State ex rel. Olson v. Maxwell

• Citation: 259 N.W.2d 621
• Decision Date: 04 November 1977
• Docket Number: Cr. N
• Parties: STATE of North Dakota ex rel. Allen I. OLSON, Attorney General of the State of North Dakota, Petitioner, v. Ralph B. MAXWELL, Judge of the District Court, First Judicial District, State of North Dakota, Respondent. o. 613.
• Court: United States State Supreme Court of North Dakota

Page 621

259 N.W.2d 621

STATE of North Dakota ex rel. Allen I. OLSON, Attorney General of the State of North Dakota, Petitioner, v. Ralph B. MAXWELL, Judge of the District Court, First

Judicial District, State of North Dakota, Respondent.

Cr. No. 613.

Supreme Court of North Dakota.

Nov. 4, 1977.

Edwin F. Zuern, Sp. Asst. Atty. Gen., and Calvin N. Rolfson, Deputy Atty. Gen., Bismarck, for petitioner State of North Dakota on behalf of relator Allen I. Olson.

Ralph B. Maxwell, Fargo, pro se.

VOGEL, Justice.

The Attorney General of North Dakota, on behalf of the Director of Institutions, who has as one of his responsibilities the administration of the State Penitentiary, has petitioned us to issue a supervisory writ directed to the Honorable Ralph B. Maxwell, district judge, requiring him to delete certain words from a judgment sentencing Cora Kroeplin to the State Penitentiary. The sentence provides that the defendant

". . . be imprisoned in the North Dakota State Penitentiary at Bismarck, . . . and at no other place, for the term of eighteen (18) months . . ." (Emphasis in original.)

The complained-of words are those underlined. The briefs and arguments broaden the issue to include the question of the authority of the Director of Institutions to transfer prisoners, especially female prisoners, out of the State. We hold, on the record before us, that Cora Kroeplin must not be imprisoned outside the State of North Dakota unless and until a due-process hearing has been held or waived and an order entered permitting the transfer.

Our jurisdiction is based upon our authority to grant original writs as permitted by Section 86, North Dakota Constitution. The Attorney General bases his petition upon Sections 27-02-04, 27-02-05, and 27-02-05.1, also setting forth certain powers of this court.

We directed an order to Judge Maxwell to show cause why the writ requested by the Attorney General should not issue.

In his return, and in a personal appearance and argument before us, Judge Maxwell asserts that for several years all female prisoners sentenced to the State Penitentiary have been sent out of the State by the Director of Institutions, while male prisoners have been confined at the State Penitentiary within the State; that this practice, based solely upon sex, is a discriminatory and unequal treatment of women prisoners; and that it discriminates (1) by making it more difficult for them to gain access to the courts of this State, (2) by making it more difficult and costly for them to consult with lawyers in prosecuting appeals and other remedies, (3) by making it more difficult to apply and qualify for parole and to appear before the Parole Board in person, (4) by making it more difficult to have visits from, and preserve relationships with, family, relatives, and friends, and (5) by making it more difficult to attend to personal, business, and legal affairs.

The Attorney General asserts to us that women prisoners sentenced to the North Dakota State Penitentiary are, and have been for six years, transferred to prisons for women in other States, formerly Nebraska and presently Minnesota. He says that the North Dakota State Penitentiary has "inadequate staff and facilities . . . to house and properly care for female prisoners"; that the policy of making such transfers "is supported by Section 54-21-25 of the North Dakota Century Code which allows the Director of Institutions to contract with the federal government and other state jurisdictions for correctional services"; that the Legislative Assembly provided funds for such transfers; and that compliance with the sentence imposed by Judge Maxwell would place the female prisoner (apparently because she would be the only woman, or one of the few women, in the Penitentiary) in "confining-protective custody permanently, without the ability to engage in adequate recreation, work, and other treatment programs" and might constitute cruel and unusual punishment.

The Attorney General further asserts that Judge Maxwell exceeded his authority by invading the discretion of the Director of Institutions, who, the Attorney General says, has the authority "to transfer prisoners under his authority and control as may be in their best interest."

I

We start with a consideration of the normal sentencing procedure in this State. Contrary to the assertion of the Director of Institutions, we conclude that the statutes of this State contemplate that the sentencing judge shall determine initially the place of confinement. Section 12.1-32-02, N.D.C.C., the primary statute relating to sentencing, provides for a sentence to:

"c. A term of imprisonment, . . .

