author: Mr. Justice White Mr. Justice Douglas, Mb. Justice Marshall,,

text:
    COLTEN v. KENTUCKY
    No. 71-404.
    Argued April 17, 1972
    Decided June 12, 1972

      White, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN, Stewart, Blackmun, Powell, and RehN-quist, JJ., joined. ’ Douglas, J., post, p. 120, and Marshall, J., post, p. 122, ffied dissenting opinions.

      Alvin L. Goldman argued' the cause for appellant. With him on thé brief were Melvin L. Wulf and Sanford Jay Rosen.

      Robert W. Willmott, Jr., Assistant Attorney General of Kentucky, argued the caúse for appellee pro hac vice. With him on the brief was Ed W. Hancock, Attorney General.
   Mr. Justice White

delivered the opinion of the Court.

. This case presents two unrelated questions.. Appellant challenges his Kentucky conviction for disorderly eondüct on the ground that the conviction and the State’s' statute are repugnant to the First and Fourteenth Amendments. He also challenges the constitutionality of the enhanced penalty he .received under Kentucky’s two-tier system for adjudicating certain criminal cases, whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment.

Appellant Colten and 15 to 20 other college students . gathered at the Blue Grass Airport outside Lexington, Kentucky, to show their support for a state gubernatorial' candidate and to demonstrate their lack of regard for Mrs. Richard Nixon, then about to leave Lexington from the airport after a public appearance in the city. When the demonstration had ended, the students got into their automobiles and formed a procession of six to 10 cars along the airport access road to 'the main high-' way. A state "policeman, observing that one of the first cars in the entourage carried an expired Louisiana license plate, directed the driver,' one Mendez, to pull, off the road.. He complied. Appellant Colten, followed by other motorists in the procession, also pulled off the highway, and Colten approached the officer to find out what was the matter. The policeman explained that the Mendez car bore an expired plate and that a traffic summons would be issued. Colten made some effort to enter into a conversation about the summons. His theory was that Mendez .may have received an extension of time in which to obtain new plates. In order to avoid Colten and to complete the issuance of the summons, the policeman took Mendez to the patrol car. Meanwhile, other students had left their cars and additional policemen, having completed their duties at the airport and having noticed the roadside scene, stopped their cars in the traffic lane abreast of the students’ vehiclés. At least one officer took responsibility for directing traffic, although testimony differed as to the need for doing so. * Testimony also differed as to the. number, of policemen and students present, how many students left their cars and how many were at one time or another standing in the roadway. A state police captain asked on four .pr five occasions that the group disperse. At least five times ■police asked Colten to leave. A state trooper made two requests, remarking at least once: “Now, this is none of your affair . . . get back-in your car and please move on and clear the road.” In. response to at least one of these requests Colten replied that he wished to make a transportation arrangement for his friend Mendez and the occupants of the Mendez car, which he Understood was to be towed away. - Another officer asked' three times that Colten depart and when Colten failed to move away he was arrested for violating Kentucky’s disorderly conduct statute, Ky. Rev. Stat. §437.016 (Supp. 1968). The arresting officer testified that Colten’s response to the order had been to say that he intended to stay and see what might happen. Colten disputed this. He testified that he expressed a willingness to leave but wanted first to make a transportation arrangement. At trial he added that he feared violence on the part of the police.

The complaint and warrant 'charging disorderly conduct, which carries a maximum penalty of six months in jail and a fine of $500, were addressed to the Quarterly Court of Fayette County, where Colten was tried, convicted, and fined $10. Exercising his right to a trial de novo in a court of general jurisdiction, Colten “appealed,” as the Kentucky rules style this recourse, Ky. Rule Crim. Proc. 12.02, to the Criminal Division of the Fayette Circuit Court. By.consent,- trial was tó the court and Col-ten was convicted of disorderly conduct and this time fined $50. The Kentucky Court of Appeals .affirmed. Colten v. Commonwealth, 467 S. W. 2d 374 (1971). It rejected Colten’s constitutional challenges to the statute and his claim that the punishment imposed was impermissible, under North Carolina v. Pearce, 395 U. S. 711 (1969). We noted probable jurisdiction. 404 U. S. 1014 (1972).

I

Colten was convicted of violating Ky. Rev. Stat. § 437.016 (l)(f) (Supp. 1968), which states:

“(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk théreof, he:
“(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse'. ...”

The Kentucky Court of Appeals interpreted the statute in the following way:

“As- reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right. We think that the plain meaning of the statute, in requiring that the proscribed conduct be done ‘with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,’ is that the specified intent must be the predominant intent. Predominance can be determined-either (1) from the fact that no bona fide intent to exercise a constitutional right appears to háve existed or (2) from the faqt that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise.” 467 S. W. 2d, at 377.

The evidence warranted a finding, the Kentucky court concluded, that at the time of his arrest, “Colten was not undertaking to exercise any constitutionally protected freedom.” Rather, he “appears to have had no purpose other than, to cause inconvenience and annoyance. So the statute as applied here did not chill or stifle the exercise of any constitutional right.” Id., at 378.

Based on our own examination of the record, we perceive no justification for setting aside the conclusion of the state court that when arrested appellant was not engaged in activity protected by the First Amendment. Colten insists that in seeking to arrange transportation for Mendez and in observing the issuance of a trafile citation he was disseminating and receiving information. But this is a strained, near-frivolous contention and we have little doubt that Cólten’s conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment. Nor can we believe that Colten, although he, was not trespassing or disobeying any traffic regulation himself, could not be required to move on. He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time. The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction. Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the. entourage, passing motorists, and police to the risk of accident. We cannot disagree with the finding below that the order to disperse was suited to the occasion. We thus see nothing • unconstitutional in the manner in which the statute was applied.

II

Neither are we convinced that the statute is either impermissibly vague or broad. We perceive no violation of “[t]he underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954); cf. Connolly v. General Construction Co., 269 U. S. 385, 391 (1926). Here the statute authorized conviction for refusing to disperse with the intent of causing inconvenience, annoyance, or alarm. Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be conyicted under subdivision (f) of Kentucky’s statute if he fails to obey an order to move on. The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. • We agree with the Kentucky court when it said: “We believe that citizens who desire to obey the statute will have no difficulty in understanding it . . , .” Colten v. Commonwealth, 467 S. W. 2d, at 378.

