Thomas v. Lewis

• Decision Date: 12 June 2001
• Docket Number: No. 990305.,990305.
• Citation: 2001 UT 49,26 P.3d 217
• Parties: Richard D. THOMAS, Plaintiff and Appellant, v. Judge Leslie A. LEWIS, Defendant and Appellee.
• Court: Utah Supreme Court

26 P.3d 217

2001 UT 49

Richard D. THOMAS, Plaintiff and Appellant, v. Judge Leslie A. LEWIS, Defendant and Appellee.

No. 990305.

Supreme Court of Utah.

June 12, 2001.

Adrianne Goldsmith, Salt Lake City, for plaintiff.

Mark L. Shurtleff, Att'y Gen., Brent A. Burnett, Asst. Att'y Gen., Salt Lake City, for defendant.

DURRANT, Justice:

¶ 1 Richard D. Thomas appeals the dismissal of his complaint seeking statutory damages against Judge Leslie A. Lewis for her allegedly wrongful and willful refusal of Thomas's extraordinary writ petitions. Thomas filed suit against Judge Lewis pursuant to section 78-35-1 of the Utah Code, requesting that Judge Lewis pay him the fine provided by that statute. The district court dismissed Thomas's complaint. We affirm.

BACKGROUND

¶ 2 In 1993, Thomas was arrested and charged with aggravated robbery. Thereafter, he filed a series of petitions for habeas relief. Thomas filed his first petition in February 1995 and then twice amended it. Judge Lewis dismissed that petition on the ground that it was "untimely and inappropriate," because Thomas had "an adequate remedy of direct appeal to the Utah Court of Appeals or the Utah Supreme Court."¹ Thomas appealed Judge Lewis's dismissal of his first habeas petition and this court summarily affirmed on its own motion, holding that "the issues raised are so insubstantial as not to merit further proceedings or consideration by this court."

¶ 3 Thomas then filed a second petition directly with this court and moved to consolidate it with his then-pending petition for certiorari challenging the underlying conviction.² This court denied the motion to consolidate and transferred the second petition to the district court. Judge Lewis ordered Thomas to amend his second petition to provide "a clear, concise statement of the alleged wrong, the facts supporting the claim, and the relief desired." When Thomas failed to amend his second petition Judge Lewis dismissed it without prejudice.

¶ 4 Thomas then filed a third petition, again directly with this court. Without explanation, we directed the district court to reinstate the second petition.³ Upon remand, Thomas apparently demanded immediate, unconditional release.⁴ Judge Lewis denied this requested relief, stating that "petitioner has raised nothing new in his [r]esponse and the Court declines to revisit its prior rulings." Judge Lewis thereafter recused herself, and the petition that we ordered reinstated is still pending in the district court before another judge.

¶ 5 Thomas filed suit pursuant to section 78-35-1 of the Utah Code, which provides for assessment of a fine against a judge who wrongfully refuses to allow a writ of habeas corpus. Thomas cited Judge Lewis's dismissal without prejudice of his second writ of habeas corpus as the basis for his suit.⁵ Judge Lewis moved to dismiss. Thomas did not oppose the motion and the court granted it on the ground "that there has never been a determination that the Writ of Habeas Corpus was wrongfully or improperly denied; and that to the extent [Thomas's] [c]omplaint states other claims, those claims are barred by judicial immunity." Thomas appeals the denial of his claims under the habeas penalty statute.

ANALYSIS

¶ 6 The statute under which Thomas brought his claim provides as follows:

Any judge, whether acting individually or as a member of a court, who wrongfully and willfully refuses to allow a writ of habeas corpus whenever proper application for the same has been made shall forfeit and pay a sum not exceeding $5,000 to the party thereby aggrieved.

Utah Code Ann. § 78-35-1 (1996). This statute is unique in Utah law. No other common law or statutory provision provides for the assessment of personal liability for wrongful exercise of, or failure to exercise, official judicial powers. It appears to have been rarely invoked and, consequently, this court has rarely addressed it. We therefore believe it useful to briefly describe its historical underpinnings and context as a prelude to our treatment of the issues on appeal.

¶ 7 Utah's statute is similar in form and substance to provisions found in a number of other states. See, e.g., Ark.Code Ann. § 16-112-102(b) (Michie 1987); Col.Rev.Stat. § 13-45-112 (2000); 735 Ill. Comp. Stat. 5/10-106 (1993); Minn.Stat. § 589.07 (2000); Nev.Rev.Stat. Ann. § 34.670 (Michie 1996); N.M. Stat. Ann. § 44-1-8 (Michie 2000); N.C. Gen.Stat. § 17-10 (1999); N.D. Cent. Code § 32-22-37 (1996); S.D. Codified Laws § 21-27-6 (Michie 1987). The historical foundation for these habeas penalty provisions was detailed in Goetz v. Black, 256 Mich. 564, 240 N.W. 94 (1932). That case noted as follows:

