1. Art and Diseño

COMMENTS
MISDEMEANANTS' RIGHT TO COUNSEL: A
RETROSPECTIVE VIEW OF ARGERSINGER v.
HAMLIN
I.
INTRODUCTION
The right of an indigent misdemeanant to the assistance
of court-appointed counsel was pronounced by the United
States Supreme Court on June 12, 1972, when it ruled in
Argersinger v. Hamlin' that, "[a]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense,
whether classified as petty, misdemeanor, or felony, unless he
was represented by counsel at his trial."'
Heralded by some' as the long-awaited extension to all
criminal prosecutions of the sixth amendment right to counsel,
and criticized by others for its vague standard and possible
implementation problems,' this decision certainly must be considered an expansion of the constitutional right to counsel. Just
how great an extension of the right will ultimately result from
Argersinger's application cannot be ascertained without more
judicial interpretation than the year since its pronouncement
has produced. However, the several state and lower federal
court opinions which have dealt with the right to courtappointed counsel since the Argersinger decision do provide a
sketch of potential interpretations of that opinion's rule. Some
of these post-Argersingerdecisions also illustrate the rule's potential application to areas of the law not solely identifiable
with the right to counsel.
407 U.S. 25 (1972).
Id. at 37.
See 77 DICKINSON L. REV. 176 (1972); 47 TULANE L. REV. 446 (1973).
The following notes, while generally supporting the Argersinger decision, concentrate more on speculation as to its effect on the right to counsel and the likely opposi2
tion to its implementation. 4 LOYOLA U. OF CHICAC.O L. J. 273 (1973); 30 NLADA
BRIEFCASE 203 (1972); 8 LAND & WATER L. REV. 343 (1973); 58 A.B.A.J. 859 (1972).
The sixth amendment to the United States Constitution reads as follows:
In all criminal prosecutions,the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsel
for his defense. (emphasis added).
" See, e.g., 41 FORDHAM L. REV. 722 (1973); 24 MERCER L. REV. 497 (1973). Contra,
7 U. RICHMOND L. REV. 349 (1972), which concluded that since the decision affects
imprisonment cases only, it is not really as far-reaching as it seems initially.
GONZA GA LA W REVIEW
[Vol. 9
About a dozen casenote analyses of Argersinger v. Hamlin
have appeared during the past year,6 therefore, little would be
accomplished by another analysis of the decision in light of
prior right-to-counsel law. Since the purpose of this note is to
ascertain Argersinger'spotential effect on the expansion of the
right to counsel, this end will be better served by a review of
those decisions rendered in the last year which dealt with the
right to court-appointed counsel and those which cited
Argersinger's rule for application to related areas.
For background purposes, and as an introduction to the
right of an indigent misdemeanant to court-appointed counsel,
a brief rdsum6 of the facts involved and the decision rendered
in Argersinger v. Hamlin will first be presented.
The petitioner, Jon Richard Argersinger, was convicted in
a Florida state court of carrying a concealed weapon-a crime
punishable by up to 6 months imprisonment and a $1,000 fine.
His petition for a writ of habeas corpus was denied by the
Florida supreme court which stated that the federal constitutional right to counsel extends only to trials for non-petty offenses punishable by more than 6 months in jail.7 Justice Douglas,
writing for a majority of the Supreme Court, reviewed several
previous decisions which concerned the sixth amendment
rights to be informed of the nature and cause of the accusation
against one and to have compulsory process for obtaining witnesses in one's favor. He cited, with approval, the Court's ruling in Washington v. Texas8 that due process requires that an
accused have the assistance of counsel for his defense, be confronted with the witnesses against him, and have the right to
a speedy and public trial. He also noted that none of these
rights have ever been limited to felonies or lesser but still serious offenses
Cases dealing with the right to a jury, such as Duncan v.
Louisiana'0 and Baldwin v. New York," which have historically
limited this right to serious criminal cases were distinguished
In addition to those casenotes cited in notes 2 and 4 supra, other discussions of
Argersinger appeared in 37 ALBANY L. REV. 383 (1973) and 25 VANDERBILT L. REV. 1260
(1972).
State ex rel. Argersinger v. Hamlin, 236 So. 2d 442 (Fla. 1970).
388 U.S. 14 (1967).
Id. at 18.
391 U.S. 145 (1968).
399 U.S. 66 (1970).
Fall, 1973]
COMMENTS
from the factual situation under consideration in Argersinger
because no similar historical limitation has ever been put on
the right to counsel. The argument that the right to the assistance of counsel is always analogous to the right to trial by jury
was dismissed by Justice Douglas just as he rejected the premise that since prosecutions for crimes punishable by imprisonment for less than 6 months may be tried without a jury, they
may always be tried without a lawyer. Citing Powell v.
Alabama," he noted that counsel is often requisite to the existence of a fair trial since there may be no real right to be heard
if the accused does not comprehend his "right to be heard"
through counsel. This Justice Douglas found to be especially
true where the layman has little skill in the law and, in fact,
may be forced to face a greater danger of conviction because
without the aid of counsel he may not know how to establish
his innocence.'"
Though the prior leading cases supporting the right of an
indigent to court-appointed counsel, Gideon v. Wainwright"
and Johnson v. Zerbst,'5 involved only felonies, Argersinger
applied the rationale of those decisions to any criminal trial
where the accused may be deprived of his liberty.'" In the majority view, counsel may be necessary for a fair trial even in
petty offense prosecutions because the legal and constitutional
questions involved in a case which actually results in imprisonment, even for a brief period, are no less complex than those
involved when a person can be incarcerated for 6 months or
.
287 U.S. 45 (1932).
407 U.S. at 31.
372 U.S. 335 (1963).
304 U.S. 458 (1937).
Justice Douglas quoted with approval the following language from Gideon v.
Wainwright:
. . .any person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him. . . .That government
hires lawyers to prosecute and defendants who have the money hire lawyers
to defend are the strongest indications of the widespread belief that lawyers
in criminal courts are necessities, not luxuries. . . .372 U.S. at 344, 407 U.S.
at 31-32.
Citing Johnson v. Zerbst, 304 U.S. 458, 462-63, Justice Douglas continued to emphasize the necessity of counsel by saying that the
. . .average defendant does not have the professional legal skill to protect
himself when brought before a tribunal with the power to take his life or
liberty, wherein the prosecution is [relpresented by experienced and
learned counsel. That which is simple, orderly and necessary to the lawyer,
to the untrained layman may appear intricate, complex and mysterious. 407
U.S. at 32 n.3.
GONZAGA LA W RE VIEW
[Vol. 9
more. 7 Concluding its fair-trial rationale, the majority opinion
suggested that the emphasis on speed and efficiency in the
handling of misdemeanor cases might become so obsessive that
it would result in "assembly line justice," further demonstrating the need for the protection afforded by legal counsel.' 8 The
probable effect of its ruling, as foreseen by the majority of the
Court, is found in Justice Douglas' final statement that
"[u]nder the rule we announce today, every judge will know
when the trial of a misdemeanor starts that no imprisonment
may be imposed, even though local law permits it, unless the
accused is represented by counsel."'"
In concurring opinions Justice Brennan and Chief Justice
Burger expressed concern for the prospect of increased requests
for counsel as a result of the majority decision but also expressed confidence that the new demands for legal counsel
could be partially filled by use of law students.
In another concurring opinion, Justice Powell, who was
joined by Justice Rehnquist, emphasized the implementation
problems of the new rule. The essence of his view was that
court-appointed counsel in petty offense cases should be provided only where necessary to assure a fair trial. Aside from
proposing a case by case analysis to determine proper cases for
the appointment of counsel, 0 this opinion focused on the in-
" Another decision focusing on the importance of counsel was In re Gault, 387
U.S. 1 (1967), which dealt with the right of juveniles to such assistance. Justice Douglas stated that "Itihe premise of Gault is that even in prosecutions for offenses less
serious than felonies, a fair trial may require the presence of a lawyer." 407 U.S. at
34. Employing the Court's language in Baldwin v. New York, 399 U.S. 66, 73 (1970),
Justice Douglas also noted that "[tihe prospect of imprisonment for however short a
time will seldom be viewed by the accused as a trivial or 'petty' matter and may well
result in quite serious repercussions affecting his career and his reputation." 407 U.S.
at 37.
The final majority holding in Argersinger was effectively the same as that of the
Oregon supreme court in Application of Stevenson, 254 Ore. 94, 102, 458 P.2d 414, 418
(1969). The fact that Justice Douglas cited the Oregon court's particular phrasing with
approval should indicate the intended extent of the majority's rule in Argersinger. The
Oregon supreme court said:
We hold that no person may be deprived of his liberty who has been denied
the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including presecutions for violation of municipal ordinances. The denial of the assistance of counsel will
preclude the imposition of a jail sentence. 254 Ore. at 102, 458 P.2d at 418.
407 U.S. at 36.
Id. at 40.
2' Justice Powell suggested a pre-plea case-by-case analysis based on consideration of such factors as (1) the complexity of the charge; (2) the probable sentence (i.e.
likelihood of imprisonment); and (3) peculiar individual factors in each case.
COMMENTS
Fall, 1973]
creased burden on the courts and the delay and congestion
resulting from an anticipated stretching-out of trials.
Other problems Justice Powell foresaw which could result
from the majority's rule included the potential inequity of favoring indigents over non-indigent defendants who may be of
a fairly low income level and the simple incapacity of many
local judicial systems to fund such increased legal assistance.
II.
A.
ARGERSINGER INTERPRETED
Cases Supporting Argersinger v. Hamlin
Several decisions rendered in the last year which were concerned with the right of indigent misdemeanants to courtappointed counsel found in accordance with the Supreme
Court's ruling in Argersinger. Several others dealt with similar
right to counsel issues but merely cited the rule set out in
Argersinger with approval.
