Slater v. McKinna, 99SA224.

• Decision Date: 10 April 2000
• Docket Number: No. 99SA224.,99SA224.
• Citation: 997 P.2d 1196
• Parties: Allen L. SLATER, Petitioner-Appellant, v. Mark McKINNA, Respondent-Appellee.
• Court: Colorado Supreme Court

997 P.2d 1196

Allen L. SLATER, Petitioner-Appellant, v. Mark McKINNA, Respondent-Appellee.

No. 99SA224.

Supreme Court of Colorado, En Banc.

April 10, 2000.

Rehearing Denied May 1, 2000.

Alan L. Slater, Pro Se, Olney Springs, Colorado.

David R. Brougham, Hall & Evans, L.L.C., Denver, Colorado, Attorney for Respondent-Appellee.

Ken Salazar, Attorney General, Paul S. Sanzo, First Assistant Attorney General, Litigation Section, Denver, Colorado, Attorneys for Amicus Curiae State of Colorado.

PER CURIAM.

The appellant, Allen L. Slater, filed a petition for a writ of habeas corpus in the Crowley County District Court on June 15, 1999. In the petition, Slater asserted that he was a prisoner of the State of Washington, but that on or about March 4, 1999, he was delivered to the custody of the appellee, Mark McKinna, the warden of the Crowley County Correctional Facility, a privately owned and operated prison facility in Olney Springs, Colorado.

On June 29, 1999, the district court dismissed Slater's petition on the ground that the court was without jurisdiction to consider the merits of Slater's petition because Washington State retained jurisdiction over Slater when it transferred him to Colorado. Slater appealed the dismissal to this court. We have appellate jurisdiction pursuant to section 13-4-102(1)(e), 5 C.R.S. (1999). We affirm the district court's judgment dismissing Slater's petition, but on different grounds.

I.

We derive the following facts from Slater's pleadings, attachments, and briefs. On September 6, 1996, a jury in Washington State found Slater guilty of two counts of burglary in the first degree and one count of burglary in the second degree. On November 14, 1996, the Superior Court of Kittitas County, Washington, sentenced Slater to 150 months' confinement in the Washington Department of Corrections.

However, in March 1999 Slater was delivered to the custody of the appellee, Mark McKinna, the warden of the Crowley County Correctional Facility (CCCF), a private prison facility in Olney Springs, Colorado. In his petition for habeas corpus and accompanying documents, Slater alleged that McKinna had no authority to hold him within CCCF. According to Slater, although his original Washington sentences were lawful, once he was transferred to the appellee's custody in Colorado, Slater's "order of commitment was violated due to the sentencing court in Washington not having jurisdiction within the State of Colorado."

The district court dismissed Slater's petition for writ of habeas corpus on the grounds that: Washington retained jurisdiction over Slater when it transferred him to Colorado; Colorado was only an agent acting on behalf of the State of Washington; and the court was therefore without jurisdiction to consider the merits of Slater's petition. See Slater v. McKinna, No. 99CV67 (Crowley County Dist. Ct. June 29, 1999) (order granting motion to amend petition and dismissing amended petition).¹ On appeal, Slater raises three main issues: (1) whether the district court erred when it concluded that it did not have jurisdiction over Slater and that Washington retained jurisdiction over him; (2) whether the court erred in not granting the writ of habeas corpus after Slater produced evidence supporting a prima facie showing that his detention was illegal; and (3) whether the court erred when it refused to entertain the petition for habeas corpus in light of the evidence Slater offered in the form of a contract, exhibits, and other affidavits. We conclude that the district court correctly denied Slater's petition.

II.

In Brant v. Fielder, 883 P.2d 17 (Colo. 1994), James Robert Brant alleged that he was a prisoner of the State of Wisconsin, and that he had been transferred and confined in Colorado in the Limon Correctional Facility under the Interstate Corrections Compact, see §§ 24-60-1601 to -1603, 7 C.R.S. (1999). See Brant, 883 P.2d at 18

. Among his other complaints, Brant asked the district court to order the respondents to transport him back to Wisconsin. We affirmed the district court's judgment denying Brant's petition:

The appellant is still subject to the jurisdiction of the Wisconsin authorities, § 24-60-1602 art. IV(c), (f), & art. V(a), and a legal avenue therefore exists for him to be returned to the sending state. Boatwright v. Director, 109 Nev. 318, 849 P.2d 274, 276 (1993) (Nevada prisoner who had been transferred to and confined in Arizona under the Western Interstate Corrections Compact could prosecute postconviction petition for writ of habeas corpus in Nevada courts). The existence of this legal remedy precludes the granting of habeas corpus relief by Colorado courts. Jacobs v. Carmel, 869 P.2d 211, 213 (Colo.1994).

