Canady v. Reynolds, s. O-94-308

• Citation: 880 P.2d 391,1994 OK CR 54
• Decision Date: 24 August 1994
• Docket Number: Nos. O-94-308,O-94-309,s. O-94-308
• Parties: Wes Hardin CANADY, Petitioner, v. Dan REYNOLDS, Respondent. Jerry McMANUS, Petitioner, v. Michael CARR, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 391

880 P.2d 391

Wes Hardin CANADY, Petitioner, v. Dan REYNOLDS, Respondent.

Jerry McMANUS, Petitioner, v. Michael CARR, Respondent.

Nos. O-94-308, O-94-309.

Court of Criminal Appeals of Oklahoma.

Aug. 24, 1994.

OPINION ANSWERING CERTIFIED QUESTION OF LAW

LUMPKIN, Presiding Judge:

Frank H. Seay, District Judge for the United States District Court for the Eastern District of Oklahoma, has certified a Question of Law pursuant to the Oklahoma Uniform Certification of Questions of Law Act, 20 O.S.1991, §§ 1601-1611, as follows:

"Is there a state mandamus remedy whereby inmates may challenge the administration of their sentences and allege the unconstitutional denial of earned credits they are entitled to receive; and if not, what is the proper state remedy for inmates to challenge the administration of their sentences (included earned and CAP credits), assuming they are not entitled to an immediate release?"

We are not asked to determine whether Petitioners are entitled to relief. The only issue before us is what procedures are available in State courts for those in Petitioners' situation. We hold relief is available in State courts, but not in the format sought by Petitioners. Specifically, we hold: (1) Mandamus provides a vehicle for inmates to ensure due process is provided within the Department of Corrections disciplinary system; (2) state law does not provide an appeal from Department of Corrections actions on discipline; (3) habeas corpus is the plenary remedy for an inmate to adjudicate a right to release based on the amount of time served coupled with the net earned credits awarded; and (4) consequently, a state remedy is afforded, but not at the time the Petitioners seek to prematurely litigate the issue.

I. FACTS

The following relevant facts are from the order of the federal court certifying this question of law.

Petitioners filed an application for a writ of habeas corpus pursuant to applicable federal law. Both make a number of allegations in their petitions concerning sentence credits they believe they are entitled to receive. Petitioner Canady alleges he had 251 days of credit that were rescinded without adequate explanation or process; he is entitled to 233 days of level two non-promotional credits; and he is entitled to approximately 154 days of credit pursuant to Ekstrand v. State, 791 P.2d 92 (Okl.Cr.1990). Petitioner McManus also alleges he is entitled to relief as a result of Ekstrand. He also alleges ex post facto violations and other grounds for relief.

The federal district court entered an order discussing Waldon v. Evans, 861 P.2d 311 (Okl.Cr.1993), and requesting the parties to address whether Waldon created a state mandamus remedy for Petitioners' claims. While Petitioners objected to the certification, Respondents recommended it, believing it would be in the best interest of all involved.

The federal district court questioned whether there was a controlling precedent giving Petitioners and others in like situations an adequate state remedy. If such a remedy now exists, Petitioners' actions in federal court may be dismissed, as they have failed to exhaust all state remedies. If we determined no adequate state remedy existed, the federal court would proceed on the claims.

II. SCOPE OF CERTIFIED QUESTION OF LAW ACT

This is the first question certified to this Court under the Uniform Certification of Questions of Law Act, codified at 20 O.S.1991, §§ 1601-1611. Before we address the question at hand, we must determine the scope of the act. In so doing, we have examined both cases from our own state Supreme Court and cases from other jurisdictions.

The statute giving this Court the power to answer such a question is found at 20 O.S.1991, § 1602. It reads:

The Supreme Court and the Court of Criminal Appeals respectively may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, the United States Court of International Trade, the Judicial Panel on Multidistrict Litigation, the United States Claims Court, the United States Court of Military Appeals, the United States Tax Court, or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court or Court of Criminal Appeals of this state.

The initial question before us is whether this Act gives this Court the power to create new law in the form of answering questions of first impression which may create a precedent; or whether it merely tells the certifying court the state of the law as it currently exists, without creating a precedent. As the discussion below indicates, we find this Court has the power to use the certified question as a vehicle to decide issues which may create a precedent.

A.