Colten also argues that the Kentucky statute is over-broad. He relies on Cox v. Louisiana, 379 U. S. 536 (1965), where the Court held unconstitutional a breach-of-peace statute construed to forbid causing agitation or disquiet coupled with refusing to move on when ordered to do so. The Court invalidated the statute on the ground that it permitted conviction where the mere expression of unpopular views prompted the order that is disobeyed. Colten argues that the Kentucky statute must be stricken down for the same reason. '

As the Kentucky statute was construed by the state court, however, a crime is committed only where there is no bona fide intention to exercise a constitutional right — in which event, by definition, the statute infringes no protected speech or conduct — or where the interest so clearly outweighs the collective interest sought to be asserted that the latter, must be deemed insubstantial. The court hypothesized, for example, that one could be convicted for disorderly conduct if at a symphony concert he arose and began lecturing to the audience on leghorn chickens. 467 S. W. 2d, at 377. In so confining the reaeh of its statute, the Kentucky court avoided the shortcomings of the statute invalidated in the Cox case. Individuals may not be convicted under the Kentucky statute merely for expressing unpopular or annoying ideas. The statute, comes into operation only when the, individual’s interest in expression, judged in the light of all relevant factors, is “minuscule” compared to a- particular public interest in preventing that' expression or conduct at that time and place. As we understand this case, appellant’s own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others.

Ill

Kentucky, like many other States, has a two-tier system for adjudicating less serious criminal cases. Iri Kentucky, at the option of the arresting officer, those crimes classified under state law as misdemeanors may be charged and tried in a so-called inferior court, where, as in the normal trial setting, a defendant may- choose to have á trial or to plead guilty: If convicted after .trial or on a guilty plea, however, he has a right to a trial de novo in a court of general criminal jurisdiction, Brown v. Hoblitzell, 307 S. W. 2d 739 (Ky. 1957), so long as he applies within the statutory time. The right to a new: trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew. By the same token neither the judge nor jury that determines, guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court’s findings or judgment. The case is to be regarded exactly as if it had been brought there in the first instance. A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court. Ky. Rev. Stat. § 23.032.(Supp. 1968). However, a defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court’s ruling. His recourse is the trial de novo.

While by definition two-tier systems throughout the States have in common the trial dé novo feature, there are differences in the kind of trial available in the inferior courts of first instance, whether known as county, municipal, police, or justice of the peace courts, or are otherwise referred to. Depending upon the jurisdiction and offense charged, many such systems provide as complete protection for a criminal defendant’s constitutional rights as do courts empowered to try more serious crimes. Others, however, lack some of the safeguards provided in more serious, criminal cases. Although appellant here was entitled to a six-man jury, cf. Williams v. Florida, 399 U. S. 78 (1970), which he waived, some States do .not provide for trial by jury, even in instances where the authorized punishment would entitle the accused'to such tribunal. ,Cf. Duncan- v. Louisiana, 391’ U. S. 145 (1968).' Some, including Kentucky, do not record proceedings and the judges may not be trained for their positions éither by experience or schooling.

Two justifications are asserted for such tribunals: first, in this day of increasing burdens on state-judiciaries, these courts are designed, in the interest of both the defendant and the State, to provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction where the full range of constitutional guarantees is available; second, if the' defendant is not satisfied with the results of his first trial he has the unconditional right to a new trial in a superior court, unprejudiced by the proceedings or the outcome in the. inferior courts. Colten, however, considers the Kentucky system to be infirm because the judge in a trial de novo is empowered to sentence anew and is, not bound- to stay within the limits of the sentence imposed by the inferior court. He bases his attack both on the Due Process Clause, as interpreted in North Carolina v. Pearce, 395 U. S. 711 (1969), and on the Fifth Amendment's Double Jeopardy Clause. The issues appellant raises Nave produced a division among the state courts that have considered' them as. well as a conflict among the federal circuits.

Colten rightly reads Pearce to forbid, following a successful appeal and reconviction,- the imposition of a greater punishment than was imposed, after the first trial, absent specified findings that have not been made' here. He insists that the Pearce rule is applicable here and that there is no relevant difference, between the Pearce model and the Kentucky two-tier trial de novo system; Both, he asserts, involve recon-viction and resentencing, both provide the convicted de- . fendant with the right to-“appeal” .and in both — even though under the Kentucky scheme the “appeal” is in reality a trial de novo — a penalty for the same crime is fixed' twice, with the same potential for an increased penalty upon a successful “appeal.”

But Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence. The court was there concerned with two defendants who, after their' convictions had been set aside on appeal, were reconvicted for the same offenses and sentenced to longer prison terms. In one case the term was increased from 10 to 25 years. Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure “that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence he receives after a new trial . . .” and to ensure that the apprehension of such vindictiveness does not “deter a defendant’s exercisé of the right to appeal or collaterally attack his first conviction _” ' 395 TJ. S., at 725.

Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record' or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also .inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky’s inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.

We note first the obvious: that the court which conducted Colten’s trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court’s work. Rather, the Kentucky court in which Colten had the unrestricted-right to have a hew trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. It would also appear that, however understandably a court of general jurisdiction might feel that the defendant who has had a due process trial ought to be satisfied with it, the de novo court in the two-tier system is much more likely to reflect the attitude of the Kentucky Court of Appeals in this case when it stated that “the inferior courts are not designed or. equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms. They are courts of convenience, to. provide speedy and inexpensive means of disposition of charges of minor offenses.” Colten v. Commonwealth, 467 S. W. 2d, at 379. We see no reason, and none is offered, to assume that the de novo court will deal, any more strictly with those who insist on a'trial in the superior court after conviction in the Quarterly Court than it' would with those defendants . whose cases are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees.

It may often be that the superior court will impose a punishment more severe than that received from the inferior court. But. it no more follows that such a sentence is a vindictive penalty for seeking \ superior court trial than that the inferior court imposed a lenient penalty. The trial de novo represents a completely fresh determination of guilt or innocence. It is not an appeal on the record. As far as we know, the record from the lower court is not before the superior court and is irrelevant to its proceedings. In all likelihood, the trial de novo court is not even informed of the sentence imposed in the inferior court and can hardly be said to have “enhanced” the sentence. In Kentucky, disorderly conduct is punishable by six months in jail and a fine of-$500. The inferior court fined Colten $10, the trial de novo court $50. We haive no -basis for concluding that the latter court did anything other than invoke the normal processes of a criminal trial and then sentence in accordance with the normal standards applied in that court to cases tried there in' the first instance. We cannot conclude, on the basis of the present record or our understanding, that the prophylactic rule-announced in Pearce is appropriate in the context of the system by which Kentucky administers criminal justice in the less serious criminal cases.

