STATE v. POWELL

STATE v. POWELL
2010 OK 40
Case Number: 106175
Decided: 05/11/2010

THE SUPREME COURT OF THE STATE OF OKLAHOMA

STATE OF OKLAHOMA, Petitioner,
v.
CLYDE POWELL, Respondent.

ATTEMPTED APPEAL FROM ORDER OF DISTRICT COURT OF
CRAIG COUNTY GRANTING HABEAS CORPUS

¶0 Respondent, committed to state psychiatric hospital after being found not guilty of murder by reason of insanity, successfully sought release from confinement by original proceeding in habeas corpus before the District Court of Craig County, Hon. James D. Goodpaster, District Judge. Upon State's request, the District Court certified its order for interlocutory appeal and State sought certiorari for its attempted appeal under

ATTEMPTED APPEAL DISMISSED.

Gene Haynes, District Attorney, James W. Ely, Jr. Assistant District Attorney, Vinita, Oklahoma, Attorneys for Petitioner,
Cathy Stocker, District Attorney, John L. Scott, Assistant District Attorney, Enid, Oklahoma, Attorneys for Petitioner.
Winston H. Connor, II, Stockwell and Connor, Miami, Oklahoma, Attorney for Respondent.

EDMONDSON, C.J.

¶1 This is an attempted appeal by the State of Oklahoma from the judgment of the District Court of Craig County allowing a writ of habeas corpus. In 1990, Mr. Powell was committed by the District Court of Garfield County to the hospital for psychiatric treatment after he was found not guilty by reason of insanity of the murder of his mother. The writ ordered the release of Clyde Powell from the Oklahoma Forensic Center, formerly Eastern State Hospital, based on evidence that Mr. Powell is now sane. Because there is no appeal from an order granting habeas corpus, we dismiss it.

¶2 Under the Constitution and statutes of Oklahoma, the Supreme Court, Court of Criminal Appeals, all other appellate courts and the District Courts have concurrent original jurisdiction to hear and determine habeas corpus. Art. 7, §§ 4,7, Oklahoma Constitution;

¶3 The state's arguments to the contrary notwithstanding, there is no question that Mr. Powell had a right to bring this action in habeas corpus to seek his release from confinement. Title

¶4 It is well-settled in Oklahoma that the order of the district court in a habeas corpus proceeding is not subject to review on appeal. Since the beginning of the last century, this Court and the Court of Criminal Appeals have held that no appeal can be taken from a decision in habeas corpus discharging a petitioner restrained of his liberty. Wisener v. Burrell,

¶5 In Wisener, this court dismissed the appeal brought by a county sheriff from an order of the district court in habeas corpus discharging a prisoner held in custody for extradition. The court recognized that statutory authority and court decisions varied among the states, but held appeals from a decision in habeas corpus discharging a person from restraint do not lie in Oklahoma. The Wisener court cited Judge Doyle's discussion in Ex parte Johnson explaining that habeas corpus decisions were held not reviewable under general laws for appeal from all final judgments and noting that Oklahoma has no specific statutory provision for appeals in this class of cases. Judge Doyle concluded that if the legislature had intended to provide for appeals in habeas corpus, an appropriate provision would have been made in our statutes: "Its omission affords the best evidence to the contrary, and, if anything is wanting to remove all doubt, it will be found in the nature and object of this great writ as a constitutional right; its purpose being to afford a speedy remedy to a party . . . without obstructing or delaying public justice, both of which objects would be defeated by the delays consequent upon an appeal. Any other rule would operate practically to subvert the constitutional safeguards and the fundamental rights of the citizen." Wisener, 118 P. at 1000.

¶6 Wisener

[I]f the discharge of the applicant upon a writ of habeas corpus, before a court or judge having jurisdiction, is an order or judgment from which a appeal can be taken to this court, necessarily attended with unavoidable delay, the value of the great writ as a safeguard of person liberty is, at least, greatly impaired, if it is not changed into a means of oppression.

¶7 The Wisener court emphasized that Article II, Section 10 of the Oklahoma Constitution provides that "the privilege of the writ of habeas corpus shall never be suspended by the authorities of this State," stating:

[O]ur Constitution on this subject is as broad as it may well be. Section 10 of article 2, commonly known as the "Bill of Rights," provides in broad and comprehensive terms that "the privilege of the writ of habeas corpus shall never be suspended by the authorities of this state." It is to be noted that the language of the Constitution is not merely that the writ of habeas corpus shall never be suspended, but it is the privilege of the writ which is never to be suspended. "Privilege," according to Webster (Webster's New International Dictionary), means "special enjoyment of a good, or exemption from an evil or burden," etc. "Suspended" is defined as "temporarily inactive or inoperative; held in abeyance."

