Hemphill v. Harbuck, 111,984.

• Decision Date: 03 April 2014
• Docket Number: No. 111,984.,111,984.
• Parties: Stacey L. HEMPHILL, Petitioner, v. Honorable Preston HARBUCK, Associate District Judge and/or Atoka County District Court, Respondent.
• Court: Oklahoma Supreme Court

326 P.3d 521

Stacey L. HEMPHILL, Petitioner,

v.Honorable Preston HARBUCK, Associate District Judge and/or Atoka County District Court, Respondent.

No. 111,984.

Supreme Court of Oklahoma.

April 3, 2014.

ORDER ASSUMING ORIGINAL JURISDICTION FROM THE DISTRICT COURT OF ATOKA COUNTY

¶ 1 The petitioner, Stacey Hemphill (Hemphill) is an inmate in the custody of the Oklahoma Department of Corrections.¹ On May 11, 2012, while incarcerated in Atoka County, he filed a petition in the District Court of Atoka County to change his name to “Apokalypse God Allah.” ² On June 25, 2012, the trial court stayed the proceedings, pending notice to the Oklahoma State Bureau of Investigation and the resolution of a pending action Hemphill had filed in Federal Court.³ Even though the Federal action was not disposed of until February 11, 2013, the trial court denied the name change on July 26, 2012.⁴

¶ 2 Beginning in September of 2012, Hemphill continually attempted to keep the matter alive and the trial court continually attempted to end it. ⁵ At some point, on or about November 21, 2012, Hemphill was transferred to the James Crabtree Correctional Center in Alfalfa County, Oklahoma. On November 27, 2012, at a scheduled hearing on the matter, the trial court attempted to transfer the matter to Alfalfa County.⁶ The trial court explained in a response on filed in this Court on July 31, 2013, that the cause was never transferred because Hemphill never sought a transfer.

¶ 3 On July 16, 2013, Hemphill filed a Petition for Writ of Mandamus and Application to Assume Original Jurisdiction with this Court. On September 30, 2013, we directed the respondent district court to hear and determine Hemphill's claim for relief. The order clearly stated that: “Johnson v. Scott, 1985 OK 50, ¶ 13, 702 P.2d 56, 59 allows for testimony offered by telephone.”

¶ 4 The respondent district court set the hearing for October 22, 2013. ⁷ On December 4, 2013, the petitioner again requested that we assume original jurisdiction and issue a writ of mandamus/prohibition to the trial court. On December 12, 2013, the judge entered an order again denying the change of name. He found that: 1) Hemphill's notice of the proceedings was deficient; and 2) Hemphill failed to appear as directed by the Court. The order states in pertinent part:

[P]ursuant to Johnson v. Scott, 1985 OK 50, 702 P.2d 56, pursuant to the policy of the 25th Judicial District, and pursuant to 12 § 1634, after being notified that ‘sworn testimony’ was expected to be given in person, unless ordered and/or allowed by this Court.

¶ 5 The trial court did not provide this Court with a written copy of the policy of the Twenty–Fifth Judicial District referred to in the order. Nor have the District Court Rules for that District, the Twenty–Fifth Judicial District, been provided to the Administrative Office of the Courts and are thus not available online on the Oklahoma Supreme Court Network (OSCN). Pursuant to 20 O.S.2011 § 91.8, local court rules must be in writing and must be published by the Oklahoma Supreme Court Network to be valid and enforceable. ⁸ Because this has not been done, any local rules for the Twenty–Fifth Judicial District are invalid and unenforceable.

¶ 6 On January 14, 2014, Hemphill also filed an appeal with this Court of the trial court's final order of December 12, 2013, denying his name change. This case, No. 112,480, has not yet had briefing due or a completed record filed. The record in this cause does not provide enough information to review the alleged deficiency in notice, if any. Once the record is complete in 112,480, the notice issue may, as the dissent suggests, be resolved in that cause. The primary issue in this cause is the unwillingness of the trial court to allow a prisoner to give sworn testimony without personally appearing.

¶ 7 This matter is a civil case, a comparatively simple action for a change of name.⁹ This Court is fully aware of the difficulties faced by the judges of the district courts of this state in dealing with inmates proceeding pro se in civil matters. This matter is a textbook example of the difficulties in dealing with an inmate appearing pro se in a civil matter. However, prison inmates have a right of access to the courts of Oklahoma civil matters, although they do not have the right to appear personally.¹⁰ The judge and this Court have both cited Johnson v. Scott, 1985 OK 50, ¶¶ 9–11, 702 P.2d 56, in the course of this matter. A full reading of the applicable language in that case is instructive:

Article 2, Section 6 of the Constitution of the State of Oklahoma provides in pertinent part: “The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation....”