It is suggested, however, that the sentencing strictures imposed bj Pearce are essential in order to minimize an asserted unfairness to criminal defendants who must endure a trial in an inferior court with less-than-adequate protections in order to secure a trial comporting completely with constitutional guarantees. We are not persuaded, however, that the Kentucky arrangement' for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available'. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten’s case are any evidence, the penalty is not characteristically severe. Such proceedings offer, a defendant the opportunity to learn about the prosecution’s case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial'and promptly secure a dé novo trial in a court of general criminal jurisdiction. He cannot, and .will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel, whose advice will also be available in determining whether to seek a new trial, with the slate wiped clean, or to' accept the penalty imposed by the inferior court. The State has no such options. Should it not prevail in the lower court, the case is terminated, whereas the defendant has the choice of beginning anew. In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court. We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North Carolina v. Pearce, particularly since such restraints might, to the detriment of both defendant and State, diminish the. likelihood that inferior courts would'impose lenient sentences ’whose effect would be to limit the discretion of a superior court judge or jury if the defendant is retried and found guilty.

Colten’s alternative contention is that the Double Jeopardy Clause prohibits the imposition of an enhanced penalty upon reconviction. The Pearce Court rejected the same contention in the context of that case, 395 U. S., at 719-720. Colten urges that his claim is stronger because the Kentucky system forces a defendant to expose himself to jeopardy as a price for securing a trial that comports with the Constitution. That was, of course, the situation in Pearce, where reversal of the first conviction was for constitutional error. The contention also ignores that ^ defendant can bypass the inferior court simply by pleading guilty and erasing immediately thereafter any consequence that would otherwise follow from tendering the plea.

The judgment of the Kentucky Court of Appeals is

Affirmed.

Mr. Justice Douglas,

dissenting.

This case arose in the aftermath of a visit of the President’s wife to Lexington, Kentucky, where nothing ' untoward happened. After her plane had left, appellant and a group of his friends got into “some six to ten cars” and started down the access road leading from the airport to the main highway. The lead car was stopped by the police because of an expired license plate and at the .officer’s request, pulled onto the shoulder of the access road. Appellant, who followed, also pulled onto the shoulder as did the other cars in the group. So there were no cars belonging to appellant’s group blocking traffic.

The people in the cars, howeyer, walked around, some talking with the police, and appellant talking mostly with the driver of the lead car. Appellant claimed that he only wanted to advise the man who was getting the citation of his rights, and to help arrange for the driver and passengers in the lead car to get to Lexington. The. Court of Appeals of Kentucky, however, said that “Col-ten’s real intent was simply to aggravate, harass, annoy and inconvenience the police, for no purpose other than the pleasure of aggravation, harassment, annoyance and inconvenience.” 467 S. W. 2d 374, 376.

The statute under which petitioner was convicted read in relevant part as follows:

“(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . . .”

The Court of Appeals sustained the statute as applied because the inconvenience and annoyance to the police far outweighed appellant’s speech which fell “far below the level of minimum social value.” . 467 S. W. 2d, at 377. That court, citing our obscenity cases, said if “the lack of redeeming social value is a basis upon which the right of freedom of speech may be required to yield to the protection of contemporary standards of morality ... it would seem that the public’s interest in being protected from inconvenience, annoyance or alarm should prevail over any claimed right to utter speech that has no social value.” Ibid. ;

But the speech involved here was nonerotic, having, no suggestion or flavor of the pornographic.

The speech here was quiet, not boisterous, and it was devoid of “fighting words.”

Moreover, this was not a case where speech had moved into action, involving overt acts. There were no fisticuffs, no disorderly conduct in the normal meaning of the words. ,

The Court of Appeals said “Colten was not seeking to express a thought to any listener or to disseminate any idea.” 467 S. W. 2d, at 378. Nor was he, it said, “exer- " cising the right of peaceable assembly.” Ibid.

He was, however, speaking to a representative of government, the- police. And it is to government that one. goes “for a redress of grievances,” to use an .almost forgotten phrase of the First Amendment. But it is said that the purpose was “to cause inconvenience and annoyance.” Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that w;e the people are the sovereigns, the state and federal officials only our agents. We who have the. final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet. The situation might have indicated that Golten’s techniques were ill-suited to the mission he was on, that diplomacy would have been more effective.. But at the constitutional level speech need not be a sedative; it can be disruptive. As we said in Terminiello v. Chicago, 337 U. S. 1, 4:

“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may. strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

Under that test this conviction should be set aside.

Mb. Justice Marshall,,

dissenting.

In my view, North Carolina v. Pearce, 395 U. S. 711 (1969), requires a reversal of this case.

In this case the Court correctly evaluates Kentucky’s procedure: “[A] defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate, review of the inferior court’s ruling. His recourse is the trial de novo” From this the conclusion is reached that the “trial de novo” is not an appeal. What, then, is it?

The pertinent Kentucky Rules provide:

12.02. Manner of Taking.
“(1) An appeal to the circuit court is taken by' filing with the clerk thereof a certified copy of the judgment and the amount of costs, and causing to be executed' before the clerk a bond to the effect that the defendant will pay the costs of the appeal and perform the judgment which may be rendered against him on the appeal; whereupon, the clerk shall issue an order to the judge or- the justice rendering the judgment,'to stay proceedings thereon-, and to transmit' to the office of said clerk all the original papers in the prosecution.
“(2) The applicable provisions governing bail shall apply to the bond provided for in subsection (1).
“(3) After the service of the order to stay proceedings, no execution shall be issued from the inferior court, and any officer on whom the order is served shall return the execution in his hands as suspended by appeal.”
12.06 Schedule and Manner of Trial; Judgment
“Appeals -taken to the circuit court shall be docketed by the clerk thereof as a regular criminal prosecution and shall be tried anew, as if no judgment had been rendered, and the judgment shall be considered as/affirmed to the extent of the punishment, if any, adjudged against the defendant in the circuit-court, and thereupon he ¿hall be adjudged to pay the costs of the appeal. If an appeal taken to the circuit court be dismissed, the judgment of the court from which it was taken shall stand affirmed and the costs of the appeal shall be paid by the party whose appeal is dismissed.”

