Ostwald v. State

538 P.2d 1298, 1975 Wyo. LEXIS 156

• Court: Wyoming Supreme Court
• Decided: July 21, 1975
• Docket: 4374, 4467
• Status: Published

Opinions

RAPER, Justice.

This court in State v. Stern, Wyo. 1974, 526 P.2d 344, held § 6-130, W.S.1957, 1973 Cum.Supp.,¹ a misdemeanor, unconstitutional. The single question of whether or not the decision was applicable prospectively or retroactively, is now raised. The defendant-appellant seeks post-conviction relief from the judgment and sentence of the district court, dated March 29, 1973, by which he was committed to the Wyoming State Penitentiary on the original version of § 6-130, ² a felony, for a period of not less than five nor more than eight years for breaking and entering a locked and sealed building, to which charge he entered a plea of guilty. The defendant-appellant in the post-conviction proceeding has in addition as a petitioner filed directly in this court an application for writ of habeas corpus. The two matters have been consolidated because together they raise the same issue, namely, is he unlawfully confined because of his conviction under a statute subsequently held or determined to be unconstitutional ?³

While'this court has original jurisdiction to entertain applications for writs of ha-beas corpus pursuant to Article V, § 3, Wyo. Const.,⁴ it does not do so unless a showing is made of circumstances which render it necessary or proper that the writ if granted should issue originally from this court. Rule 16, Rules of the Supreme Court of Wyoming.⁵ Such a showing has been made in that the case will resolve the question of the retroactive or prospective effect of this court’s holding § 6-130, W. S.1957, 1973 Cum.Supp., unconstitutional. The decision will involve the status of a number of prisoners convicted and presently serving sentences as convicts under that section and could have other far-reaching effects on others as will be developed later in this opinion. To save delay and the possibility of a multiplicity of suits by way of habeas corpus actions and post-conviction proceedings as well as coram nobis which could result in a conflict of rulings in the several judicial districts of the state, we deem it of public interest to take jurisdiction for prompt and uniform application and disposition of the question as it may arise in the future and to settle the concern of those immediately affected.

The post-conviction proceeding raised a question which has become moot⁶ and upon the suggestion of appellant-defendant, the appeal should be dismissed for that reason, but the appeal record can be used to assist in touching a question of landmark proportions.

Without discussion, for the same reasons cited in Stern, the original § 6-130 is unconstitutional and we deem it declared so in that case, the change in penalty being miniscule. This is admitted by the State.

The attorney general reports that on the recent date of filing one of its briefs herein there were eight men incarcerated in the Wyoming State Penitentiary for breaking and entering, one being held for breaking and entering and burglary, three for breaking and entering and grand larceny, one being held for breaking and entering and as a result of probation violation arising out of the judgment and sentence, one for breaking and entering, jail breaking, joyriding and as a result of probation violation arising out of the judgment and sentence, and another for breaking and entering, burglary, grand larceny and as a result of probation violation arising out of the sentence. Whatever this court does in this case is of immediate interest to those presently held on similar charges.

The Supreme Court of the United States has said on various occasions that a statute declared unconstitutional was no law and that no rights or duties could flow from such an enactment. As an example, it was announced in Norton v. Shelby County, 1886, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178, 186, that:

“ * * * An unconstitutional Act is not a law; it confers no rights, it imposes no duties; it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”

It said something similar in Ex parte Siebold, 1880, 100 U.S. 371, 376, 25 L.Ed. 717, 719,⁷ when it profoundly announced:

“ * * * An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot he a legal cause of imprisonment. * * * ”

The sweep of such statements is deceiving. We find in practice that unconstitutional statutes are in fact realities and past decisions made under them have substance under the doctrine of res judicata. In Warring v. Colpoys, 1941, 74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025, cert. den. 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543,⁸ the court was confronted with the identical question that we have here:

“Is one entitled to a discharge under a writ of habeas corpus where the court had power under the statutory construction to punish his acts in a criminal contempt proceeding at the time the acts were done and the sentence imposed, the court not having such power under a new statutory construction at the time the writ of habeas corpus was filed? * * *

The court, speaking through Justice Vinson, later a justice of the United States Supreme Court, said:

“It has been commonly thought that if an act is declared unconstitutional, it never had any force or effect. Yet a realistic approach is eroding this doctrine. In the instant case the reason why it is considered that appellant may be entitled to discharge is because the statute never gave the court contempt ‘jurisdiction’ over his type of offense. * * * When a statute is declared unconstitutional it falls because it must yield to the basic, superior law. There is much more reason to argue that the-unconstitutional statute never was the law. Yet today even such a statute is an operative fact and decisions made under its color have the blessing of res judicata.

