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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Dyett v. Turner (unofficial version)

(The following  is the  text of  the decision  handed down by the
Utah Supreme  Court in  the Case of Dyett v. Turner.  The case is
interesting in  the  dictum  presented  by  Justice  Ellett,  the
opinion's  author,   concerning  the  ratification  of  the  14th
amendment  to   the  Constitution.    Italics  are  indicated  by
surrounding the  italicized text  with "equal" signs (=example=);
footnotes are surrounded by parentheses.)

439 P.2d 266, 20 Utah 2d 403  Dyett v. Turner  (Utah 1968)
Gerald J. DYETT, Plaintiff,
John W. TURNER, Warden, Utah State Prison, Defendant
No. 11089
439 P.2d 266, 20 Utah 2d 403
March 22, 1968

Del B. Rowe, Salt Lake City, for plaintiff.
Phil L. Hansen, Atty. Gen., Salt Lake City, for defendant.


ELLETT, Justice, wrote the opinion.
CALLISTER, J., concurs in the result.
HENRIOD, J., concurs in the result and reasoning.
CROCKETT, Chief Justice (concurring in the result):
TUCKETT, J., concurs in the concurring opinion of CROCKETT, C.J.

ELLETT, Justice:

     The plaintiff, Mr. Dyett, is confined in the state prison of
the State  of Utah  as a  result of a plea of guilty entered to a
charge of  issuing a check against insufficient funds with intent
to defraud.  He filed  a petition  for a writ of habeas corpus in
the Federal  District Court here, which was denied. Thereafter he
filed an  amended petition  in the  same court.  At the  time  of
denying this  amended  petition  the  judge  wrote  a  memorandum
decision in  which he  indicated a  disposition  to  release  the
petitioner from  prison but thought he could do so only after all
state remedies had been exhausted. He said:

          Accordingly, the  amended petition for a writ of habeas
     corpus must  be and  is hereby  denied, without prejudice to
     the filing  of a  further petition at such time as plaintiff
     may have  exhausted his  state remedies  upon  the  specific
     claim herein discussed. 28 U.S.C. Sec. 2254.

     He further said:

          It  is   clear  from  the  foregoing  authorities  that
     plaintiff had  a constitutional  right to  be represented by
     counsel before  the state  district court at the time of his
     plea of guilty and that the facts appearing of record do not

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 1 of 15

     establish waiver  of that  right as a matter of law. Whether
     an understanding,  intelligent and voluntary waiver is shown
     by a  preponderance of  the evidence calls for a judgment on
     the facts  on which  there now is no record determination by
     state authority  which is  controlling upon this court under
     28 U.S.C.  Sec. 2254  as amended by Pub. L. 89-711, 80 Stat.

     We feel  that our  decision in  this matter  should  not  be
subject to  reversal by  inferior courts  of the  federal system.
However, it is rather obvious that such a proceeding is likely to
occur unless  we turn  the prisoner  loose upon society. While we
deplore such  a situation  as is  now foisted  upon the states by
various rulings  of the  United States  Supreme Court and acts of
Congress based  upon such rulings, yet we want it understood that
we do  not think the particular Utah federal district judge is in
any manner  to blame.  He acts under the direction of the Supreme
Court of  the United States and must faithfully carry out the law
as he  believes that  court would  have him  to do. We personally
know him to be one of the finest of men, an excellent lawyer, and
a good  judge. What  we have to say hereafter is not meant as any
reflection upon him in any manner whatsoever.

     This  situation   presents  an  opportunity  to  review  the
constitutional provisions  in order to determine if any rights of
this defendant have been violated.

     We first  direct our attention to the Sixth Amendment to the
Constitution of  the United  States, which  so  far  as  material

          In all  criminal prosecutions,  the accused shall enjoy
     the right  to a  speedy and  public trial, * * * and to have
     the Assistance of Counsel for his defense.

     It does not say he shall have counsel. It only says he shall
have the right to have the assistance of counsel for his defense,
and the right to have counsel does not justify a court in forcing
a lawyer  upon an  accused who  does not  want one.  See State v.
Penderville, 2  Utah 2d  281, 272  P.2d 195;   Moore  v. State of
Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167.

     To understand this amendment, one must look to the situation
which prevailed  at the  time of  the adoption  of the  first ten
amendments. In  England a defendant in a misdemeanor case had the
right to  have counsel  with him  in court. A felony charge being
initiated by the Crown was looked upon as a different matter, and
one accused of felony was not permitted to contest with the Crown
by means  of a  lawyer. In  fact, it  was not  until 1836  that a
defendant accused  of a felony in England was permitted the right
to have  counsel in  court. See  21 Am. Jur.2d, Criminal Law Sec.
309. It was the fear of the states that the newly created federal
entity might  attempt to follow the Crown in refusing a defendant
the right  to have  counsel which  caused this  amendment  to  be
written into  the so-called  Bill of  Rights. This  was simply  a
limitation upon the Federal Government and in nowise was supposed
to be  applicable to the states. In fact, the Tenth Amendment was

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 2 of 15

adopted to  make sure  that the  federal entity did not take unto
itself any  powers not specifically granted to it. That amendment

          The powers  not delegated  to the  United States by the
     Constitution, nor  prohibited  by  it  to  the  States,  are
     reserved to the States respectively, or to the people.

