Collins v. York

CourtSupreme Court of Connecticut
Citation159 Conn. 150,267 A.2d 668
Decision Date03 February 1970
PartiesDonna COLLINS v. Janet S. YORK, Superintendent, Connecticut State Farm for Women.

Walter H. Scanlon, Asst. Chief Pros. Atty., for appellant (defendant).

Richard T. Meehan, Chief Public Defender, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

ALCORN, Associate Justice.

On September 19, 1967, the plaintiff, then a sixteen-year-old unmarried female, was presented in the Circuit Court and pleaded guilty to an information charging her with being in manifest danger of falling into habits of vice in violation of § 17-379 of the General Statutes. She was represented in the proceedings by a Circuit Court public defender. On October 3, 1967, the Circuit Court committed her to an indeterminate term at the Connecticut State Farm for Women. No question was raised as to the jurisdiction of the court, and no appeal was taken. On June 27, 1968, she was paroled in the custody of her parents. On August 6, 1968, she was returned to the Connecticut State Farm for Women as a parole violater. By an application to the Superior Court dated October 3, 1968, signed by Richard T. Meehan, chief public defender of the Circuit Court, as her attorney, the plaintiff sought a writ of habeas corpus, alleging that her confinement at the Connecticut State Farm for Women was illegal 'in that her incarceration for a period in excess of one year, is beyond the jurisdiction of the Circuit Court'. The writ issued, the state's attorney for New London County appeared for the defendant, and, following a hearing, the court adjudged that the plaintiff be enlarged from custody unless, within fourteen days, an appeal was taken by the state.

The defendant, acting by the state's attorney, requested certification for an appeal pursuant to § 52-470 of the General Statutes. The court granted certification, and the present appeal was taken on behalf of the defendant by the state's attorney. Pursuant to a request for a finding and draft finding filed by the state's attorney, the court made a finding. The state's attorney has taken no further part in the appeal. An assignment of errors was filed by Walter H. Scanlon as assistant chief prosecuting attorney of the Circuit Court. The Superior Court file, which we judicially notice, discloses an appearance filed by the state's attorney for New London County on behalf of the defendant on October 14, 1968 and an appearance for the defendant filed by Dennis F. Gaffney, as assistant chief prosecuting attorney filed on November 1, 1968. We understand Attorney Gaffney to be assistant chief prosecuting attorney of the Circuit Court. The appearances of the state's attorney and Attorney Gaffney have not been withdrawn. No appearance for the defendant has been filed, either in the Superior Court or in this court, by Walter H. Scanlon, assistant chief prosecuting attorney of the Circuit Court who has assumed to brief and argue the defendant's appeal. 1

Section 54-81a of the General Statutes, as amended by No. 189 of the 1967 Public Acts, authorizes the judges of the Circuit Court to appoint public defenders to defend criminal cases in that court and provides that a public defender appointed by the judges of the Circuit Court may 'represent indigent accused charged under the provisions of chapter 964 in application for writs of habeas corpus under the provisions of section 54-166'. Chapter 964 of the General Statutes is the Uniform Criminal Extradition Act, and § 54-166 authorizes habeas corpus proceedings by persons arrested on an extradition warrant signed by the governor. Section 54-81a conferred no authority on a Circuit Court public defender, in his official capacity, to represent this plaintiff in this application for a writ of habeas corpus. We have recently commented on the anomaly created by § 54-81a, so far as it does purport to permit the limited appearance specified. Ross v. Hegstrom, 157 Conn. 403, 418, 254 A.2d 556.

