Larry L. JACOBSEN, Petitioner-Appellant, v. The STATE of Idaho, Defendant-Respondent.
No. 12425
Supreme Court of Idaho
March 30, 1978
577 P.2d 24
“Q. How wide are these streams?
A. They’re real narrow, I’d say one to two feet.
* * * * * *
Q. But the creeks you’re talking about aren’t all necessarily an effective fire guard considering the small size?
A. That’s true.”
I then arrive at my conclusion. Here the federal government desires to assert а right to a minimum flow of water in the particular streams. They attempt to mask their intent by arguing that their needs dictate their usage of water in the streams in a defined, quantifiable amount, to wit, all of it.
I submit that such is not such a required quantification as will permit an orderly adjudication and administration of the waters nor fair usage of the waters as between the government for its reserved rights/needs and those of private appropriators. Such certainly defeats the congressional intent and purpose as expressed in the McCarran Amendment.
It may be that the U.S. Supreme Court will ultimately decide the question in favor of the federal government. Suffice that day should come without encouragement or premature action by this Court.
DONALDSON, J., concurs.
Wayne L. Kidwell, Atty. Gen., Jean R. Uranga, Asst. Atty. Gen., Boise, for defendant-respondent.
William J. Brauner, Caldwell, for petitioner-appellant.
This is an appeal from an order quashing a writ of habeas corpus by which appellant seeks to oppose his extradition from Idaho to the State of Wyoming. We affirm.
Appellant is charged by a criminal complaint with the commission of a crime in Wyoming; i. e., of removing mortgaged personal property from the jurisdiction of the secured party without the latter’s consent.
Appellant seeks reversal of the order quashing the writ of habeas corpus on a number of grounds, including, inter alia: the failure of the State to controvert the allegations in the petition for the writ; the alleged insufficiency of the extradition warrant issued by the Governor of Idaho; the alleged insufficiency of the Wyoming affidavit alleging commission of the crime; inadequate certification by the Governor of Wyoming of the authenticity of the affidavit sworn before the commissioner in Wyoming; that thе district court erred in ruling appellant was a fugitive from Wyoming; that appellant had not committed the crime of removing mortgaged property from the jurisdiction of the creditor; that appellant was being extradited in violation of Wyoming law since the extradition was not sought to prosecute a crime but to collect a private debt; that the affidavits of the prosecuting attorney in Fremont County, Wyoming, and the complaining witness falsely stated that the criminal proceedings
We note initially that habeas corpus,
It is also argued that the failure of the sheriff’s return to annex a copy of the documents under which custody of the appellant was held makes that return defective. We agree with the respondent that the omission, although erroneous, was harmless and was not objected to and that the originals of those documents were submitted to the district judge at the time of hearing. That was also the time set for the return to writ and if petitioner and his counsel deemed additional time was necessary to examine said documеnts or had objections to setting the time for the return and the hearing simultaneously, objection should have been made at that time with request for additional time. Since none was made, we deem the same harmless as none of appellant’s substantial rights were impaired. Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974).
Appellant contends that the warrant of the Governor for extradition was defective for noncompliance with
Appellant argues, however, that he is not a fugitive because he did not commit a crime. He contends he had permission from the creditor to remove the mortgaged personal property from Fremont County, Wyoming. The asylum state, however, is not authorized to inquire into the guilt or innocence of the accused as to the charged crime.
“The traditional ‘narrow scope’ extradition habeas corpus proceeding * * * countenances four avenues of attack upon the validity of custody in the asylum state pending extradition: (1) that the extradition papers are not in order, or are without proper authentication by the demanding state’s executive authority; (2) that the charge, whether by indictment or affidavit, is inadequate to support extradition, or is insubstantial; (3) that the petitioner is not the person named in the extradition papers; (4) that the petitioner is not a fugitive from the demanding state’s justice because he was not within the demanding state at the time of the alleged offense.”
Note, Extradition Habeas Corpus, 74 Yale L.J. 78, 91 (1964) (footnotes omitted). As contrasted with the above, the “broad scope” inquiry considers whether extradition would result in subjecting the fugitive to cruel and unusual punishment in the demanding state. Such is not in issue here. Neither the traditional “narrow scope” inquiry or any other entitles appellant to oppose extradition on the ground that he is innocent of the charged crime in the demanding state.