Inasmuch as appellant was unable to testify because he was imprisoned, we conclude that the judge had discretion to depose appellant under the provisions of 12 O.S.Supp.1982 §§ 3204 and 3209 and 12 O.S.1981 § 397. The judge could have ordered appellant's testimony be taken by deposition upon written questions under 12 O.S.Supp.1982 § 3208(A), by deposition taken by telephone under 12 O.S.Supp.1982 § 3207(C)(7), or that a deposition upon oral examination be recorded by other than stenographic means under 12 O.S.Supp.1982 § 3207(C)(4). Hence, he abused such discretion and by so doing violated appellant's constitutional right of access to the courts.

¶ 8 We have, in other cases, had to direct the district courts to permit the testimony of incarcerated civil litigants by appropriate arrangements. In Harmon v. Harmon, 1997 OK 91, ¶ 13, 943 P.2d 599 we held that the trial court should have made some type of arrangement(s) for husband's participation in his divorce and child custody hearing. In Harris v. State ex rel. Macy, 1992 OK 6, 825 P.2d 1320 we held that a district court may not refuse to hear an inmate's civil suit for non-appearance at a court hearing. Recently in an unpublished order in Herd v. Smith, Case No. 109,668, we ordered the trial court to allow an incarcerated person to give telephonic testimony in his own divorce case.

¶ 9 To be clear, inmate testimony in a civil case by telephone, video conference or other electronic means is used in many jurisdictions to ensure both appropriate inmate access to courts and the timely resolution of cases.¹¹ The use of alternative methods of inmate testimony is no longer unusual. Such procedures are so commonplace that they must always be considered as alternative methods of testimony in any civil case where an inmate is a litigant. The trial court is hereby directed to permit the petitioner to testify by telephone or other suitable electronic means. This does not mean that the petitioner is entitled to a name change. He is, however, under Oklahoma law, allowed to appear by telephone or other suitable electronic means, rather than in person.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED. APPLICATION FOR WRIT OF MANDAMUS GRANTED.

TRIAL COURT DIRECTED TO PERMIT THE PETITIONER TO TESTIFY BY TELEPHONE OR OTHER SUITABLE ELECTRONIC MEANS.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 3rd DAY OF APRIL, 2014.

COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, GURICH, JJ., concur.

TAYLOR, J., with whom WINCHESTER, J., joins, dissenting:

¶ 1 I respectfully dissent from the Court's expansion of prisoner's rights. The petitioner is a thirteen-time convicted felon serving time in prison. He has a lengthy public criminal history beginning in 1993. He already has aliases of Stacey L. Hamphill, Stacey L. Hemphill, Apokalypse Hemphill, Terrance L. Hemphill, Stacey L. Himphill, Laqua Pollard, and Ra Shabazz. Now he wants the Court to order the district court to allow him to get on the telephone and phone in his testimony which would support a legal name change to Apokalypse God Allah. With such a long criminal record and the use of so many aliases, the purpose of the petitioner's name change must be to disassociate himself with his criminal past and to fraudulently deceive the public of his criminal past, rather than for any lawful purpose. Today the Court goes to great lengths to facilitate the petitioner's quest by ignoring our prudential rules, vitiating the due process concept of notice, misapprehending the Oklahoma Constitution and this Court's cases, and usurping the district court's discretion.

¶ 2 A writ of mandamus to require an act's performance will issue when a petitioner has “a clear legal right to the act performed,” the act arises from respondent's duty “arising from an office, trust, or station,” the act is not discretionary, the respondent has refused to act, “the writ will provide adequate relief,” and there is no clear adequate remedy at law. Kelley v. Kelley, 2007 OK 100 n. 5, 175 P.3d 400, 403 n. 5.

¶ 3 Here, four of these elements are missing. The petitioner does not have a clear legal right to appear by telephone or electronically; the district court has discretion to determine which method to use to allow the petitioner's statement to be part of the record; the respondent has not refused to allow the petitioner to appear by telephone or electronically but bases the denial of name change on lack of notice; and an appeal is pending which provides an adequate remedy at law. Thus, it is not proper for a writ to issue mandating that the district court allow the prisoner to testify by telephone or other electronic means.

¶ 4 The purpose of this rule is highlighted by the Court's issuing the writ in this case. Here, the Court requires the district court to hold a hearing and allow the prisoner to testify even though there is a dispute over whether notice was properly given. The respondent states that the prisoner has failed to properly give notice and that this is one of the reasons for denying the name change. The prisoner states that he has met all the statutory requirements for giving notice....