counsel for most felonies charged as misdemeanors, and for lesser, degrees of the more traditional crimes.26 Under the classic interpretation, it would deny counsel for narcotics offenses, in spite of the social seriousness of these offenses and the severe penalties provided by law.27

The third factor seems to me totally misleading. If the offense was unknown at common law, this factor is of no help.28 If the offense was known at common law, the reasons *194why it was punishable summarily are in many cases only of antiquarian concern.29 In some cases, those reasons may express social policies which are utterly at variance with our own or are unenforceable for constitutional reasons.30 Obviously we do not live in Tudor or Stuart England. Just as obviously this court should concern itself with present day realities. If an offense is to be declared punishable without a right to counsel, that decision should be justified on existing social conditions — not on the peculiarities of Tudor or Stuart society.

The language of the state and federal constitutions speaks of criminal prosecutions.31 The provisions with which we are concerned are enumerations of individual rights in such prosecutions. It appears to me that these provisions are designed to safeguard what such prosecutions jeopardize — liberty and reputation — and that a decision as to what is or is not a criminal prosecution for the purposes of these safeguards ought to turn upon a significant deprivation of liberty or injury to reputation.32

Such an analysis would first direct itself to the punish*195ment which maybe imposed upon conviction — the authorized maximum sentence. This clearly measures the threat of a direct and substantial deprivation of liberty.33 In the event that the punishment authorized does not involve a substantial deprivation of liberty,34 the mens rea requisite for conviction should be considered to ascertain if adverse social consequences attach to a determination that the accused possesses that state of mind.35 If such adverse conse*196quences do not attach,36 the actus reus should be considered, to ascertain if a determination that the accused did the forbidden act carries with ' it adverse social consequences.37

' Such a realistic view of what a criminal prosecution entails should not subject this court to a charge of usurpation of power.

It must be admitted that recognition of a right to counsel in these cases will involve expense. That expense could be borne by members of the bar individually or as an association, or be provided for by appropriate legislative bodies, justice Hale has dwelt upon the expense involved as making the issue before us one for the legislature. I must agree that the manner in which compensation is to be provided is for the legislature; but whether counsel is to be .publicly provided under the constitution is unequivocally a question for the judicial branch of government.38 Justice Rosellini *197has detailed the precedential considerations which require that the decision below be affirmed. I am in accord with his interpretation of the constitutionally required decision. Because the result dictated by the constitution would require the judges of courts of limited jurisdiction to confront a novel and complex problem, I have attempted to isolate relevant guidelines for their consideration. I do not mean by the extended critique of the factors discussed by Justice Rosellini to express in any way disagreement with that portion of his opinion which establishes the constitutional reasons upon which the decision below must be affirmed. Apart from what appears to me an unnecessary identification of “petty offenses” for jury trial purposes with the class of offenses in which the provision of counsel is not constitutionally required, I am fully in accord with his reasoning as to the source of the right to publicly provided counsel.39

In summary, the right to publicly provided counsel in this case arises from the circumstance that the defendant was faced with a substantial deprivation of liberty upon conviction. A threat of significant social opprobrium resulting from conviction would have also caused the right to arise. The doctrinal source of the right is the operation of the Fourteenth Amendment, which secures against state interference those liberties mentioned in the Bill of Rights *198which are fundamental rights. The balancing of interests which determines if a right appearing in the Bill of Rights is a fundamental right, protected from state interference, is a- judicial function under the constitution. In my judgment, it is a function which ought never to be masked by misleading analogies. I have specified at length the results of application to existing law of the analogy drawn by Justice Rosellini, which I consider misleading in some respects. The weakness of the analogy as to the scope of the right— the “petty offense” concept — has nothing whatever to do with the rest of Justice Rosellini’s argument. That argument balanced the interests and appropriately analyzed the legal basis of the right to publicly provided counsel. As a result, the greater part of this concurrence has been confined to analysis of weaknesses in the factors for limiting the right to publicly provided counsel proposed by Justice Rosellini, to discussion of an alternative analysis to limit the scope of the right, and to an attempt to point out that the majority has misplaced its emphasis upon cost.