“All of the loose ends presented in this discussion on the effect of altering the law can be pretty well tied together when it is realized that law is not a pure science, that law loses its vital meaning if it is not correlated to the organic society in which it lives, that law is a present and prospective force, that law needs some stability of administration, that the law is all the law there is, that law is more for the parties than for the courts, that people will rely upon and adjust their behavior in accordance with all the law be it legislative or judicial or both.

⅜ ⅜ ⅜ * ‡ ⅝

“We believe that appellant is not entitled to discharge upon the habeas corpus writ. * * * ”

Warring is so rich in practicality, it could well be adapted as the opinion in this case.⁹ But we must move on to identical views taken by the United States Supreme Court. In Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329, reh. den. 309 U.S. 695, 60 S.Ct. 581, 84 L. Ed. 1035, the court had the question before them and said:

“The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. [Citing Norton, supra, and another case.] It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. * * * ”

Even Justice Douglas, dissenting in most cases, has acknowledged in another earlier dissent that, “An unconstitutional statute is not necessarily a nullity; it may have intermediate consequences binding on peo-pie.” Poulos v. State of New Hampshire, 1953, 345 U.S. 395, 422, 73 S.Ct. 760, 775, 97 L.Ed. 1105, 1122, 30 A.L.R.2d 987, 1004, reh. den. 345 U.S. 978, 73 S.Ct. 1119, 97 L.Ed. 1392. See also Wainwright v. Stone, 1973, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179, in which a prisoner convicted and sentenced under a sodomy statute subsequently held void for vagueness (same as Stern) and expressly ruled prospective ^by the Florida Supreme Court, sought habeas corpus relief in the federal system. The Supreme Court in a rare per curiam decision declared:

“ * * * Nor was it constitutionally compelled * * * to make retroactive its new construction of the Florida statute: ‘[a] state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.’ Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360, 85 A.L.R. 254 (1932). * * *”

Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601,¹⁰ brought to a climax and explained the entire field of retroactivity, bringing into focus the actuality and practicality of prospective rather than retroactive application, of court decisions declaring a fundamental phase of the criminal law unconstitutional, in any sphere. It laid to rest as out of tune with the times the concept of Norton v. Shelby County, supra. It settled most matters of controversy and concluded that, with respect to reaching a determination of whether a decision should be retrospective or prospective: there is no distinction drawn between civil and criminal litigation; a ruling may be prospective only and it may apply to the invalidity of statutes11 as well as to the effect of a decision overturning long-established common law rules; the constitution neither prohibits nor requires retrospective effect and the federal Constitution has no voice upon the subject; and, the accepted rule today is that in appropriate cases in the interests of justice, a court may make its decision prospective.

There are those who would opine and argue that there is some difference between a rule of procedure, constitutionally ill, and a statute infected by the same disease. The line of demarcation is invisible. To best illustrate its insignificance, put the question to the penitentiary convict. He could care less whether he was unconstitutionally there by procedure, rule, statute, or whatever. All are equally fundamental and the same liberty is involved. No more weight can be attached to one than any other. This is recognized in Miskimins v. Shaver, 1899, 8 Wyo. 392, 407, 58 P. 411, 414, 49 L.R.A. 831, 836, when it said, “The supreme court of the United States,[¹²]in a recent case, say: ‘It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction under a valid law.’ ” This case is cited by appellant and petitioner but does not reach the issue of retroactivity with which we are concerned. It deals only with habeas corpus as available to deal with an unconstitutional procedure, in an active individual case and held that the trial court had no jurisdiction to confine for unconstitutional conduct. There is no question of the concept of res judicata involved. To use it as authority is in the same class as using Norton or Siebold. We draw a line between current convictions and those previously final. A criminal will be given the benefit and effect of a change of law while a case is on direct review but thereafter the change is subject to no set rule of retroactivity. It is an incentive to him to advocate and promote constitutional reform and keep a constitution viable and vibrant. He must have some reward for his discovery.

