Deckert v. Lang

Citation774 P.2d 1285
Decision Date23 May 1989
Docket NumberNo. 88-194,88-194
PartiesClinton DECKERT, Appellant (Plaintiff), v. John A. LANG, individually and in his official capacity as Secretary of the Board of Parole, Duane Shillinger, individually and in his official capacity as Warden of the Wyoming State Penitentiary, and the State of Wyoming, Appellees (Defendants).
CourtUnited States State Supreme Court of Wyoming

Dwight F. Hurich of Preuit, Sowada & Hurich, Gillette, for appellant.

Richard E. Day and Stuart R. Day of Williams, Porter, Day & Neville, Casper, for appellee John A. Lang.

Terry L. Armitage, Asst. Atty. Gen., for appellee Duane Shillinger.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and KALOKATHIS, District Judge.

KALOKATHIS, District Judge.

This appeal is from the order granting summary judgment in favor of the defendants in a 42 U.S.C. § 1983 claim. Appellant We affirm.

Clinton Deckert, asserts error in the finding that appellees, John Lang and Duane Shillinger, were entitled to qualified immunity when they continued to hold Deckert at the Wyoming State Penitentiary after a commutation order signed by the Governor was delivered.

FACTS

On September 16, 1985, in the Sixth Judicial District Court, Clinton Deckert was found guilty on one count of conspiracy to deliver a controlled substance and eight counts of delivery of a controlled substance, methamphetamine. On December 26, 1985, Deckert was sentenced to a term of one year to two and one-half years and fined $1,000 on Count II. On each of Counts III through X the sentence was also one year to two and one-half years and $1,000 fines. The court ordered "that the sentence in Count II shall run concurrently with the sentence in Count III, and all other sentences shall be deemed to run consecutively."

In November 1986, the Public Defender for Deckert requested the Probation and Parole Board to consider granting early parole to several prisoners, including Clinton Deckert, a twenty-three year old who had no prior convictions and faced a minimum of eight years.

On or about December 2, 1986, John Lang, then Secretary of the Board of Parole, was directed by Governor Herschler to prepare and submit a commutation of Deckert's sentence on Counts II and III. The sentences on Counts II and III ran concurrently while his other sentences ran consecutively. This order, along with a number of others, was reviewed and signed by Governor Herschler on December 5, 1986. The document was processed and mailed to the records manager of the state penitentiary and was received by Deckert shortly after December 5, 1986, according to his affidavit.

That order referred to

a commutation of his sentence of one (1) year to two and one-half (2 1/2) years concurrent. THEREFORE, by the authority vested in me as the Governor of the State of Wyoming, I do hereby commute the sentence of the said Clinton Deckert (WSP No. 13986) to a term of time served and if special good time is earned and allowed his sentence to expire December 5, 1986 upon order of final discharge by the Governor.

The order did not mention that Deckert was also serving consecutive terms for the remainder of his sentences.

Lang submitted an affidavit in support of his motion for summary judgment. Paragraph 7 stated:

[O]n or about December 11, 1986, it came to my attention that the commutation issued to Clinton Deckert could be read to state that all sentences, including both the concurrent and consecutive sentences imposed upon Clinton Deckert, were being commuted to time served.

That affidavit expressed Lang's belief that Governor Herschler's intention was to commute the concurrent sentences of Counts II and III only, with the remaining consecutive sentences to be served. Lang's affidavit referred to his request that the state penitentiary records manager retrieve the commutation previously issued to Deckert "to alter said commutation to reflect what I believed to be Governor Herschler's intention that only Counts II and III of Clinton Deckert's sentences be commuted to time served." Lang received notice on January 30, 1987, that Clinton Deckert refused to return his commutation documents. Deckert was not released at that time.

Duane Shillinger, the warden of the penitentiary, submitted an affidavit in support of his motion for summary judgment. He stated:

When the original commutation document was received, the penitentiary was immediately notified by John Lang, Parole and Probation Department, that an error existed on the original commutation document. The penitentiary was instructed to retrieve the document and to advise Mr. Deckert that an amended commutation document would be issued.