Appellant further оpposes extradition on the ground that the pending prosecution in Wyoming is brought to enforce a private claim. We note that Wyoming law forbids the use of criminal extradition process to enforce private claims.
Appellant next contends that the affidavit attached to the Wyoming extradition documents is inadequate in that it does not charge him with the commission of every element essential to the crime. However, we hold that all that is necessary is that the affidavit substantially charge him with the commission of a crime.
We note a lack of unanimity among those jurisdictions which have considered the question of whether there must be a probable cause determination prior to extradition either in the demanding or asylum state. Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967), was the first case to so hold and has been followed by several other cases. See Ierardi v. Gunter, 528 F.2d 929, 930-31 (1st Cir. 1976); United States ex rel. Grano v. Anderson, 446 F.2d 272 (3d Cir. 1971); Wellington v. South Dakota, 413 F.Supp. 151 (D.S.D.1976); United States ex rel. Mayberry v. Yeager, 321 F.Supp. 199 (D.N.J.1971); Pippin v. Leach, 188 Colo. 385, 534 P.2d 1193 (1975); People v. Doran, 401 Mich. 235, 258 N.W.2d 406 (1977); Sheriff v. Thompson, 85 Nev. 211, 452 P.2d 911 (1969); Smith v. Helgemoe, 369 A.2d 218 (N.H.1977). As to those jurisdictions holding that the asylum state is not entitled to make a probable cause inquiry in extradi-
While we recognize that substantial disruption of the accused’s affairs results not only from сonfinement but also from transportation to a potentially distant jurisdiction, nevertheless, other considerations lead us to reject the assertion that the asylum state must make a probable cause inquiry in cases where the demanding documents substantially charge the commission of a crime. The extradition clause of the federal constitution was designed to facilitate expeditious interstate renditions of accused persons and it contemplates “the prompt return of a fugitive from justice as soon as the state frоm which he fled demands him.” Sweeney v. Woodall, 344 U.S. 86, 90, 73 S.Ct. 139, 141, 97 L.Ed. 114 (1952). Accord, People ex rel. Kubala v. Woods, supra. We deem it impractical to require more than an examination of the demanding papers for the formal requirements of
Even assuming arguendo that probable cause is required, the sworn affidavits and the criminal complaint executed in Wyoming and which accompany the demanding documents establish probable cause to believe that the appellant removed mortgaged personal property from Fremont County without the consent of the secured party in violation of Wyoming law.
Following oral hearing, the parties were required to submit supplemental briefs as tо whether I.R.C.P. 52(a) requires written findings and conclusions in habeas corpus proceedings. I.R.C.P. 52(a) indeed requires findings and conclusions in actions tried without a jury. However, prior to comparatively recent amendment, I.R.C.P. 81(a) directed that the Rules of Civil Procedure were inapplicable to “special statutory proceedings,” which would exclude habeas corpus proceedings.
Written findings and conclusions facilitate appellate review. Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977). A substantial portion of all appellate work results from the review of habeas corpus appeals. See Schneckloth v. Bustamonte, 412 U.S. 218, 260 n. 14, 93 S.Ct. 2041, 36 L.Ed.2d 854 (Powell, J., concurring) (1973); The Supreme Court Term, 91 Harv.L.Rev. 1, 300 (1977) (Table III); 1976 Annual Report, Idaho Courts 30. We, therefore, hold that findings and conclusions should be prepared in habeas cases. Our view is in accord with the procedure that is utilized in the federal system under an analogous but not identical rule. 5A Moore’s Federal Practice, § 52.03[3], at 2671 n. 15 (2d ed. 1977); 9 C. Wright & A. Miller, Federal Practice & Procedure § 2573, at 685-86 nn. 32-36 (1971). We do not hold that all rules of civil procedure are fully applicable in habeas proceedings. Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). One example, arguably, would be that the liberal rules of discovery, normally applicable in civil cases, might be inappropriate in habeas cases. See generally Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038 (1970).
We have considered appellant’s other assignments of error or issues upon appeal and deem them to be without merit. The district court’s order quashing the writ of habeas corpus is affirmed.
McFADDEN and DONALDSON, JJ., concur in the result.
