explicitly in our basic law a much needed definition of the relationship of the people to their government.

"While the obligation expressed in this recommendation is mandatory, in that the Legislature shall provide for the aid, care and support of persons in need, the manner and the means by which it shall do so are discretionary.

"The Legislature may continue the system of relief now in operation. It may preserve the present plan of reimbursement to the localities. It may devise new ways of dealing with the problem. Its hands are untied. What it may not do is to shirk its responsibility which, in the opinion of the committee, is as fundamental as any responsibility of government" (Revised Record of the Constitutional Convention, vol III, p 2126 [1938]).

In view of this legislative history, as well as the mandatory language of the provision itself, it is clear that section 1 of article XVII imposes upon the State an affirmative duty to aid the needy.... Although our Constitution provides the Legislature with discretion in determining the means by which this objective is to be effectuated, in determining the amount of aid, and in classifying recipients and defining the term "needy," it unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy. Such a definite constitutional mandate cannot be ignored or easily evaded in either its letter or its spirit (see Flushing Nat. Bank v. Municipal Assistance Corp. for City of N.Y., 40 NY 2d 731, 737, 739; Sgaglione v. Levitt, 37 NY2d 507; Matter of Sloat v. Board of Examiners, 274 NY 367, 370).

We find that section 15 of chapter 76 of the Laws of 1976 is unconstitutional in that it contravenes the letter and spirit of section 1 of article XVII of the Constitution. The effect of the questioned statute is plain: it would effectively deny public assistance to

Discussion Notes

1. One month after Tucker was decided, the New York Court of Appeals emphasized that "the Legislature is vested with discretion to determine the amount of aid; what we there [in Tucker] held prohibited was the Legislature's 'simply refusing to aid those whom it has classified as needy'." Bernstein v. Toia, 43 N.Y. 2d 437, 449, 373 N.E. 2d 238, 244 (1977).

persons under the age of 21 who are concededly needy, often through no fault of their own, who meet all the criteria developed by the Legislature for determining need, solely on the ground that they have not obtained a final disposition in a support proceeding. Certainly, the statute is in furtherance of a valid State objective, for it is intended to prevent unnecessary welfare expenditures by placing the burden of supporting persons under 21 upon their legally responsible relatives. This valid purpose, however, cannot be achieved by methods which ignore the realities of the needy's plight and the State's affirmative obligation to aid all its needy.

In Matter of Barie v. Lavine (40 NY2d 565), we were presented with a somewhat similar challenge to a social services regulation providing for the temporary suspension of recipients who unjustifiably refuse to accept employment. We summarily dismissed the constitutional arguments proffered in Barie, stating: "The Legislature may in its discretion deny aid to employable persons who may properly be deemed not to be needy when they have wrongfully refused an opportunity for employment" (id., at p. 570). In that case we were concerned with a reasonable legislative determination that such individuals were not needy. The present case, in contradistinction, presents a very different question: May the Legislature deny all aid to certain individuals who are admittedly needy, solely on the basis of criteria having nothing to do with need? Today, we hold that it may not. As the chairman of the Constitutional Convention's Committee on Social Welfare indicated, although the Legislature is given great discretion in this area, it cannot simply "shirk its responsibility which... is as fundamental as any responsibility of government" (Revised Record of the Constitutional Convention, vol III, p 2126 [1938]).

2. To what other situations might a provision like New York's art. XVII, section 1 apply? See Note, "The Right to Shelter for the Homeless in New York State," New York University Law Review 61 (May 1986): 272. See also John C. Connell, "A Right to Emergency Shelter for the Homeless Under the New Jersey Constitution," Rutgers Law Journal 18 (Summer 1987): 765.

Most state constitutions contain provisions such as Art. I, section 20 of the Ohio Constitution:

This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.

See generally Note, "Unenumerated Rights Clauses in State Constitutions," Texas Law Review 63 (March/April 1985): 1321.

McCracken v. State 518 P.2d 85 (Alaska 1974)

BOOCHEVER, Justice.

In this case we consider whether a prisoner has a right to represent himself in post-conviction relief proceedings.

However, the aforementioned Supreme Court dicta and the circuit court decisions cited above either construed the sixth amendment's guarantee of the assistance of counsel to incorporate a corollary constitutional right to proceed in propria persona, tended to embrace such a construction, or relied for authority upon cases which did one or the other. Consequently, these cases are of questionable relevance to the case at hand, for the sixth amendment to the United States Constitution and art. I, sec. 11 of the Alaska Constitution by their terms apply only to criminal prosecutions, and protect only those accused of crime with respect to the preparation of a defense. An evidentiary hearing on an application for post-conviction relief is not a criminal prosecution, petitioner will not be presenting a defense to a criminal prosecution, and

