United States ex rel. Means v. Solem

• Decision Date: 08 November 1977
• Docket Number: Civ. 77-4100.
• Citation: 440 F. Supp. 544
• Parties: UNITED STATES of America ex rel. Russell C. MEANS, Relator, v. Herman SOLEM, Warden of the South Dakota State Penitentiary, Sioux Falls, South Dakota, Respondent.
• Court: U.S. District Court — District of South Dakota

440 F. Supp. 544

UNITED STATES of America ex rel. Russell C. MEANS, Relator, v. Herman SOLEM, Warden of the South Dakota State Penitentiary, Sioux Falls, South Dakota, Respondent.

Civ. 77-4100.

United States District Court, D. South Dakota, S. D.

November 8, 1977.

Sidney B. Strange, Sioux Falls, S. D., and Kenneth E. Tilsen, St. Paul, Minn., appeared in behalf of the relator.

Gary J. Pashby, Special Deputy States Atty., of Sioux Falls, S. D., appeared in behalf of the respondent.

Stephen L. Pevar, American Civil Liberties Union, of Denver, Colo., appeared as amicus curiae.

MEMORANDUM DECISION

NICHOL, Chief Judge.

Relator, Russell C. Means, seeks a writ of habeas corpus, pursuant to 28 U.S.C. 2254, contending that the decision of the South Dakota Supreme Court revoking his appeal bond has resulted in his imprisonment in violation of the United States Constitution.

This imprisonment is the result of the latest involvement of the relator with the courts of South Dakota. The involvements pertinent to this action began with a disturbance that occurred at the Minnehaha County Courthouse in Sioux Falls, South Dakota, on April 30, 1974. As a result of this disturbance, relator was charged by information with the crime of "rioting to obstruct." S.D.C.L. 22-10-4.

At the request of the relator, that charge was tried to the court, and on December 15, 1975, the South Dakota Circuit Court found Russell Means guilty of the crime charged. On December 31, 1975, the court entered a judgment of conviction and sentenced relator to a four year term in the state penitentiary. That conviction is currently on appeal to the South Dakota Supreme Court. On the day that the state trial court entered its decision, Means made a motion to that court for an order admitting him to bail pending appeal.

On January 6, 1976, the trial court entered its order admitting defendant to bail provided he complied with certain conditions, which were:

1) That defendant deposit $2,000 cash bail;

2) That defendant obey all laws;

3) That defendant waive extradition;

4) That defendant will refrain from participating in any American Indian Movement activities except the following.

(a) Fund raising,

(b) The International Indian Treaty Organization,

(c) Any activities of the American Indian Movement within the courts.

5) That defendant report to court services every 15 days in person or by telephone and detail his activities and where he would be during the ensuing 15 day period;

6) That defendant personally appear at court services every 60 days to report and for questioning;

7) That defendant have his bail revoked if he is "held after either preliminary hearing or grand jury indictment to answer any criminal charge arising out of any occurrence that transpires after he is released on bail from this charge pending appeal";

8) That the bail will be revoked if the defendant is convicted of any criminal charge presently pending against him;

9) and That defendant refrain from consumption of alcoholic beverages.

On January 5, 1977, the state filed an application for an order revoking bail, alleging that defendant had violated conditions 4 and 8 of the trial court order admitting him to bail. Pursuant to that application, the South Dakota Supreme Court, on January 26, 1977, remanded the case back to the trial court for purposes of conducting an evidentiary hearing. The trial judge, acting as a referee, conducted an evidentiary hearing and found that relator had violated provisions 4 and 8 of the conditions in the order admitting defendant to bail. He made no recommendations on whether bail should be revoked.

Relator applied to the South Dakota Supreme Court for an order amending the conditions of bail by striking conditions 4 and 8. On September 9, 1977, the state Supreme Court decided the matter:

(W)e hold that defendant's application for an amendment of the order admitting him to bail is denied, and we further hold that the state's motion for revocation of bail be granted and an order entered revoking defendant's bail and remanding him to custody. State of South Dakota v. Means, S.D., 257 N.W.2d 595, at p. 602, filed September 9, 1977.

In reaching that decision, the South Dakota Supreme Court found that a revocation of bail on the finding of the referee that relator had violated condition 8 of the order was not by itself justified but that the referee's finding of a violation of bail condition 4 supported, or rather demanded, a revocation of bail.