In Pearce this Court reaffirmed the restrictions upon heavier sentences after appeal:

“It can hardly be doubted that it would be a flagrant violation of. the Fourteenth Amendment for a state trial court to follow an announced' practice of imposing a heavier sentence upon every recon-victed defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been .set aside because of a constitutional error, the imposition of such a punishment, ‘penalizing those who choose to exercise’ constitutional rights, ‘would, be patently unconstitutional.’ United States v. Jackson, 390 U. S. 570, 581. And the very threat inherent in. the existence of such a punitive policy would, with respect to those still in prison, serve to ‘chill the exercise of basic constitutional rights.’ Id., at 582. See also Griffin v. California, 380 U. S. 609; cf. Johnson v. Avery, 393 U. S. 483. But even,if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. ‘A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant.’ Nichols v. United States, 106 F. 672, 679. A court is ‘without right to . . . put a price on an appeal. A defendant’s exercise of a right of appeal must be free and unfettered. ... [I] t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of 'making an' unfree choice.’ Worcester v. Commissioner, 370 F. 2d 713, 718. See Short v. United States, 120 U. S. App. D. C. 165, 167, 344 F. 2d 550, 552. ‘This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these ave.nues must be kept free of unreasoned distinctions that can only impede open and equal access to.the courts. Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353; Lane v. Brown, 372 U. S. 477; Draper v. Washington, 372 U. S. 487.’ Rinaldi v. Yeager, 384 U. S. 305, 310-311.” 395 U. S., at 723-725.

This Court today seeks to escape this determination by such conclusions as:

“Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the-hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres. in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky’s inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.”

To the contrary, appellant’s Jurisdictional Statement cites us to an prder of the same judge who tried this case' “de novo” in which he accepted a motion to. dismiss an appeal in a similar case with the following statement:

“The Commonwealth Attorney has advised the Court that he does not wish to oppose the defendant’s motion to dismiss.-
“While the defendant may be correct in his assumption that the citizens of this community háve a hostile attitude toward students who would attempt to disrupt the university, it may be that this hostility has been earned, and it is conceivable that a jury composed of citizens of this community might impose a more severe sentence than that imposed in the court below. Nonetheless, the Court after having reviewed the law submitted by the defendant' and having conducted its own reseárch of the law is of the opinion that the defendant has a right to dismiss his appeal' and that he cannot be forced into a new trial if he does not desire to continue his appeal. For that reason the defendant’s motion to have his appeal dismissed be and the same is hereby granted.”.

The. record in this case also shows that the trial judge was informed of the lower $10 fine in the original trial and consequently knowingly increased it • to $50. Finally, it should not be forgotten that under this Court’s ruling today he. could have increased it to $500 plus six months in jail.

The Court suggests that for-some, reason there is less danger of vindictive sentencing on. the second trial in •this context than after an ordinary appeal. Specifically, the Court faults the appellant for failing to present evidence that the danger of vindictiveness is as great here as in the precise context presented in Pearce.. But Pearce did not rest on evidence that most trial judges are hostile to defendants who obtain a new trial after appeal. Pearce was based, rather, en the recognition that whenever a defendant is tried twice for the same offense, there is inherent in the situation the danger of vindictive sentencing the second ■ time around, and that this danger will deter some defendants from seeking a second trial. ,.This danger, with its deterrent effect, is exactly the same even though the second trial takes place in a. different, court -from the first. Certainly á defendant has.good reason to fear that his case will not be well received by a second court after he rejects, a disposition as favorable as' the sentence originally imposed in this case.

Pearce was directed toward a new trial after an appellate reversal. This case involves a new trial, without an appellate reversal. The core problem is the second trial. In both cases we have a second full and complete trial. Pearce should control.

       This version of the facts is taken largely from the opinion of the Kentucky Court of Appeals. Colten v. Commonwealth, 467 S. W. 2d 374, 375-376 (Ky. 1971). Colten testified that only the arresting officer ordered him to leave and that the three orders were uttered in such rapid succession that he had little opportunity to comply. App. 49-51. This was disputed by a policeman who testified that earlier he twice asked appellant to leave and gave the admonition quoted in the text. Id., at 23-24. Our own examination of the record indicates that the Kentucky.courts' resolution of this factual dispute was a fair one. Cf. Cox v. Louisiana, 379 U. S. 536, 545 n. 8 (1965).

       In his brief appellant makes a passing reference to the possibility of violence on the part of police and suggests that he remained on the scene to avert misdeeds or to be a potential witness to them. Yet he builds no factual basis for a reasonable apprehension of violence and seemingly dispels whatever force such a contention might have when- he states in his brief: “In the overwhelming majority of cases, that suspicion, [of police brutality] is undoubtedly wrong, but it is there.” Brief for Appellant 36.

       Appellant attacks on overbreadth grounds other subsections of the disorderly conduct statute, such as those that prohibit the making of an “unreasonable noise” and the use of “abusive or obscene language.” Ky. Rev. Stat. §§ 437.016 (b), (c) (Supp. 1968). But Colten was not convicted of violating these subsections and they are not properly before us in this case.'

        E. g., Ariz. Rev. Stat. Ann. §22-371 et seq. (1956 and Supp. 1971-1972); Ark. Stat. Ann. §44-501 et seq. (1964); Colo. Rule Crim. Proc. 37 (f); Fla. Stat. Ann. § 924.41 et seq. (Supp. 1972-1973); Ind. Ann. Stat. §9-713 et seq. (1956 and Supp. 1971); Kan. Stat. Ann. § 22-3610 et seq. (Supp. 1971); Me. Dist. Ct. Crim. Rule 37 et seq.; Md. Ann. Code, Art. 5, § 43 (1968); Mich. Stat. Ann. § 28.1226 (Supp. 1972); Minn. Stat. §§ 488.20, 633.20 et seq. (1969); Miss. Code Ann. §§ 1201, 1202 (Supp. 1971); Mo. Sup. Ct. Rule 22; Mont. Rev. Codes Ann. §95-2001 et seq. (1947); Neb. Rev. Stat. §29-601 et seq. (1964); Nev. Rev. Stat. §189.010 et seq. (1969); N. H. Rev. Stat. Ann. §§ 502:18, 502-A:11-12 (1968); N. M. Stat. Ann. §36-15-1 et seq. (Supp. 1971); N. C. Gen. Stat. §§ 15-177 et seq., 20-138 (1965 and Supp. 1971); N. D. Cent. Code § 33-12-40 et seq. (1960); Pa. Stat. Ann., Tit. 42, §3001 et seq. (Supp. 1972-1973); Pa. Const., Sched..Art. 5, § 16 (r) (iii) (Philadelphia); Tex. Code Crim. Proc., Arts. 44.17, 45.10 (1966); Va. Code Ann. § 16.1-129 et seq. (1950); Wash. Rev. Code §3.50.380 et seq. (Supp. 1971); W. Va. Code Ann. §50-18-1 et seq. (1966 and Supp. 1971).