The right to a writ of habeas corpus is fundamental to personal liberty. Its sources in the common law go back to the earliest struggles for freedom, and precede the provision of the Magna Charta that no "freeman shall be taken or imprisoned ... unless by the lawful judgment of his peers, or by the law of the land." This pronouncement, however, was insufficient, for certain abuses arose.... It was found that frequently persons lawfully discharged on habeas corpus were recommitted to some secret place; officers were imprisoned and terrified to such a degree that they would no longer serve the writ; and there existed a general disregard of the right of habeas corpus by the Crown. These abuses are recited in the preamble to the statute of 31 [Charles] II, [chap.] 2. This act provided that a return must be made to a writ within three days of its service, prescribed heavy penalties for failure to obey the writ, and prohibited the recommitment of persons discharged on habeas corpus except by proper court order. It also extended the authority to grant habeas corpus to issuance of the writ during vacation time, and provided for a penalty of five hundred pounds to be paid by any authorized court or officer who failed to grant the writ required by the act to be assessed.

Id. at 95-96 (citations omitted)(first alteration in original); see also Oppenheimer v. Ashburn, 173 Cal.App.2d 624, 343 P.2d 931, 934 (1959)

.

¶ 8 Utah's version of the penalty statute has undergone very few changes since its earliest incarnations. In 1876, the territorial statute read as follows:

Any judge, whether acting individually or as a member of the court, who wrongfully and wilfully refuses to award such writ, whenever proper application for the same is made, shall forfeit and pay the sum of one thousand dollars, which may be recovered by an action of debt for the use of the Territory; and may be imprisoned for a term not exceeding one year.

1876 Utah Comp. Laws § 1142. The 1898 version removed the incarceration provision and increased the potential fine to five thousand dollars. See Utah Rev. Stat. § 1085 (1898). The statute has remained in substantially the same form since that time.

¶ 9 From its inception, the statute was intended to deter improperly motivated judicial denials of a procedural right.⁶ Though significant even by modern standards, five thousand dollars at the turn of the century was a considerably greater measure of relative wealth than it is today. The fact that this sum has remained unchanged for over a hundred years despite substantial fluctuations in the real value of the dollar during that period suggests that the statute is somewhat anachronistic. At the very least, it appears that the provision has simply evaded any serious legislative attention.

¶ 10 Many other states, recognizing the dilemma posed by a statute that arguably impinges upon the most fundamental aspects of judicial discretion, see, e.g., State ex rel. Walker v. Dobson, 135 Mo. 1, 36 S.W. 238, 240 (1896), have abolished habeas penalty provisions or apparently have limited their reach to lesser governmental officers who act in merely ministerial or administrative capacities when complying with court orders relating to writs of habeas corpus. See Oppenheimer, 343 P.2d at 933

(declaring habeas penalty against judges an unconstitutional violation of separation of powers and noting that California statute had been amended to delete all reference to judges); see also Cal.Penal Code § 1505 (Deering 1992) (liability applies to "officer or person to whom a writ of habeas corpus is directed"); D.C.Code Ann. § 16-1904 (1997) (liability applies to "officer or other person to whom a writ of habeas corpus is directed"); Md.Code Ann., Cts. & Jud. Proc. § 2-305(a) (1998) (liability applies to "any officer who neglects or refuses to bring a detained person into court when a writ of habeas corpus commands it"); Mass. Gen. Laws Ann. ch. 248, §§ 27, 30 (West 1988) (liability applies to "whoever refuses or neglects to receive and execute a writ of habeas corpus"); Mo.Rev. Stat. § 532.640 (2000) (liability applies to "any officer or other person, upon whom a writ of habeas corpus shall be duly served, [who] neglect[s] or refuse[s] to obey the same"); N.H.Rev.Stat. Ann. 534:27 (1997) (liability applies to "person to whom a writ of habeas corpus is directed [who] refuses to receive it, or conceals himself or avoids"); Ohio Rev.Code Ann. § 2725.21 (Anderson 2000) (liability applies to "a clerk of court who refuses to issue a writ of habeas corpus, after an allowance of such writ and a demand therefor"); id. § 2725.22 (liability applies to "person to whom a writ of habeas corpus is directed"); S.D. Codified Laws § 21-27-10 (Michie 1987) (liability applies to "any officer, sheriff, jailer, keeper, or other person to whom any writ of habeas corpus is directed");⁷ Texas Code Crim. Proc. Ann. art. 11.34 & 11.35 (Vernon 1977)(liability applies to "person charged with the illegal custody of another").

¶ 11 While Utah's habeas penalty statute has remained virtually unchanged since its inception, the statutory, political, and social landscape surrounding it has evolved substantially. Many of the other procedural provisions previously resident in the habeas title of the code have since been moved and...