Shillinger's affidavit continues That on or about December 15, 1986, an amended commutation document was received from the Wyoming Probation and Parole Department. The amended document, again dated December 5, 1986, and signed by Governor Herschler stated that "... a commutation of his sentence of one (1) year to two and one-half (2 1/2) years concurrent (Counts II and III) ... hereby commute ... to a term of time served (Counts II and III)[.]"

The warden believed he did not have authority to release an inmate unless official documents specified release, and he had been instructed "that the Governor of Wyoming would sign an amended commutation document." The record does not contain a document purporting to be the official amended commutation order or a copy of it. The only evidence pertaining to the amended order appears in the Shillinger affidavit as quoted above. The statement concerning the amended order stands uncontroverted.

The record is not clear about whether, when, and how an amended order came about. It is clear that Shillinger and Lang believed an amended order would issue. Based upon that belief, Deckert was not released.

Confusion about the amended order was addressed in Deckert's affidavit opposing the motion for summary judgment. He relied on exhibits, including copies of letters he received and affidavits from his prior hearing for a writ of habeas corpus. The affidavit incorporated by reference copies of correspondence between John Lang and former Governor Herschler. The correspondence with Governor Herschler was generated before Deckert was released by habeas corpus and after Herschler had retired as governor. 1

Deckert's affidavit stated that after he received the original commutation, his counsel, the public defender, wrote the Board of Charities and Reform to inquire about the status of the commutation. That affidavit stated John Lang replied to Deckert's counsel in a letter dated January 30, 1987:

As concerns Mr. Deckert, * * * [t]he sentence provides that Count II and III run concurrently, * * * and * * * the Governor's action was intended only to commute Counts II and III to time served with the remaining sentences (Counts IV thru X) still in effect and running consecutively.

On February 24, 1987, Lang formally requested Mr. Deckert to forward the original commutation order issued December 5, 1986, explaining that items were inadvertently omitted and needed to be inserted to clarify application of the commutation, even though it did "not effect [sic] the intent of the commutation."

Deckert responded to Lang's request in a letter March 2, 1987, suggesting "it would be easier, and far more concise, if you would make the intended alterations on the copy of the commutation I've included, and return it to me. This would allow me to view the changes before they are made."

Lang acknowledged Deckert's inquiry on March 4, 1987, and attached "the commutation showing the items (in red) that need to be adjusted."

Deckert's supplemental affidavit (in response to Shillinger's affidavit), stated that he "never received an original commutation, signed by Ed Herschler, December 5, 1986, that had any modifications to it."

On May 5, 1987, Deckert filed a writ of habeas corpus in the Second Judicial District Court, after an improper filing in the Wyoming Supreme Court was denied. Following a hearing, Deckert was ordered discharged from the penitentiary on June 16, 1987, by District Judge Robert Hill whose Order Directing Release stated [O]n December 5, 1986, Governor Herschler executed a commutation of the sentence against Mr. Deckert to time served. This commutation on its face operates to reduce Petitioner's sentence to time served as of December 5, 1986. Accordingly, the State has no legal cause to detain Petitioner and hold him as a prisoner at the Wyoming State Penitentiary. Petitioner must be discharged forthwith.

The present action ensued in the First Judicial District Court on December 1, 1987, when Deckert filed a complaint requesting damages and attorney fees, pursuant to 42 U.S.C. § 1983, from Lang, Shillinger, and the State of Wyoming. Deckert alleged that he was unlawfully confined at the Wyoming State Penitentiary from December 5, 1986, when the Governor's original commutation order was received, until his release in June 1987. He claimed deprivation of his liberty and right to due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

Appellees filed a motion for summary judgment asserting the defense of qualified immunity. The motion was granted and Deckert filed this appeal June 8, 1988.

DISCUSSION

Deckert states the issue on appeal as follows:

Did the District Court err in finding that the Defendants, Lang and Shillinger, were engaged in a discretionary function and that the rights of the Plaintiff were not clearly established, so that the Defendants were entitled to qualified immunity from liability from section 1983 civil rights laws as a matter of law?

Deckert's brief requests the court to decide:

1. Were the Defendants performing ministerial or discretionary functions in failing to release Clinton Deckert after they received the commutation of sentence[?]

2. In their failing to release Clinton Deckert, did Defendants violate the clearly established statutory...

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