Hunt v. Roth

Decision Date13 May 1981
Docket Number80-2068,Nos. 80-2067,s. 80-2067
Citation648 F.2d 1148
PartiesEugene L. HUNT, Appellant, v. Richard ROTH, Sheriff of Douglas County, Nebraska and Joseph Vitek, Warden, Douglas County Corrections Center, and Director, Douglas County Department of Corrections, Appellees. Eugene L. HUNT, Appellant, v. James M. MURPHY, District Judge of the Fourth Judicial District of the State of Nebraska, Douglas County, Nebraska, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Bennett G. Hornstein, Asst. Douglas County Public Defender, Omaha, Neb., for appellant.

Paul L. Douglas, Atty. Gen., Terry R. Schaaf, Asst. Atty. Gen., Lincoln, Neb., for appellees.

Before LAY, Chief Judge, and STEPHENSON and ARNOLD, Circuit Judges.

LAY, Chief Judge:

Eugene L. Hunt was charged in Douglas County District Court, Omaha, Nebraska, with first degree sexual assault on a child and three counts of first degree forcible sexual assault. He was also charged with several counts of non-sexual felonies and one count of nonforcible sexual assault. Although Hunt was admitted to bail on the non-sexual offenses, the Omaha Municipal Court denied bail on the sexual offenses. On May 23, 1980, Hunt appeared in Douglas County District Court for a review of the denial of bail. The state district court refused to set bail on the rape charges, relying on Article I, Section 9 of the Nebraska Constitution:

All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great. 1

For the purposes of the state district court proceedings, Hunt stipulated that the proof was evident or the presumption great.

On June 2, 1980, Hunt filed a petition for habeas corpus in United States District Court. The district court allowed the state to intervene in the habeas action. On June 9, 1980 Hunt filed a complaint under 42 U.S.C. § 1983 seeking injunctive and declaratory relief. The cases were consolidated. On October 17, 1980, the district court denied the writ of habeas corpus and dismissed Hunt's complaint seeking declaratory and injunctive relief, on the rationale that Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106, cert. denied, 444 U.S. 920, 100 S.Ct. 240, 62 L.Ed.2d 177 (1979), had correctly rejected federal constitutional challenges to Article I, section 9 of the Nebraska Constitution. Hunt appeals both judgments. In view of Hunt's subsequent convictions 2 we dismiss the appeal from the denial of the petition for writ of habeas corpus and his prayer for immediate release on bond as moot; we find, however, that the district court erred in dismissing Hunt's complaint for declaratory judgment and hold that Nebraska's classification of sexual offenses as nonbailable violates the "excessive bail" clause of the eighth amendment to the Constitution of the United States.

I. Preliminary Issues.
A. Existence of a "Case or Controversy."

Although the state has not challenged the jurisdiction of this court to entertain this appeal, we do so on our own motion. 3

Since Hunt has been convicted, his effort to obtain pre-trial release on bail is arguably moot. Hunt's counsel urges that Hunt's appeal is not moot because it raises questions "capable of repetition, yet evading review." Under this doctrine, two elements must coincide: (1) the challenged action must be too short in duration to be fully litigated prior to its cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam).

At first glance, it would seem that Hunt fails the second requirement, since there is no reason to believe he will again be arrested on rape charges and denied bail. Cf. id. (grant of parole). However, an alternative ground for the holding in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), suggests that the possibility of a new trial after direct appeal is sufficient to maintain a live controversy with respect to pretrial procedures. In Nebraska Press, the petitioners sought to overturn a state district court's pretrial order restraining publication of confessions or admissions by the defendant in a criminal trial. The court rejected the argument that the case became moot when the jury was impaneled and the order was lifted. There, as here, the defendant's direct appeal from his conviction was pending. This brought the case under the "capable of repetition, yet evading review" rule:

(I)f Simants' conviction is reversed by the Nebraska Supreme Court and a new trial ordered, the District Court may enter another restrictive order to prevent a resurgence of prejudicial publicity before Simants' retrial.

Id. at 546, 4 96 S.Ct. at 2797.