McCracken is not an accused, having already been convicted. Therefore, if we are to derive a right to represent oneself from either the Federal or the Alaska constitutions, we must look elsewhere. We are persuaded that there is such a right under art. I, sec. 21 of the Alaska Constitution, which specifies that "[t]he enumeration of rights in this constitution shall not impair or deny others retained by the people." At the time that the Alaska constitution was enacted15 and became effective, 16 the right of self-representation was so well established that it must be regarded as a right "retained by the people." The Treaty of Cession, 17 under which Russia ceded its possessions in North America to the United States, provided that the inhabitants "shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." By virtue of section 35 of the Judiciary Act of 1789,18 parties then possessed the right in all the courts of the United States to "plead and conduct their own cases personally." Thus, throughout Alaska's history prior to statehood parties were without exception entitled to exercise the right of self-representation. Although we do not imply that all statutory rights in existence at the time that Alaska was admitted to the Union constitute rights "retained by the people" under art. I, sec. 21 of the Alaska Constitution, we are of the opinion that a right so long established and of such fundamental importance must be held to have been so retained. 19

16The constitution was adopted by the convention of February 5, 1956.

16 The Constitution became effective upon Alaska's admission into the Union on January 3, 1959. 1715 Stat. 539 (effective June 20, 1867).

1828 U.S.C. sec. 1654.

19In view of this holding, we need not decide whether petitioner's claim under the ninth amendment of the United States Constitution is meritorious.

In considering the fundamental importance of self-representation, we are mindful that ours is a society valuing the autonomy of the individual and his freedom of choice. When accused of a crime, or, as here, when seeking relief from a conviction resulting in imprisonment, the opportunity to determine whether to present one's own case or to be represented by appointed counsel is of paramount importance to the individual. Under some circumstances, he may indeed be the only person who will forcefully advance arguments in an unpopular cause. Alaska has been and is endowed with courageous attorneys who have zealously represented those accused of crime, but such dauntless representation may not always be available to one who is the object of opprobrium. The opportunity to present one's own position where liberty itself is at stake should not lightly be disregarded, and the right to counsel should not be used to bar self-representation. "[T]he procedural safeguards of the bill of Rights are not to be treated as mechanical rigidities. What were contrived protections for the accused should not be turned into fetters."20

as

Having concluded then that there is a right to self-representation under our own constitution, we must illuminate the contours of that right. The right

20 Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L. Ed. 268, 275 (1942).

Discussion Notes

1. See also State v. Labato, 7 N.J. 137, 143, 80 A.2d 617, 619 (1951).

is not absolute. In order to prevent a perversion of the judicial process, the trial judge should first ascertain whether a prisoner is capable of presenting his allegations in a rational and coherent manner before allowing him to proceed pro se. Second, the trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Rule 39(b)(3) provides that, at the trial stage, counsel should be appointed unless the defendant "demonstrates that he understands the benefits of counsel and knowingly waives the same." A comparable procedure should be followed in postconviction proceedings. The advantages of legal representation should be explained to the prisoner in some detail, and in the event of an evidentiary hearing at which the prisoner is present he should be given the option of having legal counsel available for consultation. Indeed, where the court is not completely satisfied that the prisoner is capable of pro se representation, it is within its sound discretion to insist that the prisoner accept consultative assistance by appointed counsel. Finally, the trial judge should determine that the prisoner is willing to conduct himself with at least a modicum of courtroom decorum.22

22 However, the hearing judge must bear in mind that prisoners are not experienced trial lawyers, and are not practiced in the formalities of courtroom etiquette.

Without question, the rebirth of reliance on state bills of rights is one of the most fascinating developments in civil rights law of the last two decades. . . .

Amid the rejoicing, however, only a few have noticed that a key member of the parade is missing: the conscientious public interest or civil rights attorney who wants to take the law reviews seriously. These plaintiffs' lawyers are enthusiastic about using new state theories to vindicate their clients' constitutional rights to free speech, humane confinement conditions, or equality of the sexes. But the awful secret is that, in contrast to the well-developed federal law of civil rights litigation, few states have implemented adequate compensatory remedies for violations of state guarantees. As a result, relatively few civil actions are brought alleging that invasion of important personal and civil rights transgresses the state, rather than the federal, bill of rights.

It is no accident that the best-publicized uses of state constitutions have been as defenses to criminal or civil liability or as grounds for injunctive relief, rather than as grounds for recovering damages. Appellate criminal cases applying state constitutions are plentiful, in large part because attorneys are paid to file and brief them. When an attorney raises the state constitution as a defense in a civil case-for example, to defend a claim for punitive damages in a defamation action-the incremental cost is not likely to be a significant impediment to its use, as the defendant is in any case obliged to defend. Injunctive relief under state constitutions is most often sought by plaintiffs bringing class action or public interest litigation, for which

privately or publicly funded counsel may be
available.

Jenifer Friesen, "Recovering Damages for State Bills of Rights Claims," Texas Law Review 63 (March/April 1985): 1269-70.

The following cases indicate some of the potential, and pitfalls, of litigating state constitutional claims for damages.