The defense of ordered liberty begins with sensitive and rational implementation of the text of the constitution. A democracy cannot place a price tag on criminal justice, for to do so abandons the letter and spirit of American constitutional government. We ought to remember that civil disorder feeds upon injustice. We ought not forget that early in the history of Anglo-American culture it was necessary to establish by armed rebellion that “to none will we sell, to none will we deny or delay, right or justice.”40

The implementation of that ringing pronouncement of the difference between a just society and rule by a self-interested fraction of society is less than perfect in our own time. See Report of the Commission on the Causes and Prevention of Civil Disorder, Race and Violence in Washington State 51 (1969). As judges we have, the opportunity, the power, and the constitutional responsibility for appropriate decision making.

*199The significant decision of the court below is long overdue. It should be affirmed.

See National Legal Aid and Defender Association, How to Organize a Defender Office 39-51, at 48 (1967).

Ibid.

Ibid.

Defined by the study as a 5 per cent chance of any imprisonment. Id., at 40-41; Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash. L. Rev. 685, 711 n. 137 (1968). But see notes 23 and 24, infra, discussing the possibility that short periods of imprisonment may be constitutionally permissible without the provision of counsel.

See Junker, supra note 4 at 703-15.

Cf. Betts v. Brady, 316 U.S. 455, 86 L. Ed. 1595, 62 S. Ct. 1252 (1942) overruled by Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963).

See note 33 infra.

See National Legal Aid and Defender-Association, supra at 40-43. In addition to changes which merely .bring the written law into conformity with present practice in sentencing,- it is open to-the responsible legislative- bodies to reduce the substantive- penalty for certain offenses, and thereby negate any counsel requirement ■ -resulting from the penalty alone. See text infra.

Analytieally, the instant case requires us to consider the operation of the Fourteenth Amendment upon the Sixth Amendment. The guarantee of counsel in all criminal prosecutions is therefore qualified by a threshold determination that the right to counsel in a particular class of prosecutions is a fundamental right. See Gideon v. Wainwright, supra at 340-41. The balancing process which establishes that a right is fundamental will balance different interests as to each right enumerated in the Sixth Amendment. The balancing process as to jury trial is not the same as that as to the right to publicly provided counsel. See Junker, supra at 704-07.

Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968) simply established that jury trial for certain offenses was a fundamental right. It in no way supports a statement that the Sixth Amendment rights to jury trial and publicly provided counsel are coextensive as applied to the states by the Fourteenth Amendment. A grammatical approach to constitutional construction in this area has been discredited since Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55 (1932). For reasons sufficiently apparent from that case, I believe that the provision of our state constitution relating to the right to counsel should receive a construction dictated by current policy considerations as well as syntax.

In Duncan v. Louisiana, supra, note 20, the Supreme Court held the jury trial guarantee applicable to the states. Bloom v. Illinois, 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477 (1968), held a 24-month state commitment for criminal contempt violative of the jury trial guarantee, continuing an identification between criminal contempts and crimes made in Cheff v. Schnackenberg, 384 U.S. 373, 16 L. Ed. 2d 629, 86 S. Ct. 1523, 1537 (1966). In Cheff, four justices, including Justice Fortas, acceded to the opinion by Justice Clark which contained the proposition that a commitment for criminal contempt for less than 6 months need not require jury trial. (The court has treated contempt as an offense for which the opprobrium is negligible.) That proposition was buttressed by reliance upon 18 U.S.C. § 1. Its converse, that longer commitments require jury trial, was laid down as an exercise of the supervisory power of the Supreme Court over the federal courts. 384 U.S. at 380. As a result, the 6-month rule is not binding on the states. Dictum in Duncan approving application of the 6-month rule to the states is not joined by a majority of the court. See Justice Fortas’ concurrence, 391 U.S. at 211.

In light of the above state of judicial confusion, reliance upon the jury trial cases and the 6-month rule appears to me to be extremely dubious. For this court to transfer the confused rationale of the above *191cases to a new area without close attention to the interests involved would compound confusion.

After a suitable accumulation of precedent, “criminal prosecutions” (as that term is used in the state constitution and is used in the Sixth Amendment and is made applicable to the states by the Fourteenth Amendment) can be defined by reference to the accumulated precedent regarding the right to publicly provided counsel. A similar definition can be made by reference to accumulated precedent with regard to the right to jury trial. If those definitions are essentially the same, it will then be time to equate them for reasons of doctrinal simplicity.

In the meantime, this court can only confuse the law by inadvertently importing with the analogy to jury trial policy considerations born in the federal judicial system and governed by different administrative, fiscal, and other considerations.

