Little v. Graff

• Decision Date: 29 September 1993
• Docket Number: No. 930224,930224
• Citation: 507 N.W.2d 55
• Parties: Elaine LITTLE, Director of the Department of Corrections and Rehabilitation, State of North Dakota, Petitioner, v. The Honorable Benny A. GRAFF, Judge of the District Court, South Central Judicial District, State of North Dakota, and Sheila Sheppard, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 55

507 N.W.2d 55

Elaine LITTLE, Director of the Department of Corrections and Rehabilitation, State of North Dakota, Petitioner, v. The Honorable Benny A. GRAFF, Judge of the District Court South Central Judicial District, State of North Dakota, and Sheila Sheppard, Respondents.

Civ. No. 930224.

Supreme Court of North Dakota.

Sept. 29, 1993.

Edwin F. Zuern (argued), Sp. Asst. Atty. Gen., Atty., Bismarck, for petitioner. Appearances by Elaine Little, Director of the Dept. of Corrections and Rehabilitation and Timothy Schuetzle, Warden, North Dakota State Penitentiary.

Rolf P. Sletten (argued), Bismarck, for respondents.

MESCHKE, Justice.

We hold that it was not an error of law for the trial court to conclude that the warden does not have the statutory authority to confine at the prison all women convicts who are sentenced to the Missouri River correctional center. Therefore, we decline to vacate the trial court's writ of habeas corpus ordering a woman prisoner transferred from the prison to the Center.

Unlike penological practice elsewhere, the North Dakota Legislature has authorized the sentencing judge to designate the initial place of a convict's confinement. NDCC 12.1-32-02(1); State ex rel. Olson v. Maxwell, 259 N.W.2d 621 (N.D.1977). Depending on the length of imprisonment, the sentencing judge may select among a county jail, a regional correction center, a state correctional facility, or the Missouri River correctional center (Center). NDCC 12.1-32-02(1)(c)(1). With few exceptions, a judge "may commit to the Missouri River correctional center, so far as the capacity of the center shall permit, all persons ... where the sentence is more than thirty days but not more than one year...." NDCC 12-51-07. The Center is intended "as a work and treatment center for the purpose of assisting in the rehabilitation of the prisoners committed thereto" through "labor, instruction, and supervision that will accomplish the purpose sought...." NDCC 12-51-02. In 1991, through 1991 N.D.Laws ch. 116, Sec. 4, codified at NDCC 12-51-01, the Legislature changed the name of the Center from the "North Dakota state farm" and designated the Center for confinement of both "male and female violators of the law."

Administration of the Center, which is "deemed a facility of the state penitentiary and must be operated in connection therewith," is delegated to the warden of the penitentiary. NDCC 12-51-04. "The laws relating to the government and management of, ... the penitentiary, so far as the same may be applicable and not inconsistent with the provisions of" chapter 12-51, "apply to the government and management of" the Center. NDCC 12-51-05 (emphasis added). NDCC 12-51-06 empowers the warden, with approval of the director of corrections, to "establish, adopt, and enforce proper rules and regulations consistent with the provisions of" chapter 12-51 to administer the Center and prisoners there. (emphasis added).

For specific reasons listed in NDCC 12-51-09, the warden may transfer a prisoner from the Center to the prison "at the time of commitment or at any time thereafter." To transfer someone, the warden must properly determine that it is necessary to do so "for purposes of safety of other inmates or of the general public or for the purpose of discipline or medical care...." Id. Once a person is at the Center, the warden may also transfer someone who "interferes with the operation of the center, or with the welfare or safety of others, and where in the judgment of the warden the best interests of such person or the best interests and welfare of other persons committed to the center so require, ...." Id. (emphasis added). This case concerns the power of the warden to hold all female prisoners at the prison because of their gender, even when specifically committed by the sentencing judge to the Center.

The Cass County district court revoked Sheila Sheppard's probation in March 1993, and sentenced her to the Center for one year. At that time, the warden had closed the female wing at the Center and was holding every female prisoner at the prison, even if a sentencing court had committed her to the Center. Instead of confining Sheppard at the Center, the warden held her at the prison.

In April, Sheppard petitioned the Burleigh County district court to compel the warden and director of corrections to transfer her from the prison to the Center. For various irrelevant reasons, her repeated petitions were summarily refused by both Burleigh County and Cass County district courts. Eventually, she asked this court on May 19 for a writ of habeas corpus. On May 26, we exercised our supervisory powers to direct the Burleigh County district court to appoint counsel for Sheppard and to hear her petition for habeas corpus.