       Misdemeanors are defined as those crimes punishable by a maximum of one year in jail and a $500 fine. Ky. Rev. Stat. §§ 25.010, 26.010 (1962 and Supp. 1968).

         What the Kentucky Court of Appeals calls inferior courts include county, quarterly, justice’s and police courts. In all cases in which the punishment is limited to a fine of $20, the inferior courts have original jurisdiction. Ky. Rev. Stat. §25.010 (1962). In all other misdemeanor cases their jurisdiction is -concurrent with that, of the circuit courts.

       Ky. Rev. Stat. § 23.032 (Supp. 1968). Kentucky denominates an application for a trial de novo an “appeal.” However, the right to a new trial is unconditional and exists even when a defendant seeks redetermination of questions of law. Ky. Rules Crim. Proc. 12.02, 12.06.

       A general discussion of how these courts operate may be found in 47 Am. Jur. 2d, Justices of the Peace §§ 49-120.

         E. gr., Massachusetts, North Carolina, Pennsylvania. Mann v. Commonwealth, - Mass. -, 271 N. E. 2d 331 (1971); State v. Spencer, 276 N. C. 535, 173 S. E. 2d 765. (1970); Pa. Stat. Ann., Tit. 42, § 3001 et seq. (Supp. 1972-1973); Pa. Const., Sched. Art. 5, § 16 (r)(iii) (Philadelphia).

        E. g., North Carolina, Virginia. State v. Sparrow, 276 N. C. 499, 173 S. E. 2d 897 (1970); Evans v. City of Richmond, 210 Va. 403, 171 S. E. 2d 247 (1969).

       See, e. g., People v. Olary, 382 Mich. 559, 170 N. W. 2d 842 (1969) ; State v. DeBonis, 58 N. J. 182; 276 A. 2d .137 (1971). However, the trial judge in the Fayette Quarterly Court, where Colten was tried, is a professional.

         North Carolina v. Pearce, 395 U. S. 711 (1969), applies: Bronstein v. Superior Court, 106 Ariz. 251, 475 P. 2d 235 (1970); State v. Shak, 51 Haw. 626, 466 P. 2d 420 (1970); Eldridge v. State, 256 Ind. 113, 267 N. E. 2d 48 (1971); Cherry v. State, 9 Md. App. 416, 264 A. 2d 887 (1970); Commonwealth v. Harper, 219 Pa. Super.. 109, 280 A. 2d 637 (1971).

        Contra: Mann v. Commonwealth, - Mass. -, 271 N. E. 2d 331 (1971); People v. Olary, 382 Mich. 559, 170 N. W. 2d 842 (1969); State v. Stanosheck, 186 Neb. 17, 180 N. W. 2d 226 (1970); State v. Sparrow, 276 N. C. 499, 173 S. E. 2d 897 (1970); Evans v. City of Richmond, 210 Va. 403, 171. S. E. 2d 247 (1969).
      New Mexico prohibits enhanced sentencing altogether. N. M. Stat. Ann. §36-15-3 (Supp. 1971).

         Pearce applies: Rice v. North Carolina, 434 F. 2d 297 (CA4 1970), vacated and remanded on ground of possible mootness, 404 U. S. 244 (1971); contra: Lemieux v. Robbins, 414 F. 2d 353 (CA1 1969), cert. denied, 397 U. S. 1017 (1970). See also Manns v. Allman, 324 F. Supp. 1149 (WD Va. 1971), holding that Pearce does not apply where an enhanced penalty is imposed by a jury rather than a judge.

       In Colten’s case the súperior court judge did'know about the $10 fine. Colten’s counsel in closing argument stated what the penalty had been, App. 93, although clearly he need not have done so.

       Ky. Rev. Stat. § 437.016 (Supp. 1968).

       Neither appellant nor any in his group blocked-traffic, their cars being parked on the shoulder of the road.- Any blocking of traffic was caused by police who pulled up to see what was going on, leaving their patrol cars in the access road. See 467 S. W. 2d 374, 376.


source: Caselaw Access Project

author: Mr. Justice Powell

license: Public Domain

text:
    JAMES, JUDICIAL ADMINISTRATOR, et al. v. STRANGE
    No. 71-11.
    Argued March 22, 1972
    Decided June 12, 1972
    Powell, J., delivered the opinion for a unanimous Court.

      Edward G. Collister, Jr., Assistant Attorney General of Kansas, argued the cause for appellants. With him on the brief were Vern Miller, Attorney General, and Matthew J. Dowd, Assistant Attorney General.

      John E. Wilkinson argued the cause and filed a brief for appellee.

      Marshall J. Hartman filed a brief for the National Legal Aid and Defender Association as amicus curiae.

   Mr. Justice Powell

delivered, the opinion of the Court.

This case presents a constitutional challenge to a Kansas recoupment statute, whereby the State may recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants. The three-judge court below held the statute unconstitutional, finding it to be an impermissible burden upon the right to counsel established in Gideon v. Wainwright, 372 U. S. 335 (1963). The State appealed and we noted jurisdiction, 404 U. S. 982.

The relevant facts are not disputed. Appellee Strange was arrested and charged with first-degree robbery under Kansas law. He appeared before a magistrate, professed indigency, and accepted appointed counsel under the Kansas Aid to Indigent Defendants Act. Appellee was then tried in the Shawnee County District. Court, on the reduced charge of pocket picking.. He pleaded guilty and received. a suspended sentence and three years’ probation.

Thereafter, appellee’s counsel, applied to the State for payment for his services and received $500 from the Aid to Indigent Defendants Fund. Pursuant to Kansas’ recoupment statute, the Kansas Judicial Ad-' ministrator requested appellee to reimburse the State within 60 days or a judgment for the $500 would be docketed against him. Appellee contends this procedure violates his constitutional rights.

I

It is necessary at the outset to explain the terms and operation of the challenged statute. When the State provides an indigent defendant with counsel or other legal services, the defendant becomes obligated to the State for the amount expended in his behalf. Within 3Ó days of the expenditure, the defendant is notified of his debt and given 60 days to repay it. If the sum remains unpaid after the 60-day period, a judgment is docketed against defendant for the unpaid amount. Six percent annual interest runs on the debt from the date the expenditure was made. The debt becomes a lien on the real estate of defendant and may be executed by garnishment or in any other manner provided by the Kansas Code of Civil Procedure. The indigent defendant is not, however, accorded any of the exemptions provided by that code for other judgment debtors except the homestead exemption. If the judgment is not executed within five years, it becomes dormant and ceases to operate as a lien on the debtor’s real estate, but may be revived in the same manner as other dormant judgments under the code of civil procedure.