Matthews v. State of Florida2 concerned a habeas corpus
action by a defendant who had pleaded guilty to charges of
certain traffic violations. On remand, after an initial denial of
the petition, the state district court again dismissed the petition for the following reasons: (1) that defendants were not
entitled to counsel in misdemeanor or petty offense cases that
could involve jail time, and (2) that the case was moot because
the defendant/petitioner had been released after serving only
1 month in jail and paying $600 in fines and costs. The Fifth
Circuit Court of Appeals found the issue was not moot because
the petitioner had served one month in jail and lost points on
his driver's license, thus sustaining real injury. Applying the
Argersinger rule the court found that Matthews had suffered
the same repercussions affecting career and reputation as Argersinger had and stated that "Argersinger concluded that the
failure to grant counsel to Matthews was constitutional error
''22
In People v. Studaker23 the defendant had been charged
with carrying a strung bow in his auto in violation of a local
ordinance which prescribed a maximum 90 day jail sentence for
such an offense. The defendant's request for appointed counsel
463 F.2d 679 (5th Cir. 1972).
11 Id. at 681.
2" 387 Mich. 698, 199 N.W.2d 177 (1972).
2
GONZAGA LAW REVIEW
[Vol. 9
was denied because the possible sentence was only 90 days but
this decision was reversed by the state circuit court which ruled
that counsel was required whenever there was a showing of
indigency. After remand for determination of indigency, a stay
was issued pending the prosecution's appeal to the court of
appeals, which appeal then went directly to the state supreme
court. The Michigan supreme court cited both the Argersinger
rule requiring court-appointed counsel absent a "knowing and
intelligent waiver" and the decision of the Oregon supreme
court in Application of Stevenson2 4 with approval. In citing the
rule of the latter case the Michigan court possibly went further
than the Supreme Court in Argersinger by stating that the
right to counsel applies to all criminal prosecutions including
violations of municipal ordinances to the point that denial of
court-appointed counsel will preclude the imposition of a jail
sentence.25 Based on this statement of the right and the rule of
Argersinger, the court set aside the lower court's judgment and
remanded the case to the district court for further proceedings
consistent with Argersinger.
Two recent Illinois decisions similarly found the
Argersinger rule applicable to misdemeanor cases. People v.
Morrissey2t involved an aggravated assault charge brought as
a misdemeanor punishable by a fine of from $25 to $1,000 and
from 4 days to 1 year in jail. People v. Coleman27 concerned a
prosecution for unlawful use of a weapon, an offense punishable
by up to 1 year in jail. The state court cited Argersingerfor the
same rule in both these cases and as a consequence held that
where the defendants were not represented by counsel at trial,
had neither requested nor waived appointed counsel and had
not been advised of their right to appointed counsel, the convictions had to be reversed. People v. Morrissey also discussed
the question of Argersinger's retroactivity, a main concern in
some of the cases to be discussed later, and concluded that it
8
is to be applied retroactively.1
See note 17 supra.
2' The Michigan court stated this to be the rule in Oregon, based on its reading
of Application of Stevenson, but also seemed to embrace this expansion of the right to
counsel in Michigan.
52 Ill.
2d 418, 288 N.E.2d 397 (1972).
27 52 Ill.
2d 470, 288 N.E.2d 396 (1972).
11"The Supreme Court's decision on a criminal defendant's right to counsel have
been applied retroactively (McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L. Ed. 2d
2), and there appears to be no reason here for the application of a different rule." Id.
21
at -,
288 N.E.2d at 398.
Fall, 1973]
COMMENTS
Gilliard v. Carson29 concerned several cases on habeas corpus petitions, which had been consolidated into a civil rights
action under 42 U.S.C. § 1983, claiming that the petitioners
had been prosecuted and convicted because of their indigency
and that the Jacksonville municipal court was not following the
mandate of Argersinger. All the offenses for which the petitioners had been prosecuted were punishable by imprisonment up
to 6 months. The convictions had all occurred before
Argersinger, the habeas corpus actions commencing after it.
The municipal court practices which were under scrutiny in
Gilliard included the announcement by judges and prosecutors
of the right to the assistance of counsel only at the beginning
of each day's session. Furthermore, two prosecutors reviewed
each case to see if it was appropriate for imprisonment and, if
it was so determined, asked the defendant about his understanding of his right to counsel and whether he wanted counsel.
If he did not, he was asked to sign a written waiver form which
had not been read to him first. Ordinarily no jail term was
imposed if this form was not read to the defendant, although
the court noted that such a sentence had been imposed on at
least one occasion without prior notification to the accused
about his right to counsel. If no advice was given and a conviction resulted, the judge imposed a fine. In instances where the
defendant could not pay or raise the money for the fine, he was
taken into "administrative" custody until the fine was paid or
until he worked it off at the rate of $5 a day. In the event that
an accused requested court-appointed counsel because he
could not afford to hire his own, he was held in jail until one
was appointed unless he could be released on bond or show
himself solvent. The United States district court cited the rule
in Tate v. Short3° as establishing the invalidity of this latter
practice and Argersingerv. HamlUn regarding the right to counsel. The court concluded that the municipal court's practices
were depriving people of their personal liberty and presented
an imminent danger to the constitutional rights of the class of
indigent defendants. Since the court felt that the only legal
remedy available, to petition by habeas corpus after irrepara348 F. Supp. 757 (M.D. Fla. 1972).
"Only a year and a half ago, the Court held that 'the Constitution prohibits the
State from imposing a fine as a sentence and then automatically converting it into a
jail term solely because the defendant is indigent and cannot forthwith pay the fine in
full.' Tate v. Short, 401 U.S. 395, 398, 91 S. Ct. 668, 671, 28 L. Ed. 2d 130 (1971)." 348
F. Supp. at 761 quoting Morris v. Schoonfield, 399 U.S. 508, 509 (1970).
GONZAGA LA W REVIEW
[Vol. 9
ble harm had occurred, was inadequate, it ruled that equitable
relief was proper. The relief granted by the court was to enjoin
the deprivation of indigent citizens' right to counsel by prosecution for any offense punishable by fine if the fine could be
automatically converted into a jail term, unless: the accused
was represented by counsel or had waived his right to counsel
after being told of his constitutional right to such representation. It stated that the accused should be informed in the following manner: (1) that counsel will be appointed for him if he
so requests; (2) that he does not have to request counsel; (3)
what the charges against him are; (4) what the lesser included
offenses in the charged crimes are; (5) that any written waiver
form is only good if it has been read to the defendant and he
has had a chance to ask questions about it before he signs; (6)
that if an accused released on bail requests a court-appointed
attorney, prosecution for any offense, even if punishable by fine
only, cannot proceed unless the judge either determines that
the defendant can afford counsel and allows him the opportunity to procure representation or just appoints counsel to represent the defendant. This same procedure is required for an
incarcerated accused, according the ruling in Gilliard, although the judge can appoint counsel immediately or defer
appointment and hold an immediate bail hearing in accordance with the eighth amendment right.
B. Cases Approving the Argersinger Rule but Applying It to
Questions Not Present in Argersinger
In many of the recent decisions which cited the Argersinger
rule the main issue was not the same as in that case and some
were not even directly concerned with the sixth amendment
right to counsel at all. Citations to Argersinger in these latter
cases were more in the form of dicta than as controlling authority. Examples of the former type of reference are McLaughlin
v. Royster and Bell v. Hongisto2 which cited Argersinger,
respectively, as affirming the importance of the right to counsel
346 F. Supp. 297 (E.D. Va. 1972). The defendant had been convicted of murder
but had obtained legal counsel only for the very limited purpose of negotiating a life
sentence. He claimed he had been denied the effective assistance of counsel and based
on testimony and medical evidence of his fear of the death penalty, the federal district
court agreed.
:2 346 F. Supp. 1392 (N.D. Cal. 1972). The assertion here was denial of the fourteenth amendment's equal protection guarantee because of a lower court's denial of a
misdemeanor contemnor's appeal and of bail pending appeal.
Fall, 1973]
COMMENTS
for the unskilled layman and for establishing the Supreme
Court's rejection of the felony/misdemeanor distinction where
the right to counsel is concerned. Curry v. State33 quoted the
Argersinger rule as an indication of the advanced state of the
decisional law on the right to counsel which justifies the appointment of counsel on appeal even though no such right may
exist statutorily. The Texas court reasoned that since no distinction is to be made between felonies and misdemeanors for
right to counsel purposes at trial, there is no logical reason for
such a distinction on appeal.
The case of Daigle v. Warner34 raised the issue of whether
the right to counsel exists in a summary court-martial. The
federal district court had ruled in the affirmative on this very
question, but later cases had arisen claiming that the military
was still not appointing the required counsel. These cases were
consolidated in a class action and the issue was again considered. The government argued that even though 10 U.S.C. § 820
contains no provision for counsel in a summary court-martial,
an accused's rights are not violated because he can object to
the summary court form and demand a special court-martial
with its accompanying right to counsel.3 5 After citing decisional
law from Gideon to Argersinger on the right to counsel, the
court rejected the government's argument because it felt that
after such a demand an accused would only have to run the risk
of greater punishment from a general or special court-martial.
The court quoted the Supreme Court as ruling in United States
5 that, "[olne cannot be 'punished' for the exercise
v. Jackson"
of his constitutional rights . . . ,,13
The Navy's argument that
a single officer could adequately protect an accused's rights
while simultaneously acting as prosecutor, defender and impartial judge was also rejected by the federal district court
because it saw too great a possibility of role conflict hampering
:-488 S.W.2d 100 (Tex. Crim. App. 1972). The Texas court cited Gideon v. Wainwright, 372 U.S. 335 (1963) for the extension of the sixth amendment right to counsel
to state criminal proceedings by virtue of the fourteenth amendment; Douglas v.