"(1) In the penitentiary or a regional detention facility approved by the director of institutions, or in the state farm in accordance with section 12-51-07, if convicted of a felony";

or

"g. Commitment to an appropriate licensed public or private institution for treatment of alcoholism, drug addiction, or mental disease or defect";

or

"h. Commitment to any other facility or program deemed appropriate for the treatment of the individual offender, including available community-based programs."

Provision also is made that the court shall give credit for time served prior to sentencing, and provision is made that the court may suspend all or part of any sentence.

It is evident that the fixing of the place of imprisonment is within the discretion of the trial court, in the first instance, and not that of the Director of Institutions. Cases cited by the Attorney General for the contrary position are based upon totally different statutory schemes. In all of them, the statutes provide for sentences to the custody of a State official, who has the authority to assign the prisoner to a specific institution, just as the Federal statute provides for a sentence to the custody of the Attorney General. 18 U.S.C. 4082.

The cases relied upon by the Attorney General are: State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A.2d 573 (1974); State v. Miner, 113 Ariz. 56, 546 P.2d 342 (1976); Re Prisoners Awaiting Transfer, 236 Ga. 516, 224 S.E.2d 905 (1976). The statutes providing for sentencing to the custody of an individual official or board (rather than to a particular institution) are, respectively, Sonner : Md.Ann.Code, 1957 (1971 Repl.Vol., 1973 Cum. Supp.), Art. 27, Sec. 690; Miner : A.R.S. Sec. 13, 671(D); Re Prisoners Awaiting Transfer: Ga.Code Ann. Sec. 77, 309(d).

It is the court, in North Dakota, which specifies in the first instance the place of confinement of convicted persons sentenced to imprisonment. ¹

Our statutory scheme also contemplates that women, as well as men, are to be confined in the State Penitentiary. See Section 12-47-22, N.D.C.C., forbidding communication between the sexes within the institution.

II

There are several statutes of this State which permit changes in the place of confinement once the serving of a sentence has begun. ²

It will be noted that none of the statutes summarized in footnote 2 are applicable to the present factual situation, and it should be particularly noted that all of them contain quite explicit legislative direction as to when, where, and how they are to be applied.

In rather stark contrast to the foregoing statutes, Section 54-21-25, upon which the Attorney General relies primarily for authority to transfer Cora Kroeplin to the State of Minnesota, reads:

"If the director of institutions determines that suitable state facilities or services are not available for inmates under his control he may contract for same with the proper authorities of the United States, another state, another agency in this state or a political subdivision of this state. The director may also contract, without cost to the state, to provide services or facilities for persons held by any of the jurisdictions mentioned in this section."

III

This case presents the constitutional issues of procedural due process and equal protection of the laws.

We first consider whether the prisoner's right to procedural due process is being denied. The extent to which procedural due process must be afforded depends upon the circumstances of each case and the nature of the loss involved. Havener v. Glaser, 251 N.W.2d 753 (N.D.1977).

Courts have employed basically a two-tiered test in determining the constitutional validity of particular classifications. Under the traditional equal-protection analysis, classifications are sustained if they are rationally related to a conceivable, legitimate, governmental objective. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). A more stringent standard of review is applied where the classification is termed "inherently suspect" or where the classification impinges on fundamental rights. Included within the "inherently suspect" category are classifications based upon such criteria as race, sex, illegitimacy, and immutable characteristics determined solely by accident of birth. In such cases strict judicial scrutiny is called for, and classifications will be held invalid unless it is shown that the statute promotes a compelling governmental interest and that the distinctions drawn by the law are necessary to further its purpose. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). We have recognized the suspect category (In re G. H., 218 N.W.2d 441 (N.D.1974)), and used it in analyzing the North Dakota constitutional provision on equal protection, Section 20. We have also indicated that classifications based on sex are "inherently suspect" under our State Constitution. Tang v. Ping, 209 N.W.2d 624 (N.D.1973). See Bingert v. Bingert, 247 N.W.2d 464 (N.D.1976). See also Hastings v. James River Aerie No. 2337, Etc., 246 N.W.2d 747 (N.D.1976); Arp v. Workers' Compensation Appeal Board, 19 Cal.3d 395, 138 Cal.Rptr. 293, 563 P.2d 849 (1977).

IV

Under both Federal and State constitutional provisions for equal protection and procedural due process, ³ ...