Several features of this procedure merit mention. The entire program is administered by the judicial administrator, a public official, but appointed counsel are private practitioners. The statute apparently leaves to administrative discretion whether, and under what circumstances, enforcement of the judgment will be sought. Recovered sums do, however, revert to the Aid to Indigent Defendants Fund.

The Kansas statute is but one of many state re-coupment laws applicable to counsel fees and expenditures paid for indigent defendants. The statutes vary' widely in their terms. Under some statutes, the indigent’s liability is to the county in which he is tried; in others to the State. Alabama and Indiana make assessment and recovery of an indigent’s counsel fees discretionary .with the court. Florida’s recoupment law-has no statute of limitations and the State is deemed to have a perpetual lien against the defendant’s real and personal property and estate. Idaho, on the other hand, has a five-year statute of limitations on the recovery of an “indigent’s” concealed assets at the time of trial and a three-year statute for the recovery of later acquired ones. In Virginia and West Virginia, the amount paid to court-appointed counsel is assessed only against convicted defendants as a part of costs, although the majority of state recoupment laws apply whether or not the defendant prevails. If is thus apparent that state recoupment laws and procedures differ significantly in their particulars. Given the wide differences in the features of these statutes, any broadside pronouncement on their general validity would be inappropriate.

We turn therefore to the Kansas statute, aware that our reviewing function is a limited one. We do not inquire whether this statute is wise or desirable, or “whether it is based on assumptions scientifically substantiated.” Roth v. United States, 354 U. S. 476, 501 (1957) (separate opinion of Harlan, J.). Misguided laws may nonetheless be constitutional. It has been noted both in the briefs and at argument that only $17,000 has been recovered under the statute in its almost two years of operation, and that this amount is negligible compared to the total expended. Our task, however, is not to weigh this statute’s effectiveness but its constitutionality. Whether the returns under the statute justify the expense, time, and efforts of state officials is for the ongoing supervision of the legislative branch. .

The court below invalidated this statute on the grounds that .it “needlessly encourages indigents to do without counsel arid consequently infringes on the right to counsel as explicated in Gideon v. Wainwright, supra.” 323 F. Supp. 1230, 1233. In Gideon, counsel had been denied an indigent defendant charged with a felony because his was not a capital case. This Court often has voided state statutes and practices which denied to accused indigents the means to present effective defenses, in courts of law. Douglas v. California, 372 U. S. 353 (1963); Draper v. Washington, 372 U. S. 487 (1963); Lane v. Brown, 372 U. S. 477 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). Here, however, Kansas has enacted laws both to provide and compensate from public funds counsel for the indigent. There is certainly no denial of the right to counsel in the strictest sense. Whether the statutory obligations for repayment impermissibly deter the exercise of this right is a question we need not reach, for wé find the statute before us constitutionally infirm on other grounds.

II

Appellants have asserted in argument before this Court that the statute “has attempted to treat them [indigent defendants] the same as would any civil judgment debtor be treated in the State courts . . . .” Again, in their brief appellants assert that “[f]or all practical purposes the methods available for enforcement of the judgment are the same as those provided by the Code of Civil Procedures [sic] or any other civil judgment.” The challenged portion of the statute- thrice alludes to means of debt recovery prescribed by the Kansas Code of Civil Procedure.

Yet the ostensibly equal treatment of indigent defendants with other civil judgment debtors recedes sharply as one examines the statute more closely. The statute stipulates that save for the homesteád, “[n]one of the exemptions provided for in the code of civil procedure shall apply to any such judgment . . . .” This provision strips from indigent defendants the array of protective exemptions Kansas has erectéd for other civil judgment debtors, including restrictions on the amount of disposable earnings subject to garnishment, protection of the. debtor from wage garnishment at times of severe personal or. family sickness, and exemption from attachment and execution on a debtor’s personal clothing, books, and tools of trade. For the head of a family, the exemptions afforded other judgment debtors becommore extensive, and cover furnishings, food, fuel, clothing, means of transportation, pension funds, and even a family burial plot or crypt.

Of the above exemption^, none is more important to a debtor than the exemption of his wages from unrestricted garnishment. The debtor’s wages are his sustenance, with which he supports himself and his family. The average low income wage' earner spends nearly nine-tenths of those wages for items of immediate consumption. This Court has recognized the potential of certain garnishment proceedings to “impose tremendous hardshipsi on wage earners with families to support.” Sniadach v. Family Finance Corp., 395 U. S. 337, 340 (1969). Kansas has likewise perceived the burden to a debtor and his family when wages may be subject to wholesale garnishment. Consequently, under its code of civil procedure, the maximum which can be garnished is the lesser of 25% of a debtor's weekly disposable earnings or the amount by which those earnings exceed 30 times the federal minimum hourly wage. No one creditor may issue more than one garnishment during any one month, and no employer may discharge an employee because his earnings have been garnished for a single indebtedness. For Kansas to deny protections such as these to the once criminally accused is to risk denying him the means needed to keep himself and his family afloat.

The indigent's predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense. Should the latter prove unable to pay and a judgment be obtained against him, his obligation would become enforceable, under the relevant provisions of the Kansas Code of Civil Procedure. But, unlike the indigent under the recoupment statute, the code’s exemptions would protect this judgment debtor.

It may be argued that an indigent accused, for whom the State' has provided counsel, is in a different class-with respect to collection of his indebtedness than a judgment creditor whose obligaticn arose from a private transaction. But other Kansas statutes providing for recoupment of public assistance to indigents do not include the severe provisions imposed on indigent defendants in this case. Kansas has enacted, as have many other States, laws for state recovery of public welfare assistance- when paid to an ineligible recipient. Yet the Kansas welfare recipient, unlike the indigent defendant,' is not denied the customary exemptions.

We recognize, of course, - that the State’s claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not be identical. This does not mean, however, that a State may impose unduly harsh or discriminatory • terms merely because the obligation is to the public treasury rather than to a private creditor. The State itself in the statute before us analogizes the judgment lien against the indigent defendant .to other “judgments under the code of civil, procedure.” But the statute then strips the indigent defendant of the very exemptions- designed primarily to benefit debtors of low and marginal incomes.