California, 372 U.S. 353 (1963), as holding that an indigent has a state constitutional
right to assigned counsel on his first appeal; Argersinger v. Hamlin for the further
extension of the right to counsel to all criminal prosecutions; and, Ramirez v. State,
486 S.W.2d 373 (Tex. Crim. App. 1972), for the retroactive effect of Argersinger.
348 F. Supp. 1074 (D.C. Hawaii 1972).
The right to counsel at special courts-martial is provided by 10 U.S.C. § 819
(1970), and at general courts-martial by 10 U.S.C. § 818 (1970).
3- 390 U.S. 570 (1968).
:17
384 F. Supp. at 1080.
GONZAGA LAW REVIEW
[Vol. 9
the officer's impartiality. The court therefore reaffirmed its
prior ruling that an accused is entitled to his own counsel.
Many of the recent cases have been concerned with the
retroactive effect of Argersingerand the related area of enhancing punishment by use of pre-Argersingerconvictions. The case
of State v. Kirby38 presented the issue of whether a defendant's
prior convictions for possession of harmful intoxicants could be
admitted in a trial following a subsequent offense in order to
enhance the punishment that could be imposed. Consideration
of such prior convictions converted the presently prosecuted
offense from a less serious to a more serious offense punishable
by up to 10 years imprisonment. The defendant's objection to
the admission of such records was that it violated his sixth
amendment right to counsel because the prior convictions had
been obtained without his having the benefit of counsel. The
Ohio court, citing both Argersinger and Burgett v. Texas,39
ruled that in order to use prior conviction records the prosecution will be required to show either that the defendant was
represented by counsel during the trial which resulted in each
prior conviction or that he was advised of his right to counsel
and waived it.
In Walker v. State" the defendant had not been advised
of his right to counsel in a prior misdemeanor trial despite the
fact that he was indigent at that time and stated he would have
hired an attorney if he had had the money. With this information, the Texas court concluded that since the defendant had
not made an intelligent and knowing waiver of his right to
counsel at the prior trial, the resulting conviction could not be
employed at the guilt stage of his later trial for a similar offense
nor in an attempt to increase the punishment at the sentencing
stage.
Towers v. Director,PatuxentInstitution" dealt with a conviction challenged on the grounds that the judge had given
consideration to prior convictions which had been obtained in
violation of the defendant's right to counsel. The Maryland
33 Ohio Misc. 48, 289 N.E.2d 406 (1972).
389 U.S. 109 (1967). The Supreme Court in Burgett refused to allow convictions
obtained in violation of the sixth amendment right to counsel, which was ruled applicable to the states by virtue of the fourteenth amendment in Gideon v. Wainwright, to
be used either to support guilt or enhance punishment for conviction of another offense.
486 S.W.2d 330 (Tex. Crim. App. 1972).
16 Md. App. 678, 299 A.2d 461 (1973).
Fall, 1973]
COMMENTS
court remanded the case for a determination of what, if anything regarding the defendant's prior convictions, had been
considered by the judge in arriving at his sentence. It stated
that the burden was on the state to establish that the conviction had not been obtained in violation of the defendant's constitutional right to counsel.
Closely related to the use of prior convictions obtained in
violation of the Argersinger rule on right Argersinger but made
what question of the retroactive effect of Argersinger. In fact,
this question is really the essential one out of which particular
questions of punishment enhancement or parole revocation
based on prior convictions arise.
A case illustrating the retroactive application of
Argersinger is Cordle v. Woody. 2 In order to appreciate the
import of this decision, however, an earlier ruling of the United
States District Court for the Eastern District of Virginia,
Marston v. Oliver, 3 must be understood. The habeas corpus
petitioner in that action had been convicted of driving with a
suspended license, sentenced to one year in prison and a $1,000
fine, and was eventually released from custody with a 10 year
suspension of his driving privileges. He had requested counsel
at his original hearing and was shown to have been indigent at
that time, but his request was denied. The federal district
court, using the Supreme Court's language in Gideon, ruled
that defendants such as the one in the case before it had the
right to counsel just as much as those accused of felonies. It
also found that where counsel is requested by an indigent in
such a case, counsel must be provided. Based on this reasoning
and the principles enunciated in several other cases," the court
invalidated the conviction.
2 350 F. Supp. 479 (E.D. Va. 1972).
324 F. Supp. 691 (E.D. Va. 1971).
The Virginia Federal District Court cited the following cases, among others, as
recognizing the importance to misdemeanants of counsel and the "superficiality" of
the distinction between felonies and misdemeanors. In re Gault, 387 U.S. 1 (1967), was
cited for recognition of the essential nature of the right to counsel in a nonfelony case.
In Harvey v. State of Miss., 340 F.2d 263 (5th Cir. 1965), where the defendant's guilty
plea and conviction in a misdemeanor prosecution were invalidated because he had
not been notified of his right to counsel before his plea, the court concluded that the
right to counsel relates to deprivation of life or liberty and not to the seriousness of
the crime, which in that case was punishable by 90 days. Another, Arbo v. Hegstrom,
261 F. Supp. 397 (D. Conn. 1966), held that a sentence of one year's imprisonment was
a "substantial prison sentence" and warranted the benefit of court-appointed counsel.
GONZAGA LAW REVIEW
[Vol. 9
The defendant in Cordle v. Woody had been originally
tried before the Marston decision was rendered. In a hearing on
his petition for a writ of habeas corpus the Virginia federal
district court reaffirmed its prior decision in Marston and
stated that the similar rule laid down by the Supreme Court
in Argersingeris to be effective retroactively. Thus, the conviction obtained after a denial of the defendant's request for appointed counsel was rendered constitutionally defective.'
The Missouri court of appeals ruled in State v. Jones" that
Argersinger placed the burden of showing a waiver of the right
to counsel on the state, rather than requiring a defendant to
prove denial of the right. It also discussed retroactivity and, in
so doing, cited Arsenault v. Massachusetts7 for the Supreme
Court ruling that the rights to counsel at trial, on appeal and
at other "critical stages" of a criminal prosecution have all
been made retroactive. The Missouri court reasoned that denial of the right to counsel invariably denies a fair trial. Since
Argersinger was merely an extension of Gideon which has been
retroactively applied, the court continued, the Argersinger rule
should have retroactive effect as well. In the case before it,
initially a prosecution for common assault carrying a 60 day jail
sentence, the court decided that whether or not counsel was
actually denied or the defendant ever informed of his right, the
conviction could not stand because the record showed he was
tried without counsel and it provided no explanation why this
had been so.
A 1965 conviction for child desertion was challenged in
Ramirez v. State"8 when the state attempted to revoke the defendant's probation becaue he was accused of theft. His basis
for attacking the conviction was Argersinger, claiming he had
neither been afforded counsel nor informed of his right to counsel in he 1965 trial. The Texas court cited Burgett v. Texas"9
for the principle that where a denial of the right to counsel is
shown, the right as enunciated by Argersinger is not limited to
prospective application. Since the court thus found Argersinger
11350 F. Supp. at 481. The Virginia Federal District Court deemed the issue of
Argersinger's retroactivity clearly settled by the Court of Appeals for the Fourth Circuit when that court affirmed Marston. The district court felt bound by this
affirmance.
1"487 S.W.2d 586 (Mo. App. 1972).
7 393 U.S. 5 (1968).
" 486 S.W.2d 373 (Tex. Crim. App. 1972).
" 389 U.S. 109 (1967).
Fall, 19731
COMMENTS
effective retroactively, the order revoking the probation was
reversed and the case remanded."
A detailed approach to the issue of Argersinger's
retroactivity was made by the Virginia supreme court in Potts
v. Superintendent of Virginia State Penitentiary.1 The court
first recognized that had the prosecution for failure to support
an infant daughter" taken place after the Argersinger ruling,
the indigent defendant would have had a right to counsel. The
court then analyzed several Supreme Court decisions dealing
with similar retroactivity issues but relied heavily on Stovall
v. Denno53 and the retroactivity factors set out in that decision.
These factors are: (a) the purpose served by the new standards;
(b) the extent of the reliance by law enforcement authorities on
the old standards; and (c) the effect on the administration of
justice of retroactive application of the new standards. As an
example of the use of the Stovall factors the court cited the
Supreme Court's reasoning in Adams v. Illinois. 4 While approving the Stovall criteria, the Supreme Court in Adams cautioned that new constitutional rules of criminal procedure are
to be given retroactive effect
reardless of good faith reliance by law enforcement authorities or the
degree of impact on the administration of justice where the "major
purpose of the new constitutional doctrine is to overcome an aspect
of the criminal trial which substantially impairs the truth-finding
function and so raises serious questions about the accuracy of guilty
verdicts in past trials .... ." Williams v. United States, 401 U.S.
646, 653 (1971). 51
Since the Supreme Court decided in Adams that the rule of
Coleman v. Alabama,5 6 concerning the right to counsel at preliminary hearings, was not to be given retroactive effect, the
Potts court placed more emphasis on the Stovall criteria and
" The Texas Court of Criminal Appeals discussed Argersinger's retroactivity also
in Ex parte Olvera, 489 S.W.2d 586 (1973). It there reaffirmed its decisions in Ramirez
and Curry by reasoning that since Gideon has been consistently applied fully retroactively and Argersinger merely extended the principle of Gideon, "fT]here can be no
other logical conclusion except that it, too, must be applied retroactively." 489 S.W.2d
at 589.
