(dissenting). The majority opinion voids the programs of the Wisconsin Council on Criminal Justice on a ground which is erroneous as a matter of law.
The holding of the majority opinion is that the Wisconsin Council on Criminal Justice program is invalid because it conflicts with sec. 970.02 (6), Stats., which the majority contends vests in the judiciary the exclusive power of appointment of counsel for indigent defendants. The majority states:
“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 majority asserts that the Wisconsin Council on Criminal Justice is without authority to impose its own plans regarding the appointment of counsel upon the judiciary, because the judiciary cannot be required “to adopt any particular plan in their establishment of procedures for the appointment of counsel.”
This holding demonstrates a lack of understanding of the nature of the Wisconsin Council on Criminal Justice *246and of the facts of this case. The Wisconsin Council on Criminal Justice is not imposing mandatory conditions upon the judiciary in the exercise of the judiciary’s admitted state statutory power to appoint counsel.
The Wisconsin Council on Criminal Justice is imposing conditions upon the receipt of a federal grant under the Omnibus Crime Control and Safe Streets Act, as that Act explicitly requires. 42 USCA, secs. 3733 and 3734. This difference is fundamental. Yet it is ignored by the majority. There is no requirement that any county judiciary apply for these federal funds; but when a county judiciary voluntarily chooses to seek these federal funds, as Milwaukee county and its judges have done, it must comply with the conditions established by the Wisconsin Council on Criminal Justice. The Wisconsin Council on Criminal Justice programs are not extralegis-Iative enactments of state law, because they have no general applicability of any kind. They are federally required conditions which apply only when a party chooses to become a federal subgrant applicant.
The question here is simply whether Milwaukee county and its judges wish Wisconsin taxpayers to assume the burden of over one million dollars annually for the appointment of constitutionally required counsel or whether they wish to secure such funds from the federal government and state matching funds. If the applicant is to secure these funds, it must accept the conditions of the grant program.
Obviously, we would not expect, nor would we permit, the county of Milwaukee or the judiciary of Milwaukee to violate state laws, even for the purpose of relieving the local or state taxpayers of the burden of paying for constitutionally required counsel.
Thus, the question is not whether the government or an executive agency, Wisconsin Council on Criminal Justice, is legislating for the judiciary — for it is not— *247but whether present state law permits 'the utilization of the offered funds under the grant conditions.
The majority opinion purports to hold that the judges would be obliged to act contrary to statute were they to operate under the grant conditions. In an effort to support its patently untenable position, the majority assumes facts not in the record. The majority states:
“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 extra-legislatively required to delegate that authority or to adopt any particular plan in their establishment of procedures for the appointment of counsel” (Emphasis supplied.)
This statement is contrary to the record, for it assumes that the trial judges under the plan are “required to delegate” their authority to make appointments of counsel, and it assumes that they are required to adopt “procedures.”
The statement is incorrect for two reasons: (1) Under the plan all potential counsel are placed on the list only with the approval of the judges, and (2) there is no requirement that the judges do anything or adopt any procedure whatsoever. The question is: May the judges under state law if they wish acquiesce in the proposed grant conditions? The judiciary is not required to do anything if it does not want to. To phrase the question differently: May the Milwaukee judges on their own volition agree to the plan and its procedures?
Clearly they can. There is nothing in the plan inconsistent with the statute. Under the plan, no attorney is placed on the appointment panel without judicial approval. The plan provides that the list of private attorneys utilized must be “approved by the county’s *248criminal and juvenile court judges to ensure tliat the attorneys on it are competent to handle criminal and juvenile cases.”
Thus, the provision of the statute relied upon by the majority, “The judge shall in all cases . . . appoint counsel,” is satisfied. Only those attorneys appointed by the judges are permitted to serve.
The second question completely ignored by the majority, and which is of considerable importance, is whether the procedure for the appointment of counsel is within the limits of state law.
From the face of the statute, it is apparent that the legislature intended that judges might, if they wished, deviate from the practice of appointing ad hoc counsel for each individual defendant. The legislature stated that judges “shall establish procedures for the appointment of counsel.” This provision of the statutes indeed gives the judges of Milwaukee county the right to initiate a procedure or to veto a procedure they might consider unacceptable, but it also gives them the right to ratify or accept the procedure for the appointment of counsel set forth in the proposed grant. As I view sec. 970.02 (6), Stats., then, judges retain the right to initially “appoint” counsel by placing only lawyers of their choice on the panel. This right is untouched by the plan.
The sequential utilization of lawyers in particular cases is a procedure which the judges of Milwaukee county may adopt if they wish, but an individual judge may also, under the plan, decline to utilize the lawyer next in sequence if he considers counsel inappropriate for the particular case. Judges thus retain the prerogative to reject counsel.
True, the plan requires a summary statement explaining the deviation from the sequence. This does not appear to be an onerous condition. Some trial judges have objected to this condition because they fear it might *249hurt the reputation or reflect unfairly on the competency of inexperienced, but otherwise exemplary, lawyers. The position of these trial judges in this respect is understandable and may well be a valid subjective reason that would impel them to reject the plan. But nothing in the statutes would make that procedure illegal under Wisconsin law.
Thus, the plan requires judges to do nothing illegal. The approval of this plan is dependent, not on the law of Wisconsin, but on the willingness of the Milwaukee judges to accept it. They apparently feel that the requirements are personally onerous or objectionable, to the extent that the opportunity to secure over a million dollars in the financing of court operations is to be allowed to slip away. This is a choice given to them by the statutes. They may, if they wish, decline the plan’s procedure in order to retain individual independence in the appointment of counsel, rather than to yield up that duty in favor of an organized procedure of the entire local bench. But they are not required by law to make that choice. There is nothing illegal about the plan.
It is the choice of Milwaukee county and the Milwaukee county judges to reject the plan and to forego the opportunity to secure approximately one million dollars in federal and state funds for the community.
I conclude that the proposed plan complies with present state law and would issue the declaratory judgment so holding.1
*250I am authorized to state that Mr. Chief Justice Beil-fuss joins in this dissent.
Day, J., took no part.We have foregone the opportunity to belabor the obvious— sec. 970.02 (6), Stats., is not a legislative expression of a grant of exclusive power to the judiciary to appoint counsel. It is a legislative expression of a court’s duty under the constitution to protect a defendant by appointing counsel when one is not otherwise made available by friends or others. It is the defendant’s right to have counsel that is constitutionally important. A court has no constitutional “right” to make an appointment, and no exclusive right to make appointments is apparent under sec. 970.02 (6).