The Kansas statute provides for recoupment whether the indigent defendant is acquitted or found- guilty. If acquitted, the indigent finds himself obligated to repay the State for a service the need for which resulted from the State’s prosecution. It is difficult to See why such a defendant, • adjudged to be innocent of the State’s charge, should be denied basic exemptions accorded all other judgment debtors. The indigent defendant who is found guilty is uniquely disadvantaged in terms of the practical operation of the statute. A criminal conviction usually limits employment opportunities. This is especially true where a prison sentence has been served. It is in the interest of society and the State that such a defendant, upon satisfaction of the criminal penalties imposed, be afforded a reasonable opportunity of employment, rehabilitation and return to useful citizenship. There is limited incentive to seek legitimate employment when, after serving a sentence during which interest has accumulated on the indebtedness for legal services, the indigent knows that his wages will be garnished without the benefit of any of the customary exemptions.

Appellee in this case has now married, works for a modest wage, and has recently become a father. To deprive him of all protection for his wages and intimate personalty discourages the search for self-sufficiency which might make of the criminally accused a contributing citizen. Not only does this treatment not accord with the treatment of indigent recipients of public welfare or with that of other civil judgment debtors, but the Kansas statute also appears to be alone among re-coupment laws applicable to indigent defendants in expressly denying them the benefit of basic debtor exemptions.

Ill

In Rinaldi v. Yeager, 384 U. S. 305 (1966), the Court considered a situation comparable in some respects to the case at hand. Rinaldi involved a New Jersey statute which required only those indigent defendants who were sentenced to confinement in state institutions to reimburse the State the costs of a transcript on appeal. In Rinaldi, as here, a broad ground of decision was urged, namely, that the statute unduly burdened an indigent’s right to appeal. The Court found, however, a different basis for decision* holding that “[t]o fasten a financial burden only upon those unsuccessful appellants who are confined in state institutions ... is to make an invidious discrimination” in violation. of the Equal Protection Clause. Id., at 309.

Rinaldi affirmed that the Equal Protection Clause “imposes a requirement of some rationality in the nature of the class singled out.” Id., at 308-309. This requirement is lacking where, as in the instant case, the State has subjected indigent defendants to such discriminatory conditions of repayment. This case, to be sure, differs from Rinaldi in that here all indigent defendants are treated alike. But to impose these harsh conditions on a class of debtors who were provided counsel as required by the Constitution is to practice, no less than in Rinaldi, a discrimination which the Equal Protection Clause proscribes.

The Court assumed in Rinaldi, arguendo, “that, a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.” Id., at 309. We note here also that the state interests represented by recoupment laws may prove important ones. Recoupment proceedings may protect the State from fraudulent concealment of assets and false assertions of indigency. Many States, moreover, face expanding criminal dockets, and this Court has required appointed counsel for indigents in widening classes of cases and stages of prosecution.' Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative efforts to recover some of the added costs. Finally, federal dominance of the Nation’s major revenue sources haS encouraged state and local governments to seek new methods of conserving public funds, not only through the recoupment of indigents’ counsel fees but of other forms of public assistance as well.

We thus recognize that state recoupment statutes may betoken legitimate state interests. But these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other-classes of debtors to whom the statute itself repeatedly makes reference. State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect. . The statute before us embodies elements of púnitiveness and discrimination which violate the rights of citizens to equal treatment under the law.

The judgment of the court below is affirmed.

       The opinion of the three-judge court is reported in 323 F. Supp. 1230 (Kan. 1971).

       Kan. Stat. Ann. §§22-4501 to 22-4515 (Supp. 1971).

       Kan. Stat. Ann. §22 — 4513 (Supp. 1971). The statute reads as follows:
      “(a) Whenever any expenditure has been made from the aid to indigent defendants fund to provide counsel and other defense services to any defendant, as authorized by section 10, . . . such defendant shall be liable to the state of Kansas for a sum équal-to such expenditure, and such sum may be recovered from the defendant by the state of Kansas for the benefit of the fund to aid indigent defendants. Within thirty (30) days after such expenditure, the judicial administrator shall send a notice by certified mail to the person on whose behalf such expenditure was made, which notice shall state the amount of the expenditure and shall demand that the defendant pay said sum to'the state of Kansas for the benefit of the fund to aid indigent defendants within sixty (60) days after receipt of such notice. ' The notice shall state that such sum became due on the date of the^expenditure and that the sum demanded will bear interest at six perc.ent (6%) per annum from the due date until paid. Failure to receive any such notice shall not relieve the person to whom it is addressed from the payment of the sum claimed .and-, any interest due thereon.
      “Should the sum demanded remain unpaid at the expiration of sixty (60) days after mailing the notice, the judicial administrator shall certify an abstract of the total amount of the unpaid demand and interest thereon to the clerk of the district court of the county in which counsel was appointed or the expenditure- authorized by the court, and such clerk shall enter the total amount thereof on his judgment docket and said total amount, together with the interest thereon at the rate of six percent (6%) per annum, from the date of the expenditure thereof until paid, shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure and shall become a lien on real estate from and after the time of filing thereof. A transcript of said judgment may be filed in another county and become a lien upon real estate, located in such county, in the same manner as is provided in ease of other judgments. Execution, garnishment, or other proceedings in aid of execution may issue within the county, or to any other county, on said judgment in like manner as on judgments under the code of civil procedure. None of the exemptions prbvided for in the code of civil procedure shall apply to any - such judgment, but no such judgment shall be levied against a homestead. If execution shall not be sued out within five (5) years from the date of the entry of any such judgment, or’if five (5) years shall have’intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant and shall cease to operate as a lien on real estate of the judgment debtor. Such dormant judgment may be revived in like manner as dormant judgments under the code of civil procedure.
      “(b) Whenever any expenditure has been' made from the aid to indigent defendants fund to provide counsel, and other defense. services to' any defendant, as authorized by section 10, ... a sum equal to such expenditure' may be recovered by the state of Kansas for the benefit of the aid-to indigent defendants fund from any persons to whom the indigent defendant shall have transferred any of his property without adequate monetary consideration after the commission of the alleged crime, to the extent of the value of such transfer, and such persons are hereby made liable to reimburse the state of Kansas for such expenditures with interest at six percent (6%)'per annum. Any action to recover judgment for such expenditures shall be prosecuted by the attorney general, who may require the assistance of the county attorney of the county in which the action is to be filed, and such action shall be governed by the provisions of the code of civil procedure relating to actions for the recovery of money. No action shall be brought against any person under the provisions of this section to recover for sums expended ' on behalf of an indigent defendant, unless such ^action shall have been filed within two (2) years after the date of the expenditure from the fund to aid indigent defendants.”

       Failure to receive notice, however, does not relieve the person to whom it is addressed of the obligation.