213 Va. 432, 192 S.E.2d 780 (1972).
The defendant's twelve month jail sentence was suspended on the condition
that he post a $500 bond. He was jailed when he failed to post the bond.
52
388 U.S. 293 (1967).
405 U.S. 278 (1972).
Id. at 280.
399 U.S. 1(1970).
G ONZA GA LA W RE VIE W
[Vol. 9
less on the Supreme Court's caveat. 7 Due to the strain on state
legal systems and available resources, as well as other problems
58 the Viroutlined by the concurring opinions in Argersinger,
ginia supreme court decided that Argersingershould be applied
prospectively only, from June 12, 1972.
In Herndon v. Superintendent, Virginia State Farm the
Virginia supreme court's Potts decision was raised by the respondent State for the principle that Argersinger should not be
given retroactive effect. The petitioner was seeking to recover
fines levied in punishment for a pre-Argersingermisdemeanor
conviction on the grounds that he was denied his right to counsel in the prior proceeding. In granting the petitioner's request,
the federal district court cited Marston, as having previously
decided the same rule as Argersinger1° In response to the
State's plea to affirm Potts with a ruling against the retroactivity of Argersinger, the court stated that it would not change its
ruling just to accommodate the State or to conform to the
decision of the Virginia supreme court since such a result would
be "contrary to law," presumably Argersinger. However, the
federal court commented that Argersinger dealt with possible
jail sentences only and stated that it was difficult to fashion a
rule from the majority's opinion-the same comment made by
Justice Powell in his concurring opinion in Argersinger. The
court also agreed with Justice Powell that a liberty/property
distinction was just as untenable when dealing with the right
to counsel as the prior felony/misdemeanor distinction and that
application of the rule should be determined on a case by case
basis.
In Clay v. Wainwright,' the habeas corpus petitioner was
Paraphrasing the Stovall factors, the Virginia court in Potts concluded that
considerations of public policy, the extent of reliance on previously existing law and
the impact on the administration of justice must be weighed in determining retroactive
effect.
:' Those problems cited by the Virginia court include increased petitions from
felons whose parole revocations had been based on misdemeanor convictions; resentencing of those whose presentence reports included prior misdemeanor convictions;
and the fear that the rule would give preferential status to indigents who want to
contest past convictions over those who are no longer indigent yet cannot afford the
expense of such challenges.
'' 351 F. Supp. 1356 (E.D. Va. 1972).
The federal district court also noted its reaffirmation of the Marston decision
in Cordle v. Woody and Wesson v. Farmer, E.D. Va. Docket #224-72R, decided on
November 10, 1972.
11 470 F.2d 478 (5th Cir. 1972).
Fall, 1973]
COMMENTS
contesting revocation of his 1968 grant of parole which was
based on 1969 misdemeanor convictions obtained in violation
of the right to counsel as articulated by Argersinger. The Fifth
Circuit Court said that the order revoking probation based
solely on invalid convictions was not a legal basis for continued
imprisonment under the law. It concluded that the right to
counsel issue in the context of "petty offenses" had been put
to rest by Argersinger. Even with such recognition the petitioner's request would seem to require some discussion of the
retroactive application of Argersinger in order to give him the
full benefit of its protection in connection with the use of his
1969 misdemeanor convictions. However, the court in Clay,
acknowledging the fact that the Supreme Court made no indication of Argersinger's possible retroactive effect in setting out
the rule, found such language unnecessary to a resolution of the
case before it. Under the case law of Harvey v. Mississippi 2 and
James v. Headley 3 the court felt that the right to counsel asserted by the petitioner existed at the time of his mesdemeanor
,2 340 F.2d 263 (5th Cir. 1965). The Fifth Circuit Court of Appeals in Harvey v.
Mississippi, stating that an accused has the right to the assistance of counsel when
entering a plea in both federal and state courts, invalidated the petitioner's guilty plea
and conviction because the plea had been improvidently given; i.e., without prior
notification of his right to counsel. The reasoning of Evans v. Rives, 126 F.2d 633 (D.C.
Cir. 1942), that the right to counsel relates to deprivation of life or liberty and not to
the seriousness of the crime was implicit in the language of Gideon v. Wainwright,
according to the fifth circuit, and therefore applies to misdemeanor prosecutions in
state courts.
" 410 F.2d 325 (5th Cir. 1969). James v. Headley presented the issue of whether
an accused has the right to court-appointed counsel when charged with a petty offense
only, that is, one punishable by up to six months imprisonment and a $500 fine. In
short, the Fifth Circuit Court of Appeals had to decide the applicability of its Harvey
ruling to petty offenses. In arriving at the conclusion that the sixth amendment right
to counsel is as available to one accused of a petty offense as it is to one accused of a
more serious crime, the court relied heavily on Gideon v. Wainwright and described
its due process language as broad enough to apply to all criminal offenses. It cited
McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965), and Goslin v. Thomas, 400 F.2d 594
(5th Cir. 1968), as both reaffirming its ruling in Harvey, and again indicated approval
of the reasoning employed in Evans v. Rives. The court's examination of the legislative
history of 18 U.S.C. § 3006A(b), (Criminal Justice Act of 1964), revealed congressional intent was not to eliminate the right to counsel for petty offenders, but merely
not to provide compensation for attorneys representing them. FED. R. CRIM. P. 44(9)
was also cited by the court as extending the right to counsel to all petty offenses.
Presaging Justice Douglas' summary dismissal in Argersingerof a petty offense limitation on the right to counsel because of the similar limitation on the right to a jury trial,
the Fifth Circuit Court of Appeals stated that the right to counsel is more important
to our accusatorial system than the jury right and has always occupied a more fundamental position in it. The court continued to anticipate Argersinger by stating that
"an offense is serious enough to require appointment of counsel if it may result in the
loss of liberty for any period of time." 410 F.2d at 334.
GONZAGA LAW REVIEW
[Vol. 9
convictions. Since it found the petitioner's convictions within
the rule of Harvey, the Fifth Circuit Court determined that
they must be vacated even though it stated that the local court
retained jurisdiction over him. Thus, the federal district court's
grant of the petitioner's requested relief was affirmed.
C. Cases Dealing With the Central Issue of Argersinger v.
Hamlin but Avoiding Application of Its Ruling
The specific language of the Argersingerrule provides that
the requirement of counsel extends only to situations where
there has been no "knowing and intelligent waiver" of the right
to counsel. While decisions which deny appointed counsel on
this basis are clearly within the Court's mandate in
Argersinger, some cases did so in language suggesting opposition to extension of the right to "all criminal prosecutions,"
which has been lauded by some as a potential effect of
Argersinger 4
One case avoiding application of the rule because of waiver
was People v. Smith. 5 On the basis of lower court findings, the
Illinois court found that the accused had been fully admonished of the consequences of a guilty plea, advised of his rights
to counsel and a jury hearing with the testimony of witnesses
in his behalf. Even though the petitioner claimed he had neither waived his rights nor fully understood the consequences of
his guilty plea because he had not had the benefit of counsel,
the court found a knowing waiver from the lower court's records
and the signed guilty plea and waiver of a hearing.
Garrettv. Puckett" rejected a claim of denial of the right
to counsel on the basis of waiver and a lower court finding that
Argersinger does not apply retroactively. Though the petitioner, who had not been informed of his right to counsel, had
not waived his right but merely failed to request such assistance, the court ruled that it was an effective waiver because
the courts had no duty to furnish counsel at the time of petitioner's trial. 7
See footnotes and accompanying text, infra notes 99-102.
7 Il. App. 3d 143, 287 N.E.2d 174 (1972).
66 348 F. Supp. 1317 (W.D. Va. 1972).
" The Federal District Court for the Western District of Virginia employed this
reasoning in spite of the ruling of Johnson v. Zerbst, 304 U.S. 458 (1938), cited by the
court, which stated that failure to request counsel is not a waiver of the right.
"
Fall, 1973]
COMMENTS
A decision which also circumvents the intent of
Argersinger by finding that the rule is not applicable to the
facts of the case is Sweeten v. Sneddon. 8 The federal district
court had granted the injunctive relief sought by an indigent
petitioner, stopping his misdemeanor prosecution unless he
was provided with counsel. The petitioner had been accused of
exhibiting a deadly weapon in an angry and threatening manner-a violation punishable by up to 6 months imprisonment
or no greater than a $300 fine, or both. Argersinger's effect on
the validity of a state law limiting an indigent's right to counsel
to cases where the crime charged carries more than a 6 month
jail sentence was ignored by the Tenth Circuit Court as it focused its analysis on the district court's injunction. Citing
Younger v. Harris,9 the court stated that the very narrow scope
of a federal court's power to enjoin a pending state prosecution
may be exercised only when it is "absolutely necessary for the
protection of Constitutional "rights" and where the "danger
of irreparable loss is both great and immediate." 7 Further,
the court held that the threat must be one to the defendant's
federally protected rights which cannot be eliminated by defense against a single criminal prosecution. In this case the circuit court held that the defendant had an adequate remedy at
law by way of his defense in the state criminal trial with later
appeals to the state supreme court and even the United States
Supreme Court for review of any federal questions involved. It
also ruled that he had not suffered great, immediate and irreparable injury by the denial. Since Argersinger only forbade
imprisonment without counsel, according to the Tenth Circuit
Court, the rule did not forbid trial without representation.
Based on this limited interpretation of the Argersinger ruling
and the lack of necessary grounds for equitable relief, the court
held that the injunction granted by the lower court went beyond the requirements of Argersinger and had been improvidently granted.
The applicable state law, facts of the case and the court's
reasoning in Sweeten were nearly duplicated in Mahler v.