Undoubtedly courts, sheriffs, and other public officers of the state are authorities thereof, and if a party invoking the privilege of this writ may be reincarcerated by a sheriff, or other officer, on the order of a court or judge of the state, pending an appeal, then unquestionably his privilege under the operation of the writ would not only be suspended, but virtually destroyed and denied. So jealous have the people been of an opportunity being afforded every citizen for a speedy determination of the righteousness of his incarceration, that they have placed the power to adjudicate that question in every court of record and judge thereof in the state. Id., at 1001.

¶8 In Ex parte Logan,

¶9 The district court's order in habeas corpus releasing Mr. Powell is not capable of invoking our appellate cognizance and we dismiss this appeal for want of appellate jurisdiction. In view of our decision, we do not address the other questions raised by the state.

¶10 EDMONDSON, C.J., HARGRAVE, WATT, COLBERT, REIF, JJ. - Concur

¶11 TAYLOR, V.C.J., OPALA, KAUGER, WINCHESTER, JJ. - Dissent

TAYLOR, V.C.J., with whom OPALA and WINCHESTER, JJ. join, dissenting.

I dissent. The issue of the release of this criminal defendant should be fully reviewed and determined by the original sentencing court in Garfield County pursuant to Title 22, Oklahoma Statutes, Section 1161. I would grant the relief requested by the State of Oklahoma.

FOOTNOTES

1 These considerations do not apply to a habeas corpus controversy concerning the custody of a child. There the real issue is recognized as one between private parties who are in a contest of private rights which does not involve any question of personal liberty, so that matters in issue raised on the same facts which were determined in a prior proceeding should be seen as settled and final and a bar to a subsequent proceeding on the same facts. Such an order is binding and conclusive, a final order under the general law concerning appeals from final judgments. Jamison v. Gilbert, 1913 OK 541, 135 P. 342, 342-343; Hedtke v. Kukuk, 1923 OK 873, 220 P. 615.

OPALA, J., with whom TAYLOR, V.C.J., KAUGER and WINCHESTER, JJ., join, dissenting

¶1 The court holds today that because an appeal does not lie from a writ of habeas corpus, the State's quest for review of a certified interlocutory order in a habeas corpus proceeding must be dismissed. I recede from the court's pronouncement. Wisener v. Burrell, 1911OK 128, 118 P. 999,1 the case relied on by the court, may no longer be treated as entitled to precedential force. It is in plain discord with today's statutory regime of appealable district court decisions.

I

THE COURT'S REVIVAL OF ITS 1911 EXCLUSION OF HABEAS CORPUS
WRIT FROM APPELLATE REVIEW IS UNSUPPORTED BY ANY VIABLE
NORM OF PRESENT-DAY LEGISLATION

¶2 The petition for the command of a writ of habeas corpus now initiates a civil case that does not differ in its legal characteristics under the current pleading code2 from any other civil action.3 The command, whether issued or denied by the court, is but a functional equivalent of any other civil judgment that disposes of a claim.4 Whether the same was true in 1911 need not be here inquired into. It is enough to observe that there is no dissimilarity today. What might have been true in 1911 is utterly immaterial. What matters now is that a suit for a writ is no different in its basic complexion from any other civil case.5 Ascribing to it a categorical difference is patently incorrect. I hence conclude the writ's command is an appealable civil judgment. This court's pronouncement in Wisener v. Burrell does not need to be any longer accorded precedential value and continue to be treated as having stare decisis force. A claim's adjudication by judgment in a civil case that takes the form of a judicial command effected by the court's writ is no less appealable than a judgment by declaration of rights, although a civil judgment must continue to be distinguished from a judgment in a criminal prosecution.

¶3 Continued segregation of habeas corpus for inclusion in some separate category by judicial fiat that is contrary to post-1984 pleading code classification of actions would be tantamount to recalling from its 1984 grave the now repealed class of nonexistent special proceedings.

II

TODAY'S EXCLUSION OF HABEAS CORPUS WRITS FROM THE BROAD
CATEGORY OF CIVIL JUDGMENTS AS A BASIS FOR DENIAL OF THE
BENEFIT OF AN APPEAL OFFENDS THE PROCEDURAL SYMMETRY
MANDATED BY ART. 5 § 46, OKL. CONST.

