Marshall v. Kort

• Decision Date: 22 October 1984
• Docket Number: No. 82SA518,82SA518
• Parties: Donald MARSHALL, Petitioner-Appellant, v. Haydee KORT, Superintendent, Colorado State Hospital, Respondent-Appellee.
• Court: Colorado Supreme Court

Page 219

690 P.2d 219

Donald MARSHALL, Petitioner-Appellant, v. Haydee KORT, Superintendent, Colorado State Hospital,

Respondent-Appellee.

No. 82SA518.

Supreme Court of Colorado,

En Banc.

Oct. 22, 1984.

David F. Vela, Colorado State Public Defender, Diana L. DeGette, Sp. Deputy State Public Defender, Denver, for petitioner-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., M. Tracy James, Asst. Atty. Gen., Denver, for respondent-appellee.

DUBOFSKY, Justice.

The petitioner Donald Marshall appeals the Pueblo County District Court's dismissal of his petition for a writ of habeas corpus. The court ruled that habeas corpus was not the proper remedy for failure to treat the petitioner, who had been committed to the state psychiatric hospital after a verdict of not guilty by reason of insanity. We reverse.

The petitioner was found not guilty by reason of insanity in 1979, and was committed to the Colorado State Hospital. He sought release under section 16-8-115, 8 C.R.S. (1983 Supp.), ¹ but the Fremont County District Court denied his release after a hearing on November 12, 1981. The court's denial barred the defendant from seeking release under section 16-8-115 until November 12, 1982, at the earliest. On July 30, 1982, the petitioner filed a petition for a writ of habeas corpus in the Pueblo County District Court alleging that his confinement in the maximum security unit at Colorado State Hospital in Pueblo was unlawful for lack of treatment, particularly because he was receiving no training in "street survival" or in "ordinary social skills." His petition also alleged that the reason his release was denied at the November 12th hearing was that he constituted a danger to himself, chiefly because he was not properly socialized and not ready to be integrated into "street life" without preparation.

The district court did not take evidence; instead it dismissed the petition on the basis that a petition for a writ of habeas corpus under section 13-45-103(2)(b), 6 C.R.S. (1973) was not the proper way to challenge lack of treatment. The district court held that the petitioner was not entitled to release because of an asserted failure of hospital officials to treat him, and, further, that the petitioner could only be released when he "has no abnormal mental condition which would be likely to cause him to be dangerous either to himself or to others or to the community in the reasonably foreseeable future." § 16-8-120(1), 8 C.R.S. (1978). ² Implicit in the district court's ruling was an assumption that the only remedy available in habeas corpus proceedings is release from all confinement.

The petitioner asserts that habeas corpus is a proper method for persons committed after a plea of not guilty by reason of insanity to challenge a lack of treatment. If the petitioner's allegation is true that he was denied release from the maximum security unit of the Colorado State Hospital because he was not properly socialized and not ready to be integrated into "street life," then presumably the only way he can ever become eligible for release is to have the hospital provide him training in "street survival" or "ordinary social skills." The petitioner does not request a discharge from the Colorado State Hospital; instead he alleges that because of the refusal of hospital officials to treat him, he has been denied "the right to gradually 'earn his release back into mainstream society.' " He requests only that the court at a hearing determine the legality of his incarceration. ³ We conclude that the petitioner is entitled to a determination of the legality of his confinement and, if he can prove his allegations, a remedy that addresses appropriate treatment short of immediate release.

Section 13-45-103(2)(b) permits issuance of a writ of habeas corpus in cases "[w]here, though the original imprisonment was lawful, yet by some act, omission, or event which has subsequently taken place, the party has become entitled to his discharge ...." In habeas corpus proceedings, judicial inquiry generally is an investigation of the validity of a petitioner's confinement at the time of the hearing. White v. Rickets, 684 P.2d 239, 242 (Colo.1984); Ryan v. Cronin, 191 Colo. 487, 553 P.2d 754 (1976); Crumrine v. Erickson, 186 Colo. 139, 526 P.2d 148 (1974); McGill v. Leach, 180 Colo. 331, 505 P.2d 374 (1973); North v. Koch, 169 Colo. 508, 457 P.2d 915 (1969). As we noted in White v. Rickets, the "intervention by the judiciary into the administration of corrections programs by executive officials is reserved for most serious violations of fundamental rights, and an allegation to that effect is essential to any claim for habeas corpus relief." 684 P.2d at 241. Here the petitioner asserts that the particular circumstances of his place of confinement deprive him of constitutionally protected rights.