Birnbaum." An Idaho statute limited court appointment of
counsel for indigents to "serious crimes," defined as felonies or
69 463 F.2d 713 (10th Cir. 1972).
401 U.S. 37 (1971).
70 463 F.2d at 714.
95 Idaho 14, 501 P.2d 282 (1972).
GONZAGA LAW REVIEW
[Vol. 9
misdemeanors carrying a penalty of more than 6 months imprisonment and more than a $300 fine. Therefore, the indigent
petitioner's alleged crime of public drunkenness with a maximum 30 days incarceration or a $300 fine did not qualify him
for court appointed counsel.
The court in Mahler, as in Sweeten,did not discuss the
validity of this statute in light of Argersingerjust made what
can best be described as a "standing" argument; i.e., that
Argersinger requires the trial court to appoint counsel only
after it has determined thatthe defendant will be confined if
found guilty. In the particular facts of Mahler, determination
of the defendant's indigent status under other Idaho statutes
which prescribed certain standards for such status had not yet
been made and the court found that the petitioner's application for a writ of mandate for appointment of counsel, filed at
the outset of the proceeding, was premature even under the
requirements of Argersinger.
A slightly different attempted application of the
Argersinger requirements and a slightly varied avoidance of
that ruling were involved in Bradshaw v. Ball.72 The plaintiffs
in this consolidated action were court-appointed attorneys in
criminal cases who were seeking to force the State to pay the
fees that they had been awarded by the courts. The State refused to approve the payments, all awarded in felony cases,
because no state law authorizing compensation was in existence at the time of the first action. This remained the State's
position in spite of state and federal constitutional requirements for the appointment of competent counsel for indigent
defendants and the enactment of the Kentucky Public Defender Act authorizing such compensation while the state's
appeal of the lower court ruling ordering payment was pending.
The State court of appeals recognized the federal and state
constitutional requirements for the appointment of counsel,
exemplified by Argersinger and other decisions such as those
granting a right to appeal without cost, but did so in the context of the intolerable burden this expansion and increased
crime had placed on younger members of the state bar who had
to provide most of the court-appointed counseling. Because
this burden nearly amounted to a substantial deprivation of
these attorney's property, according to the court, it declared
11487
S.W.2d 294 (Ky. App. 1972).
Fall, 19731
COMMENTS
that compelling young attorneys to accept appointments without compensation is a constitutionally infirm practice. The
court noted the change in the state law wrought by the Public
Defender Act but found it of no aid to the plaintiffs since no
such statute existed when they provided their services. Therefore, they had no right to compensation.
The important task for its resolution, according to the
Court of Appeals of Kentucky, was to formulate a way in which
competent counsel could be provided consistent with constitutional mandates yet without unconstitutionally depriving appointed counsel of their property. The solution was to declare
that from and after 90 days from the date of its mandate,
Kentucky attorneys no longer would be required to accept
court appointments to represent criminal defendants nor face
sanctions for declining such appointments. The court also
ruled, however, that the individual claims of the plaintiffs
should not have been allowed because no legislative authority
existed either at the time of the awards or at the time of the
lower court order of payment. Though this decision gives only
passing reference to Argersinger,its significance for the expansion of the right to counsel is in the reasoning which enables
the court first to recognize the constitutional mandate of competent court-appointed counsel for indigents and then justify
withholding compensation for court-appointed attorneys as if
their services did not merit compensation. This inverse reasoning can only be rationalized as an attempt at subtle retardation
on the expansion of the right to legal representation.
An Oregon decision, State v. Fuller,7 3 also dealing with a
tangential aspect of the right to counsel, provides another potential erosion of this constitutional right's expansion. The case
involved was a challenge to an order of a county circuit court
imposing on the defendant, as a condition of his probation, the
requirement that he repay the attorney and investigation fees
incurred because of his indigency at the time of trial. Whether
repayment of such fees as a condition of probation is valid was
dealt with in James v. Strange.74 The Oregon court cited this
opinion but distinguished it from the situation it faced because
the Kansas statute involved in James did not allow indigents
all exemptions from execution which were provided other judg" 504 P.2d 1393 (Ore. App. 1973).
7
407 U.S. 128 (1972). The Supreme Court found the Kansas statute involved in
James to be invalid.
GONZAGA LAW REVIEW
[Vol. 9
ment debtors. Further, the Oregon court interpreted the Supreme Court's language in James as nullifying the particular
Kansas recoupment statute for violating the fourteenth
amendment's guarantee of equal protection but not as declaring that any recoupment statute is violative of the equal protection clause on its face or an impairment of the right to
counsel. The Oregon statute authorized the court to require
repayment if the defendant is, or will be able to repay. The
court noted, though, that such an order is never mandatory but
is docketed the same as any civil judgment. In specific relation
to the principles enunciated by Argersinger, the Oregon court
acknowledged the requirement of counsel for an indigent defendant, but not for one who has the ability to pay. Therefore,
under the court's rationalization, an indigent will still be provided with free counsel but may be required to repay the expenditures later when and if he is able. The Oregon scheme
denies no standard exemptions from execution, does not discriminate because of poverty and cannot be invoked to collect
costs if it is likely that the defendant will remain indigent in
the future. Repayment is limited to expenses incurred by the
state in prosecuting, of the court in appointing counsel, and for
investigatory expenses. Jury fees or costs involved in operating
government agencies are not collectible under the statute, said
the Oregon court, and a court's discretion to revoke probation
for nonpayment of the costs is sharply limited to situations
where the defendant (1) has the present financial ability to pay
without hardship to himself or his family and, (2) intentionally
fails to pay. With both these elements required for recoupment,
the court saw little chance of abuse and no conflict with the
traditional right to counsel.
As noted in the dissenting opinion and in the comments
about the Kentucky court's rationale in Bradshaw, the Oregon
court's view subverts the intent of Argersinger and other decisions expanding the right to counsel, by enabling a court to
threaten imprisonment through probation revocation for failure to repay the cost of court-appointed counsel. Fear of such
imprisonment could conceivably dissuade defendants from
invoking their full constitutional rights to counsel which were
reasserted by Argersinger.
D.
Washington Case Law Dealing With the Right to Court-
Appointed Counsel in Misdemeanor Prosecutions
Though the Washington supreme court is on record in
Fall, 19731
COMMENTS
favor of providing counsel for indigents,75 it has flatly denied
the right of an indigent to court-appointed counsel when
charged with a misdemeanor in municipal court. The case
making that denial was Hendrix v. City of Seattle." The accused in Hendrix was advised of his right to counsel, but when
he stated he had no funds and requested court-appointed counsel, the municipal court denied him such assistance. He was
found guilty of two violations of a Seattle ordinance proscribing
disorderly conduct and sentenced to 180 days for each violation, the sentences to run consecutively. Though the superior
court set aside the convictions and remanded the case to the
municipal court, citing the municipal court's denial of Hendrix's right to counsel, he petitioned the State supreme court
for a writ of certiorari then moved for, and was granted, dismissal of his appeals. The city contended that certiorari was
inappropriate since the accused had a plain, speedy and adequate remedy at law by way of his previously filed appeals. The
supreme court's lengthy opinion, however, based its denial of
an indigent accused's right to court-appointed counsel in municipal court on three general grounds: (1) that the question
had not been decided by the United States Supreme Court,
which had only recognized the right (at that time) in felony
cases; (2) even if such a right existed, the state legislature had
not seen fit to implement it with an appropriation of funds to
pay for such appointed counsel; and, (3) it had not been the
custom to furnish counsel to indigents in misdemeanor cases.
11In Morgan v. Rhay, 78 Wn. 2d 116, 470 P.2d 180 (1970), the defendant, who had
pleaded guilty to a charge of unlawful possession of drugs (a felony), alleged that his
plead had been coerced and that he had been denied his right to counsel. The court
cited the sixth amendment to the United States Constitution and Gideon v.
Wainwright in stating the principle that
It has become axiomatic that an indigent accused of crime is entitled upon
request to have counsel appointed for him at any critical stage of the proceedings against him, and that a denial of such rights breaches his constitutional rights.
Id. at 119, 470 P.2d at 182.
After discussing the criteria to be used by trial judges in determining indigency,
the supreme court ruled that the trial court's denial of the defendant's request for
counsel based on its finding, without the use of the specified criteria, that he was not
indigent was a denial of his constitutional right to counsel. It also found that a perjury
charge against him relating to his claim of indigency and the suggestion that he might
be susceptible to prosecution as a habitual offender tainted the voluntariness of his
waiver. The court stated that an indigent's right to counsel does not depend on a
finding that the accused is utterly destitute or insolvent but is relative to varying
circumstances and connotes a state of impoverishment or lack of resources effectively
impairing his employment of competent counsel.
1 76 Wn. 2d 142, 456 P.2d 696 (1969) cert. denied, 397 U.S. 948 (1970).
GONZAGA LAW REVIEW
[Vol. 9
The most prominent reason for the court's decision was a policy
of judicial restraint. The legislature had not acted on the issue
and the court felt that courts should not abrogate or compel
legislative action either directly or indirectly unless the Constitution requires it. Based on the decision in Hendrix, the Washington supreme court obviously did not find such judicial activism either constitutionally required or particularly desirable in
that factual situation.
In addition to its judicial restraint rationalization, the
court stated that the benefits of a judicial determination to
furnish counsel would be outweighed by the detriments of an
increased burden on municipal court systems, increased delays, expenses and " . . . traditional inefficiencies indigenous
to but now so dramatically burdening the courts of record
throughout the country."77 The court also anticipated that an
increased volume of contested cases would result from such an
extension as well as an increase of criminal appeals to the State
supreme court. Its concluding remarks aptly summarize the
majority's opinion on this matter.