BAKES, Justice, concurring specially:
I concur in the result reached by the majority, but only because, as the majority opinion points out, the “sworn affidavits and the criminal complaint executed in Wyoming and which accompany the demanding documents establish probable cause to believe that the appellant removed mortgaged personal property from Fremont County without the consent of the secured party in violation of Wyoming law.” Without such a showing of probable cause I am of the opinion that any extended restraint of liberty following arrest, whether in an extradition proceeding or otherwise, would be illegal. Struve v. Wilcox, 99 Idaho 205, 579 P.2d 1188 (1978); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
BISTLINE, Justice, concurring and dissenting.
The writ is properly quashed because the record which we review sufficiently establishes probable cause for the arrest of the petitioner and his detention and surrender to Wyoming officials. To that extent, I concur, and since I believe the affidavit of underlying facts to be somewhat of a model, it is being set forth in a note.1
Where the opinion of the Court declares that extradition proceedings are exempt
In the first place, such a declaration is mere dictum. In the present case, the papers from the demanding state did show sufficient underlying facts to demonstrate probable cause to arrest, detain and extradite Mr. Jacobsen. The majority expressly so holds. The question of whether extradition proceedings are exempt from prоbable cause requirements would have to be faced only if the Court were to hold that probable cause was lacking. It is a fundamental principle of constitutional adjudication that a reviewing court will not pass on questions of constitutionality unless it is absolutely necessary to do so in order to determine the merits of the case. Curtis v. Child, 95 Idaho 63, 501 P.2d 1374 (1972).
Secondly, I question the judicial wisdom in making such a pronouncement in the face of overwhelming authority which points in the other direction. When the issue of probable cause in the extradition context arose at oral argument, the Court requested further briefing on the subject. The office of the Attorney General, in a thorough supplemental brief, has given us the benefit of its research on the matter. Therein the State directs our attention to Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967); Ierardi v. Gunter, 528 F.2d 929 (1st Cir. 1976); Montague v. Smedley, 557 P.2d 774 (Alaska 1976); Allen v. Cronin, 543 P.2d 707 (Colo.1976),2 which stand for the following proposition which I quote verbatim from the State’s supplemental brief:
A JUDICIAL DETERMINATION OF PROBABLE CAUSE MUST PRECEDE ANY SIGNIFICANT PRETRIAL RESTRAINT OF LIBERTY, INCLUDING RESTRAINT FOR PURPOSES OF INTERSTATE EXTRADITION.
Gerstein speaks the law for all fifty states. Where a majority of the Court unnecessarily insist on holding that probable cause need not be established in extradition proceedings in this State, I vote with Justice Bakes.
Were the Court’s opinion limited to the statement that a probable cause hearing is not required in the asylum state “in cases where the demanding documents substantially charge the commission of a crime,” and were there a correct elucidation as to the meaning of “substantially charging” the commission of a crime, then there would be a single opinion in this case. At oral argument counsel for the State explained that “substantially charge” means that the charges must be supported by a probable cause determination made by a magistrate. If it is understood that “substantially charge” carries with it the accomplished fact of a probable cause hearing in the demanding state, then ordinarily a probable cause hearing need not be had in the asylum state. In Ierardi the court considered the issue of whether there must be a judicial determination of probable cause prior to interstate extradition. In reaching its decision, the court relied on Gerstein for the proposition that “the Fourth Amendment requires a timely judicial determination of probable cause аs a prerequisite to detention.” Gerstein v. Pugh, 420 U.S. at 126, 95 S.Ct. at 869. The Ierardi court then said:
We agree with the district court that Gerstein requires a judicial determination of probable cause as prerequisite of interstate extradition. After Gerstein such a determination must precede ‘any significant pretrial restraint of liberty,’ 420 U.S. at 125, 95 S.Ct. at 868, and we think interstate extradition necessarily involves significant restraint. 528 F.2d at 930.
The court then concluded:
Respondents seem to assume that if a judicial determination of probable cause must precede extradition, it must be provided by the courts of the asylum state, where the fugitive is held. This is not so. Gerstein explicitly rejected the need for adversarial procedures; it required only the neutral and detached judgment of a judicial officer or tribunal, and contemplated that this could be provided before as well as shortly after arrest. Thus nothing in Gerstein prevents the demanding state from providing the requisite pre-rendition determination of probable cause. (Emphasis added.) Id. at 930-931.
As a result, the requisite pre-rendition determination of probable cause may be made by either the demanding state or the asylum state.
