APPEAL from the Circuit Court of Livingston County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
The captioned cases are consolidated on appeal. Both petitioners are inmates at Pontiac Correctional Center and appeal from judgments of the circuit court of Livingston County entered on December 26, 1979, as to petitioner Paul William Tedder in our General No. 16002, and as to petitioner Thomas Bass in our General No. 16041, each dismissing, in bar of action, upon respondents' motions, petitioners' respective complaints. Respondents are various officials and agents of the Illinois Department of Corrections.
The State Appellate Defender was appointed to represent petitioners but has filed a motion to withdraw, asserting that the duties of that office do not include representation of indigent prisoners seeking the type of relief requested here. We have ordered the motion taken with the case. Pursuant to our order, the State Appellate Defender has also filed adversary briefs on behalf of petitioners.
Although the petitions were dismissed for failure to state a cause of action, the complicated problems involved require an extensive recitation of the proceedings in the trial court.
Tedder filed a request as a pauper for appointment of counsel and a petition for mandamus, alternatively habeas corpus, August 17, 1979. He alleged: (1) he had "bad nerves" causing insomnia; (2) he had been attempting to get "adequate medical attention" from the prison hospital since 1977 and to see a psychiatrist since 1978; (3) he was seen by a psychiatrist on one occasion but the prison administration did not treat him "in accordence [sic] with the recommendation of the prison psychatrists [sic] prescriptions;" and (4) the lack of treatment was causing him great mental suffering which would become progressively worse. The trial judge appointed the Livingston County public defender to represent Tedder August 20, 1979. The respondents moved to dismiss the petition for failure to state a cause of action (Ill. Rev. Stat. 1979, ch. 110, par. 45) September 24, 1979. According to the motion, habeas corpus was inappropriate because Tedder was neither questioning the validity of his conviction nor requesting relief, and mandamus was unattainable because Tedder was not requesting the performance of a specific mandatory act, for medical treatment is discretionary. In the alternative, the respondents requested a more definite statement of the acts desired by Tedder, of his legal right to those acts, and of the respondents' past nonfeasance. Tedder moved for a continuance September 27, 1979.
The clerk of the circuit court sent Tedder a letter September 27, 1979, informing him of the appointment of Thomas Blakeman, an assistant public defender, as counsel.
In a hearing held October 4, 1979, the trial judge granted the respondents' motion to dismiss the habeas corpus claim and ordered a more definite statement of facts in the petition for mandamus. David Ahlemeyer, the public defender for the county, represented Tedder at that hearing. The docket sheet shows the case continued until November 28, 1979, with Tedder to plead anew by then.
Blakeman wrote to Tedder October 18, 1979, apprising him of the progress in this case and several others. Blakeman wrote that the trial judge had dismissed the habeas corpus petition but did not refer to the opportunity to amend the petition for mandamus. The letter also told Tedder of the date by which responsive pleadings in the mandamus action were due.
On October 25, 1979, the trial judge wrote to Tedder informing him of the development and actions taken in Tedder's seven cases before the court. With regard to this case, 79-MR-53, the trial judge explained that the mandamus aspect was continued and that he had been granted leave to amend the habeas corpus petition within 10 days, but no amendment was ever filed.
Blakeman appeared for Tedder at the mandamus hearing held November 28, 1979. The respondents moved to dismiss the complaint because an amended petition had not been filed. Blakeman said that Ahlemeyer had told him to amend the complaint in 79-MR-62, not 79-MR-53. Blakeman thought that his office rather than Tedder was to blame for the confusion. The trial judge granted a 14-day extension for filing an amended petition and postponed the hearing on the merits until December 26, 1979.