We think none of these disabilities and burdens is forced upon the
courts by the constitutions nor should be as a matter of judicial
policy. If an indigent accused feels aggrieved at the results of his
trial in municipal court, he may appeal to the superior court. If,
because of special or disabling circumstances such as the youth,
inexperience, or physical or mental disabilities, the superior court
is of the view both that the misdemeanor is of such seriousness and
the special circumstances affecting the defendant warrant it, that
court may appoint
counsel at public expense in the sound exercise
78
of its discretion.
Justice Rosellini, in a dissenting opinion, criticized the
majority's three bases for the denial as being of negative import
and observed that: "[T]he only positive rationale I can find
in the majority opinion is that the furnishing of counsel to
indigent persons charged with serious misdemeanors-that is,
misdemeanors involving a possible loss of liberty-would be
expensive and would interfere with the expeditious handling of
'79
misdemeanor cases.
After carefully reviewing the Supreme Court opinions
which the majority had cited as limiting the right to counsel
71 Id. at 163, 456 P.2d at 709.
71 Id. at 165, 456 P.2d at 711.
11 Id. at 167, 456 P.2d at 712.
Fall, 1973]
COMMENTS
to felony prosecutions, Justice Rosellini concluded that the
Supreme Court had never expressed any such limitation but
simply dealt only with the particular crimes involved in each
case before it. With respect to the contention that an accused
has an adequate remedy available by appeal to the superior
court, he argued by analogy to Callan v. Wilson 0 and cases
dealing with the right to trial by jury, that this reasoning was
invalid. Justice Rosellini viewed the Callan decision as equally
supportive of the right to counsel in a court of original jurisdiction. The Washington court's holding in Bellingham v. Hite,8' 1
which was contrary to Callan, was explained by Justice Rosellini by stating that at the time Bellingham was decided, the
Washington supreme court was of the opinion that the guarantees of the Federal Constitution were limitations solely on the
powers of the federal government. He felt that Gideon made
these limitations equally applicable to the states and declared
the invalidity of Bellingham for being out of harmony with
Callan. In summary, Justice Rosellini quoted the language of
the superior court judge who, on remanding the case to the
municipal court, stated that any court which has the power to
try a defendant charged with a serious crime, as involved in
Hendrix, ". . . has the inherent power to try him in conformity
with constitutional standards, and this includes the power to
' 82
appoint counsel for an indigent defendant.
Justice Finley dissented separately because he disputed
some of the factors relied upon by Justice Rosellini. However,
he generally agreed with Justice Rosellini's view of the right to
counsel and felt that the majority had misplaced its emphasis
on the constitutional power of the courts to make decisions
expanding the granting or denial of counsel to indigent defendants. He viewed the right to publicly provided counsel as
necessary because the defendant was faced with a substantial
deprivation of liberty upon conviction. He spoke of a balancing
-' 127 U.S. 540 (1880). Callan stated that the availability of a de novo trial in a
higher court was not sufficient reason to deny the right to a jury where that right
existed in a particular case.
1 37 Wn. 2d 652, 225 P.2d 895 (1950). This decision held that the right to trial by
jury is preserved under a procedure which denies a jury for trial of petty offenses in
the first instance but allows a jury on appeal to the superior court in a de novo hearing.
The procedure was subsequently approved as not being violative of either the Washington or United States Constitutions in George v. Day, 69 Wn. 2d 836, 420 P.2d 677 (1966)
and Seattle v. Rohrer, 69 Wn. 2d 852, 420 P.2d 687 (1966), and the holding of
Bellingham v. Hite was specifically affirmed.
82 76 Wn. 2d at 185, 456 P.2d at 722.
GONZAGA LAW REVIEW
[Vol. 9
of interests as necessary to determine whether a particular
right in the Bill of Rights is a fundamentally protected right
and felt this balancing was a proper judicial function under the
constitution. Justice Finley's opinion characterized the majority's position in Hendrix not so much as judicial respect for
determinations properly within the legislature's purview, but
as an abdication by the court of judicial power.
Kammerer v. Washington and Fox v. City of Bellevue,83
two cases involving the petitions for court-appointed counsel of
accused misdemeanants which the Washington supreme court
had denied on November 27, 1970, were remanded to the state
court by the United States Supreme Court for further consideration in light of Argersinger.The Washington supreme court in
turn vacated the lower courts' proceedings in the cases and
remanded them to those original courts on July 28, 1972, for
further consideration in light of Argersinger.84
No subsequent cases dealing with this issue have come
before the state court of appeals or supreme court which have
been reported. The supreme court's acquiesnce to the United
States Supreme Court's remand order in the two cases might
initially suggest that the ruling in Hendrix would be overruled
by the Argersingerdecision today. The strong position taken by
the majority of the Washington court in Hendrix, however,
might just as easily indicate that it will adopt a rationale enabling it to avoid the broad requirements of Argersinger by
strictly interpreting that opinion, as did the courts in Sweeten
v. Sneddon, 5 and Mahler v. Birnbaum." Recent changes in the
Criminal Rules For Justice Courts promulgated by the Washington supreme court, however, are a stronger indication that
the court now adheres to the Argersinger ruling. 7
11The United States Supreme Court's order remanding these cases is reported at
92 S. Ct. 2464 (1972). Kammerer v. Washington originated in the Issaquah District
Justice Court for King County, Washington, under Cause No. 537C and Fox v. City of
Bellevue originated in the Bellevue District Justice Court for King County, Washington, under Cause Nos. 70184, 70185, and 70288.
11 After remand to these courts, the charges against the defendants were dropped
inboth cases.
463 F.2d 713 (10th Cir. 1972).
" 95 Idaho 14, 501 P.2d 282 (1972).
x See discussion of new Washington Criminal Rules For Justice Court (JCrR) at
p. 196 infra.
Fall, 1973]
COMMENTS
E. The Washington State Attorney General's Opinion Concerning the Effect of Argersinger v. Hamlin on the )Right to
Court-Appointed Counsel in Washington and Subsequent Action by the Washington State Legislature
In response to a letter from John Merkel, Prosecuting Attorney for Kitsap County, regarding the proper accounting
source for money used to compensate court-appointed attorneys, the Washington State Attorney General issued Attorney
General's Opinion No. 22 on September 18, 1972. Mr. Merkel's
specific question was whether the cost of court-appointed counsel for the representation of an indigent charged with a misdemeanor in justice court should be treated as part of the total
expense of justice courts within WASH. REV. CODE § 3.62.050.8
In his answer, the Attorney General began with a review of the
language of that statute which details how the county treasurers are to handle money in the justice court suspense fund,
made up of justice court income. At the time of this Attorney
General's Opinion in September, 1972, the statute allowed
money from this fund to be transferred to the current expense
fund to pay only the costs of courtroom space, probation and
parole services, and personnel employment related to those
services. The county treasurer was directed to remit the balance after this transfer to the state general fund according to
statutorily established percentages and the direction of the
county commissioners. The opinion cited a prior Attorney General's Opinion of December 24, 1969, where a similar question
was answered to the effect that WASH. REV. CODE § 3.62.050
did not (1) authorize payment of attorneys appointed to represent indigents charged with crimes in justice court, nor did it
(2) provide a basis for charging such costs, if paid, against
justice court operating revenues.
" In 1972, at the time of the Attorney General's opinion, WASH. REV.
CODE § 3.62.050 read as follows:
Quarterly, the county trasurer shall determine the total expenditures of the
justice courts, including the cost of providing courtroom and office space and
including the cost of probation and parole services and any personnel employment therefor. The treasurer shall then transfer an amount, equal to the
total expenditures, from the justice court suspense fund to the current expense fund. The treasurer shall then, using the percentages established as
in RCW 3.62.015 provided remit the appropriate amounts of the remaining
balance in the justice court suspense fund to the state general fund and to
the appropriate city treasurer(s). The final remaining balance of the justice
court suspense fund shall then be remitted as specified by the county commissioners.
GONZAGA LAW REVIEW
[Vol. 9
Both the 1969 opinion and that of September 1972 then
discussed WASH. REV. CODE § 10.01.110.9 Though the main
body of this statute specifically authorizes the payment of attorneys appointed to represent indigents accused of felonies, it
ends with the proviso that the authorization shall similarly
apply to other proceedings when appointment of counsel is
"constitutionally required." Referring again to the 1969 opinion, the Attorney General related that this statute had been
deemed inapplicable to the question at hand because of the
ruling in Hendrix v. Seattle and the fact that the 1969 opinion
was not concerned with a felony case. Continuing in the 1972
opinion, however, the Attorney General noted a change in his
view because of the decision in Argersinger v. Hamlin.
To this latter extent, of course, the situation today is dramatically
different for, on June 12 of this year, the United States Supreme
Court held that the appointment of counsel to represent an indigent
defendant is "constitutionally required" in any criminal prosecution, whether for a felony or a misdemeanor, in which a conviction
may result in a deprivation of the defendant's liberty by means of
incarceration. . . . By virtue of this decision it must now be concluded that the appointment and compensation of attorneys to represent indigents in criminal prosecutions before justice courts is statutorily authorized by RCW 10.01.110, supra, in those cases to which
the Argersinger decision applies."
In his conclusion the Attorney General noted that one solution might be to amend WASH. REV. CODE § 3.62.050 to authorize payment from the suspense fund. Continuing, he said:
However, until this is done we must conclude that while counsel who
are now constitutionally required to be appointed in such cases may
be compensated for their services under RCW 10.01.110, supra, this
compensation must be drawn from the county current expense fund
and not from justice court revenues."
" WASH. REV. CODE § 10.01.110 read as follows when the Attorney General wrote
his 1972 opinion.