     For over  140 years  more than  70 justices  of the  Supreme
Court consistently  held that  the first  ten amendments  to  the
Constitution applied  as a  limitation to  the Federal Government
only and  not in  any manner  to the  states, and  for  70  years
following the so-called adoption of the Fourteenth Amendment some
35 justices  from every  corner of  the Nation have held that the
Fourteenth Amendment  did  not  make  the  first  ten  amendments
applicable to  the states.   Some of those justices had helped to
frame the  original Constitution and the first ten amendments and
had  worked   to  secure   the  adoption   thereof.  Others   had
participated in the war between the states and were acquainted at
firsthand with  the purposes  intended to  be accomplished by the
Fourteenth Amendment.  All of  them interpreted the Constitution,
including the  amendments, with  knowledge  and  wisdom  born  of
intimacy with  the problems  which had called forth the documents
in the first place.

     The United  States Supreme Court, as at present constituted,
has departed  from the  Constitution as  it has  been interpreted
from its  inception  and  has  followed  the  urgings  of  social
reformers in  foisting upon  this Nation laws which even Congress
could not  constitutionally pass. It has amended the Constitution
in a  manner unknown to the document itself. While it takes three
fourths of  the states  of the  Union to  change the Constitution
legally, yet  as few  as five  men who have never been elected to
office can  by judicial  fiat accomplish a change just as radical
as could  three fourths of the states of this Nation. As a result
of the  recent holdings  of that  Court, the  sovereignty of  the
states is  practically abolished,  and the  erst while  free  and
independent states  are now  in effect and purpose merely closely
supervised units in the federal system.

     We do not believe that justices of once free and independent
states should surrender their constitutional powers without being
heard from.  We would  betray the  trust of  our people if we sat
supinely by  and permitted  the great  bulk of  our powers  to be
taken over by the federal courts without at least stating reasons
why it  should  not  be  so.  By  attempting  to  save  the  dual
relationship which  has  heretofore  existed  between  state  and
federal  authority   and  which   is  clearly   set  out  in  the
Constitution, we  think we  act  in  the  best  interest  of  our

     We feel  like galley  slaves chained  to our oars by a power
from which  we cannot  free ourselves,  but like slaves of old we
think we  must cry  out when we can see the boat heading into the
maelstrom directly  ahead of  us;   and by  doing so, we hope the
master of  the craft  will heed  the call  and avert  the dangers
which confront  us all.  But by raising our voices in protest we,

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 3 of 15

like the  galley slaves of old, expect to be lashed for doing so.
We are confident that we will not be struck by 90 per cent of the
people of  this Nation  who long  for the return to the days when
the Constitution  was a document plain enough to be understood by
all who read it, the meaning of which was set firmly like a jewel
in the  matrix of  common sense  and wise  judicial decisions. We
shall not  complain if  those who  berate us belong to that small
group who  refuse to  take an  oath that  they will not overthrow
this government by force. When we bare our legal backs to receive
the verbal lashes, we will try to be brave;  and should the great
court of  these United States decide that in our thinking we have
committed error,  then we  shall indeed feel honored, for we will
then be  placed on an equal footing with all those great justices
who at  this late date are also said to have been in error for so
many years.

     In addition  to what  we have  said about the meaning of the
Federal Constitution,  we are  disturbed in  the attitude  of the
criminal element  in our  society since  the federal  courts have
arrogated unto  themselves the powers and duties which rightfully
belong to  the state  courts. It  is a daily occurrence when some
known burglar  or thief  flouts a police officer and threatens to
"get his  badge," and  threatens the  trial judge with having him
taken before the judge of the federal court.

     For many  years Utah has been at the very head of our states
in the  Union in  the matter  of rehabilitation of prisoners. Our
efforts have  been directed  toward teaching the wayfaring man to
cease to  do evil  and to  learn to  do good.  We have  20  trial
judges, and  everyone of  them utilizes  probation  personnel  in
trying to  supervise defendants  who are  placed on probation. In
all of  our 29 counties, some of which are sparsely inhabited, we
have the services of trained men who are instrumental in securing
employment for  the defendants  and of  giving  them  "on-the-job

     The records  of the  Adult Probation  and Parole  Board show
that some  63 per  cent of  all defendants  who are  either found
guilty or  who plead  guilty are placed on probation, and of that
number  75   per  cent   are  faithful   to  their   probationary
obligations. Those  records  further  show  that  of  those  more
hardened criminals  who are  first committed  to prison  and then
placed on  parole, over  62 per cent keep faith with their trust.
Always the  welfare of  the man is the principal objective in the
attempt to  make useful  citizens out  of prisoners.  We have  an
accredited high school within the prison walls from which one may
graduate and  receive a  high school  diploma recognized  by  all
colleges as a basis of entrance. Trades are taught inmates, such,
for example,  as welding,  painting, carpentry,  upholstery, auto
mechanics, boiler making, cooking, printing, etc.