Under section 13-45-103(2)(b), the issuance of a writ is triggered by conditions entitling a petitioner to discharge; the statute, however, does not specify that discharge is the sole remedy available for such conditions. In fact, section 13-45-101(1), 6 C.R.S. (1978) commands the court to issue the writ of habeas corpus "unless it appears from the petition itself, or from the documents annexed, that the party can neither be discharged nor admitted to bail nor in any other manner relieved." (Emphasis supplied.) Section 13-45-103(1), 6 C.R.S. (1978) sets out the procedure for the court to follow upon the return of the writ of habeas corpus, concluding that "[t]he court shall proceed in a summary way to settle the facts by hearing the testimony and arguments of all parties interested civilly, if there are any, as well as of the prisoner and the person who holds him in custody and shall dispose of the prisoner as the case may require." (Emphasis supplied.) Such open-ended relief accords with the essential purpose of the writ: "The very nature of the writ demands that it be administered with the initiative and flexibility to insure that miscarriages of justice within its reach are surfaced and corrected." Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969). ⁴

This court has held that relief short of total discharge is available through habeas corpus. In Schooley v. Wilson, 150 Colo. 483, 374 P.2d 353 (1962), an alleged parole violator was imprisoned in violation of the statute governing parole revocation. The court held that

[h]abeas corpus is the remedy for an unlawful restraint of one's liberty as well as for an unlawful imprisonment. [Citation.] When one entitled to his liberty, even though in the constructive custody of the state, is actually imprisoned, his imprisonment becomes "more onerous than the law allows." Under such circumstances, he may resort to the remedy of habeas corpus and is entitled to be released from physical confinement and restored to a constructive custody. Ex parte Rider, 50 Cal.App. 797, 195 P. 965.

Id. at 486, 374 P.2d 353. Thus, any restriction in excess of legal restraint that substantially infringes on basic rights may be remedied through habeas corpus, even if total discharge does not result.

Many other jurisdictions have also reached this conclusion. Ex Parte Rider, cited by the court in Schooley, held that a writ of habeas corpus may command prison officials to permit consultations between a prisoner and attorney. The writ is available, the court determined, when the prisoner "is deprived of some right to which, even in his confinement, he is lawfully entitled ...." 195 P. at 966. A number of courts have also held that onerous prison conditions may be remedied through habeas corpus, on the grounds that such conditions constitute illegal restraints on liberty. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Jackson v. Carlson, 707 F.2d 943 (7th Cir.), cert. denied 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983); Albers v. Ralston, 665 F.2d 812 (8th Cir.1981); Cook v. Hanberry, 596 F.2d 658 (5th Cir.), cert. denied 442 U.S. 932, 99 S.Ct. 2866, 61 L.Ed.2d 301 (1979); Mead v. Parker, 464 F.2d 1108 (9th Cir.1972); Armstrong v. Cardwell, 457 F.2d 34 (6th Cir.1972); In re Davis, 25 Cal.3d 384, 599 P.2d 690, 158 Cal.Rptr. 384 (1979); Hamrick v. Hazelet, 209 Kan. 383, 497 P.2d 273 (1972); McIntosh v. Haynes, 545 S.W.2d 647 (Mo.1977); Bekins v. Cupp, 274 Or. 115, 545 P.2d 861 (1976); Commonwealth v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971); Hackl v. Dale, 299 S.E.2d 26 (W.Va.1982). ⁵ In McIntosh, the court, construing a habeas statute similar to the Colorado statute, noted, "If [the statute] was read to allow habeas relief only when a person could be discharged, it would mean a prisoner could be confined under the most onerous conditions in violation of the prohibition against cruel and unusual punishment without the opportunity to be relieved from that condition." 545 S.W.2d at 650.

Here, the petitioner alleges that he is being held "illegally and without due process of law" because he has been denied a right to treatment. Although this court has not previously addressed the issue, several courts have held that involuntarily committed persons have a constitutional right to treatment. Scott v. Plante, 691 F.2d 634, 636-37 (3d Cir.1982), aff'g 641 F.2d 117 (3d Cir.1981); Donaldson v. O'Connor, 493 F.2d 507, 527 (5th Cir.1974), vacated on other grounds, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Davis v. Balson, 461 F.Supp. 842, 852 (N.D.Ohio 1982); Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala.1971), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974); see also Rouse v. Cameron, 373 F.2d 451, 453-54 (D.C.Cir.1966) (constitutional problems with non-treatment of criminal committees led to adoption of D.C. Code provision giving right to treatment); Davis v. Watkins, 384 F.Supp. 1196, 1197 (N.D.Ohio 1974) ("the State, upon committing an individual 'until he regains his sanity,' incurs a...