Tedder filed a petition for rehearing, alternatively a notice of appeal, December 18, 1979, apparently on the dismissal of the mandamus portion of the original petition, for, as the transcript at the December 26 hearing shows, appointed counsel did not file amended pleadings within the 14-day extension granted in November. According to the petition and a supporting affidavit, Tedder had been in the detention unit at Pontiac since August 2, 1979; Blakeman had refused to go to the prison to discuss the case and the trial judge had denied Tedder's request for appointment of a different attorney. Tedder maintained that his counsel had been ineffective and he had been unable to do his own research or consult with an inmate lawyer. Tedder also contended that he had received no information concerning the defects in his pleadings.
At the hearing held December 26, 1979, Blakeman again appeared on Tedder's behalf. Because an amended petition had not been filed, the trial judge granted the respondents' motion to dismiss the case with prejudice. Blakeman asked that Tedder's petition filed in December be regarded as a notice of appeal. The court then entered a final order, finding the petition for habeas corpus defective because Tedder was not entitled to discharge from custody under section 21 of the Habeas Corpus Act (Ill. Rev. Stat. 1979, ch. 65, par. 21). The court found that the part of the petition seeking mandamus failed to state a cause of action because it did not "request defendants to perform a specific act. Furthermore, medical treatment of an inmate is a discretionary act and mandamus will not lie to order performance of a discretionary act." Tedder's notice of appeal was filed that same day, and the State Appellate Defender was appointed for the appeal.
Bass filed a combined petition for mandamus, declaratory relief, and damages on October 25, 1979. It alleged (1) the Institutional Assignment Commission of the Department of Corrections had denied his requests for transfer to other prisons because he had stabbed a guard, been convicted of an escape in 1972 and was aggressive; (2) he had protested the denial by filing a grievance to the Department's Institutional Inquiry Board which deemed his grievance to be without merit; (3) he had never stabbed a guard or been charged with doing so; (4) he felt threatened by gang members who believed that he had informed on them to guards; (5) other prisoners frequently hit him and threw things at him while he went about his work assignment; and (6) he was placed in segregation when he refused to do his assigned work. With regard to mandamus relief, Bass requested a transfer to any prison except Stateville or Menard and expungement from his record of the disciplinary reports issued for not performing work and of an unspecified false report — presumably the allegation that he had stabbed a guard. Bass also sought a declaration that the respondents' actions violated the Federal and State constitutions and requested $10,000 in both punitive and compensatory damages.
On October 25, 1979, the trial judge appointed the public defender to represent Bass and scheduled a hearing on motions for November 28, 1979. The State filed a motion to dismiss under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) on November 26, 1979, arguing that the petition did not allege facts sufficient to justify a decree of mandamus.
Blakeman represented Bass at the hearing held November 28, 1979, but did not argue against the respondents' motion; the trial judge dismissed the petition, granted Bass leave to amend within 14 days, and scheduled another hearing for December 26, 1979. In a letter to the trial judge dated December 23, 1979, Bass stated that delays in photocopying at the prison library would postpone the filing of his amended pleadings until around December 31, 1979. A hearing was held on December 26 with Blakeman again appearing on behalf of Bass. The case was dismissed because no amended pleading had been filed.
On December 27, 1979, Bass filed a motion to proceed pro se and for the original petition to be construed as a civil action. The trial judge wrote to Bass December 27, 1979, explaining that the action had been regarded as civil all along and that the petition had been dismissed with prejudice for failure to amend the pleadings. Bass filed a notice of appeal January 11, 1980. The trial judge appointed the State Appellate Defender January 14, 1980, to represent Bass on his appeal.
Besides the narrow question whether the trial court erred in dismissing Tedder's and Bass' petitions, we must also decide whether and when prisoners have the right to appointed counsel in both the trial court and on appeal. These additional questions arise not only because of the motion of the State Appellate Defender to withdraw but also because of the problems that would arise in the trial court upon any remand of the case.
• 1 The Federal constitutional right of an indigent charged with the commission of a crime to appointed counsel has been recognized since Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792. Similarly, a convicted indigent has the same right to appointed counsel on a first appeal if the appeal is a matter of right (Douglas v. California (1963), 372 U.S. 353, 9 L.Ed.2d 811, 83 S.Ct. 814) but not if the appeal is discretionary. Ross v. Moffitt (1974), 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437.