     The prime  prerequisite toward a good relationship between a
prisoner  and   his  rehabilitation  is  his  acknowledgment  and
acceptance of  the fact  that he has done wrong and a realization
on his  part that society is his benefactor trying to improve his
lot so  that he  can become  a useful citizen. It is difficult to
supervise a man who is looking for loopholes through which he may

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 4 of 15

escape from  the results of his criminal tendencies. Each time he
is let  out on  a technicality,  he believes  the court is on his
side, and  so he  does not have to conform to any standard except
that which  he sets  for himself.  A constant  stream of writs of
habeas corpus  flows from the prison daily, complaining about the
lack of beefsteaks and pie and other frivolous matters. Suits are
filed against  judges who,  in the  performance of  their duties,
sentence criminals to prison, etc.

     The Board  of Pardons  have been  liberal in  placing men on
parole who  give promise of reform, but they do this only because
they let it be understood that misbehavior on the prisoner's part
will result  in termination  of the trial parole. Holdings to the
effect that  parole cannot be revoked without a full hearing with
state-appointed counsel  will simply  cause the  board to be more
reluctant to  release a  prisoner in the future. The decisions of
the United  States courts  have  in  effect  invited  and  caused
prisoners to look for technicalities of how to "get out of it" or
"to beat the rap."

     The time was when a lawyer could counsel his client to plead
guilty and  receive supervision and training, so that he might be
a better  citizen when  he had  paid his  debt to  society.  Such
advice came from honest lawyers who thought more of the future of
the defendant  than they  did of  getting a  guilty man  off.  No
longer can  an attorney  safely do that, for to do so will likely
result in  a release  of the  prisoner on  habeas corpus upon the
ground that  the lawyer was incompetent and had not put the state
to as much expense as possible.

     It has  been intimated  that a  rich man can hire a loophole
lawyer, and  it is, therefore, a denial of due process to fail to
furnish a poor man a loophole lawyer also. The answer seems to be
that courts  should make  an example of loophole lawyers wherever
they may  be found  -- if  any there  be. If  courts would direct
attention to  seeing that  innocent men  are not  found guilty or
allowed to  plead guilty  rather than  trying to  find  imaginary
legal technicalities which allow the guilty to escape punishment,
the statute  of the courts and of lawyers would rise immensely in
the eyes of the public.

     In regard  to the  Fourteenth Amendment,  which the  present
Supreme Court  of the United States has by decision chosen as the
basis for  invading the  rights and prerogatives of the sovereign
states, it  is appropriate  to look  at the  means and methods by
which that  amendment was  foisted upon  the Nation  in times  of
emotional stress.  We have  no desire  at this  time to  have the
Fourteenth Amendment  declared unconstitutional.  In fact, we are
not asked to do that. We merely want to show what type of a horse
that Court  has to ride in order to justify its usurpation of the
prerogatives of the states.

     It is  common knowledge  that any  assumption of  power will
always attract  a certain  following, and  if  no  resistance  is
offered to  this show  of strength,  then the asserted powers are
accepted without  question. It is therefore our purpose to try to
give a  ray of  hope to all those who believe that the states are

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 5 of 15

capable of  deciding  for  themselves  whether  prayer  shall  be
permitted in schools, whether their bicameral legislatures may be
composed  of   members  elected   pursuant  to  their  own  state
constitutional standards,  yes, and  even whether  a prisoner who
says he  does not  want counsel shall be turned loose because the
court did not tell him that he could have one for free.

     The method  of amending the Federal Constitution is provided
for in  Article V  of the original document. No other method will
accomplish this purpose. That article provides as follows:

          The Congress,  whenever two thirds of both Houses shall
     deem  it   necessary,  shall   propose  Amendments  to  this
     Constitution, or,  on the Application of the Legislatures of
     two thirds  of the  several States,  shall call a Convention
     for proposing  Amendments, which,  in either  Case, shall be
     valid  to   all  Intents  and  Purposes,  as  Part  of  this
     Constitution, when  ratified by  the Legislatures  of  three
     fourths of  the several  States, or  by Conventions in three
     fourths  thereof,   as  the   one  or   the  other  Mode  of
     Ratification may be proposed by the Congress;  * * *