Id. at 21. If Slater had been transferred to the custody of the Colorado DOC, Brant would control the result in this case.

However, Slater was transferred to a private correctional facility in Colorado, not to the DOC. Therefore, after the case was submitted to us, we asked the Colorado Attorney General, as amicus curiae, to brief the following questions 1. Whether section 17-1-104.5, 6 C.R.S. (1999), applies in the case of a habeas corpus petition filed by a prisoner of the State of Washington who contests his confinement in a private correctional facility in Colorado.

2. If section 17-1-104.5 applies, whether the Colorado Supreme Court may take notice of compliance, or non-compliance with the statute, consistent with the due process rights of the petitioner, or whether this case must be remanded to the district court for further findings.

3. Whether, consistent with the due process rights of the petitioner, the Colorado Supreme Court may take notice of the existence and validity, or invalidity, of a contract between the State of Washington and CCCF relating to the incarceration of the petitioner at CCCF, or whether the case must be remanded to the district court for further findings thereon.

4. Whether the Interstate Corrections Compact, see §§ 24-60-1601 to -1603, 7 C.R.S. (1999), or the Western Interstate Corrections Compact, see §§ 24-60-801 to -805, 7 C.R.S. (1999), apply to the petitioner's incarceration at the CCCF.

5. If either compact applies, what effect does this have on the present case?

After reviewing the attorney general's amicus brief and the reply of the petitioner, we conclude that section 17-1-104.5 applies to Slater's confinement in Colorado, but that the ICC and the WICC do not.

III.

Section 17-1-104.5, 7 C.R.S. (1999) provides:

17-1-104.5. Incarceration of inmates from other states—private contract prison facilities.

(1) The general assembly finds and declares that the importation of prisoners from other states into correctional facilities not operated by the department of corrections is a matter of statewide concern.

(2) No inmate from a state other than Colorado may be received into the state of Colorado and be housed in a private contract prison facility or a prison facility operated by a political subdivision of the state:

(a) Without the express approval of the executive director, which approval shall not be unreasonably withheld; and

(b) Unless the private contract prison facility or a prison facility operated by a political subdivision is designed to meet or exceed the appropriate security level for the inmate.

On its face, this section applies directly to this case because Slater is an out-of-state prisoner transferred to a private prison facility in Colorado. The more difficult question is whether the ICC or the WICC also apply.

The ICC provides that "[e]ach party state may make one or more contracts with any one or more of the other party states for the confinement of inmates on behalf of a sending state in institutions situated within receiving states." § 24-60-1602 art. III(a) (emphasis added). "`Institution' means any penal or correctional facility, including but not limited to a facility for the mentally ill or mentally defective, in which inmates as defined in (d) above may lawfully be confined." § 24-60-1602 art. II(e). "`Inmate' means a male or female offender who is committed, under sentenced to or confined in a penal or correctional institution." § 24-60-1602 art. II(d). The corresponding sections of the WICC are essentially identical. See § 24-60-801 art. III(a), art. II(d), (e).

This definition of "institution" does not itself exclude a private facility. However, three factors persuade us that neither the ICC nor the WICC applies to private correctional facilities.

First, neither the ICC nor the WICC preempts other state law on the subject of the interstate transfer of prisoners. See § 24-60-1602, art. IX ("Nothing contained in this compact shall be construed to abrogate or impair any agreement or other arrangement which a party state may have with a non-party state for the confinement, rehabilitation or treatment of inmates nor to repeal any other laws of a party state authorizing the making of cooperative institutional arrangements."); § 24-60-801, art. IX (same); see also Arnold v. Colorado Dep't of Corrections, 978 P.2d 149, 152 (Colo.App.1999) (rejecting contention that the ICC, pursuant to the Supremacy Clause, preempts any state law or contract regulating the interstate transfer of inmates).

Second, the ICC and WICC never refer to the responsibilities that a private entity may have regarding transferred inmates. The responsibility for sending regular reports on the transferred inmates, including conduct records of the inmates, falls on the receiving state, not private entities. See §§ 24-60-1602 art. IV(d), -801 art. IV(d). If the Compacts included private entities within their reach, it would be illogical and inefficient for the receiving state public authorities to have to supply the reports.

Finally, section 17-1-104.5 specifically deals with inmates transferred from another state to a private correctional facility located in this state. It does not require that the sending state be a...