After a hearing on June 16, the trial court found:

[T]here has been no prior determination by the Warden of the State Penitentiary that the safety of other inmates, the safety of the general public, disciplinary reasons, or medical reasons make it necessary or proper to confine [Sheppard] at the State Penitentiary rather than the Missouri River Correctional Center.

Additionally, the Court finds that neither the safety of other inmates, the safety of the general public, disciplinary reasons, or medical reasons make it necessary or proper to confine [Sheppard] at the North Dakota State Penitentiary rather than the Missouri River Correctional Center.

The trial court concluded that the Center was statutorily established for both male and female convicts, that Sheppard was unlawfully detained at the prison, and that "by refusing to confine [Sheppard] at the ... Center because she is a female person, [the warden and director of corrections] have violated [Sheppard's] rights under the statutes of the State of North Dakota." On June 22, the court ordered the warden to transfer Sheppard to the Center by July 6 to serve the rest of her sentence.

This court, on June 23, summarily denied the warden's petition for mandamus to derail the trial court's transfer order. The warden appealed the trial court's writ of habeas corpus on June 29. On July 6, we dismissed this appeal from a non-appealable order.

On July 8, the director of corrections and the warden petitioned this court to vacate the habeas corpus writ that compelled Sheppard's transfer. They also sought a stay of the transfer. That same day, we denied the stay "for lack of a proper showing." Pursuant to State ex rel. City of Bismarck v. District Court, 64 N.D. 399, 253 N.W. 744 (1934) and Havener v. Glaser, 251 N.W.2d 753 (N.D.1977), we also agreed to exercise our superintending jurisdiction to review whether the trial court's habeas order was based upon any error of law.

Because the warden had not yet moved her to the Center, Sheppard asked the trial court on July 8 to find the warden in contempt. On July 12, the warden moved the trial court to reconsider the transfer order on grounds that he had recently become "aware of a Clay County Minnesota felony complaint and summons" against Sheppard, that he had contacted Minnesota authorities and verified the "complaint," and that, under prison policies, a felony complaint "disqualifies an inmate from retaining a minimum security classification" so that Sheppard was "not qualified for transfer" to the Center.

On July 13, the trial court held a hearing on an order to the warden and the director of corrections to show cause why they had failed to transfer Sheppard to the Center. The court found that the evidence presented "does not establish a valid basis upon which [the warden] can hold [Sheppard] at the State Penitentiary rather than the Missouri River Correctional Center." The court denied the motion for reconsideration, found the warden and director in contempt, and ordered that, if Sheppard was not promptly transferred, the warden be jailed until Sheppard was moved to the Center. The warden moved Sheppard to the Center that same day.

On review, the warden argues that he has "determined after several attempts, given the available resources, that to make the Center co-ed will not work." In a vague way, he claims that "[t]oo many problems were encountered" and that "available resources simply were not sufficient to accomplish the task." Placing the onus solely on women prisoners, the warden believes that "[i]t has been the actual experience of correctional ... officials that when women were at the [Center] that they were worse off and less capable of fulfilling their rehabilitation objectives." The warden has returned all females to the prison, and confines all new female convicts there instead of the Center, even when they have been sentenced to the Center.

The warden concedes that the Legislature has not changed the law designating the Center for both male and female convicts, but explains that "corrections officials" were too busy with other matters to ask the 1993 legislative session to change the law, and that they believed that amendment of the law was "not immediately necessary" because "other statutory authority granted corrections officials the authority to transfer and retain the females" at the penitentiary. Now, the warden realizes "[t]his was apparently a miscalculation."

The warden cites and quotes many decisions from elsewhere, particularly the federal system, for his argument that an inmate has no right to choose her place of confinement, and that " 'prison officials may move a prisoner for any reason or no reason at all.' " The warden's reliance on law elsewhere is unjustified. This case does not involve Sheppard's right to pick and choose her place of confinement. Rather, it involves the statutory power of a sentencing judge to select the initial place of confinement. As Justice Sand clarified, in his separate opinion in State ex rel. Olson v. Maxwell, 259 N.W.2d at 633, it is the prisoner that has the necessary personal interest for standing to enforce the sentencing judge's selection of the...