Williams v. North Carolina

189 N.W.2d 858, 33 Mich. App. 119, 1971 Mich. App. LEXIS 1708

Opinions

Lesinski, C. J.

On September 29, 1969, the State of North Carolina filed an application for requisi tion of plaintiff as a fugitive from justice pursuant to the Uniform Criminal Extradition Act, MCLA § 780.1, et seq. (Stat Ann 1954 Rev § 28.1285[1], et seq.), (hereinafter cited as the Uniform Act). Upon the request of the Governor of Michigan, the state Attorney General conducted an investigation. MCLA § 780.4 (Stat Ann 1954 Rev § 28.1285[4]). The Governor, after due consideration of the matter, issued a governor’s warrant for plaintiff’s arrest. On the day that plaintiff was to be served with the arrest warrant and taken into custody, plaintiff instituted this action for a declaratory judgment decreeing that his extradition to North Carolina was illegal.¹ The trial court granted temporary restraining orders and temporary injunctions enjoining defendants from progressing with plaintiff’s extradition pending final adjudication of the merits of plaintiff’s challenge to the validity of the proceedings. The trial court later dismissed the action and dissolved the outstanding injunctions. From this, plaintiff appeals to this Court.

The Uniform Act sets forth judicial relief from an arrest pursuant to an invalid extradition by way of a writ of habeas corpus2 An older statute, not part of the Uniform Act, indicates that the legality of an arrest under the governor’s extradition warrant may be tested by means other than by writ of habeas corpus.3 In any event, although both statutes recognize a remedy after arrest, neither provide for relief prior to the arrest.

Defendant contends that an extraditee may, in addition to applying for a writ of habeas corpus after his arrest, seek a declaratory judgment challenging the extradition proceedings prior to his arrest.⁴ Even assuming arguendo that declaratory relief may properly be sought under these circumstances, it is clear that the granting of such relief is grounded within the sound discretion of the trial court. OCR 1963, 521.1; Molinaro v. Driver (1961), 364 Mich 341, 354; United States Fidelity & Guaranty Company v. Kenosha Investment Company (1963), 369 Mich 481. The trial court believed that any inquiry into the validity of plaintiff’s extradition prior to arrest would not be any more protective of his rights than the traditional method of inquiry in habeas corpus proceedings, and that plaintiff would suffer no irreparable harm by a denial of declaratory relief since he would be immediately entitled to apply for a writ of habeas corpus upon being taken into custody. Moreover, the trial court was of the opinion that, by further entertaining' declaratory relief, unnecessary delay in extraditing plaintiff would result and that the best interests of plaintiff would be served by speedy resolution of the extradition proceedings. Under these circumstances, we are unable to find an abuse of discretion in denying plaintiff his declaratory relief.⁵

Affirmed.

R. B. Bukns, J., concurred.

Footnotes

1

Defendant alleged in his complaint that (1) the Attorney General’s opinion to the Governor was erroneous as to fact and law; (2) that the extradition papers from North Carolina wore irregular in that they were forged; (3) that plaintiff was not a fugitive from justice; (4) that the crime was not a punishable offense; and (5) that North Carolina sought plaintiff’s extradition for political, racial, and malicious .motives.

2

The statute, MCLA § 780.9 (Stat Ann 1954 Eov § 28.1285[9]), provides as follows:

“No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.”

See, also, In re Rayborn (1969), 18 Mich App 468; Rutledge v. Ingham County Sheriff (1970), 21 Mich App 726.

3

MCLA § 776.7 (Stat Ann § 28.1264), reads in pertinent part:

“But the sheriff, while the alleged fugitive is in his custody and before delivering him up to the agent of the demanding state, shall afford him every facility to enable him to have a judicial examination if he desires it, by habeas corpus or otherwise, to ascertain whether the demand and arrest have been made conformably to the requirements of law.” (Emphasis supplied.)

4

The scope of review in passing upon a writ of habeas corpus by the courts of the custody state is generally limited to questions of identity, fugitivity, and regularity of the extradition procedure. Drew v. Thaw (1914), 235 US 432 (35 S Ct 137, 59 L Ed 302); In re Rayborn, footnote 2. It is doubtful whether the scope of review is any broader when the action is one for a declaratory judgment. Wacker v. Bisson (CA5, 1965), 348 F2d 602, 606.

Plaintiff rightly points out that declaratory relief may be decreed despite the existence of some other remedy. GCR 1963, 521.1; 521.3. Plaintiff maintains that the older extradition statute (see fn 3), apart from the Uniform Criminal Extradition Act, MCLA § 780.1 et seq. (Stat Ann 1954 Rev § 28.1285[1] et seq.), recognizes the existence of remedies other than writs of habeas corpus. We are told by plaintiff that the fact this statute is effective only after arrest is not, in and of itself, significant for the person whose extradition is certain and imminent and who wishes to mount an early attack on his impending extradition is, practically speaking, without an adequate remedy by way of a writ of habeas corpus since that writ may not be applied for until he has been taken into custody.

While the use of declaratory judgments is not favored after arrest and after initiation of the criminal process, Updegraff v. Attorney General (1941), 298 Mich 48, declaratory relief may be wholly appropriate where the prisoner wishes an adjudication of his rights prior to arrest. Strager v. Wayne County Prosecuting Attorney (1968), 10 Mich App 166.

5

Nothing from the above should intimate what disposition we will make should a situation arise in the future when a trial court exercises legitimate judicial discretion in favor of granting declaratory relief.