The referee's finding of a violation of condition 8 was based on the evidence that in November of 1976, Russell Means pled guilty to a misdemeanor assault charge in Morton County, North Dakota. That plea was the product of a plea bargain in which an original charge of aggravated assault and battery was reduced to the misdemeanor charge. On that conviction relator was sentenced to thirty days in jail, which was suspended, a $100 fine, and certain restitution. Because of the plea bargaining and the lenient sentence, the South Dakota Supreme Court considered this evidence of a guilty plea insufficient, alone, to justify bail revocation.

The finding that the court did consider sufficient to revoke bond, a violation of condition 4, arose out of an incident that occurred in Sisseton, South Dakota. There, in the fall of 1976, six male Indians had been charged with six counts of attempted murder and one count of riot while armed. This had caused a potentially explosive situation between the local Indian population and the white members of the community. In order to voice certain demands and thereby alleviate tensions, various Indian leaders had requested, and received a meeting with local law enforcement officials. The state court found that the Indians at the meeting made it clear that they represented the American Indian Movement. Russell Means was among those present at that meeting. He, along with his brother, Bill, led the presentation of demands. These demands included:

1) that the bond for the six defendants be reduced;

2) that a more complete investigation of telephone bomb threats to the jail housing the six defendants be conducted;

3) that an investigation be made to insure that the families of the six jailed individuals would not be in jeopardy or be threatened in any way; and

4) that a community forum be set up to enable members of the community an opportunity to air their dissatisfaction with the way in which local law enforcement was being handled.

The meeting was characterized by the state's attorney as "a very orderly meeting", and "rather useful, in fact." From this evidence the South Dakota Supreme Court revoked relator's bond. Two justices dissented and found that the meeting at Sisseton did not justify bail revocation. From this decision, the relator applied for a rehearing before the state supreme court. On September 30, 1977, the South Dakota Supreme Court denied the petition for rehearing and issued orders revoking the bond and directing the relator to report to the Minnehaha County Sheriff no later than October 14, 1977, at 5 p.m.

On October 7, 1977, the South Dakota Supreme Court denied relator's motion for stay pending the filing of a petition for writ of certiorari before the United States Supreme Court.

On October 11, 1977, an application for Stay of Order revoking bond or for bail was presented to the Honorable Justice Blackmun, Circuit Justice for the Eighth Circuit. On October 14, 1977, a temporary stay was issued. Then, on October 31, 1977, the United States Supreme Court denied relator's application. The Court tersely stated:

The order heretofore entered on October 14, 1977, is vacated and the application for stay of the order of the Supreme Court of South Dakota, dated September 9, 1977, is denied. Mr. Justice Blackmun, joined by Mr. Justice Brennan, and Mr. Justice Marshall, being concerned about the First Amendment implications of the vacation of the stay, dissents and would continue the stay pending plenary consideration of the South Dakota Supreme Court's revocation of the applicant's bail.

As required, the relator reported for imprisonment at 6:00 p.m. on November 1, 1977. Prior to reporting, however, the relator sought a stay from this Court. In addition, relator filed an application for a writ of habeas corpus. This Court, in deference to the United States Supreme Court order of the previous day, denied the stay but granted oral argument on relator's application for writ of habeas corpus so that the petition could be promptly considered by this Court. Oral argument of counsel was heard on November 4, 1977.

As the procedural history reflects, there is little doubt that relator has exhausted his state remedies as required by 28 U.S.C. 2254(b). McInnes v. Anderson, 366 F.Supp. 983, 987 (E.D.Okl.1973). The issue then arises as to whether the state's revocation of an appeal bond presents an issue for review under 28 U.S.C. 2254. As the language of the statute clearly provides, there are essentially two initial requirements for a proper 2254 action. First, the petitioner or relator must be "a person in custody pursuant to the judgment of a State court." There is no dispute that Russell Means satisfies this requirement. Second, petitioner is required to demonstrate that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a). In other words, "petitioner must show an infirmity of constitutional dimension in the state court proceedings." United States ex rel. Cameron v. People of State of New York, 383 F.Supp. 182, 183 (E.D.N.Y.1974). That represents the crux of the matter here.

As the court noted in United States ex rel. Rainwater v. Morris, 411 F.Supp. 1252 (N.D.Ill.1976), despite the Eighth Amendment of the United States Constitution, no court has held that there is an unqualified constitutional right to bail. See also McInnes v. Anderson, supra at 987. There the court stated: "It may be noted however that a...