In Stovall v. Denno, 1967, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203, the court declared that Linkletter v. Walker, supra; Tehan v. United States ex rel. Shott, 1966, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, reh. den. 383 U.S. 931, 86 S.Ct. 925, 15 L.Ed.2d 850;¹³ Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, reh. den. 385 U.S. 890, 87 S.Ct. 12, 17 L.Ed.2d 121, all establish the principle that in criminal litigation concerning • constitutional claims, “ ‘the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application’ ” and that:

“ * * * The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. * * * f>

The effect and purpose of Stern was to conclude any further prosecutions for breaking and entering under the existing statute. As indicated in Johnson, supra, each constitutional determination has its own distinct function, its own background, impact on the administration of justice “and the way in which, these factors combine must inevitably vary with the dictate involved.” ¹⁴

For 77 years Wyoming prosecutors depended upon this statute; no statistics are available but from the number of persons now incarcerated in the Wyoming State Penitentiary, as previously mentioned, and reconstructed back through the years, it has apparently played an active role in law enforcement, either alone or in combination with other offenses. Prosecutors and defendants, too, relied upon it, unconcerned that in the future it may bear the taint of unconstitutionality. We have no idea how many defendants may have entered pleas of guilty to breaking and entering by way of plea bargaining to avoid other charges and trial. To smoke them out of the annals of history would be a monumental task. In any event they were or are incarcerated by trustworthy evidence and means which we must assume in the absence of appeal. Another unknown is how many are on probation as a result of conviction under § 6-130; to run them down is an unreasonable burden on law enforcement. The administration of justice will be bur-denied by petitions in coram nobis over long-closed cases, though sentences have been served or probation ended. Important civil rights were lost as a result and both the State and the defendants themselves relied and acted upon and anticipated that important and serious result.

We must apply considerations of common sense to temper cold logic, with justice to all segments of what we like to believe is a civilized state government. We can visualize no useful purpose that would be served in reopening the cases of all those presently incarcerated, to determine the effect of the breaking and entering in prosecutions on multiple counts or to determine whether a plea bargain must be set aside to permit a prosecution on the dismissed charge and otherwise review each case. Witnesses have disappeared; time has probably eaten away the possibilities of an effective further prosecution and the State will have been placed in a position of disadvantage by its reliance on the statute.

Another consideration, perhaps little thought of, is that if every constitutional change requires retroactive effect to every proceeding in which it could be applied, regardless of vintage, there may be a judicial hesitancy to dictate change because of the flurry of new litigation in old cases. A case must end; it cannot go on ad infini-tum. A judiciary in its zeal to close cases and keep them closed may not embark upon desirable constitutional change because of the everwidening wake it leaves behind on churning up the calm. Courts are reluctant to make waves. The reopening of convictions would be endless. There is stability and comfort in repose.

As said in Linkletter, “there are interests in the administration of justice and the integrity of the judicial process to consider.” ¹⁵ Wyoming statutes down through the years have not been annotated to the point where a full compilation of cases involving persons who have been prosecuted under § 6-130 and their convictions affirmed one way or another by this court is possible as a practical matter but we do find the following on the books: Fullmer v. Meacham, Wyo. 1964, 387 P.2d 1007; Whiteley v. State, Wyo. 1966, 418 P.2d 164 (this case was reversed by the Supreme Court of the United States on unrelated grounds); Spiker v. State, Wyo. 1967, 427 P.2d 858, It probably does not make any difference whether there were three or a dozen or a hundred, we must not fritter away the effort made in the massive judicial consideration devoted to the statute over the years.

While no Wyoming court has decided the question of the retrospective effect of a declaration of unconstitutionality, we do have quite a few cases that say that statutes are presumed to be constitutional. Examples are National Tailoring Company v. Scott, 1948, 65 Wyo. 64, 94, 196 P.2d 387, 400; Taxpayers’ League of Carbon County v. McPherson, 1936, 49 Wyo. 251, 275-276, 54 P.2d 897, 906, 106 A.L.R. 767, 778. If a statute is presumed constitutional, it would seem to follow, without straining, that the statute with respect to breaking was constitutional until it was declared unconstitutional and entitled to every consideration as such.

