(dissenting). There’s a saying in prison circles that “typewriters have replaced the hacksaw” as the way to get out of a penitentiary.1 Here the prisoner-petitioner wrote to the county judge complaining that for six days after being placed on “idle gang” status, he was not permitted to have a typewriter in his cell. He was permitted to have pen and paper, and he did write to the county judge about being denied a typewriter in his cell. Treated as a petition for prisoner relief, the letter, on its face, failed to state facts sufficient to warrant judicial intervention. So the writer would deny mandamus, but agrees that more is here involved than how this particular judge handled this particular letter from this particular prison inmate.
Because prison inmates often are unable to state their grievances by making out a prima facie case, the question arises as to who and when and how prisoners are to be advised and aided in presenting “the appropriate facts by the appropriate means to the appropriate courts.” 2 The question asks, in turn, two questions: (1) Who is to determine whether the petitioning prisoner is an indigent entitled to have legal counsel provided; and (2) who is to advise or assist an indigent prisoner as to petitions directed to in-prison regulations or conditions ? The writer submits that both these questions, in this state, are answered by a single statute.
That controlling statute is sec. 257.23, Stats., creating the office of state public defender and providing that the duties of the state public defender shall include:
“(5) . . .
“(a) To determine the indigency subject to court review, of any person convicted of a felony or a gross misdemeanor, ... if any such person petitions either *503the supreme court or the state public defender requesting relief from his conviction, imprisonment, or confinement.
“ (b) At the request of any such person determined by the state public defender to be indigent, or at the request of the supreme court, to prosecute a writ of error, appeal, writ of habeas corpus or other post-conviction remedy in behalf of such person before that court, if the state public defender is first satisfied that there is arguable merit to the proceeding.”
No liberal construction of this statute is required to make clear that, if the petitioner here had addressed his letter of complaint to the state public defender’s office instead of to a county judge, one of the eight attorneys on the public defender staff would have (1) determined whether or not the petitioner was indigent or without funds to retain counsel; and (2) determined whether there was arguable merit to the complaint stated and, if there was, aided the prisoner to prepare the proper petition for appropriate court relief. As clearly, the statute provides that, if the letter had been addressed to the supreme court or an individual member of it, the communication from the prison inmate certainly would have been referred to the public defender’s office for determination of indigency, investigation as to the merits and the providing of legal assistance to the writer of the letter.
Under this statute the duty of the state public defender begins in his determining whether a prisoner-petitioner is indigent. If the prisoner is without funds and entitled to counsel, the defender is to investigate to determine if there is “arguable merit” to the prisoner’s complaint. If there is such merit, and only if there is, the defender prepares the proper pleadings for seeking court redress of the grievance. If the complaint does not warrant court proceedings, the defender can explain to the prisoner why it does not.
*504Wisconsin’s legislature pioneered in this delegation to the state public defender of the duty of determining indigency and arguable merit and providing assistance to prison inmates as to postconviction and in-prison remedies. What has been done in Wisconsin has been suggested in other states as the best answer to the problems presented.3 What those problems can be is suggested by unavoidable consequences of the majority opinion requiring the county judge to consider the letter from the prisoner as either a petition for writ of habeas corpus or as an action for declaratory relief, and to determine if the petitioner is indigent.
If the county judge here elects, on behalf of the prisoner-petitioner, to consider the letter to come closest to being an application for a writ of habeas corpus, he is to disregard the statutory requirement that (1) the petition be verified,4 and (2) that the petitioner “must state in substance” certain statutorily required allegations.5 If the county judge, making the decision for and on behalf of the letter-writer, elects to consider the letter as an action for declaratory relief, the judge is commanded to ignore the facts that (1) there is here no summons,6 (2) the “complaint” is not verified,7 and (3) the required statutory suit tax and filing fee have not been *505paid.8 As to such statutory prerequisites to seeking a writ or filing an action, the majority suggest that “. . . the court can appoint counsel for the indigent to advise and assist in the preparation of necessary documents to satisfy procedural requirements. . . .” Instead of aiding the prisoner-petitioner to set sail on the right course, the court-appointed counsel is to come on board, repair kit in hand, to start patching the obvious holes in the hull of the ship. And even such mid-course legal assistance, the majority opinion concludes, is to be made available only “. . . If the petitioner makes an adequate showing of indigency by affidavit or otherwise. . . .”
Does it make good sense that all of these complications must follow, solely and simply because a letter was sent to a county judge instead of to a supreme court justice or directly to the state public defender’s office? Is the address on the envelope to make unavailable the clear statutory mandate that the state public defender determine indigency and counsel and assist prisoner-petitioners as to postconviction and in-prison rights and remedies? Must local judges struggle with questions of indigency and procedures available to prisoner-petitioners when the state public defender’s office was created, at considerable public expense, to handle exactly such matters and give exactly such legal counsel to prison inmates ? The writer thinks not.
Seeing the petitioner’s letter about the typewriter as no more than a misdirected letter that should have been sent, under the statute, to the state public defender, the writer would deny mandamus, postscripting only that the letter be forwarded to the state public defender for appropriate action. The majority opinion holds that the judge “. . . in this case, with our approval, [may] request the state public defender to represent and advise *506the petitioner.” The writer would take a more direct route by holding that, in any case, the judge, without seeking our approval, may and ought send a letter of complaint from a prison inmate to the state public defender whose duty it is to advise and counsel prisoner-petitioners.
I am authorized to state that Mr. Justice Leo B. Hanley j oins in this, dissent.Charles Larsen, A Prisoner Looks at Writ-Writing, 56 Cal. L. Rev. (1968), 342, 345.
Marshall W. Krause, A Lawyer Looks at Writ-Writing, 56 Cal. L. Rev. (1968), 371, 372.
Id. at page 377, the author stating: “What is needed is a state public defender, expert in handling appeals from criminal convictions — just as the Attorney General is expert in handling the prosecution’s ease in such appeals — who will also have jurisdiction to investigate complaints from prisoners and file collateral attacks in appropriate cases. If adequately staffed, a state public defender’s office could assume much of the burden now carried by a disproportionately small number of members of the California bar and at the same time ease the judicial load by providing a screening service to explain to prisoners why their complaints do not appear to entitle them to legal relief.”
As required by sec. 292.04, Stats.
As required by sec. 292.04, Stats.
As required by sec. 262.02, Stats.
As required by sec. 263.24, Stats.
As required by see. 271.21, Stats., unless as provided in sec. 271.29, the plaintiff in the civil action files “his affidavit that because of his poverty he is unable to pay the costs of said action or proceeding.”