     The Civil  War had  to be  fought to  determine whether  the
Union was  indissoluble and  whether any  state could  secede  or
withdraw therefrom.  The issue  was settled first on the field of
battle by  force of  arms, and second by the pronouncement of the
highest court  of the  land. In  the case  of State  of Texas  v.
White, 7  Wall. 700,  19 L.  Ed. 227,  it was  claimed that Texas
having seceded from the Union and severed her relationship with a
majority of  the states of the Union, and having by her ordinance
of secession  attempted  to  throw  off  her  allegiance  to  the
Constitution of the United States, had thus disabled herself from
prosecuting a  suit in  the federal  courts. In  speaking on this
point the Court at page 726, 19 L. Ed. 227 held:

          When, therefore, Texas became one of the United States,
     she  entered   into  an   indissoluble  relation.   All  the
     obligations of  perpetual union,  and all  the guaranties of
     republican government  in the Union, attached at once to the
     State. The  act which  consummated her  admission  into  the
     Union was  something more  than  a  compact;    it  was  the
     incorporation of  a new  member into the political body. And
     it was  final. The  union between Texas and the other States
     was as  complete, as  perpetual, and  as indissoluble as the
     union between  the original  States. There  was no place for
     reconsideration, or  revocation, except  through revolution,
     or through consent of the States.

          Considered  therefore   as   transactions   under   the
     Constitution, the  ordinance of  secession, adopted  by  the
     convention and  ratified by  a majority  of the  citizens of
     Texas, and  all the acts of her legislature intended to give
     effect to  that ordinance,  were absolutely  null. They were
     utterly without  operation in  law. The  obligations of  the
     State, as a member of the Union, and of every citizen of the
     State, as  a citizen  of the United States, remained perfect
     and unimpaired.  It certainly follows that the State did not

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 6 of 15

     cease to be a State, nor her citizens to be citizens, of the
     Union. If  this were  otherwise, the  State must have become
     foreign, and  her citizens  foreigners. The  war  must  have
     ceased to  be a  war for  the suppression  of rebellion, and
     must have become a war for conquest of subjugation.

          Our conclusion therefore is, that Texas continued to be
     a State,  and a  State of  the  Union,  notwithstanding  the
     transactions to which we have referred. And this conclusion,
     in our  judgment,  is  not  in  conflict  with  any  act  or
     declaration of  any department  of the  National government,
     but entirely  in accordance  with the  whole series  of such
     acts and  declarations  since  the  first  outbreak  of  the

     It is  necessary to  review  the  historical  background  to
understand how  the Fourteenth Amendment came to be a part of our
Federal Constitution.

     General Lee  had surrendered  his army on April 9, 1865, and
General Johnston  surrendered his  17 days later. Within a period
of less  than six  weeks thereafter,  not one Confederate soldier
was bearing  arms. By  June 30, 1865, the Confederate states were
all  restored   by  presidential  proclamation  to  their  proper
positions as  states in an indissoluble union,(1) and practically
all citizens  thereof(2) had  been granted  amnesty.  Immediately
thereafter each  of the  seceding states  functioned  as  regular
states in  the Union  with both  state and federal courts in full

     President Lincoln  had declared the freedom of the slaves as
a war  measure, but  when  the  war  ended,  the  effect  of  the
proclamation was ended, and so it was necessary to propose and to
ratify the Thirteenth Amendment in order to insure the freedom of
the slaves.

     The 11  southern states  having  taken  their  rightful  and
necessary  place   in  the   indestructible  Union  proceeded  to
determine whether  to ratify  or reject  the proposed  Thirteenth
Amendment. In  order to become a part of the Constitution, it was
necessary that the proposed amendment be ratified by 27 of the 36
states. Among  those 27 states ratifying the Thirteenth Amendment
were 10  from the  South, to wit, Louisiana, Tennessee, Arkansas,
South Carolina,  Alabama, North  Carolina, Georgia,  Mississippi,
Florida, and Texas.

     When the  39th Congress  assembled on  December 5, 1865, the
senators and representatives from the 25 northern states voted to
deny seats  in both houses of Congress to anyone elected from the
11 southern  states. The  full complement of senators from the 36
states of  the Union was 72, and the full membership in the House
was 240.  Since it  requires only  a majority  vote  (Article  I,
Section 5, Constitution of the United States) to refuse a seat in
Congress, only the 50 senators and 182 congressmen from the North
were seated.  All of  the 22 senators and 58 representatives from
the southern states were denied seats.

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 7 of 15

     Joint Resolution  No. 48  proposing the Fourteenth Amendment
was a  matter of  great concern to the Congress and to the people
of the Nation. In order to have this proposed amendment submitted
to the  36 states  for ratification,  it was  necessary that  two
thirds of each house concur. A count of noses showed that only 33
senators were favorable to the measure, and 33 was a far cry from
two thirds  of 72  and lacked  one of  being two thirds of the 50
seated senators.