¶4 The right of a litigant to appeal is purely statutory. Courts cannot fabricate exceptions in the absence of statutory language clearly excluding a category of litigation from the benefit of appeal. If the judiciary were allowed so to do it would enjoy the privilege of arbitrarily excluding from statutory categories those appeals which it would deem to be undesirable. There is no longer any constitutional or legislative warrant for singling out habeas corpus writs from (a) other writs as well as from (b) the broad category of civil judgments to make them unappealable.

¶5 Assuming that in Wisener v. Burrell the court intended to bar all corrective relief of habeas corpus writs (by appeals as well as by certiorari and by review through the exercise of this court's original jurisdiction), its pronouncement is unsupported by any presently effective norm of law. The habeas corpus writ's exclusion from the broad category of judgments, which are appealable, would clearly violate the procedural uniformity mandate of Art. 5 § 46, Okl. Const.7 Our own jurisprudence, no less than the Legislature's enactments, must faithfully conform to the fundamental law's prohibition against nonuniform (asymmetrical) laws on prohibited subjects.8

¶6 In sum, there is neither statutory nor jurisprudential authority for the post-1984 bar of habeas corpus writs from any form of appellate review. This court's pronouncement is pure and simple ipse dixit. It cannot stand. Like other writs, the habeas corpus writ is a judgment that must be deemed included within the category of appealable dispositions by the district court. No forensic decision may, by mere judicial fiat, become immune to corrective relief of an appellate tribunal.

¶7 I would grant certiorari to review the certified interlocutory order.

FOOTNOTES

1 Wisener v. Burrell, 1911 OK 128, 118 P. 999, teaches that no appeal lies from the issuance or denial of a writ of habeas corpus. For early pre-1984 cases relying on Wisener, see, e.g., Ex parte Logan, 1912 OK 29, 126 P. 800 (denial of an appeal from an order in habeas corpus by one held pending extradition for a criminal prosecution); Ex parte Kincade, 1944 OK 245, 151 P.2d 796, 194 Okl. 356 (denial of an application for a writ of habeas corpus to secure release from a state hospital for the insane).

2 The Code of Civil Procedure (based on the Field Code's fact-pleading regime) governed Oklahoma civil pleading before its repeal in 1984. The present Oklahoma Pleading Code, 12 O.S.2001 §2001 et seq, enacted in 1984, is patterned on the notice-pleading regime of the Federal Rules of Civil Procedure. "The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure...." 12 O.S.2001 § 2001.

3 All forms of actions at common law stand abolished since statehood. St.1893 §3882; R.L.1910 § 4650; 12 O.S.1981 § 10 (Code of Civil Procedure); 12 O.S.2001 § 2002 (1984 Pleading Code). "The provision for only one form of action ... has been characterized as the most fundamental rule of notice pleading." Committee comment to 12 O.S.2001 §2002.

The pre-1984 Code of Civil Procedure, 12 O.S. 1981 §3, recognized special proceedings as a class separate from actions. The provisions of 12 O.S.1981 § 4 defined an "action." A "special proceeding" was defined as "every other remedy." Two kinds of actions were recognized by the pre-1984 Code - civil and criminal. 12 O.S.1981 §6. See, e.g., State v. Scarth, 1931 OK 561, ¶10, 3 P.2d 446, 151 Okla. 178; El Reno Wholesale Grocery Co. v. Taylor, County Treasurer, 1922 OK 107, 209 P. 749, 753, 87 Okla. 140 (overruled on other grounds). Habeas corpus was a special proceeding when Wisener v. Burrell, supra note 1, was pronounced.

The 1984 statutory conversion from fact to notice pleadings necessitated a fundamental change in the pattern of constituent ingredients for a more simplified procedural regime of civil litigation. Elimination of "special proceedings" was part and parcel of that comprehensive legislative reform of the law that now governs pleadings in civil cases.

The 1984 Pleading Code abolished the dichotomy of civil actions and special proceedings in the previous Code of Civil Procedure, 12 O.S.1981 §§3-6. The law of Oklahoma now recognizes but two forensic causes (court cases): a civil (12 O.S.2001 §2002) and a criminal (22 O.S.2001 §10) action. The Legislature states in 12 O.S.2001 §2002 "[t]here shall be one form of action to be known as a 'civil action.'" See committee comment to § 2002.