We know that it has been or will be contended that it is not fair that Stern be discharged but no others violating the same law contaminated by unconstitutionality. The cry is heard in every case where ret-roactivity is denied. Stovall v. Denno, supra, even answers that complaint:

“ * * * Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.”¹⁶

It was rather neatly summarized, in In Re Lopez, 1965, 62 Cal.2d. 368, 42 Cal.Rptr. 188, 196, 398 P.2d 380, 388, cert. den. 384 U.S. 1016, 86 S.Ct. 1929, 16 L.Ed.2d 1038, reh. den. 385 U.S. 891, 87 S.Ct. 16, 17 L. Ed.2d 123, “We no longer subscribe to that ‘splendid myth’ of Blackstone that all constitutional interpretations are eternal verities that stretch backwards and forwards to infinity.” ¹⁷

After full consideration of all the factors, we are not able to say that the Stern decision requires retrospective application.

The appeal taken in the post-conviction proceeding is dismissed as moot. The application for writ of habeas corpus filed originally in this court is denied. All cases finally decided prior to the decision in Stern shall remain undisturbed. By “finally decided,” we refer to those cases where the judgment of conviction was rendered and the availability of appeal exhausted.

1 . “Whoever, at any time, unlawfully breaks and enters, or attempts to unlawfully break and enter, into any locked or sealed dwelling house, office, storehouse, warehouse, church, meeting house, or building used for the purpose of religious worship, car factory, tool house, freight house, station house, depot, railroad car, cave or cavern, courthouse or other public building, or other building whatsoever, is guilty of a misdemeanor, and shall be imprisoned in the county jail not more than one year or [fined] a fine of not more than $500 or both.” [Enacted by Session Laws, 1973, Ch. 143, § 1.]

2 . “Whoever, at any time, unlawfully breaks and enters, or attempts to unlawfully break and enter, into any locked or sealed dwelling house, office, storehouse, warehouse, church, meeting house, or building used for the purpose of religious worship, car factory, tool house, freight house, station house, depot, railroad car, court house or other public building, or other building whatsoever, is guilty of a felony, and shall be imprisoned in the penitentiary not more than fourteen (14) years.” [Before amended by Session Laws, 1973, Oh. 143, § 1.]

3 . We could write a book-size opinion on this problem, analyzing, comparing, probing, investigating and citing from the mountain-size heap of paper that has been piled up by the courts and scholars. We consider that Link-letter, infra, has done the sorting out, so this opinion will be held to minimum proportions. For those interested, a list of references appears in People v. Fields, 1974, 391 Mich. 206, 216 N.W.2d 51, footnote 2, which incidentally holds that a decision invalidating a statute providing waiver of probate court jurisdiction over certain juveniles charged with crimes would be given retroactive effect only as to cases pending prior to adoption of a new statute and in which issue of waiver was raised and properly preserved on appeal. There is a comprehensive annotation in 10 A.L.R.3d 1371 covering Prospective or Retroactive Operation of Overruling Decision. We voice no new thoughts but only those left after the chaff has been blown away by the winds of reasoning and debate over an extended time.

4 “The supreme court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and in habeas corpus. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of a person held in actual custody, and may make such writs returnable before himself or before the supreme court, or before any district court of the state or any judge thereof.”

5 . “In any application made to the court for a writ of habeas corpus, mandamus, quo warranto, or for any prerogative writ to be issued in the exercise of its original jurisdie-dietion and for which an application might have been lawfully made to some other court in the first instance, the petition shall, in addition to the necessary matter requisite by the rules of law to support the application also set forth the circumstances which, in the opinion of the applicant, render it necessary or proper that the writ should issue originally from this court, and not from such other court, and the sufficiency or insufficiency of such circumstances so set forth in that behalf will be determined by the court in awarding or refusing the application. In case any court, justice, or other officer, or any board or other tribunal, in the discharge of duties of a public character, be named in the application as defendant, the petition shall also disclose the name or names of the real party or parties, if any, in interest, or whose interest would be directly affected by the proceedings; and in such case it shall be the duty of the applicant obtaining an order for any such writ to serve or cause to be served upon such party or parties in interest a true copy of the petition and of the writ issued thereupon, and to file in the office of the clerk of this court evidence of such service.”

