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

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 *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.”

*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 *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 *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.

The various plans of the WCCJ place conditions precedent on the receipt of subgrants to the county which are inconsistent with and not authorized by sec. 970.02 (6), Stats. They are, therefore, invalid because they violate the statutes. We believe it reasonable to say that the hearing officer was of the opinion the plans imposed conditions on the exercise of appointment of counsel by the judges. He chose to describe the conditions as “a mild form of accountability” by the judges. Assuming such a description of the conditions to be correct, which we do not do, there is simply no language in the statute which would give the WCCJ such authority. It is not a question of whether the county’s applications are inconsistent with the mandates of WCCJ state *243plans. It is a question of whether the plans are violative of the state law in that they require adherence, by sub-grant applicants, the absence of which results in substantial adverse consequences. It is also argued that the statute does not require direct and personal involvement of the judge in the appointment of counsel for each individual case. Of course, it does not; it requires the judges to establish procedures for the appointment of counsel. It does not support any inference that judges can be extralegislatively required to delegate that authority or to adopt any particular plan in their establishment of procedures for the appointment of counsel.

Both parties direct our attention to State ex rel. Fitas v. Milwaukee County (1974), 65 Wis. 2d 130, 221 N. W. 2d 902, in support of their position. We find the case to be of little assistance to the WCCJ. Fitas presented a situation where we found it necessary that counsel be appointed. There was no statutory provision for the appointment of counsel in the situation there present. It was, therefore, incumbent upon this court to establish a procedure for the appointment of counsel, and we designated the state public defender. In doing so, it was stated at page 133:

“We find no clear-cut delineation in the statutes of the duties of any of the parties hereto in respect to appointment or compensation of counsel.”

and continuing at page 134:

“We conclude, without difficulty, that the appointment of counsel ought to be made by a judge or under the aegis of the judicial system. . . .”

The respondent in its brief, the governor in his decision on appeal, and the hearing officer, direct considerable attention to the philosophic and policy reasons supporting the plans of the WCCJ versus the statutory *244method of appointment established by the legislature. Also amicus curiae briefs have been filed by the National Legal Aid and Defender Association, the Wisconsin Defender Association and the state public defender, all generally espousing policy reasons for supporting the WCCJ plans. In addition, we are referred to the ABA Standards and report of the Citizens Study Committee on Judicial Organization in its report to the governor. .These policy arguments are best advanced to the legislature. The resolution of the issue before this court does not rest upon the establishment of a policy, but rather the application of a statute. We make no expression of opinion as to whether the legislature should modify or change the procedure of appointment provided by sec. 970.02 (8), Stats. Whether a state plan on a public defender program can be promulgated that will accommodate both LEEA and the existing state statute is not within the province of this court to determine.

Since we reach the conclusion that the state plans are contrary to state statutory law, it is unnecessary to reach the constitutional questions raised by the county. These go to the effect of the adoption of conditions precedent and the constitutional basis for the duty of the judiciary to appoint counsel. Only if the statute did not exist would such consideration be present. However, it does exist. Had the legislature enacted a measure whereby the duty and responsibility were placed in some person or agency other than the judiciary, then it would be necessary to determine the constitutional issue of whether, in the absence of statute, the duty is exclusive. This the legislature has not done. To go beyond the statutory language, then, to the constitutional considerations, would be to address questions not actually presented here.

Discussion of the alleged departure of the WCCJ from its own plans in approving the plans submitted by other *245counties (i.e., Outagamie) is also not required in view of our conclusion. Furthermore, resolution of the issue of the effect of departure from the state plan is perhaps best determined by the federal agency. It is also not necessary for us to determine whether WCCJ acted arbitrarily or capriciously in denying the application of the county for a subgrant.

By the Court. — Declaratory judgment granted adjudging that program 19 (1973), program 23 (1974), and program 25 (1975) of the Wisconsin Council for Criminal Justice setting forth comprehensive plans for public defender services are contrary to sec. 970.02 (6), Stats., and, therefore, invalid.