We begin with the observation this Court cannot otherwise issue advisory opinions. See Matter of L.N., 617 P.2d 239, 240 (Okl.Cr.1980) ("unless we are vested with original jurisdiction, all exercise of power must be derived from our appellate jurisdiction, which is the power and the jurisdiction to review and correct those proceedings of inferior courts brought for determination in the manner provided by law.... An advisory opinion does not fall within the Court's original or statutory jurisdiction; neither does it come within its appellate review. To offer advice in the form of an opinion would be to interfere with the responsibility of the trial court to exercise the powers confided to it. We will not do so absent constitutional or statutory authority."); Barnett v. Brett, 401 P.2d 532, 534 (Okl.Cr.1965) ("It is the solemn responsibility of trial judges to make rulings on questions of law arising before them, and the writ of prohibition cannot be invoked, to secure from the Court of Criminal Appeals an advisory opinion, on matters which are addressed to the discretion of the trial judges, and for which they must assume the responsibility."). Advisory opinions are allowed if a statute permits it. Compare with Opinion of the Judges, 87 Okl.Cr. 297, 306-07, 197 P.2d 629, 634 (Okl.Cr.1948) (citing 22 O.S. §§ 1002, 1003, Court observes it has statutory authority to issue advisory opinions to the governor in cases in which the death sentence has been imposed and an appeal has not been taken.).

From this, it seems clear that absent statutory authority, this Court could not issue an opinion in any matter not at issue before it. This statutory authority is found in 20 O.S. §§ 1601-1611. In other words, it is this Act which gives this Court jurisdiction to consider the issue before it.

B.

Having determined why we can consider this certified question, we now turn to what we can consider. Owing to the absence of precedent from this Court, we look to cases decided by our state Supreme Court.

Without question, we can address questions of first impression. See Safeco Ins. Co. of America v. Sanders, 803 P.2d 688, 689-90 (Okl.1990) (noting question issue of first impression; turning to court's own decisions and decisions from other states to formulate answer); Culbertson v. McCann, 664 P.2d 388 (Okl.1983); Uptegraft v. Home Ins. Co., 662 P.2d 681, 683 (Okl.1983) ("Certified to us under the Uniform Certification of Questions of Law Act, 20 O.S.1981 Sec. 1601 et seq., are the following first-impression questions:"). However, this is possible only if the question is properly before the Court under the Act. See Atlantic Richfield Co. v. Tomlinson, 859 P.2d 1088, 1093, 1096 (Okl.1993) (using ground of not answering hypothetical questions, court feels "constrained to address the federal court's certified questions only insofar as they apply to the litigants of this action"; declining to answer all questions because some were rendered moot); Avemco Ins. Co. v. White, 841 P.2d 588, 590 (Okl.1992) (defining scope of its decision to include only "questions of law certified to it ..." (Emphasis in opinion); declining to deal with whether another state's law should be applied, as issue is beyond the scope of the federal court's certified question.); Underwriters at Lloyd's of London v. North American Van Line, 829 P.2d 978, 979 (Okl.1992) (limiting question to that presented by the certifying court; looking to other cases that have considered the "prevailing party" question); Sexton v. Continental Cas. Co., 816 P.2d 1135, 1136 (Okl.1991) ("Twice before we have noted the existence of the question, but in neither case was it properly before us, and, as is our practice, we declined to address it hypothetically.").

Sometimes it becomes necessary to "re-interpret" the question to adequately answer it. See Tate v. Browning-Ferris, Inc., 833 P.2d 1218, 1220 (Okl.1992) (In order to give a complete answer, court addresses "a question expressly tendered in the parties' briefs and fairly comprised in the plaintiff's federal-court complaint allegations, although not explicitly posed"); Beard v. Viene, 826 P.2d 990, 998 n. 4 (Okl.1992) (noting that "under the generally prevailing rule this court possesses the necessary power to reformulate ambiguously phrased certified questions of law. [citations] By narrowly construing the certified question's ambiguously phrased language, we avoid the necessity of reformulation."); Shebester v. Triple Crown Insurers, 826 P.2d 603, 605-06, 612 n. 2 (Okl.1992) ("We also answer another question which we view as fairly comprised within that which is posed, though perhaps not explicitly propounded to us"). But see Id. at 612 (Simms, J., concurring in part, dissenting in part) ("I concur in the portion of the majority opinion answering the question certified by the federal court. I dissent, however, from...