In Struve v. Wilcox, No. 12307, 99 Idaho 205, 579 P.2d 1188 (filed February 3, 1978), probable cause was discussed in connection with Rule 4 of the Rules of Criminal Practice and Procedure. Therein we pointed out that since territorial days an arrest warrant could only issue if the magistrate found in the deposition (affidavits) facts tending to establish the commission of the offense and the guilt of the defendant. In this jurisdiction, it has always been necessary to establish probable cause as a condition precedent to the issuance of a warrant to arrest and detain a person or seize his property. In State v. Arregui, 44 Idaho 43, 254 P. 788 (1927), a search warrant case, this Court held that the affidavit must set forth and disclose some personal knowledge of the underlying facts; the conclusions to be drawn therefrom are for the magistrate to draw. The underlying facts must be “sufficient upon which to find probable cause for the issuance of the warrant. . . .” State v. Arregui, id. at 63, 254 P. at 794. In the promulgation of Rule 4, I.C.R., “sufficient evidence” to justify a finding of probable cause became “substantial evidence.” Reasonably, then, it follows that a person is “substantially charged” with the commission of a crime when the affidavit or affidavits of underlying facts disclose substantial or sufficient evidence upon which to base a finding of probable cause. Mere conclusory allegations in a complaint, parroting the language of the particular statute involved, will not suffice. A reading of the majority opinion suggests to my mind that in the eyes of the majority “substantially charge” has no connection with a finding of probable cause, conveying the message only that the charge of the criminal complaint be complete enough to withstand a demurrer or motion to dismiss, whichever might be interposed in a particular jurisdiction.
The federal statute which was enacted to implement the extradition clause of the United States Constitution,
If such underlying probable cause were not the requirement of
Videan v. State, 68 Idaho 269, 194 P.2d 615 (1948), declared the judicial function in extradition proceedings:
The major questions for consideration relate to the authority of the Governor of the state of Idaho to issue a warrant of extradition based upon the contents of the requisition proceedings for the surrender of appellant. If those proceedings do not conform to the statutory requirements of this jurisdiction, or, are void for other reasons, then the action of the executive authоrity of this state was unauthorized in issuing a warrant for extradition to the demanding state. 68 Idaho at 271, 194 P.2d at 617.
Habeas corpus affords an opportunity for judicial review of the issuance of a governor’s warrant, i. e., to determine if the documents upon which the governor acted conformed to the statutory law of this jurisdiction. Our statute,
Notes
1. That I am the President of the American National Bank of Riverton, Riverton, Wyoming.
2. That on or about the 13th day of January, 1975, the bank took as security for a loan to Larry Jacobsen a security agreеment listing one 1974 Plymouth Trail Duster, V.I.N. AAOAT 4X115168.
3. That on or about the 22nd day of August, 1975, the American National Bank of Riverton took as security for a loan to Larry Jacobsen, one Renaissance LaPaz Billiard Table, Serial No. 93179, as set out on a security agreement signed by Larry Jacobsen that date.
4. That the debtor Larry L. Jacobsen was in default upon the note signed at the bank and, on or about August 28, 1975, I talked on the telephone to Larry Jacobsen long distance and told him that he was not to remove the property which the bank held as security from the Rivertоn vicinity.
5. That the 1974 Plymouth and the billiard table were located at the Frank Hill residence on Riverton Road, which residence was leased by Larry Jacobson.
6. Frank Hill has stated to me that Larry Jacobsen entered his house on Riverview Road on or about September 28, 1975 and removed one Quality Billiard Table and also removed one 1974 Plymouth Trail Duster along with other property held by the bank under security agreements signed by Larry Jacobsen.
7. That Ed Schmidt, Yellowstone Oil, Inc., West Main, Riverton, Wyoming, has stated to me that late the afternoon of Septembеr 27, 1975, Larry Jacobsen rented two U-Haul trailers from the station indicating destination for the U-Hauls as Nampa, Idaho.
8. That Larry Jacobson’s parents live at Nampa, Idaho.
9. That other mortgaged property held as security by the American National Bank of Riverton was taken from the Hill residence by Larry Jacobsen in addition to the billiard table and vehicle, including but not limited to, one 1967 Pontiac Grand Prix, Frigidare washer and dryer, a Magnavox stereo and Magnavox TV.
10. That at no time did the American National Bank of Riverton give consent to Larry Jacobsen to remove the mortgaged property from Fremоnt County and had, in fact, given a specific order to Mr. Jacobsen not to remove such property from the residence on Riverview Road in Fremont County.