In a number of cases involving family law, the courts> have required the appointment of counsel for indigents to protect what is termed basic, fundamental, or significant interests. Salas v. Cortez (1979), 24 Cal.3d 22, 593 P.2d 226, 154 Cal.Rptr. 529, cert. denied (1979), 444 U.S. 900, 62 L.Ed.2d 136, 100 S.Ct. 209, held that appointed counsel was necessary for indigents named as defendants in paternity suits where the State appears on the mother's or child's behalf.
Flores v. Flores (Alas. 1979), 598 P.2d 893, held that indigents have a right to appointed counsel in a private not State, child-custody proceeding when the spouse is represented by a public legal aid unit. The court based its result on the due process clause of the Alaska Constitution and rejected the civil/criminal distinction as a guide to what due process requires.
Department of Public Welfare v. J.K.B. (1979), ___ Mass. ___, 393 N.E.2d 406, held that indigent parents are entitled to appointed counsel in proceedings brought to dispense with parental consent to adoption. The court relied on due process and analogized the loss of a child to loss of freedom.
In re E.B. (1972), 30 N.Y.2d 352, 285 N.E.2d 288, held that due process requires the appointment of counsel in proceedings brought to terminate parental rights.
Davis v. Page (5th Cir. 1980), 618 F.2d 374, rejected the case-by-case approach of Cleaver v. Wilcox (9th Cir. 1974), 499 F.2d 940, holding that the fourteenth amendment requires the appointment of counsel for all indigent parents in child dependency hearings.
• 2, 3 In all of the cases, the indigents deemed to have a right to appointed counsel were defendants or respondents in proceedings where impairment of their important interests were sought. Here, petitioners seek affirmative action in support of their rights and to protect them from allegedly oppressive conditions of their incarceration. Important constitutional rights could be involved, because a deliberate indifference upon the part of prison officials to an inmate's serious illness or injury could cause his incarceration to be cruel and unusual punishment in violation of the eighth amendment. (Estelle v. Gamble (1976), 429 U.S. 97, 50 L.Ed.2d 251, 97 S.Ct. 285.) The failure of prison personnel to protect a prisoner from other inmates could become so gross as to also constitute a similar eighth amendment violation.
No United States Supreme Court, United States Circuit Court of Appeals, or Illinois court of review case has been called to our attention which holds an indigent person to have a constitutional right to have counsel appointed where, as here, affirmative action in support of the indigent's rights is sought rather than a defense to actions seeking to diminish those rights.
In a series of cases beginning with Ex Parte Hull (1941), 312 U.S. 546, 85 L.Ed. 1034, 61 S.Ct. 640, the United States Supreme Court has developed a theory that prisoners, including those who are indigent, have a constitutional right of access to the courts> to take affirmative action in support of their important interests. Hull invalidated a prison regulation that required prisoners to submit their habeas corpus petitions to prison authorities, who in their discretion could refuse to file them in court. In Johnson v. Avery (1969), 393 U.S. 483, 21 L.Ed.2d 718, 89 S.Ct. 747, the court held that in the absence of alternative means of legal assistance, prisons could not prohibit jailhouse lawyers from helping other inmates in drawing up habeas corpus petitions.
In the foregoing cases, the inmates sought access to the courts> in order to seek issuance of writs of habeas corpus bringing about their release from custody. In Wolff v. McDonnell (1974), 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct. 2963, the court held inmates to have a right to access to the courts> to obtain relief from the incidence of their confinement under certain provisions of the Federal Civil Rights Act (42 U.S.C. § 1983 (1976)). The relief sought here is of that type. However, even in Wolff the decision only prevented the authorities from hindering the prisoners access to the courts>. None of them required that affirmative steps be taken to aid the prisoners, although waiver of docketing fees (Smith ...