1. Cause of Action

Gay Law Students Association v.
Pacific Telephone and
Telegraph Company

156 Cal.Rptr. 14, 595 P. 2d 592 (1979)

TOBRINER, Justice.

In June 1975 plaintiffs, four individuals and two associations organized to promote equal rights for homosexual persons, filed the present class action against Pacific Telephone and Telegraph Company (PT&T) and the California Fair Employment Practice Commission (FEPC). The complaint alleged that PT&T practices discrimination against homosexuals in the hiring, firing and promotion of employees, asserted the illegality of such employment discrimination and sought declaratory and injunctive relief to prevent PT&T from the continuation of such practices. The complaint also prayed for monetary damages to compensate for losses sustained as a result of PT&T's alleged past discrimination. As to the FEPC, the complaint asserted that, contrary to its alleged statutory mandate, the commission had improperly refused to take any action to remedy employment discrimination against homosexuals by PT&T and other employers.

2. Plaintiffs' allegations of arbitrary employment discrimination against homosexuals state a cause of action against PT&T.

We begin with a consideration of plaintiffs' claims against PT&T. PT&T asserts, in essence, that its employment practices are subject to no greater legal restrictions than the employment practices of any other employer in this state. Accordingly, PT&T argues that the provisions of the FEPC, which we discuss below, constitute the sole limitations on the company's authority to engage in discriminatory employment practices. As we shall explain, however, we have concluded that, contrary to PT&T's assertions, the equal protection clause of the California Constitution (art. I, sec. 7, subd. (a)) places special obligations on a state-protected public utility, such as PT&T, to refrain from all forms of arbitrary employment discrimination. . . .

(a). Article I, section 7 subdivision (a) of the California Constitution bars a public utility from engaging in arbitrary employment discrimination.

Plaintiffs contend that PT&T's alleged discriminatory employment practices violate the equal protection guarantee of the California Constitution by arbitrarily denying qualified homosexuals employment opportunities afforded other individuals. In analyzing this constitutional contention, we begin from the premise that both the state and federal equal protection clauses clearly prohibit the state or any governmental entity from arbitrarily discriminating against any class of individuals in employment decisions....Moreover, past decisions of this court establish that this general constitutional principle applies to homosexuals as well as to all other members of our polity; under California law, the state may not exclude homosexuals as a class from employment opportunities without a showing that an individual's homosexuality renders him unfit for the job from which he has been excluded. . . .

In the instant case, of course, the practice of excluding homosexuals from employment has allegedly been adopted not by the state itself but by PT&T, a public utility to whom the state has granted a monopoly over a significant segment of the telephonic communications industry in California. The constitutional question presented in this regard is whether the protection afforded individuals by the state equal protection clause encompasses protection against the discriminatory treatment alleged in the present complaint.

Article I, section 7, subdivision (a) of the California Constitution provides simply that: "A person may not be deprived of life, liberty or property without due

process of law or denied equal protection of the laws." (Emphasis added.) Unlike the due process and equal protection clauses of the Fourteenth Amendment, which by their explicit language operate as restrictions on the actions of states, the California constitutional provision contains no such explicit "state action" requirement....

In the instant case, the question with which we are presented is a narrow but important one: Is the California constitutional equal protection guarantee violated when a privately owned public utility, which enjoys a state-protected monopoly or quasi-monopoly, utilizes its authority arbitrarily to exclude a class of individuals from employment opportunities? As we explain, we conclude that arbitrary exclusion of qualified individuals from employment opportunities by a state-protected public utility does, indeed, violate the state constitutional rights of the victims of such discrimination.

Accordingly, we conclude that under the equal protection guarantee of the California Constitution a state-protected public utility may not arbitrarily or invidiously discriminate in its employment decisions. (Cf., e.g., Weise v. Syracuse University, supra, 522 F.2d 397, 403-408 (employment discrimination by private university found to constitute state action under federal Constitution); Peper v. Princeton U. Bd. of Trustees (1978) 77 N.J. 55, 389 A.2d 465, 476-478 (employment discrimination by private university held violative of state constitutional equal protection guarantee). See generally Tribe, American Constitutional Law, supra, at p. 1172)

We emphasize that our holding in this regard in no way abridges a public utility's right to prefer the best qualified persons in reaching its hiring or promotion decisions. The equal protection clause prohibits only arbitrary discrimination on grounds unrelated to a worker's qualifications. Thus, while we hold that the California Constitution precludes a public utility's management from automatically excluding all homosexuals from consideration for employment positions-or, by the same token, from excluding any classification of persons because of personal whims or prejudices or any other arbitrary reason-we stress that the constitutional provision does not deny a public utility's management the authority to exercise legitimate judgment in employment decisions.

In the instant case, of course, plaintiffs have alleged that PT&T has adopted an arbitrarily discriminatory employment policy against homosexuals. In light of the foregoing analysis, we conclude that plaintiffs' complaint states a cause of action against PT&T under article I section 7, subdivision (a) of the California Constitution. (Cf. Bivens v. Six Unknown