Madsen v. Larsen

527 P.2d 227, 1974 Utah LEXIS 612

• Court: Utah Supreme Court
• Decided: October 2, 1974
• Docket: No. 13559
• Status: Published

Opinions

HENRIOD, Justice:

Appeal from a dismissal of Madsen’s petition for writ of habeas corpus. Reversed.

Plaintiff was indicted in California, whose Governor asked his extradition. He was picked up and charged as a fugitive from justice. Utah’s Governor Rampton held a hearing. Apparently a transcript was prepared which is not in the record here. Also it would appear that by stipulation the transcript was admissible in the instant case, — all pursuant to Title 77-56, Utah Code Annotated 1953.

At the habeas corpus proceeding everyone conceded that the only issue was identification of the plaintiff, where ordinarily the plaintiff has the burden of proof.¹ Under the unusual circumstances of this case, however, where Title 77-56 invites habeas corpus proceedings before extradition is effected, presumptively the state would furnish the transcript supporting its effort to extradite, — which it didn’t.

This case has a record so short that it represents a brochure of a brochure. The following colloquy represents the entire record so far as this case is concerned:

Housley (plaintiff’s attorney): Your Honor, this is a Habeas Corpus case, and the only issue is Mr. Madsen’s identity. The Governor’s warrant in support of it referred to a Dennis Madsen with no middle name, no address, no other means of identification. I made a check and there are at least four other Dennis Madsens in the area, possibly five.

Court: What area, California?

Housley: No, Salt Lake and northern Utah area. One of them is in Orem, one is in Magna, two are in Salt Lake, that area, and our position is, your honor, that the papers and the warrant are insufficient on their face to support the arrest and return of Dennis Madsen.

Bullen (Attorney for State): My understanding was that there was a hearing held before the Governor on the issues.

Housley: That is true.

Bullen: And apparently satisfied the Governor. I don’t have a trascript at this time.

Court: That is the entire basis for your Writ?

Housley: Yes, sir.

Court: Well, over your strenuous objection I will deny the petition for the Writ and the Governor’s warrant will be granted.

Housley: Your Honor, may I have a stay of ten days in the execution of the warrant so I can perfect my appeal ?

Court: Yes.

We think that under the circumstances, the only reasonable and just thing to do under the statute and cases, is to return this case to the trial court for the purpose of conducting an evidentiary hearing, — and can see no good reason otherwise, in good conscience.

A few observations must be made about the dissent in this case. It is bottomed principally on two cases: 1. Moreaux v. Ferrin and 2. Scott v. Beckstead, two of our own Utah cases. Both seem to he inap-ropos here and not at all dispositive of the instant case.

In Moreaux there was a plenary hearing, with direct and cross examination made available; there were findings and conclusions entered based on the evidence; the evidence adduced at the Governor’s hearing was available and introduced. None of these factors was a work product in the instant case. In Moreaux there was a stipulation as to what eventuated at the extradition hearing and it was agreed that Moreaux was “the person named in the information.” Such fact was not stipulated here, but on the contrary the gravamen of the instant proceeding was proof of identification which was resolved without evidence and only by way of an apodictic gratuity indulged by the trial court over counsel’s “strenuous objection,” — about which there is no intimation here.

Scott v. Beckstead equally is inapposite. There was a plenary hearing; the opinion there asked two questions: 1) Whether the evidence supported plaintiff’s identity, and 2) Whether he was a fugitive. Here no such evidence was permitted, and the trial court assumed something (the Governor’s infallibility) that to date has not been tested under common ordinary rules of due process. The suggestion that petitioner should have proffered some kind of testimony seems somewhat absurd in the light of the colloquy mentioned above, together with the almost unbelievable statement of counsel for the State that he did not have a transcript of the Governor’s proceeding with him at this important hearing involving a man’s freedom, — when the State itself, through our statute, provoked this very habeas corpus hearing and, we think, in all good conscience, should have had its evidence at the hearing. Scott v. Beck-stead generally states general principles with which the main opinion has no quarrel, but its decision was arrived at after a protracted evidentiary hearing, where all the basics of due process were present, including charge, notice, answer, joinder of issues, direct examination, cross-examination, findings of fact based on the evidence, and conclusions, prior to judgment, —most of which were not existent but quite ethereal here. [Emphasis added.]

ELLETT and TUCKETT, JJ„ concur.

1 . Scott v. Beekstead, 13 Utah 2d 428, 375 P.2d 767 (1962).