     While it  requires only a majority of votes to refuse a seat
to a  senator, it  requires a  two thirds  majority to  unseat  a
member once  he is seated. (Article 1, Section 5, Constitution of
the United States) One John P. Stockton was seated on December 5,
1865, as one of the senators from New Jersey. He was outspoken in
his  opposition   to  Joint   Resolution  No.  48  proposing  the
Fourteenth Amendment.  The leadership  in the  Senate not  having
control of  two thirds  of the seated senators voted to refuse to
seat Mr.  Stockton upon  the ground  that he  had received only a
plurality and  not a  majority of  the votes  of the  New  Jersey
legislature. It  was the  law of  New Jersey  and  several  other
states  that  a  plurality  vote  was  sufficient  for  election.
Besides, the  Senator had  already been seated. Nevertheless, his
seat was  refused, and  the 33  favorable votes  thus became  the
required two thirds of the 49 members of the Senate.

     In the  House of  Representatives it would require 122 votes
to be  two thirds  of the  182 members seated. Only 120 voted for
the proposed  amendment, but because there were 30 abstentions it
was declared  to have  been passed  by a  two thirds  vote of the

     Whether it  requires two  thirds of  the full  membership of
both houses  to propose  an amendment to the Constitution or only
two thirds  of those  seated or  two thirds  of those voting is a
question which  it would  seem could  only be  determined by  the
United States  Supreme Court.  However,  it  is  perhaps  not  so
important for  the reason  that the amendment is only proposed by
Congress. It  must be  ratified by three fourths of the states in
the Union  before it  becomes a  part of  the  Constitution.  The
method of securing the passage through Congress is set out above,
as it  throws some light on the means used to obtain ratification
by the states thereafter.

     Nebraska  had  been  admitted  to  the  Union,  and  so  the
Secretary  of   State  in  transmitting  the  proposed  amendment
announced that  ratification by  28 states would be needed before
the amendment  would become part of the Constitution, since there
were at the time 37 states in the Union. A rejection by 10 states
would thus defeat the proposal.

     By March  17, 1867, the proposed amendment had been ratified
by 17  states and  rejected by 10, with California voting to take
no action  thereon, which  was equivalent  to rejection. Thus the
proposal was defeated.

     One of  the ratifying  states, Oregon,  had  ratified  by  a
membership wherein  two legislators were subsequently held not to

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 8 of 15

be duly  elected, and  after the contest the duly elected members
of the  legislature of  Oregon rejected  the proposed  amendment.
However, this  rejection came  after the  amendment was  declared

     Despite  the   fact  that   the  southern  states  had  been
functioning peacefully  for two  years and  had been  counted  to
secure ratification  of the Thirteenth Amendment, Congress passed
the  Reconstruction   Act,  which   provided  for   the  military
occupation of 10 of the 11 southern states. It excluded Tennessee
from military  occupation, and  one must  suspect it  was because
Tennessee had  ratified the Fourteenth Amendment on July 7, 1866.
The Act  further disfranchised  practically all  white voters and
provided that  no senator or congressman from the occupied states
could be  seated in Congress until a new constitution was adopted
by each  state which  would be  approved by Congress, and further
provided that  each of  the 10  states must  ratify the  proposed
Fourteenth Amendment,  and the Fourteenth Amendment must become a
part of the Constitution of the United States before the military
occupancy would  cease and the states be allowed to have seats in

     By the  time the  Reconstruction Act had been declared to be
the law,  three more  states had ratified the proposed Fourteenth
Amendment, and  two -- Louisiana and Delaware -- had rejected it.
Then Maryland  withdrew its  prior ratification  and rejected the
proposed Fourteenth  Amendment. Ohio  followed suit  and withdrew
its prior ratification, as also did New Jersey. California, which
earlier had  voted not  to pass  upon the  proposal, now voted to
reject the  amendment. Thus  16 of the 37 states had rejected the
proposed amendment.

     By spurious,  nonrepresentative  governments  seven  of  the
southern states  which  had  theretofore  rejected  the  proposed
amendment under  the duress  of military  occupation and of being
denied representation  in Congress  did  attempt  to  ratify  the
proposed Fourteenth Amendment. The Secretary of State on July 20,
1868, issued  his proclamation  wherein he stated that it was his
duty under  the law  to cause  amendments  to  be  published  and
certified as a part of the Constitution when he received official
notice that  they had  been adopted pursuant to the Constitution.
Thereafter his certificate contained the following language:

          And whereas  neither the  act just quoted from, nor any
     other  law,   expressly  or   by   conclusive   implication,
     authorizes the  Secretary of  State to  determine and decide
     doubtful  questions   as  to   the   authenticity   of   the
     organization of  State legislatures,  or as  to the power of
     any State legislature to recall a previous act or resolution
     of  ratification   of  any   amendment   proposed   to   the

          And whereas  it appears from official documents on file
     in this Department that the amendment to the Constitution of
     the United  States, proposed as aforesaid, has been ratified
     by the  legislatures of  the States of [naming 23, including
     New Jersey, Ohio, and Oregon];

