J.V. by Levine v. Barron

• Decision Date: 01 June 1983
• Docket Number: No. 82-542,82-542
• Citation: J.V. by Levine v. Barron, 332 N.W.2d 796, 112 Wis.2d 256 (Wis. 1983)
• Parties: J.V., a minor, By his Guardian ad Litem, Jonathan B. LEVINE, Plaintiff- Appellant, v. Honorable Michael J. BARRON, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 796

332 N.W.2d 796

112 Wis.2d 256

J.V., a minor, By his Guardian ad Litem, Jonathan B. LEVINE Plaintiff- Appellant, v. Honorable Michael J. BARRON, Defendant-Respondent.

No. 82-542.

Supreme Court of Wisconsin.

Argued March 2, 1983.

Decided April 26, 1983.

Reconsideration Denied June 1, 1983.

Jonathan B. Levine, Milwaukee, argued, for plaintiff-appellant; Kahn & Levine, Milwaukee, on brief.

Charles D. Hoornstra, Asst. Atty. Gen., argued, for defendant-respondent; Bronson C. La Follette, Atty. Gen., on brief.

STEINMETZ, Justice.

The issue in this case is whether a circuit court judge may refuse on the basis of comity to sign a writ of habeas corpus in a child custody dispute.

On April 24, 1980, the Honorable William D. Gardner ordered J.V., a two and one-half year old minor at the time, placed into foster care custody pursuant to sec. 48.19(1)(c), Stats. ¹ The emergency order was based upon allegations that J.V. was a victim of child abuse. ² It appears from the record and oral argument that J.V. had not actually been residing with his mother since October 12, 1979. The record does not indicate why the emergency order was sought six months later. Judge Gardner scheduled a hearing before a court commissioner to further consider the custody change, if it was a change, for April 28 at the children's court center.

On April 25, 1980, J.V.'s mother petitioned the defendant, the Honorable Michael J. Barron, to issue a writ of habeas corpus. Judge Barron refused to sign the accompanying order granting the writ of habeas corpus for reasons of comity.

Subsequently, this action for $1,000 in statutory damages against Judge Barron was instituted pursuant to sec. 292.09, Stats. (1977), ³ for refusing to sign the writ of habeas corpus. J.V. alleged that comity is an improper ground for refusing to grant a writ. The matter was submitted to the Honorable W.L. Jackman and on cross motions for summary judgment, he ruled in favor of Judge Barron. We accepted certification of this case from the court of appeals. ⁴

Petitioning for a writ of habeas corpus is a right granted by the United States and Wisconsin Constitutions ^{5 5} and Wisconsin Statutes, ch. 782. The roots of the writ can be traced deep into English common law and "indisputably holds an honored position in our jurisprudence." Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1570, 71 L.Ed.2d 783 (1982). Its special function is to protect and vindicate a person's right of personal liberty by freeing him from illegal restraint. The writ is frequently used in prisoner cases, but it is also used in child custody cases, treating the removal of a child from lawful custody as an illegal restraint.

Although the petitioner has a right to the writ, judges are not bound to issue the writ as a matter of course, but only upon cause shown. Thus, the petitioner presents the petition for the writ to a judge who examines it and grants or refuses the writ.

In many child custody disputes, there is no underlying court order or judgment regarding the custody of the child. In those types of cases, the petitioner alleges a legal right to the custody of the child usually because of natural parenthood. If the writ is granted, the habeas court holds a hearing to decide whether there is in fact an illegal restraint. If an unlawful restraint is found, then the court makes a custody determination focusing on the welfare of the child. See State ex rel. Tuttle v. Hanson, 274 Wis. 423, 80 N.W.2d 387 (1957). See generally Oaks, Habeas Corpus in the States--1776-1865, 32 U.Chi.L.Rev. 243, 270-74 (1965).

When there is an underlying court order, as in this case, the writ does not take the place of a writ of error to determine the merits of an order in issue. Since the court issuing the underlying order has presumably already considered the best interests of the child in its custody determination, relitigation of the child's interest is not appropriate on habeas corpus. Instead, when habeas corpus relief is sought to release a child confined under a court order, the habeas court determines only whether the order is void because the court issuing the order lacked jurisdiction to do so, the order was made in violation of the constitution, or there was a lack of legal authority for the order. Wolke v. Fleming, 24 Wis.2d 606, 613-14, 129 N.W.2d 841 (1964), cert. denied, 380 U.S. 912, 85 S.Ct. 897, 13 L.Ed.2d 798 (1965).

