Unnamed Prisoners v. Maranville

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 90-188
 
 
Un-named Prisoners of the Temporary     Supreme Court
Waterbury Correctional Facility
                                        On Appeal from:
     v.                                 Washington Superior Court
 
 
Stephen Maranville, Superintendent
of the Temporary Waterbury              April Term, 1990
Correctional Facility, individually
and as agent of Joseph Patrissi,
Commissioner, Department of
Corrections
 
 
Alden T. Bryan, J.
 
Daniel J. Lynch of Lynch & Hadden, St. Albans, for plaintiffs-appellants
 
Edward D. Sutton, Chittenden County Deputy State's Attorney, Burlington,
   for defendants-appellees
 
 
PRESENT:  Allen, C.J., Peck, Gibson and Morse, JJ.
 
 
 
     PER CURIAM.   Petitioners filed for a writ of habeas corpus in superior
court seeking release from incarceration following a district court's
orders denying them bail.  Charged with unlawful trespass arising from
abortion protests, petitioners had declined to provide information about
their identities in district court.  On March 30, 1990, the superior court
ordered that petitioners be released on April 4, 1990 unless the district
court by that date set forth its reasons for holding them without bail.  The
superior court stated:
          The District Court should then fashion what it perceives
          to be sufficient under 13 V.S.A. { 7554 to ensure each
          defendant's appearance and to protect the public.  If
          there are justifications for holding a particular de-
          fendant without bail at this point, the District Court
          can indicate its reasons.  From that point, any defend-
          ant so advised may appeal to the Vermont Supreme Court
          in the normal course of bail review.
 
The superior court added that after district court review,
 
          [a]bsent a stated reason by the District Court for being
          held without bail, any petitioner identified by number
          in the petition as to whom bail and/or conditions are
          not set by said time and date, should be released.
 
The district court thereupon reviewed the status of petitioners and issued a
lengthy memorandum of decision on April 3, 1990, concluding that "those
persons who have refused to provide reasonable identification" shall
continue to be held without bail.  Petitioners have appealed the superior
court decision, but not the later district court decision, despite authority
to do so.  13 V.S.A. { 7556(b); see State v. Duff, ___ Vt. ___, 563 A.2d 258 (1989); State v. Lambert, 145 Vt. 315, 487 A.2d 172 (1985).  At oral
argument in this Court, petitioners' counsel stated that no bail appeal was
available under law, that is, that 13 V.S.A. { 7556(b) was inapplicable.
Counsel did not cite Vermont authority for the proposition that no appeal
was available by statute, and we are not aware of any decision so holding.
The statute on its face provides for appeal to "a single justice of the
supreme court who may hear the matter or at his discretion refer it to the
entire supreme court for hearing."  13 V.S.A. { 7556(b).
     It should be noted at the outset that the manner in which the remedy
has been pursued and dealt with by petitioners does not comport with our
statutes and case law. (FN1)  Because of our disposition, however, we need not
reach the issue of whether the want of "technical nicety" should bar our
consideration of the matter altogether.  See In re Rickert, 124 Vt. 232,
234, 203 A.2d 602, 603 (1964).  Given the lengthy and complex procedural
history of this matter, we will assume arguendo that petitioners met the
minimum procedural requirements for bringing a petition for a writ of
habeas corpus to the superior court.  The superior court granted the
petition, though the scope of the relief was narrower than that sought by
petitioners.  Our first inquiry must be to determine whether petitioners
were entitled to habeas corpus relief in the first instance.  The record
does not support their entitlement to such relief.
     Habeas corpus proceedings are intended to be a quick and summary
procedure for relief from illegal imprisonment unimpeded by appeal and
review by the state.  In re Fitts, 124 Vt. 146, 150, 197 A.2d 808, 810
(l964).  They are not, however, an additional avenue for appellate review,
LaRose v. Superintendent, 146 Vt. 22, 24, 497 A.2d 30, 31 (1985), but are
"essentially a civil proceeding brought to test the legality of restraints
on the person."  In re Mears, 124 Vt. 131, 142, 198 A.2d 27, 34 (l964).
     The superior court made no determination that appeal from the district
court to this Court was effectively foreclosed, or that the district court
failed to abide by the hearing and review requirements of the bail statute.
See 13 V.S.A. {{ 7554(c) and (d), 7556.  The United States Supreme Court
considered a similar issue in Stack v. Boyle, 342 U.S. 1 (1951).  In that
case, federal defendants for whom bail had been set at $50,000 each sought
habeas corpus on grounds that the bail was "excessive" within the meaning of
the Eighth Amendment to the United States Constitution.  The federal
district court denied their petitions, and the Court of Appeals affirmed the
denial.  Noting that under federal law petitioners had a remedy by way of
motion in district court to reduce bail, with a right of appeal to the Court
of Appeals, the Supreme Court vacated the lower court orders because the
statutory right to appeal rendered habeas corpus unnecessary and therefore
unavailable.  Speaking for the Court, Chief Justice Vinson said:
            While habeas corpus is an appropriate remedy for one
          held in custody in violation of the Constitution, the
          District Court should withhold relief in this collateral
          habeas corpus action where an adequate remedy available
          in the criminal proceeding has not been exhausted.
 