It is clear for example that imprisonment for a period of 10 days may be imposed by a state without jury trial, if the offense is “non-petty” for reasons other than the sentence. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 20 L. Ed. 2d 538, 88 S. Ct. 1472 (1968). Whether a 10-day confinement would be permissible when counsel, rather than jury trial, had been denied, raises issues referred to at note 20, supra and interests discussed at note 34, infra.

Reference to the state criminal code could be a source of confusion with regard. to public welfare offenses. The imposition of strict or vicarious criminal liability commits great discretion to the-prosecuting official. One may. reasonably expect that, certain offenses punishable regardless of the mens rea involved may be dealt with by prosecutorial discretion exercised on the basis of the factual mens rea, the intent of the statute, and whether or not repeated offenses are involved.

If substantial differences exist between the enforcement policy and the statutory penalty, prosecution under an ordinance modeled on the statute but exacting a penalty which does not of itself entail a right to counsel should not require that counsel be provided. The state may desire to retain severe penalties and provide counsel for offenses as to which municipalities desire to take a contrary course.

This court should not construct a rule which prevents recognition of the factual difference in seriousness between those offenses prosecuted under state law and those prosecuted under local ordinances, so long as the maximum penalty under the ordinance does not substantially deprive the defendant of liberty and conviction does not carry with it substantial opprobrium. '

See R. Perkins, Criminal Law 11-.12, 692-710 (1957). As ^n example of the difficulties raised by this excursion into antiquity, is the

*193offense denounced in Seattle City Code § 12.11.175 malum in se? The ordinance forbids owners; managers, or operators of public places where alcoholic beverages are sold,, served, or consumed from knowingly permitting or causing therein a “topless” or “bottomless” a go-go performance. Regárdless of our own or Victorian standards of morality, or the general power of common law judges to punish the corruption of public morals, the inquiry is essentially spurious.

The difficulties involved in attempting to apply the malum in se/malum prohibitum dichotomy to existing law are exemplified in Perkins, The Civil Offense, 100 U. Pa. L. Rev.' 832 (1952). Ought we conclude that appointment of counsel on a charge of violation of Seattle City Code § 17.04.030 (possession of narcotics) turns upon the existence of a comparable state criminal provision, in spite of the absence of both other factors? Of what import are the present (RCW 69.33.410) (felony) and proposed (gross misdemeanor) state punishment provisions? At common law all felonies were malum in se.

It would be far more useful to inquire into the mens rea required for conviction, and then ask if doing the forbidden áct with the' requisite intent would lead to a substantial loss of reputation. This dispenses with a spurious historical inquiry, and focuses on the real issue. Cf. W. Grosser, Torts § 107 at 773-74 (3d ed. 1964) discussing “major social disgrace” with relation to slander per se.

E.g., assault in the third degree,' RCW 9.11.030; petty larceny, RCW 9.54.090. Whether it would favor a right to counsel as to such offenses as lewdness, RCW 9.79.120, or indecent liberties, RCW 9.79.080, disregarding for the moment the penalty provisions, is not entirely clear. See G. Williams, Criminal Law §§ 69, 83, 189-90 (1961); R. Perkins, supra note 25, at 698 n.31 and text accompanying.

RCW 69.33.4Í0; Seattle City Code §§ 17.04.110, 17.08.060, 17.12.030.

Most public welfare offenses can only be considered as known at common law by application of analogy — which is not favored as to criminal statutes. As a result, statutory offenses found to be unknown at common law will be modern mala prohibita. The factor is somewhat duplicative of the second factor when applied but denies counsel for reasons which are wholly fortuitous'as toa large class of offenses.

As in the cases of the following summary offenses: preaching, dissenting religion without having taken the oath of allegiance, advancement of fond fanatical or false prophesy to the disturbance of the realm, unmarried motherhood, and destruction of bent grass. See Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 932 (1926). The common law statutes concerned date respectively from Charles I, Elizabeth I, James I, and George II.

Vagrancy and the like were punishable summarily in both England and colonial America. See Frankfurter and Corcoran, supra note 29: These offenses are notorious for their vagueness and the wide discretion vested in the enforcing officer. See Comment, Constitutional Attacks on Vagrancy Laws, 20 Stanford L. Rev. 782 (1968); W. LaFave, Arrest 87-88, 354-55 (1965); Sherry, Vagrants, Rogues and Vagabonds — Old Concepts in Need of Revision, 48 Calif. L. Rev. 557 (1960).