Whenever a defendant shall be arraigned or first appear before a court,
a magistrate or justice of the peace upon the charge that he has committed
any felony, and the defendant has requested the court to appoint counsel to
assist in his defense, and shall by his own oath or such other proof as may
be required satisfy the court that he is unable, by reason of poverty, to
procure counsel, the court shall appoint counsel, not exceeding two, for such
defendant. Counsel so appointed shall be paid a reasonable amount as attorney's fees together with reimbursement of actual expenses necessarily incurred upon the court's order by the city in which such proceeding is had:
Provided; That this section shall also apply to such other proceedings and
at such other time as may be constitutionally required. (emphasis added).
1972 WASH. Arr'y GEN. Op. 22, at 4.
"
Id.
at 5.
Fall, 1973]
COMMENTS
On March 28, 1973, in its First Extra Session, the Washington State Legislature approved Senate Bill No. 2069 which
amended WASH. REV. CODE § 3.62.050 and WASH. REV.
CODE § 3.62.070 to authorize payment of court-appointed
counsel from justice court revenues as suggested by the Attorney General in his opinion. As can be seen by a comparison of
the amended versions of WASH. REV. CODE § 3.62.050 and
WASH. REV. CODE § 3.62.070 with their predecessors, the legislature authorized payment of "the cost of providing services
necessary for the preparation and presentation of a defense at
public expense" from the justice court suspense fund and, in
cases of criminal actions filed by a city for an ordinance violation, by the city. 2 These amendments were declared by the
legislature to take effect immediately as "necessary for the
immediate preservation of the public peace, health and safety,
the support of the state government and its existing public
institutions .... 9,93
2 The 1973 amended versions of WASH. REV. CODE § 3.62.050 and 3.62.070 are
substantially the same as prior to the amendments. In the following reproduction of
these statutes the amending language is emphasized. WASH. REv. ConE § 3.62.050 now
reads as follows:
Quarterly, the county treasurer shall determine the total expenditures
of the justice courts, including the cost of providing courtroom and office
space, the cost of probation and parole services and any personnel employment therefor, and the cost of providing services necessary for the preparation and presentation of a defense at public expense except costs of defense
to be paid by a city pursuant to RCW 3.62.070. The treasurer shall then
transfer an amount, equal to the total expenditures from the justice court
suspense fund to the current expense fund. The treasurer shall then, using
the percentages established as in RCW 3.62.015 provided remit the appropriate amounts of the remaining balance in the justice court suspense fund to
the state general fund and to the appropriate city treasurer(s). The final
remaining balance of the justice court suspense fund shall then be remitted
as specified by the county commissioners.
WASH. REV. CODE § 3.62.070 now reads as follows:
Except in traffic cases wherein bail is forfeited to a violations bureau,
and except in cases filed in municipal departments established pursuant to
chapter 3.46, in every criminal action filed by a city for an ordinance violation the city shall be charged a four dollar filing fee. In such criminal actions
the cost of providing services necessaryfor the preparationand presentation
of a defense at public expense are not within the four dollar filing fee and
shall be paid by the city. In all other criminal actions, no filing fee shall be
assessed or collected: Provided;That in such cases, for the purposes of RCW
3.62.010, four dollars of each fine or penalty shall be deemed filing costs.
93 Ch. 10, § 3, [1973] Wash. Sess. Laws (1st Ex. Sess.) 503.
GONZAGA LA W REVIEW
[Vol. 9
F. Washington's New Criminal Rules For Justice Court
(JCrR)
Approaching the misdemeanant's right to counsel from a
different side than that chosen by the legislature, the Washington supreme court adopted new Criminal Rules For Justice
Court effective July 1, 1973.11 JCrR 2.115 is divided into several
sections. Under the first section heading of "Types of Proceedings," the rule reads as follows:
(1) The right to counsel shall extend to all criminal proceedings for
offenses punishable by loss of liberty regardless of their deonomination as felonies, misdemeanors or otherwise."
The rule continues to delineate aspects of this right by stating
that it "shall accrue as soon as feasible after the defendant is
taken into custody. . . . " That "when a person is taken into
custody he shall immediately be advised of his right to counsel" and that if he is unable to pay a lawyer he ". . . is entitled
to have one provided without charge."' Section (d) of the rule,
headed "Assignment of Counsel," states that
(1) Unless waived, counsel shall be provided to any person who is
financially unable to obtain one without causing substantial
hardship to himself or his family. Counsel shall not be denied to any
person merely because his friends or relatives have resources adequate to retain counsel or because he has posted or is capable of
posting bond.
(2) The ability to pay part of the cost of counsel shall not preclude
assignment. The assignment of counsel may be conditioned upon
part payment pursuant to an established method of collection."
1, The Supreme Court of Washington amended: JCrR 2.02 dealing with warrants
or summons upon complaint; and 2.03 dealing with proceedings before the judge,
procedure following warrant execution or arrest, bail and preliminary hearings; and
adopted: 2.09-Pretrial Release; 2.10-Search and Seizure; and 2.11-Right to and
Assignment of Counsel. WASH. CT. R. (JCrR) as amended April 18, 1973.
15Id. at JCrR 2.11. JCrR 2.11 supercedes WASH. REV. CODE § 10.01.110, discussed
at p. 194 supra.
11Id. at JCrR 2.11 (a) (1) (emphasis added). It should be noted that the court also
adopted new Criminal Rules For Superior Court (CrR) including Rule 3.1 entitled
Right to and Assignment of Counsel. WASH. CT. R. (CrR) as amended April 18, 1973.
Since this rule is substantially identical to JCrR 2.11 there should no longer be any
justification for treatment of the right to counsel in justice courts any differently from
that in superior courts either under the de novo trial theory or any other.
'I ld. JCrR 2.11 (b) (1).
'
Id. JCrR 2.11 (c) (1).
Id. JCrR 2.11 (d) (1), (2) (emphasis added). While paragraph (1) under this
section may present a liberalized standard, paragraph (2), which conditions appointment in appropriate cases on "part payment pursuant to an established method of
collection," could be interpreted to allow for a prior promise of repayment or some
Fall, 19731
COMMENTS
Comparing these provisions with those of WASH. REV. CODE
10.01.110 ' 0 there are two significant changes. First, the right
extends to "all criminal proceedings. . . punishable by loss of
liberty" whether denominated felony, misdemeanor or otherwise. Second, rather than having to affirm under oath that he
is unable to procure counsel "by reason of poverty," the test is
whether his retaining counsel will cause "substantial hardship" to the accused or his family.
The first change states a policy clearly consistent with the
Argersinger rule and contrary to the court's decision in
Hendrix. The effect of the second change'may be more difficult
to determine though it would appear to soften the former requirement of indigency which was characterized as a state of
impoverishment or lack of resources which would effectively
impair the accused's employment of competent counsel."'
Some softening of the requirement surely was intended
since the language at the end of JCrR 2.11(d)(1) states that
friends' resources or the accused's own ability to post bond
shall not be sufficient reason for denying counsel.
While the newly adopted rule for appointment of counsel
in justice courts appears to indicate the state supreme court's
intention to conform to Argersinger; "substantial hardship,"
waiver and the "loss of liberty" standard will need further interpretation before the court's view of Argersinger'sapplication
in Washington is fully known.
III.
CONCLUSION
Several of the past year's casenote reviews of Argersinger
v. Hamlin made predictions either about that decision's effect
on future expansion of the right to counsel or about the particular form of arguments to be raised in opposition to its implementation. Areas of proposed expansion of the right included
recoupment procedure similar to that discussed in State v. Fuller, 504 P.2d 1393 (Ore.
App. 1973) and James v. Strange, 407 U.S. 128 (1972). If so, an inhibiting effect on
exercise of the right to counsel, as discussed earlier, could be the ultimate result.
-® See note 89 supra.
101Morgan v. Rhay, 78 Wn. 2d at 119, 470 P.2d at 183. See also discussion of that
decision in note 75 supra. Whether this change in terminology will effect a real change
in the financial condition necessary to qualify for appointed counsel or merely continue
the use of the same criteria (enumerated in Morgan) to determine the meaning of
"substantial hardship," will require the State supreme court's interpretation.
G ONZA GA LA W RE VIE W
[Vol. 9
all petty offenses regardless of penalty, 0° threatened deprivations of property,' 3 parole revocation and deportation hearings,' 4 and quasi-criminal and administrative proceedings.' 5
Improvement of public defender systems was seen both as a
concomitant of Argersinger's application ' " and as a prerequisite to expansion of the right to counsel.' 07 Argersinger'simprisonment standard was criticized as the decision's weak point'05
and envisioned as a source of opposition to the rule.' 9 Additional opposition was foreseen because of the costs involved in
providing more attorneys, the large amount of discretion left to
the trial judge by the rule, and possible inverse discrimination
effects on near-indigents."10
The accuracy of these various predictions is best measured
by the first post-Argersinger year's decisions and once determined will serve as an aid in predicting Argersinger's future
impact."' Though only five of the opinions discussed can be
properly viewed as following Argersinger in deciding right to
counsel questions similar to the one involved in that case,"2
most of the others citing it did so as controlling authority on
the right to counsel." 3 While none of these decisions extended
the right to counsel to deprivation of property, most dealt with
"petty" offenses and several expanded Argersinger's application to cases of punishment enhancement and, as in Clay v.
Wainwright,"4 to parole revocation.' 15 The decision of the Vir,0224 MERCER L. REV. 497 (1973); 41 FORDHAM L. REV. 722 (1973); 4 LOYOLA U. OF
CHICAGO L. J. 273 (1973).
,0377 DICKINSON L. REV. 176 (i972); 47 TULANE L. REV. 446 (1973); 37 AL3ANY L.