6 . Defendant sought reduction of his sentence to that of a misdemeanor in the light of the amendment from felony to misdemeanor. He could not have the benefit of the lessened penalty even if proper, because the amended statute was declared unconstitutional before the appeal was concluded. We rule on no question therein raised. The court file of petitioner’s conviction is, however, pertinent and forms by consolidation with the habeas corpus action a full record for our consideration.

7 . The court made this broad statement to justify its jurisdiction to examine the constitutionality of an Act of Congress on an application for writ of habeas corpus. It found the Act constitutional and denied the writ. The case did not examine nor even involve the problem of retroactivity.

8 . In Shepardizing this case, we found a galaxy of jurisdictions accepting it with wide approval one way and another. In Sunal v. Large, 1947, 332 U.S. 174, 182, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982, 1989, reh. den. 332 U.S. 785, 68 S.Ct. 29, 92 L.Ed. 368, and 333 U.S. 877, 68 S.Ct. 895, 92 L.Ed. 1153, we discover Justice Douglas citing Warring with agreement for the proposition that habeas corpus will not be allowed to do service for an appeal:

“ * * * If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.”

As nearly as we can discover, the Supreme Court of the United States has never put down Warring.

9 . Justice Vinson went on to say:

“ * * * The District Court had the power to sentence him in a criminal contempt proceeding in 1939. * * * This collateral attack, then, is unavailing. We reject the idea that if a court was considered to have the power in 1939 to do a certain thing under existing statutory construction, and in 1941 that construction is changed so that it no longer has the power to do that thing, it should be concluded that it never had the power in 1939. It has often said that the living should not be governed by the dead, for that would be to close our eyes to the changing conditions which time imposes. It seems even sounder to say that the living should not be governed by their posterity, for that, in turn, would be downright chaotic.”

10 . Mishkin, The Supreme Court, 1964 Term, Forward: The High Court, The Great Writ and the Due Process of Time and Law, 79 Harv.L.Rev. 56, comments at length on Link-letter in a most interesting way, reaching the same result, by an alternate route.

11 . 381 U.S. 628, 85 S.Ct. 1736-1737, 14 L.Ed. 2d 607-608.

12 . No citation of the case, whatever it was, appears in the opinion. See Wainwright v. Stone, supra, Warring v. Colpoys, supra, and State v. Barquet, note 17, infra.

13 . “ ⅜ ⅜ * [W]e take as our starting point Linkletter’s conclusion that ‘the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective,’ that there is ‘no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application,’ in short that ‘the Constitution neither prohibits nor requires retrospective effect.’ Upon that premise, resolution of the issue requires us to ‘weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ 381 U.S., at page 628-629 [85 S.Ct. at 1737] 14 L.Ed.2d at 607, 608.”

14 . 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882, 889. We do not entirely quote the court in its exact language because it was dealing with a common law rule; we blend the guidelines into our specific problem.

15 . 381 U.S. at 637, 85 S.Ct. at 1742, 14 L.Ed. 2d at 613.

16 . 388 U.S. 301, 87 S.Ct. 1972, 18 L.Ed.2d 1206.

17 . We realize that some judges and courts will refuse to budge from the archaic altar of absolutism and are of a different mind than we. State v. Ingel, 1973, 18 Md.App. 514, 308 A.2d 223, in dealing with an unconstitutional abortion statute, is an example. But Ingel is balanced out by State v. Banquet, Fla. 1972, 262 So.2d 431, wherein its abortion statute was held unconstitutional because of indefinite, uncertain language and vagueness (same as Stern) but held within the decision itself that it was prospective only, declaring only that the rights of those previously convicted have been determined and the holding could give them no comfort. Another, State v. Edwards, 1955, 198 Tenn. 83, 277 S.W.2d 444, holds that a statute pertaining to sentencing held unconstitutional or invalid sometime after the defendant was sentenced did not entitle the prisoner to release under the later interpretation. The case of Warring v. Colpoys, supra, was followed. And then the federal circuits were evenly divided as to whether Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, reh. den. 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72, should be retroactive but Link-letter, supra, settled on prospective action only. See note 2 of Linkletter. We do not look down on the action of other courts not in accord with us with any feeling of meanness. We realize that without a critical view of each other’s work, the eventual “perfect solution” will not be sifted out.