       Dyett v. Turner, 439 P.2d 266 (1968):  Page 9 of 15

          And whereas  it further  appears from documents on file
     in this Department that the amendment to the Constitution of
     the United  States, proposed  as aforesaid,  has  also  been
     ratified by  newly constituted  and newly established bodies
     avowing themselves  to be  and acting  as the  legislatures,
     respectively, of  the States  of  Arkansas,  Florida,  North
     Carolina, Louisiana, South Carolina, and Alabama;

          And whereas  it further appears from official documents
     on file  in this  Department that the legislatures of two of
     the States  first above  enumerated, to  wit, Ohio  and  New
     Jersey,   have   since   passed   resolutions   respectively
     withdrawing the  consent of  each  of  said  States  to  the
     aforesaid amendment;   and  whereas it is deemed a matter of
     doubt and  uncertainty  whether  such  resolutions  are  not
     irregular,   invalid,    and   therefore   ineffectual   for
     withdrawing the consent of the said two States, or of either
     of them, to the aforesaid amendment;

          And whereas  the whole  number of  States in the United
     States is thirty-seven, to wit: [naming them];

          And whereas  the twenty-three States first hereinbefore
     named, whose  legislatures have  ratified the  said proposed
     amendment, and  the six  States next  thereafter  named,  as
     having  ratified   the  said  proposed  amendment  by  newly
     constituted and  established  legislative  bodies,  together
     constitute three  fourths of  the whole  number of States in
     the United States;

          Now, therefore,  be it known that I, WILLIAM H. SEWARD,
     Secretary of  State of  the United  States, by virtue and in
     pursuant of  the second  section of  the  act  of  Congress,
     approved  the  twentieth  of  April,  eighteen  hundred  and
     eighteen, hereinbefore  cited, do hereby certify that if the
     resolutions of  the legislatures  of  Ohio  and  New  Jersey
     ratifying the  aforesaid  amendment  are  to  be  deemed  as
     remaining of  full force  and  effect,  notwithstanding  the
     subsequent resolutions  of the legislatures of those States,
     which purport  to withdraw  the consent  of said States from
     such ratification,  then the  aforesaid amendment  has  been
     ratified in  the manner  hereinbefore mentioned,  and so has
     become valid,  to all intents and purposes, as a part of the
     Constitution of the United States.(3)

     Congress was  not satisfied  with the proclamation as issued
and on the next day passed a concurrent resolution wherein it was
resolved "That said fourteenth article is hereby declared to be a
part of  the Constitution  of the  United States, and it shall be
duly  promulgated   as  such   by  the  Secretary  of  State."(4)
Thereupon, William  H. Seward,  the  Secretary  of  State,  after
setting  forth  the  concurrent  resolution  of  both  houses  of
Congress, then  certified that the amendment "has become valid to
all intents  and purposes  as a  part of  the Constitution of the
United States."(5)

      Dyett v. Turner, 439 P.2d 266 (1968):  Page 10 of 15

     The Constitution  of the  United States  is silent as to who
should decide  whether a  proposed amendment  has or has not been
passed according  to  formal  provisions  of  Article  V  of  the
Constitution. The  Supreme Court  of the  United  States  is  the
ultimate authority  on the  meaning of  the Constitution  and has
never hesitated  in a  proper case  to declare an act of Congress
unconstitutional --  except when  the act  purported to amend the
Constitution.(6)  The   duty  of   the  Secretary  of  State  was
ministerial, to wit, to count and determine when three fourths of
the states  had ratified  the proposed  amendment. He  could  not
determine that  a state once having rejected a proposed amendment
could thereafter  approve it, nor could he determine that a state
once having  ratified that  proposal could  thereafter reject it.
The  court  and  not  Congress  should  determine  such  matters.
Consistency would  seem to require that a vote once cast would be
final or  would not  be final,  whether the  first vote  was  for
ratification or rejection.

     In order  to have 27 states ratify the Fourteenth Amendment,
it was  necessary to  count those states which had first rejected
and then  under the  duress of  military occupation had ratified,
and then  also to count those states which initially ratified but
subsequently rejected the proposal.

     To leave  such dishonest  counting to  a fractional  part of
Congress is  dangerous in  the extreme.  What is  to prevent  any
political party  having control  of both  houses of Congress from
refusing to  seat the  opposition and then without more passing a
joint resolution  to the  effect that the Constitution is amended
and that  it is  the duty  of the  Administrator of  the  General
Services Administration(7)  to proclaim  the adoption?  Would the
Supreme Court  of the  United States  still say  the problem  was
political  and   refuse  to   determine  whether   constitutional
standards had been met?

     How can  it be  conceived in  the minds  of  anyone  that  a
combination of  powerful states can by force of arms deny another
state a  right to  have representation  in Congress  until it has
ratified an  amendment which  its people  oppose? The  Fourteenth
Amendment was  adopted by  means almost  as bad as that suggested

     We have  spoken in  the hope  that the  Supreme Court of the
United States  may retreat  from some  of  its  recent  decisions
affecting the rights of a sovereign state to determine for itself
what is  proper procedure in its own courts as it affects its own
citizens. However,  we  realize  that  because  of  that  Court's
superior power,  we must pay homage to it even though we disagree
with it;   and so we now discuss the merits of this case just the
same as though the sword of Damocles did not hang over our heads.