REv. 383 (1973); 4 LOYOLA U. OF CHICAGO L. J. 273 (1973). Contra 24 MERCER L. REV.
497 (1973).
"' 37 ALBANY L. REV. 383 (1973).
47 TULANE L. REV. 446 (1973).
'1' 4 LoYoLA U. OF CHICAGO L. J. 273 (1973).
,0730 NLADA BRIEFCASE 203 (1972); 8 LAND & WATER L. REV. 343 (1973).
10 See 41 FORDHAM 722 (1973) and 4 LOYOLA U. OF CHICAGO L. J. 273 (1973).
,0137 ALBANY L. REV. 383 (1973); 77 DICKINSON L. REV. 176 (1972).
11047 TULANE L. REV. 446 (1973); 30 NLADA BRIEFCASE 203 (1972); 8 LAND &
WATER L. REV. 343 (1973); 41 FORDHAM L. REV. 722 (1973); 37 ALBANY L. REV. 383
(1973); 4 LOYOLA U. OF CHICAGO L. J. 273 (1973). See note 20 supra and accompanying
text.
'" Nearly all these predictions including areas for expansion, opposition and even
the imprisonment standard for the right to counsel were mentioned in a detailed
analysis of the indigent misdemeanant's right to counsel several years prior to the
Argersinger ruling. See Junker, The Right to Counsel in Misdemeanor Cases, 43 WASH.
L. REV. 685 (1968).
1,2 See cases cited notes 21 through 29 supra and accompanying text.
" See cases cited notes 31 through 61 supra and accompanying text.
' 470 F.2d 478 (5th Cir. 1972).
Fall, 1973]
COMMENTS
ginia supreme court in Potts v. Superintendent of Virginia
State Penitentiary,"' denying Argersinger retroactivity, appears to have been effectively countered by the Federal District
Court for the Eastern District of Virginia in Herndon v. Superintendent, Virginia State Farm."7
Finding a waiver of the right to counsel as in People v.
Smith 8 and Garrettv. Puckett,' though not predicted by any
of the previously mentioned casenotes, is obviously another
approach available to courts wishing to avoid the potential
impact of the Argersingerrule since the absence of a knowing
waiver is explicitly required before the rule applies. The stand
taken in Sweeten v. Sneddon'2 0 and Mahler v. Birnbaum'21 is
not such an obvious result of Argersinger'sreasoning. A careful
reading of the imprisonment standard pronounced by the Supreme Court and consideration of the criticisms of this standard, however, can result in an avoidance theory similar to that
advanced in these two cases. This theory, as previously described, is most accurately a "standing" argument arrived at
by a strict interpretation of the intent behind the Argersinger
rule as well as of the language of the opinion. 22 These decisions
and the criticism levelled at the imprisonment standard by
Justice Powell and some of the casenote analyses indicate that
the standing theory will be adopted by other courts which desire to avoid the Argersinger rule.
24
The decisions in Bradshaw v. Ball23 and State v. Fuller
may be insufficient bases for predicting future methods of eroding the Argersinger rule on the right to counsel. One reason for
caution before making any such predictions is that both cases
acknowledged the right and Argersinger's authority. The danger to the right to counsel from decisions such as Bradshaw is
in a recognition that such decisions could discourage attorneys
" A general discussion of probation revocation including its relation to the right
to counsel appears in Comment, Probation Revocation: A Survey of Constitutional
Rights Since Mempa v. Rhay, 8 GONZ. L. REV. 110 (1972).
,' 213 Va. 432, 192 S.E.2d 780 (1972).
", 351 F. Supp. 1356 (E.D. Va. 1972).
7 I1. App. 3d 143, 287 N.E.2d 174 (1972).
348 F. Supp. 1371 (W.D. Va. 1972).
a 463 F.2d 173 (10th Cir. 1972).
12195 Idaho 14, 501 P.2d 282 (1972).
'1 See the discussion of the intent behind the Argersinger rule in note 17 supra
and the accompanying text.
M 487 S.W.2d 294 (Ky. App. 1972).
M' 504 P.2d 1393 (Ore. App. 1973).
GONZAGA LAW REVIEW
[Vol. 9
from accepting court appointments because compensation for
services rendered will not be paid. This may be just a variation
of the policy of judicial restraint, since after the Kentucky
legislature had passed its public defender act the court recognized the right to such compensation. The refusal to grant
compensation already awarded by trial courts could still have
a more lasting diminishing effect on the number of attorneys
available for appointment to represent indigents, however,
simply because it was justified at one time.
The ultimate effect of decisions such as State v. Fuller,
may be to coerce waivers of the right to counsel by threats of
imprisonment through probation revocation for failure to repay
costs of court-appointed counsel. Despite the Oregon court's
confidence that the criteria for the exercise of the recoupment
power will be adhered to without abuse, the coercion implicit
in such a scheme could nevertheless effectively nullify the right
to court-appointed counsel as stated in Argersinger.
Argersinger's effect on Washington law is not as obvious as
it may initially appear, even if one views Argersinger as overruling Hendrix v. Seattle."5 The new Criminal Rules For Justice Court, JCrR 2.11, also tends to show the court's agreement
with Argersinger, since JCrR 2.11 includes "loss of liberty"
language similar to Argersinger's imprisonment standard.
However, the Washington supreme court could adopt a strict
"standing" position as in Sweeten and Mahler or it could vary
this slightly by applying the reasoning of Bellingham v. Hite'26
to the right to counsel, as suggested in Hendrix.' This method
of avoiding the full impact of Argersinger, predicted by one of
the past year's casenotes, 2 1 would deem denial of counsel at the
initial justice court trial for a petty offense not unconstitutional
since a trial de novo with appointed counsel in superior court
can be demanded. Such reasoning is contrary to the supreme
court's longstanding rule in Callan v. Wilson,2 9 regarding the
right to a jury, and, as argued by Justice Rosellini in his
Hendrix dissent, would clearly subvert the more basic right to
counsel if adopted.' 0 This eventuality may be unlikely since it
1 76 Wn. 2d 142, 456 P.2d 696 (1969) cert. denied, 397 U.S. 948 (1970).
37 Wn. 2d 652, 225 P.2d 895 (1950).
'
See note 78 supra and accompanying text.
" 37 ALBANY L. REv. 383 (1973).
127 U.S. 540 (1880).
,30
See Justice Douglas' view of this reasoning when applied to the right to counsel,
discussed at p. 171 supra.
126
Fall, 1973]
COMMENTS
would be inconsistent with the court's identical treatment of
the right to counsel in the new superior and justice court criminal rules.' 3 '
The three grounds the Washington court relied on in
Hendrix should not provide any support for that decision
today.' 3 The first ground is no longer valid because of the Supreme Court's ruling in Argersinger. Argersinger can also be
viewed as establishing the custom of providing counsel to indigents in misdemeanor cases, thus dismissing the third ground.
Finally, the recent amendments by the Washington legislature
overcome both the second ground and the court's general policy
of judicial restraint where the legislature has not acted. The
Attorney General's comments supporting Argersinger'sapplicability in Washington may also indicate the end of Hendrix's
validity though the state court could avoid overruling that decision by finding, as have other state courts, that Argersinger
will not apply retroactively.
As noted, no cases on the indigent misdemeanant's right
to counsel have come before the Washington State appellate
courts since Argersinger was decided, though the treatment of
the Supreme Court's remand orders in Kammerer'3 and Foxlu
and the new Criminal Rules For Justice Court indicate a softening of the Hendrix view. The specific manner in which the
Washington supreme court will treat Argersingeris still speculative and could take any one or combination of the various
approaches which have been discussed. Before the actual posture of Washington law on this issue can be determined, more
right to counsel cases will have to come before the state courts.
Though there has been some diversity in the interpretations of Argersinger by the various state and federal courts
which have discussed its issue, the vast majority of the decisions so far support the Supreme Court's rule. 3 5 Definite avoid'' See note 96 supra.
" See discussion at p. 189 supra.
' See note 83 supra.
, ' Id.
' This is most obvious when the many Supreme Court memorandum opinions
remanding cases to state courts for further consideration in light of Argersinger are
noted. For example, the same day that Kammerer and Fox were remanded to the
Washington supreme court, McCallister v. Virginia and Wright v. Town of Wood were
remanded to the Virginia and South Dakota supreme courts, respectively. The Fifth
Circuit Court of Appeal's affirmance in Ballantine v. Garmire, 463 F.2d 422 (5th Cir.
1972), of a federal district court order supporting Argersinger was also affirmed per
GONZAGA LAW REVIEW
[Vol. 9
ance attempts have appeared already. Their number and variety may soon be augmented by decisions in states employing
different theories-such as the de novo hearing-but which
have not yet squarely faced a case containing the Argersinger
issue. The opinions which have extended Argersinger'sreasoning to military courts, probation revocation hearings and attempts to enhance punishment with pre-Argersinger misdemeanor convictions indicate that the decision will eventually
lead to expansion of the right to counsel. Whether the expansion will reach property rights and administrative hearings, as
some have predicted, will depend solely on the courts' tendency
to either uphold or subvert the Argersinger rule.
Once states overcome their present problems of financing,
court congestion and inadequate public defender systems, the
rule should find its greatest support with the least degree of
circumvention. It is possible that only then will Argersinger
successfully aid extension of the right to counsel to "all criminal prosecutions" and beyond.
Richard A. Jessup
curiam on the same day. 92 S. Ct. 2464, 2465 (1972). Another example of support for
Argersinger appears at 462 F.2d 575 (S.D. Fla. 1972), where seven cases specifically
following its rule were reported affirmed without formal opinion.