       A dormant judgment may be revived within two years of the date on which the judgment became dormant. -IKan. Stat. Ann. §60-2404 (1964).

       There is also a federal reimbursement provision, 18 U. S. C. § 3006A (f):
      “Receipt of other payments. — Whenever the' United States magistrate or the court finds that funds are available for payment, from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit, in the Treasury as a .reimbursetnent to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person or organization may-request or accept any payment or promise of payment for representing a defendant.”.

       The board of county commissioners has discretion to compromise or' release the hen, however. Fla. Stat. Ann. § 27.56 (Supp. 1972-1973).

       State recoupment statutes, including those quoted above, are as follows:
      Ala. Code, Tit. 15, § 318 (12) (Supp. 1969); Alaska Stat. § 12.55.020 (1962); Fla. Stat. Ann. §27.56 (Supp. 1972-1973); Idaho Code § 19-858 (Supp. 1971); Ind. Ann. Stat. §9-3501 (Supp. 1970); Iowa Code Ann. §775.5 (Supp. 1972); Md. Ann. Code, Art. 26, § 12C (Supp. 1971); N. M. Stat. Ann. § 41-22-7 (Supp. 1971); N. D. Cent. Code §29-07-01.1 (Supp. 1971); Ohio Rev. Code Ann. §2941.51 (Supp. 1971); S. C. Code Ann. § 17-283 (Supp. 1971); Tex. Code Crim. Proc., Art. 1018 (1966); Va. Code Ann. § 14.1-184 (Supp. 1971); W. Va. Code Ann. §62-3-1 (Supp. 1971); Wis. Stat. Ann. §256.66 (1971).

       For fiscal 1971 $400,000 was appropriated to fund the program.

       See n. 2, supra.

       “Tr: of Oral Arg.. 9. The State concedes .that exemptions for other civil judgment debtors are broader than for indigent defendants, id., at 10, a matter we will address forthwith. .

       Brief for Appellants 7:

       See .Kan. Stat. Ann. §§ 60-701 to 60-724, 60-2401 to. 60-2419 (1964 and Supp. 1971).

       The exemptions in the civil code are set forth in Kan. Stat. Ann. §§60-2301 to 60-2311 (1964 and Supp. 1971).

       Kan. Stat. Ann. §§ 60-2304 and 60-2308 (1964 and Supp. 1971).

       Bureau of Labor Statistics, Handbook of Labor Statistics 281 (1968). Low-wage earners are defined as families with after-tax income of less than $5,000.

       The Court in Sniadach held that Wisconsin’s prejudgmént wage garnishment procedure, as a taking of property without notice and prior hearing, violated the Due Process Clause of the Fourteenth Amendment.

       Kan. Stat. Ann. §§ 60-2310 (b) and 60-2311 (Supp. 1971).' Section 60-2310 also provides further debtor protection from wage garnishment at a time of disabling personal sickness and from professional collecting agencies; See Kan. Stat. Ann. §§ 60-2310 (c) and (d) (Supp. 1971). See also Bennett, the 1970 Kansas Legislature in Review, 39 J. B. A. K. 107, 178 (1970), which points out that the State’s restrictions on garnishments have been made to conform to Tit. Ill of the federal Consumer Credit Protection Act, 82 Stat. 163. Kansas, however, provided significant wage exemptions from garnishment long before the federal Act was passed.

       Kan. Stat. Ann. §39-719b (1964); §59-2006 (Supp. 1971). Section 39-719b deals mainly with the recovery of assistance from an ineligible recipient. Yet, even when the welfare recipient is deemed to have defrauded the State, he still escapes the immediate interest accumulations and denial of exemptions imposed on indigent defendants:
      “§ 39-719b. Duty of recipient to report changes; action by board; recovery of assistance obtained by ineligible recipient. If at any time during the continuance of assistance to any person, the recipient thereof becomes possessed of any property or income in excess of the amount ascertained at the time of granting assistance, it shall be the duty of the recipient to notify, the county board of social welfare immediately of the receipt or possession of such property or income and said county board may, after investigation, cancel the assistance in accordance with the circumstances.
      “Any assistance paid shall be recoverable by the county board as a debt due to the state and the county in proportion to the amount of the assistance paid by each, respectively: If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient,' the total amount of the assistance may be recovered by the state department of social welfare as a fourth class claim, from the estate of the recipient or in an action brought against the recipient while ■living.”

       There appears to be a. further discrimination against the indigent defendant as contrasted with the delinquent welfare recipient. The recoupment statute applicable to indigent defendants provides for the accumulation of 6% annual interest from the date expenditures are made for counsel or other legal defense costs. Kan. Stat. Ann. § 22-4513 (Supp. 1971). The interest build-up for the indigent defendant would not be insubstantial, In the five years before the judgment became dormant, interest accumulations could lift ap-pellee’s $500 debt to almost $670. If the dormant judgment is revived within the statutorily prescribed two years, the principal and interest might total over $750. (The interest presumably would run while the judgment was dormant since “[a] dormant judgment may be revived and have the same force and effect as if it had not become dormant . . . .” Kan. Stat. Ann. §60-2404 (Supp. 1971)).
      Kansas also has a statute providing that all judgments shall bear 8% interest from the day on which they are rendered. Kan. Stat. Ann. § 16-204 (Supp. 1971) (recently amended from 6%) . Presumably this statute would cover the “debts” of welfare recipients once they are reduced to judgment. The debt of the indigent defendant, however, runs from the date the assistance is granted, while any interest on the debt of a welfare, recipient would presumably run from the date of judgment.

       For example, Kansas does not extend its exemptions with respect to wage garnishment to any debt due for any state or federal tax, Kan. Stat. Ann. § 60-2310 (e) (3) (Supp. 1971). This type of public debt, however, differs from the instant case in representing a wrongful withholding from the State of a tax on assets in the actual possession of the taxpayer and not, as here, a debt contracted under circumstances of indigency.

       The statutes of various other States, e. g., Alaska, South Carolina, and West Virginia, provide, as does Kansas, for recovery against . indigent defendants in the same manner as on other judgments. Unlike Kansas, however, these States do not expressly subject indigents to conditions to which other civil judgment debtors are not liable. See n. 8, supra, for citations.

       See n. 8, supra, for citations.

        Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Argersinger v. Hamlin, ante, p. 25.

        Coleman v. Alabama, 399 U. S. 1 (1970); Mempa v. Rhay, 389 U. S. 128 (1967); United States v. Wade, 388 U. S. 218 (1967); Miranda v. Arizona, 384 U. S. 436 (1966).