     We have only one question to decide: Did the defendant below
(the plaintiff  in this  petition) knowingly,  intelligently, and
voluntarily waive  counsel? Let  us look at the record of what he
said at the time he waived counsel.

THE COURT: Do you understand that this charge carries with it a

      Dyett v. Turner, 439 P.2d 266 (1968):  Page 11 of 15

penalty of imprisonment in the Utah State Prison?


THE COURT: Do you have a prior record?


THE COURT: Do you have an attorney?


THE COURT: Do you desire to be represented by counsel?


THE COURT: Do you understand that you are entitled to be
represented counsel?


THE COURT: Is it your desire to waive counsel?


THE COURT: Are you free on bail?


THE COURT: The record may show that the defendant has waived his
right to counsel.

     The Statute  allows  you  additional  time  before  you  are
required to  enter a plea, or you may waive that time and enter a
plea at this time. What is your desire?

DEFENDANT DYETT: I will waive.

THE COURT: You waive your time?


THE COURT: And enter a plea now?


THE COURT: To the charge of issuing a check against insufficient
funds, how do you plead, guilty or not guilty?

DEFENDANT DYETT: I plead guilty, and request a probationary --

THE COURT: Have you conferred with an attorney?


THE COURT: Why do you think you are entitled to probation?

      Dyett v. Turner, 439 P.2d 266 (1968):  Page 12 of 15

DEFENDANT DYETT: Well, I don't know why. It's just my wishes,probationary.

     At the time of arraignment the Court asked the defendant why
he wrote  the check,  and the  defendant  answered,  "Well,  just
didn't have  any money,  and I  wrote it.  That's all there is to
it."  He also said he had written other checks which had not been
paid for.  The prosecuting  attorney had  six  of  the  worthless
checks which had been turned over to the sheriff by merchants who
had been defrauded.

     The defendant  was not  shown to  be  illiterate  or  feeble
minded. He  was guilty  and knew  it and also knew that the State
could prove  it. He  did not want either a trial or a lawyer. One
would have to stretch his imagination to find that this defendant
did want  a lawyer. So much notoriety has been given to the right
to counsel  on the  part of defendants charged with criminal acts
that it is difficult to believe any grown man who is smart enough
to defraud  seven merchants  into cashing  worthless checks would
not know about it.

     In the  case of  Johnson v.  Zerbst, 304  U.S. 458, 58 S.Ct.
1019, 82 L. Ed. 1461, 146 A.L.R. 357, it was said:

          It must  be remembered, however, that a judgment cannot
     be lightly  set aside  by collateral  attack, even on habeas
     corpus. When  collaterally attacked, the judgment of a court
     carries  with  it  a  presumption  of  regularity.  Where  a
     defendant, without  counsel, acquiesces in a trial resulting
     in  his   conviction  and   later  seeks   release  by   the
     extraordinary remedy  of habeas  corpus, the burden of proof
     rests upon  him to establish that he did not competently and
     intelligently waive  his constitutional  right to assistance
     of Counsel.

     In the  case of  Cost v.  Boles, D.C.,  272 F.Supp.  38, the
prisoner had  been convicted  in a state court and brought habeas
corpus in  a federal  court. He  testified that  the trial  court
asked him  if he wanted counsel but he did not understand this to
mean that  if he  could not  afford an  attorney,  one  would  be
appointed for  him. In  dismissing the  prisoner's  petition  the
court at page 43 said:

          * *  * the  Court feels  that the question of whether a
     defendant "wants"  counsel "fairly  implies the availability
     of the  assistance of  the court  in obtaining counsel if he
     wished it."   Starks  v. United States, 264 F.2d 797, 800 (4
     Cir. 1959).   And  see Post  v. Boles,  332 F.2d 738, 740 (4
     Cir. 1964).   Thus, the Court feels that the State has borne
     its  initial   burden   of   proving   Cost's   "affirmative
     acquiescence" in proceeding without counsel.

     The case  of State  v. Gilbert,  78 N.M.  437, 432  P.2d 402
(1967), involved an attempt by a prisoner to get out of prison on
a  writ   of  habeas  corpus  on  the  ground  that  he  did  not
understandingly and intelligently waive his right to counsel. The
Supreme Court of New Mexico held that proceedings under the post-

      Dyett v. Turner, 439 P.2d 266 (1968):  Page 13 of 15

conviction remedies were civil in nature and, therefore, governed
by the Rules of Civil Procedure. The court said:

     Thus the  burden of  proof at  the Rule 93 hearing rested on
defendant  to   establish  that   he  did   not  competently  and
intelligently  waive  his  right  to  counsel,  and  this  burden
required him  to so  convince the court by a preponderance of the
evidence. He  failed to  meet this  burden, and  we  are  of  the
opinion that  the evidence substantially supports the findings of
the trial court.

