Kiley and Fairchild, Circuit Judges, and Morgan, District Judge.*fn1
ROBERT D. MORGAN, District Judge.
Appellant, now seventeen years of age and confined at the Wisconsin School for Girls, at Oregon, Dane County, Wisconsin, filed her petition for a writ of habeas corpus in the court below seeking to obtain her release from custody. Following a nonevidentiary hearing, the court found that the petition showed neither that the State of Wisconsin did not provide a remedy to appellant nor that available State remedies were ineffective to protect her rights. An order was entered denying her petition upon the ground that appellant had not exhausted her State remedies as required by the provisions of 28 U.S.C. § 2254(b).
This appeal from that decision presents a unique aspect of the always perplexing problem of weighing the adequacy of state court procedures against the constitutional safeguards for protection of the right of indigent persons to liberty. Perusal of this record recalls to mind the truth, sardonically stated many years ago, that the law gives both the rich and the poor the right to sleep under the bridges. We have advanced under our Constitution and the decisions interpretative thereof to the point at which we have drained the sarcasm from that truth and have given it realistic meaning. The criminal convict, solely because of his poverty, cannot be denied rights which the rich may obtain by the combination of their affluence and the operation of law.
Ultimately, the merits of this case must present the issue whether a juvenile offender may, because of her indigency, her minority and certain idiosyncrasies of state law, be denied a right which her adult contemporaries would enjoy. The issue which we face is unique in that we must skirt those ultimate merits because of the procedural background hereinafter related which limits the office of our review to a procedural issue collateral thereto.
On April 1, 1968, a petition was filed in the County Court of Milwaukee, Wisconsin, alleging that appellant was a delinquent minor. On April 10, 1968, she was found by the court to be a delinquent minor and committed to the custody of the Department of Social Services of the State of Wisconsin for confinement at the School for Girls until she shall have attained the age of twenty-one years. She was first confined at that institution on April 12, 1968.
Immediately prior to the hearing which led to her confinement, a "voluntary defender" appeared to represent her. Though the record is not clear upon the point, it is a fair inference therefrom that such counsel appeared as an adjunct to established State procedural practice in juvenile cases or pursuant to appointment by the court. The case then proceeded to an immediate hearing to the delinquency finding, and to her commitment to custody.
Neither the court nor her counsel advised appellant that she had a right to appeal that decision. She was not advised of her right to the appointment of counsel for the purpose of pursuing an appeal. No appeal was taken.
In July, 1968, after the expiration of the forty days' period of time for a direct appeal, Sec. 48.47, Wis.Stats. (1967), appellant first sought to invoke post-commitment procedures in the State courts for the review of constitutional questions related to the adjudication of her delinquency. She then filed in the Circuit Court of Dane County (county of confinement) an affidavit of indigency and a petition for the appointment of counsel to assist her in prosecuting the post-commitment remedies available to her. Her petition was predicated upon conclusory allegations that the proceedings which had led to her commitment had not conformed to the constitutional requirements prescribed by the opinion and decision in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527.
On July 26, 1968, the Honorable W. L. Jackman, a judge of the Circuit Court of Dane County, denied her petition without considering the merits thereof. The basis for that order, as therein stated, was that a petition for appointment of counsel should be filed in the appropriate court of the county of appellant's place of residence.
Thereafter, on August 5, 1968, appellant filed an affidavit of indigency and her petition for appointment of counsel in the Circuit Court of Milwaukee County (county of residence). That petition was identical to the petition which she theretofore had filed in Dane County. On August 9, 1968, the Honorable Max Raskin, a judge of the Circuit Court of Milwaukee County, entered an order denying her petition without considering the merits thereof. The basis for that order, therein stated, was that appellant's petition for the appointment of counsel would have to be filed in the county wherein she was confined.
Each of the above petitions was filed pro se.
Thereafter, appellant's present appointed counsel, an attorney for Wisconsin Judicare, filed a petition on her behalf in the Supreme Court of the State of Wisconsin, invoking the supervisory powers defined in Art. VII, Sec. 3, of the Wisconsin Constitution, requesting that the court direct the manner in which counsel was to be appointed to assist appellant in preparing and prosecuting a petition for a writ of habeas corpus. That petition was denied, without opinion, on October 1, 1968.
On October 9, 1968, pursuant to directions of the Supreme Court of Wisconsin, appellant, by said attorney, filed her petition for leave to commence an original action for mandamus and other relief against Judge Raskin to compel him to ...