Time: Thu Aug 07 08:10:32 1997
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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,
vs.
John W. TURNER, Warden, Utah State Prison, Defendant
No. 11089
SUPREME COURT OF UTAH
439 P.2d 266, 20 Utah 2d 403
March 22, 1968
COUNSEL
Del B. Rowe, Salt Lake City, for plaintiff.
Phil L. Hansen, Atty. Gen., Salt Lake City, for defendant.
JUDGES
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.
OPINION
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.
1104.
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
provides:
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
reads:
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
country.
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
training."
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
rebellion.
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
operation.
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
House.
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
passed.
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
Congress.
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
Constitution;
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
above.(8)
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?
DEFENDANT DYETT: Yes, sir.
THE COURT: Do you have a prior record?
DEFENDANT DYETT: No, sir.
THE COURT: Do you have an attorney?
DEFENDANT DYETT: No, sir.
THE COURT: Do you desire to be represented by counsel?
DEFENDANT DYETT: No, sir.
THE COURT: Do you understand that you are entitled to be
represented counsel?
DEFENDANT DYETT: Yes.
THE COURT: Is it your desire to waive counsel?
DEFENDANT DYETT: Yes, sir.
THE COURT: Are you free on bail?
DEFENDANT DYETT: Yes.
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?
DEFENDANT DYETT: Yes.
THE COURT: And enter a plea now?
DEFENDANT DYETT: Yes.
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?
DEFENDANT DYETT: No.
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.
CONCURRENCE
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.
OPINION FOOTNOTES
(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.,
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
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