McGuire v. Warden of State Farm (State Penitentiary)

• Citation: 229 N.W.2d 211
• Decision Date: 28 April 1975
• Docket Number: No. 514,514
• Parties: Willis McGUIRE, Petitioner, v. The WARDEN OF the STATE FARM (STATE PENITENTIARY), Respondent. Crim.
• Court: United States State Supreme Court of North Dakota

Page 211

229 N.W.2d 211

Willis McGUIRE, Petitioner, v. The WARDEN OF the STATE FARM (STATE PENITENTIARY),

Respondent.

Crim. No. 514.

Supreme Court of North Dakota.

April 28, 1975.

Syllabus by the Court

1. The Legislature cannot by any enactment wholly deprive Supreme Court of original jurisdiction to issue and hear the writ of habeas corpus. N.D. Constitution § 87.

2. The Uniform Post-Conviction Procedure Act was intended to replace, so far as persons arrested for, or convicted of, violations of criminal law are concerned, the habeas corpus statutes.

3. The requirement of the Uniform Post-Conviction Procedure Act that one bring his petition before the district court in the district of conviction, rather than in the district of confinement, is a reasonable restriction upon one's right to the writ and is constitutionally permissible.

4. Section 29--32--02, N.D.C.C., is permissive, and the district court in the district in which petitioner is confined acted within its discretion in refusing to issue a writ of habeas corpus and in referring petitioner to the district court in which he was convicted.

5. The Uniform Post-Conviction Procedure Act, so far as it affects the venue of district courts, is not unconstitutionally restrictive.

6. Petitions for relief in the nature of habeas corpus should normally be directed to the court in the district of conviction, under the Uniform Post-Conviction Procedure Act.

7. The right of petition to the Supreme Court for a writ of habeas corpus in its original jurisdiction is still preserved, but Supreme Court may decline to exercise its jurisdiction if the petition for the writ can be, but has not been, made to the district court.

8. A mere misstatement of the authority for a judicial act does not destroy the efficacy of the court's ruling, if the authority can be found elsewhere.

9. The fact that a judge, on his own motion, orders the rearrest of a probationer does not make that judge an interested party and ineligible to try the issue of whether probation was violated.

10. There is no absolute requirement of two hearings, rather than one, when probation-violation proceedings are commenced on the motion of the court, rather than by an administrative officer or body.

11. Before a probation-revocation hearing is held, the probationer must be given a prior written notice of the alleged violation, which must contain sufficient specificity to enable the defendant and his counsel to know and understand the nature of the charge against him and to prepare for a hearing on the charge.

Henry H. Howe, Valley City, for petitioner.

John T. Paulson, State's Atty. for Barnes County, Valley City, for State of North Dakota.

VOGEL, Justice.

McGuire, by his attorney, Howe, seeks to be discharged from confinement, invoking the original jurisdiction of this court in habeas corpus. It is alleged that McGuire (hereinafter called petitioner) is imprisoned and deprived of his liberty by the Warden of the State Farm (actually Warden of the State Penitentiary) under the pretended authority of an order of the district court of Barnes County, which he alleges is void. He claims that the notice given him of the charge lacked specificity; that the person making the charge, even though a judge, may not try it; that the Uniform Post-Conviction Procedure Act unconstitutionally limits the right of habeas corpus; and that the statute cited by the court as its authority to act was superseded.

Petitioner was charged with the crime of possession of a controlled substance and pleaded guilty to the charge on November 6, 1974. Pursuant to Section 12--53--13, N.D.C.C., the district court of Barnes County suspended the imposition of sentence and placed the defendant on probation pursuant to Section 12--53--14, N.D.C.C.

On February 6, 1975, the court, having heard of a possible violation of the terms of probation by McGuire, on its own motion ordered a hearing upon the alleged violation of the rules of probation. A copy of the order was served upon McGuire, he was arrested, a hearing was held, and he was sentenced to a six-months' term in the State Farm, under the jurisdiction of the Warden of the State Penitentiary.

He petitioned for a writ of habeas corpus to the district court of Burleigh County, which declined to accept jurisdiction and remanded the prisoner. He then invoked our original jurisdiction.