In this case, J.V.'s mother presented a petition for a writ of habeas corpus to Judge Barron, averring that such confinement of J.V. was "contrary to law." Had Judge Barron granted the writ, J.V. would not have been entitled to immediate release from custody ordered by Judge Gardner. By granting the writ, Judge Barron would have directed the person who had custody of J.V. to produce J.V. and to appear at a hearing at which the legality of Judge Gardner's order would have been litigated. If the order was illegal, then Judge Barron would have remanded custody of J.V. back to his custodian before Judge Gardner's order or determine who should have custody of J.V. until a final hearing before Judge Gardner. Thus, J.V. could not have been released from the ordered custody until hearings were held after the writ was granted. State ex rel. Terry v. Schubert, 74 Wis.2d 487, 491-92, 247 N.W.2d 109 (1976), vacated on other grounds, 434 U.S. 808, 98 S.Ct. 40, 54 L.Ed.2d 66 (1977); State ex rel. Durner v. Huegin, 110 Wis. 189, 236-37, 85 N.W. 1046 (1901); State ex rel. Dunn v. Noyes, 87 Wis. 340, 343, 58 N.W. 386 (1894); Petition of Crandall for a Habeas Corpus, 34 Wis. 177, 179 (1874).

The record in this case, though sparse, indicates that Judge Barron did not refer to the petition presented to him nor consider whether the court ordering the restraint of J.V. had jurisdiction and was acting constitutionally. When Judge Barron refused to sign the writ he explained:

"The reason for not signing this is that the Court has serious doubts as to whether one Circuit Court ought to be reviewing the order of a court of equal jurisdiction; that is, the Hon. William Gardner.

"...

"I realize that there is a statutory and constitutional right to a Writ of Habeas Corpus, but I believe that as a matter of comity one judge should not be reviewing the order of another judge and that if same is to be done it should be done by the Wisconsin Court of Appeals."

When Judge Barron was deposed for this action, he testified in part:

"A. About three years ago, actually July of 1977, when I was presented with a writ of habeas corpus application for an alternative writ in the matter of State ex rel Burlyn Porter v. Wolke, I expressed some reservations as to whether or not a Circuit Judge had jurisdiction to even sign an alternative writ, let alone a preemptory one, regarding a challenge to an order issued by a brother Circuit Judge. However, I resolved the doubt in favor of exercising jurisdiction, and when the hearing came up for the question as to whether a preemptory writ ought to be issued, I denied the preemptory writ on the merits in order to have the matter resolved; on the merits as opposed to deciding the question of jurisdiction. Later when that case was appealed to the Wisconsin Supreme Court, apparently the respondents in the case did not challenge my jurisdiction to hear the writ but rather did as I did, argued the matter before the Wisconsin Supreme Court on the merits. When the Supreme Court issued its opinion they affirmed my denial of the preemptory writ but in the decision raised the issue as to whether one Circuit Judge had jurisdiction to hear a challenge to an order by a fellow Circuit Judge. On the basis of that case, I decided that it would be beneficial for the bench and bar to have the issue decided on the merits. So that I, in effect, created a test case by my refusal to sign the alternative writ in what is denominated Exhibit No. 2 in this deposition.

"...

"A. Each judge has to make up his own decision in his own mind on a judicial matter that appears before him. Now, whether there is a policy, if you want to call it that, among judges in Milwaukee County is really irrelevant because no judge can tell another judge as to how he should rule; other than, obviously, an appellate court judge.

"...

"A. I have some serious questions and doubts in my mind as to whether I have jurisdiction to grant an alternative writ, let alone a preemptory one, when the petition for the writ is based on a challenge to an order issued by a Circuit Court Judge of equal jurisdiction."

The term comity as used by Judge Barron refers to a concept of courtesy; complaisance; respect; a willingness to grant a privilege, not as a matter of right, but out of deference and good will. ⁶ The United States Supreme Court has stated:

"Comity is not a rule of law, but one of practice, convenience and expediency. It is something more than mere courtesy, which implies only deference to the opinion of others, since it has a substantial value in securing uniformity of decision, and discouraging repeated litigation of the same question. But its obligation is not imperative.... Comity persuades; but it does not command. It declares not how a case shall be decided, but how it may with propriety be decided.... It demands of no one that he shall abdicate his individual judgment, but only that deference shall be paid to the judgments of other coordinate tribunals." Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488-89, 20 S.Ct. 708, 710, 44 L.Ed. 856 (1900).

As applied to this case, it is apparent that Judge Barron wanted to avoid any appearance of second-guessing a fellow circuit court judge's decision.

This record demonstrates that Judge Barron, with the encouragement of other circuit judges, sought to create a test case to determine whether comity was a valid reason to refuse to grant writs of habeas corpus. We conclude that in situations such as this where the habeas court is asked to only examine...