The application for a writ of habeas corpus which the chief public defender of the Circuit Court has filed purports to be at the relation of the plaintiff personally. Habeas corpus is a civil proceeding. As already related, the plaintiff is a minor, and it has long been the established practice, not only in this state but elsewhere, that a minor may bring a civil action only be a guardian or next friend. Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 220, 92 A.2d 731; Tulin v. Tulin, 124 Conn. 518, 522, 200 A. 819; Cole v. Jerman, 77 Conn. 374, 380, 59 A. Williams v. Cleaveland, 76 Conn. 426, 431, 425; Williams v. Cleaveland, 76 Conn. 426, 431, 56 A. 850; McCarrick v. Kealey, 70 Conn. 642, 646, 40 A. 603; Clark v. Turner, 1 Root 200; 43 C.J.S. Infants § 103; 42 Am.Jur.2d, Infants, § 155; see Judson v. Blanchard, 3 Conn. 579, 584. The transcript of the proceedings in the Superior Court reveals that, at the outset of the hearing, the Circuit Court public defender stated to the court that the plaintiff's father and mother, who were present, 'are opposed to this proceeding and would not have acted as guardians and next friend for the daughter in making this petition'. Consequently, he suggested that the court appoint him as guardian ad litem, and the court indicated acquiescence, although no formal order of appointment appears. The Circuit Court chief public defender conceded in oral argument before us that it is his opinion as well as the opinion of the plaintiff's parents and of those in charge of the Connecticut State Farm for Women that the plaintiff's best interest would be served by further supervision. The trial court's memorandum of decision states that 'the parents apparently feel that the child would be better protected by further supervision.' The chief public defender represents to us, however, that, although he did not represent her in the Circuit Court, the plaintiff sought his advice on her own initiative and that he felt obliged to make the application regardless of the unanimity of feeling, including his own, that it was not in the plaintiff's best interest to do so. On the plaintiff's motion, dated November 15, 1968, the Superior Court ordered her discharged from custody under bond pending this appeal, and we are told, in oral argument, that she is now married and pregnant. The circumstances strongly suggest that the officials of the Circuit Court who argue this appeal have the principal interest in the solution of the issue presented.

The bringing of the action for the minor without the aid of a prochein ami was, however, an amendable irregularity which could be waived. 43 C.J.S. Infants § 108(b), (d); 42 Am.Jur.2d, Infants, §§ 165, 166. While a guardian ad litem is technically and usually a special guardian appointed to represent an infant defendant; Clark v. Platt, 30 Conn. 282, 285; 43 C.J.S. Infants § 107; 42 Am.Jur.2d, Infants, § 157; the trial court indicated a willingness to attempt a repair of the irregularity existing in this case by the appointment of such a guardian for the plaintiff. Since no objection is raised we will treat it as an adequate repair. Apthorp v. Backus, Kirby, 407, 410; see Cole v. Jerman, supra, 77 Conn. 382, 59 A. 425.

The issue sought to be raised is that the Circuit Court did not have jurisdiction to commit the plaintiff to an indeterminate term at the Connecticut State Farm for Women pursuant to either § 17-379 or § 17-360 (now § 18-65) of the General Statutes and that the sentence imposed was, because of General Statutes § 54-1a, invalid as to the portion which exceeded the period of one year. In a habeas corpus proceeding based on federal constitutional claims it is incumbent upon the plaintiff to allege in his petition and prove at the habeas corpus hearing that he did not knowingly and deliberately bypass the assertion of those claims in the orderly procedure of a direct appeal. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837; Walters v. Warden, 155 Conn. 316, 319, 232 A.2d 112; Vena v. Warden, 154 Conn. 363, 366, 225 A.2d 802. The jurisdictional question now raised for the first time clearly enough existed at the time of the disposition of the plaintiff's case in the Circuit Court, and no explanation is offered as to why it was not raised in an orderly appeal procedure at that time. The question of the jurisdiction of a court to impose custody or restraint upon an individual is, however, a recognized basis for a collateral attack on the judgment of the court by habeas corpus. Reed v. Reincke, 155 Conn. 591, 594, 236 A.2d 909. The question has been fully argued before us on facts concerning which there is no dispute, and, under all the circumstances, we have, with some hesitation, decided to disregard the irregularities in procedure. See Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589, aff'd, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715.

The plaintiff's claim, in brief, is that, pursuant to General Statutes § 54-1a, 2 the Circuit Court is without jurisdiction to commit a person presented before it to confinement for a period longer than one year, and consequently it is without power to impose the indeterminate commitment which might extend to three years as provided in General Statutes §§ 17-360 3 (now § 18-65) and 17-379. 4

In the recent Superior Court case of Liberti v. York, 28 Conn.Sup. 9, 246 A.2d 106, and in the United States District Court case of United States ex rel. Robinson v. York, 281 F.Supp. 8 (D.Conn.), General Statutes § 17-360 has been held to be unconstitutional. In both cases, the minor female was charged with having committed misdemeanors the maximum penalty for which, as provided by statute in each instance, was less than the possible three-year confinement authorized by § 17-360. The court, in each of those cases, concluded, in substance, that, since adult males convicted of the same offenses as those charged against the minor girls were subject to a maximum...

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    ...time. Several circumstances, however, prompt us to decide the question despite any irregularities in procedure. See Collins v. York, 159 Conn. 150, 155, 267 A.2d 668, 671: 'The question of the jurisdiction of a court to impose custody or restraint upon an individual is . . . a recognized ba......
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