U.S. Const, amend. 6: “In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”

Const, art. 1, § 22: “In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, . . .”

See Cheff v. Schnackenberg, supra note 21 (Douglas, J., dissenting).

Use of an actual threat of imprisonment standard on a case-by-case basis by individual judges is obviously inappropriate. Cf. Betts v. Brady, supra note 17. Use of a standard based on customary sentencing practices on an offense-by-offense basis usurps the legislative decision as to the appropriate maximum punishment. If legislative bodies desire that certain offenses be punished in a certain manner, the constitutional consequence, viz., right to publicly provided counsel, must be faced. Judicial discretion in sentencing survives at the pleasure of the legislature which could create mandatory sentences for all offenses. It would be an abuse of that discretion to create a customary sentencing practice which was contrary to legislatively specified sentences for the purpose of evading constitutional issues.

Worse yet, an offense-by-offense standard would deny counsel to some offenders upon whom substantial imprisonment would in fact be imposed.

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 20 L. Ed. 2d 538, 88 S. Ct. 1472 (1968) (7-2) held that for jury trial purposes a sentence of 10 days in jail and a fine of $50 imposed in state court was punishment of a petty offense. In dictum the court appears to consider a 6-month commitment as similarly “petty.” In this regard it should be recalled that both this case and Cheff v. Schnackenberg, supra note 21, dealt with criminal contempt.

As confinement for a period of over 10 days is certain to produce adverse results with an employer and disturbance of familial relations, I am inclined to believe that on a realistic basis such a confinement represents the point at which a substantial deprivation of liberty clearly begins. There may well be grounds for holding, as would the dissenters in Dyke, supra, that the beginning point is with some lesser quantum of imprisonment. See ABA Project on Minimum Standards for Criminal Justice, Providing Defense Services § 4.1 (Tent. Draft 1967) and comment thereto, arguing for appointment in “all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed.” (Italics mine.) The comment makes it quite clear that the exception relates to a classification by offenses, not on a case-by-case approach. While I find such a classification eminently reasonable, I believe that the questions raised in the course of making it are in essence legislative. See note 33, note 19 and accompanying text, and note 24, supra.

E.g., the mens rea of larceny.

E.g., the “mens rea,” or, more properly speaking, absence thereof, associated with conviction for violation of the third offense comprised within the three-fold prohibition of RCW 46.61.520 (negligent homicide by operation of vehicle with disregard for safety of others), viz., objective criminal negligence. See State v. Eike, 72 Wn.2d 760, 435 P.2d 680 (1967) and my dissent thereto.

Other examples can be easily found among crimes of strict and vicarious liability, of which the food and drug acts are the most obvious.

Usually social opprobrium derives from the mens rea of the crime —from general or specific criminal intent. But some public welfare offenses are so overwhelming in their impact as to create public outrage, regardless of the defendant’s state of mind. As examples, consider the thalidomide scandal and the Morinaga milk scandal. (Described in Niibori and Cosway, Products Liability in Sales Transactions, 42 Wash. L. Rev. 483, 487-89 (1967).) The circumstances that such defendants are usually not indigent and are usually prosecuted in courts of general jurisdiction for offenses bearing serious penalties should not blind us to an analogous situation occurring with indigents for offenses bearing lesser punishments.

In this regard, the legislature does not labor under the same confusion which appears to have baffled Justice Hale. RCW 10.01.110 was amended in the 1965 session by adding the following:,

Provided, That this section shall also,apply to such other proceedings and at such other time as may be constitutionally, required.

Laws of 1965,,ch. 133, § 1. .

The amendment would at first blush, appear to do. no more. than *197anticipate the result of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966), which was then on certiorari before the United States Supreme Court. However, it should also be recalled that Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966) was before this court on appeal; and that the reach of the decision in Gideon was a matter of speculation. See Junker, supra note 4 at 690-91.

' In these circumstances, the legislature clearly deferred to this court’s constitutional authority in granting an open-ended authority to appoint counsel in, at the very least, all stages of a felony proceeding, and provided for their compensation.

"As to the doctrinal considerations which dictate that the federal precedent as to the “petty offense” concept does riot presently bind this court, and the policy considerations which weigh against according that precedent persuasive effect in delimiting the reach of the instant right, see notes 20, 21, and 22, supra.

“Nulli vendemus, nulll negabimus, aut differemus rectum aut justiciam.” Magna Carta.