     The case of Nielsen v. Turner, 20 Utah 2d 181, 435 P.2d 921,
is on  all fours  with the  instant case, and in that case relief
was denied to the petitioner.

     We can  see no reason to start talking about who is going to
pay a  lawyer until  somebody wants  one. In  fact, it  should be
remembered that  all the  court can  do is to appoint a lawyer to
work for  the client. It is not the province of the judge to make
him do  it for  free. That  could be  taking property without due
process of  law. The defendant who commits a crime is entitled to
have counsel,  but he  is not  entitled to  a free  ride  at  the
expense of  the public  upon whom  he has  just been preying. The
widow and  the orphan whose breadwinner has been murdered in cold
blood should not be taxed to help the guilty defendant escape the
consequences of  his evil deed. He at least should pay the lawyer
for the  services rendered  if he ever becomes able to do so. The
lawyer under  his oath  will perform just as faithfully on credit
as he will for cash. For a court to say that a lawyer will not be
faithful to his client who has not paid the fee in advance is but
a reflection  upon the  standard of  ethics  of  that  particular
court. It  would not say that when a doctor operates on a patient
who cannot  pay, the patient will not receive the best the doctor
can give,  and it  ill becomes a judge -- who theoretically is an
ex-lawyer -- to say that the lawyer is not as loyal to his client
as the  surgeon is to his patient. We are not acquainted with any
lawyer who  would not put forth his best efforts in behalf of his
client simply because he had not been paid for his services.

     This plaintiff (defendant below) is guilty and admits it. He
said he did not want a lawyer, and we should respect his wish.

     By bringing  the instant  writ of  habeas corpus before this
court, the  petitioner has elected to rely upon the record, since
evidence cannot  be presented  in testimonial  form  before  this
court. It  seems clear  to us that he knowingly and intelligently
waived counsel, and we, therefore, deny his petition.

CALLISTER, J., concurs in the result.
HENRIOD, J., concurs in the result and reasoning.


CROCKETT, Chief Justice (concurring in the result):

     I concur  in the  order denying  the petitioner's release on
the ground  that in  lawful and  orderly  proceedings  he  stands

      Dyett v. Turner, 439 P.2d 266 (1968):  Page 14 of 15

convicted and  sentenced of the crime for which he is imprisoned;
and as  is stated near the conclusion of Justice Ellett's opinion
this case  "is on  all fours" with the case of Nielsen v. Turner,
20 Utah 2d 181, 435 P.2d 921. See also Syddall v. Turnee, 20 Utah
2d 263,  437 P.2d  194, and State v. Workman, 20 Utah 2d 178, 435
P.2d 919, recently decided by this court.

TUCKETT, J., concurs in the concurring opinion of CROCKETT, C.J.


(1)  13 Stat. 760, 763, 764, 765, 767, 768, 769, 771 (1865).

(2)  13 Stat.  758 (1865).  A few citizens were excepted from the
     amnesty  proclamation,   such,  for  example,  as  civil  or
     diplomatic officers  of the  late confederate government and
     all of  the seceding  states;  United States judges, members
     of Congress  and commissioned  officers of the United States
     Army and  Navy who  left their  posts to  aid the rebellion;
     officers in  the Confederate  military forces above the rank
     of colonel  in the Army and lieutenant in the Navy;  all who
     resigned commissions  in the  Army or  Navy  of  the  United
     States to  assist the  rebellion;   and all  officers of the
     military forces  of the Confederacy who had been educated at
     the military  or naval  academy of  the United States, etc.,

(3)  15 Stat. 707 (1968).

(4)  Resolution set  forth in proclamation of Secretary of State,
     15 Stat.  709 (1868).  See also  U.S.C.A., Amends.  1 to  5,
     Constitution, p. 11.

(5)  15 Stat. 708 (1868).

(6)  In the case of Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217,
     66 L.  Ed. 505, the question was before the Supreme Court as
     to whether or not the Nineteenth Amendment had been ratified
     pursuant to  the Constitution.  In the last paragraph of the
     decision the  Supreme Court said:" * * * As the legislatures
     of Tennessee  and of  West Virginia  had power  to adopt the
     resolutions  of   ratification,  official   notice  to   the
     Secretary, duly  authenticated, that  they had  done so, was
     conclusive  upon   him,  and,  being  certified  to  by  his
     proclamation, is conclusive upon the courts. * * *"

(7)  65 Stat. 710, Sec. 106b (1951), designates the Administrator
     of General  Services Administration as the one whose duty it
     is to certify that an amendment has been ratified.

(8)  For a  more detailed account of how the Fourteenth Amendment
     was forced  upon the Nation, see articles in 11 S.C.L.Q. 484
     and 28 Tul. Rev. 22.

      Dyett v. Turner, 439 P.2d 266 (1968):  Page 15 of 15

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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