            The Court concludes that bail has not been fixed by
          proper methods in this case and that petitioners' remedy
          is by motion to reduce bail, with right of appeal to the
          Court of Appeals.
 
Id. at 6-7 (citations omitted).
     In a separate opinion Justice Jackson stated:
            In view of the nature of the writ of habeas corpus, we
          should be reluctant to say that under no circumstances
          would it be appropriate.  But that writ will best serve
          its purpose and be best protected from discrediting
          abuse if it is reserved for cases in which no other
          procedure will present the issues to the courts.  Its
          use as a substitute for appeals or as an optional
          alternative to other remedies is not to be encouraged.
          Habeas corpus is not, in the absence of extraordinary
          circumstances, the procedure to test reasonableness of
          bail.
 
Id. at 10-11.  Justice Jackson's words fit the posture of the present matter
precisely.  We regard the ancient writ with equal homage, and with equal
fervor strive to keep it safe from abuse.  Since the superior court did not
conclude that a bail appeal pursuant to 13 V.S.A. { 7556(b) was unavailable
in the particular circumstances of the cases before it, its order was
premature.  The superior court, without making any preliminary deter-
minations that review in the Supreme Court was not available or effective in
the particular circumstances of these cases, simply decided, much as this
Court might do on a bail appeal, that "Chapter II, Section 40, of the
Vermont Constitution does not permit defendants to be held without bail on
charges not punishable by death or life imprisonment."  The superior court
might properly have considered that issue had it first determined that no
appeal lay to this Court in the circumstances of these particular cases,
but it made no such preliminary finding.
     We hesitate to denominate the superior court order as within the ambit
of habeas corpus in the absence of a finding that on the circumstances of
the cases before the superior court, there was no available appeal from the
district court decision.  As for petitioners' claim that they were entitled
to immediate release by order of the superior court, we must reject it.  As
we have stated, habeas corpus cannot be used as a substitute for an appeal.
See In re Dobson, 125 Vt. 165, 166, 212 A.2d 620, 621 (1965).
     Nevertheless, in the interests of justice we conclude that petitioners
should not be subjected to further delays, even if past delays were in part
due to their own inaction and inappropriate choice of forum.  We exercise
our authority under V.R.A.P. 2 to treat the present appeal from the superior
court order as also having been taken from the April 3, 1990 order of the
district court, noting that the labeling of the desired relief sought is
less important than its substance.  Cf. Berard v. Moeykens, 132 Vt. 597,
598-99, 326 A.2d 166, 167 (l974)(habeas corpus petition treated in the
interests of justice as one for post-conviction relief).  We note that under
13 V.S.A. { 7556(b), "[t]he appeal shall be determined forthwith"; our
order accordingly sets forth a timetable for briefs and oral argument.
     Pursuant to V.R.A.P. 2 the present appeal from Superior Court shall be
treated as a perfected appeal from the April 3, 1990 order of the Vermont
District Court.  The petitioners and the state's attorney are directed to
file whatever additional memoranda of law they desire to have considered,
together with such portions of the record on appeal they deem necessary for
our consideration, not later than May 4, 1990, and the matter shall be set
down for hearing on the merits on May 7, 1990 at 9:00 a.m.
 
                          BY THE COURT:
 
 
                          Frederic W. Allen, Chief Justice
 
 
                          Louis P. Peck, Associate Justice
 
 
                          Ernest W. Gibson III, Associate Justice
 
 
                          James L. Morse, Associate Justice
 



FN1.   The documents before this Court fail to demonstrate such compliance.
The process by which the petitioners are restrained was not annexed to the
complaint as required by 12 V.S.A. { 3954.  The petition is deficient in
that it fails to provide fair notice of what petitioners' claims are and the
grounds upon which they rest.  See Reporter's Notes, V.R.C.P. 80.4.  The few
facts that are set forth in the complaint were not properly verified
pursuant to 12 V.S.A. { 3955.  The petitioners failed to furnish sufficient
information to the judge to permit compliance with the dictates of 12 V.S.A.
{ 3960, which requires them to be designated by name if known, and allows
some other description only when a name is unknown or uncertain DD
conditions which have not here been claimed.