I. THE AUTHORITY OF THIS COURT

The authority of this court under Section 86 of the Constitution of North Dakota is appellate only, subject to certain exceptions. Several exceptions are found in Section 87. One specifically authorizes the Supreme Court to issue writs of habeas corpus. Such authority is reiterated in Section 27--02--04, N.D.C.C.

In Carruth v. Taylor, 8 N.D. 166, 174, 77 N.W. 617, 620 (1898), this court held:

'It goes without saying that all persons in durance vile in this state have a constitutional right to invoke the original jurisdiction of this court to issue and hear the writ of habeas corpus; nor can the legislature by any enactment wholly deprive this court of such original jurisdiction in any case.'

II. THE JURISDICTION OF THE DISTRICT COURTS

In Carruth v. Taylor, Supra, it was held that the Legislature had the power to regulate habeas corpus proceedings, and to place reasonable restrictions upon the exercise of the constitutional right, and that the Legislature might limit the venue of habeas corpus proceedings to the judicial district of confinement, as it did in Section 8651, Revised Code of 1899, now Section 32--22--04, N.D.C.C., permitting district courts to issue writs of habeas corpus on behalf of 'any person restrained of his liberty in their respective districts.' During the years since Carruth v. Taylor the statutes of this State as to habeas corpus have been changed, the greatest change coming with the adoption of the Uniform Post-Conviction Procedure Act, Chapter 29--32, N.D.C.C., in 1969 (Ch. 304, 1969 S.L.). This Act provides, in subdivision 2 of 29--32--01, that the post-conviction remedy '. . . is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction. Except as otherwise provided in this chapter it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them.'

It further provides, in Section 29--32--02:

'The district court in which, by the constitution of this state, original jurisdiction in habeas corpus is vested, may entertain in accordance with its rules a proceeding under this chapter in the exercise of its original jurisdiction. In that event, this chapter, to the extent applicable, governs the proceeding.'

Although the words 'habeas corpus' are not used in the quoted portion of 29--32--01, it is clear, we believe, that the Uniform Post-Conviction Procedure Act was intended to replace, so far as persons arrested for, or convicted of, violations of criminal law are concerned, the habeas corpus statutes. ¹ The Legislature's failure to repeal the habeas corpus statutes is due, we presume, to the fact that these statutes apply also to civil matters such as determination of child custody, or of the right to release from a mental institution and propriety of confinement for civil contempt. ²

If the provisions of the Uniform Post-Conviction Procedure Act were less favorable to the accused than the constitutional right of habeas corpus, we would necessarily have to hold the Uniform Post-Conviction Procedure Act to that extent unconstitutional, in view of the peremptory mandate of the Constitution of North Dakota, Section 5, that:

'The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require.'

However, we find no provision of the Act which restricts the constitutional right. The petitioner argues that the requirement of the Act that he bring his petition before the district court in the district of conviction, rather than the district of confinement, constitutes an unreasonable restriction upon his right to the writ. We believe, however, that it is a reasonable regulation. As mentioned, we held in Carruth v. Taylor that a requirement that the petition be filed in the district of confinement was constitutionally permissible. We likewise find now that a requirement of filing a petition under the Uniform Post-Conviction Procedure Act in the district of conviction is constitutionally permissible. It may, in fact, be preferable for both the State and the petitioner, since, as the Commissioners on Uniform State Laws point out in their Comment, § 3:

'The advantages of this change are: (1) It will reduce the burden of the courts at the place of confinement; (2) since most of the witnesses who are called are likely to be found in the area of the conviction, the costs of the proceeding will be reduced; (3) the convicting court is more familiar with the background and facts of the case.' Uniform Laws Annotated, p. 512.

See also, United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), holding constitutional a Federal post-conviction procedural statute, 18 U.S.C. § 2255. As the United States Supreme Court there said:

'Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.' 342 U.S. at 219, 72 S.Ct. at 272.

We have explored the constitutionality of the Uniform Post-Conviction Procedure Act because the petitioner, prior to his petition here, applied to the district court of Burleigh County (the district in which he is confined) for a writ of habeas corpus. That court...