Ostwald v. State

• Citation: 538 P.2d 1298
• Decision Date: 21 July 1975
• Docket Number: 4467,Nos. 4374,s. 4374
• Parties: Edward Lyle OSTWALD, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). Edward Lyle OSTWALD, Petitioner, v. Lenard MEACHAM, Warden, Wyoming State Penitentiary, Respondent.
• Court: United States State Supreme Court of Wyoming

Page 1298

538 P.2d 1298

Edward Lyle OSTWALD, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

Edward Lyle OSTWALD, Petitioner, v. Lenard MEACHAM, Warden, Wyoming State Penitentiary, Respondent.

Nos. 4374, 4467.

Supreme Court of Wyoming.

July 21, 1975.

John M. Daly and Michael A. Maycock, of Burke, Daly & Maycock, Gillette, for appellant and petitioner.

David B. Kennedy, Atty. Gen.,* V. Frank Mendicino, Atty. Gen.,** H. J. Arnieri, Asst. Atty. Gen., Cheyenne, and Daniel J. Morgan, County and Pros. Atty., Compbell County, Gillette, for appellee and respondent.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

This court in State v. Stern, Wyo.1974, 526 P.2d 344, held § 6-130, W.S.1957, 1973 Cum.Supp., ¹ a misdemeanor, unconstitutional. The single question of whether or not the decision was applicable prospectively or retroactively, is now raised. The defendant-appellant seeks post-conviction relief from the judgment and sentence of the district court, dated March 29, 1973, by which he was committed to the Wyoming State Penitentiary on the original version of § 6-130, ² a felony, for a period of not less than five nor more than eight years for breaking and entering a locked and sealed building, to which charge he entered a plea of guilty. The defendant-appellant in the post-conviction proceeding has in addition as a petitioner filed directly in this court an application for writ of habeas corpus. The two matters have been consolidated because together they raise the same issue, namely, is he unlawfully confined because of his conviction under a statute subsequently held or determined to be unconstitutional? ³

While this court has original jurisdiction to entertain applications for writs of habeas corpus pursuant to Article V, § 3, Wyo. Const., ⁴ it does not do so unless a showing is made of circumstances which render it necessary or proper that the writ if granted should issue originally from this court. Rule 16, Rules of the Supreme Court of Wyoming. ⁵ Such a showing has been made in that the case will resolve the question of the retroactive or prospective effect of this court's holding § 6-130, W.S.1957, 1973 Cum.Supp., unconstitutional. The decision will involve the status of a number of prisoners convicted and presently serving sentences as convicts under that section and could have other far-reaching effects on others as will be developed later in this opinion. To save delay and the possibility of a multiplicity of suits by way of habeas corpus actions and post-conviction proceedings as well as coram nobis which could result in a conflict of rulings in the several judicial districts of the state, we deem it of public interest to take jurisdiction for prompt and uniform application and disposition of the question as it may arise in the future and to settle the concern of those immediately affected.

The post-conviction proceeding raised a question which has become moot ⁶ and upon the suggestion of appellant-defendant, the appeal should be dismissed for that reason, but the appeal record can be used to assist in touching a question of landmark proportions.

Without discussion, for the same reasons cited in Stern, the original § 6-130 is unconstitutional and we deem it declared so in that case, the change in penalty being miniscule. This is admitted by the State.

The attorney general reports that on the recent date of filing one of its briefs herein there were eight men incarcerated in the Wyoming State Penitentiary for breaking and entering, one being held for breaking and entering and burglary, three for breaking and entering and grand larceny, one being held for breaking and entering and as a result of probation violation arising out of the judgment and sentence, one for breaking and entering, jail breaking, joyriding and as a result of probation violation arising out of the judgment and sentence, and another for breaking and entering, burglary, grand larceny and as a result of probation violation arising out of the sentence. Whatever this court does in this case is of immediate interest to those presently held on similar charges.

The Supreme Court of the United States has said on various occasions that a statute declared unconstitutional was no law and that no rights or duties could flow from such an enactment. As an example, it was announced in Norton v. Shelby county, 1886, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178, 186, that:

'* * * An unconstitutional Act is not a law; it confers no rights, it imposes no duties; it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.'

It said something similar in Ex parte Siebold, 1880, 100 U.S. 371, 376, 25 L.Ed. 717, 719, ⁷ when it profoundly announced:

'* * * An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. * * *'

The sweep of such statements is deceiving. We find in practice that unconstitutional statutes are in fact realities and past decisions made under them have substance under the doctrine of res judicata. In Warring v. Colpoys, 1941, 74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025, cert. den. 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543, ⁸ the court was confronted with the identical question that we have here:

'Is one entitled to a discharge under a writ of habeas corpus where the court had power under the statutory construction to punish his acts in a criminal contempt proceeding at the time the acts were done and the sentence imposed, the court not having such power under a new statutory construction at the time the writ of habeas corpus was filed? * * *'

The court, speaking through Justice Vinson, later a justice of the United States Supreme Court, said:

'It has been commonly thought that if an act is declared unconstitutional, it never had any force of effect. Yet a realistic approach is eroding this doctrine. In the instant case the reason why it is considered that appellant may be entitled to discharge is because the statute never gave the court contempt 'jurisdiction' over his type of offense. * * * When a statute is declared unconstitutional it falls because it must yield to the basic, superior law. There is much more reason to argue that the unconstitutional statute never was the law. Yet today even such a statute is an operative fact and decisions made under its color have the blessing of res judicata.

'All of the loose ends presented in this discussion on the effect of altering the law can be pretty well tied together when it is realized that law is not a pure science, that law loses its vital meaning if it is not correlated to the organic society in which it lives, that law is a present and prospective force, that law needs some stability of administration, that the law is all the law there is, that law is more for the parties than for the courts, that people will rely upon and adjust their behavior in accordance with all the law be it legislative or judicial or both.

'We believe that appellant is not entitled to discharge upon the habeas corpus writ. * * *'

Warring is so rich in practicality, it could well be adapted as the opinion in this case. ⁹ But we must move on to identical views taken by the United States Supreme Court. In Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329, reh. den. 309 U.S. 695, 60 S.Ct. 581, 84 L.Ed. 1035, the court had the question before them and said:

'The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. (Citing Norton, supra, and another case.) It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. * * *'

Even Justice Douglas, dissenting in most cases, has acknowledged in another earlier dissent that, 'An unconstitutional statute is not necessarily a nullity; it may have intermediate consequences binding on people.' Poulos v. State of New Hampshire, 1953, 345 U.S. 395, 422, 73 S.Ct. 760, 775, 97 L.Ed. 1105, 1122, 30 A.L.R.2d 987, 1004, reh. den. 345 U.S. 978, 73 S.Ct. 1119, 97 L.Ed. 1392. See also Wainwright v. Stone, 1973, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179, in which a prisoner convicted and sentenced under a sodomy statute subsequently held void for vagueness (same as Stern) and expressly ruled prospective by the Florida Supreme Court, sought habeas corpus relief in the federal system. The Supreme Court in a rare per curiam decision declared:

'* * * Nor was it constitutionally compelled * * * to make retroactive its new construction of the Florida statute: '(a) state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.' Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360, 85 A.L.R. 254 (1932). * * *'

Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, ¹⁰ brought to a climax and explained the entire filed of retroactivity, bringing into focus the actuality and practicality of prospective rather than retroactive application, of court decisions declaring a fundamental phase of the criminal law unconstitutional, in any sphere. It laid to rest as out of...