If the Nebraska Supreme Court reverses Hunt's three convictions and orders new trials, Hunt will again be in the position where his liberty pending trial could be restrained by refusal to set bail. Under the circumstances we hold the section 1983 action is not now moot. 5 Cf. Powers v. Schwartz, 587 F.2d 783 (5th Cir. 1979) (petition for habeas corpus challenging Florida's refusal to allow bail for persons accused of crimes punishable by life imprisonment; case moot upon plaintiff's conviction).

Another concern with respect to the presence of a case or controversy relates to Hunt's concession of factual proof made in Douglas County District Court that the proof was evident and the presumption great. If the district court had found to the contrary, Hunt would have been eligible for release on bail.

Article III requires the existence of a "case or controversy" between two genuinely adverse parties. We are instructed not to reach the merits of a case when a party has failed to demonstrate sufficient standing, or where it is clear that there is no actual dispute because only one party or interest is before the court. In United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943), a landlord sought to invalidate the rent controls in the Emergency Price Control Act of 1942. To do so, he requested that his tenant bring an action under the Act seeking treble damages for excessive rent. The landlord controlled the suit and paid for the tenant's counsel. The Court ordered dismissal because of the collusive nature of the suit and the lack of genuinely adverse parties. See also Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 91 S.Ct. 1292, 28 L.Ed.2d 590 (1971) (agreement between parties); Lord v. Veazie, 49 U.S. (8 How.) 250, 12 L.Ed. 1067 (1850) (cooperation between plaintiff and defendant to achieve same result). Unlike those cases, the parties in this case are clearly adverse. There is a bona fide dispute as to whether the state can constitutionally designate non-bailable offenses and thereby refuse to set bail for the petitioner.

It is also well settled that no stipulation of the parties or counsel can enlarge the power of the court by allowing it to decide hypothetical or fictitious cases. Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556, 42 L.Ed.2d 532 (1975). The fact that the parties reach an agreement by stipulation cannot in itself suffice to provide a binding conclusion that is the basis for judicial review. A court always retains the power to investigate issues or factual conclusions upon which the parties profess agreement. United States v. Sisson, 399 U.S. 267, 284-87, 90 S.Ct. 2117, 2126-2128, 26 L.Ed.2d 608 (1970); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989 (1961); United States v. John J. Felin & Co., 334 U.S. 624, 639-40, 68 S.Ct. 1238, 1245-1246, 92 L.Ed. 1614 (1948); Estate of Sanford v. Commissioner, 308 U.S. 39, 51, 60 S.Ct. 51, 59, 84 L.Ed. 20 (1939); Swift & Co. v. Hocking Valley Railway Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722 (1917); In re Weitzman, 426 F.2d 439, 454-55 (8th Cir. 1970) (Lay, J., concurring). Cf. United States v. International Union United Automobile, Aircraft & Agricultural Implement Workers, 352 U.S. 567, 592, 77 S.Ct. 529, 541, 1 L.Ed.2d 563 (1957). However, it is one thing to say that a court is not bound by a stipulation, and quite another to say that a case is "manufactured" simply because there have been stipulations below. The concern in cases like Swift and its progeny is avoidance of collusive disputes or attempts to assume facts simply to obtain review of hypothetical questions. Here, the petitioner and the state can hardly be said to be in collusion and are obviously adverse. Hunt has conceded that proof of the crime was evident and the presumption great. Thus, he has stipulated to the factual proof, obviating the need for the state to meet its burden of proof in that regard. Such a concession does not in itself amount to fabrication or collusive action. See Regents of the University of California v. Bakke, 438 U.S. 265, 280 n.14, 98 S.Ct. 2733, 2743 n.14, 57 L.Ed.2d 750 (1978); United Public Workers v. Mitchell, 330 U.S. 75, 93, 67 S.Ct. 556, 566, 91 L.Ed. 754 (1947). There is no contention by the state that Hunt is attempting to "disguise actual facts of record." Regents of the University of California v. Bakke, 438 U.S. at 280 n.14, 98 S.Ct. at 2743 n.14. While it is true the record does not disclose the underlying facts behind the stipulation, that does not mean the stipulation has no basis in fact. It would indeed be anomalous to say that Hunt or the state had to make a record of the facts before they could enter into a stipulation as to their existence. Finally, to urge that the parties may be denied appellate review by stipulating or conceding factual proof would result in longer trials and militate against sound judicial administration. Therefore, we conclude that Hunt's concession does not bar his constitutional challenge. Cf. Parker...

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