Edward Lyle OSTWALD, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). Edward Lyle OSTWALD, Petitioner, v. Lenard MEACHAM, Warden, Wyoming State Penitentiary, Respondent.
Nos. 4374, 4467
Supreme Court of Wyoming
July 21, 1975
538 P.2d 1298
Affirmed in part and reversed in part. Remanded to the district court with directions to vacate the order finding and holding defendant in contempt and enter in lieu thereof a money judgment in favor of plaintiff and against the defendant in the sum of $1,950.00.
John M. Daly and Michael A. Maycock, of Burke, Daly & Maycock, Gillette, for appellant and petitioner.
David B. Kennedy, Atty. Gen.,* V. Frank Mendicino, Atty. Gen.,** H. J. Arnieri, Asst. Atty. Gen., Cheyenne, and Daniel J. Morgan, County and Pros. Atty., Campbell County, Gillette, for appellee and respondent.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
RAPER, Justice.
This court in State v. Stern, Wyo. 1974, 526 P.2d 344, held
* Term expired prior to oral argument.
** Appointed Attorney General, effective April 1, 1975.
While this court has original jurisdiction to entertain applications for writs of habeas corpus pursuant to
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
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
“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 be 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, 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. “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 people.” Poulos v. State of New Hampshire, 1953, 345 U.S. 395, 422, 73 S.Ct. 760, 775, 97 L.Ed. 1105, 1122, 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
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 stand-
ards, (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.”
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
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 infinitum. 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
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 retroactivity 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.
At the outset of this dissent I must reject the view of the majority that the sweep of statements in Norton1 and Siebold2 “is deceiving.” I must also reject the majority view that Linkletter3 “laid to rest as out of tune with the times the concept of Norton * * *.” While Chicot,4 a case involving the invalidity of a state statute, states that the observations of Norton “must be taken with qualifications,” which statement is reiterated in Linkletter, I believe that the Siebold rule has been recognized, accepted, and applied by this Court in Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411, 49 L.R.A. 831 (1899), and can see no reason for qualification or rejection of the rule in this case. Were I to concede that various decisions of the Supreme Court of the United States establish for that jurisdiction the rule that any decision denying the constitutionality of a statute may in the discretion of the court be declared retroactive or prospective in its application, I would further reject any notion that such ruling is binding upon the disposition that we are to make of this case.
In my view Miskimins clearly recognizes the distinction between a judgment which is merely erroneous and one which is entered without jurisdiction or authority. An erroneous judgment can be corrected only by appeal; one entered without authority is null and void and leaves the judgment open to collateral attack at any time. It follows, I think, that a judgment of conviction under an unconstitutional criminal statute is one entered without jurisdiction or authority to act and is therefore null and void.
Before considering the facts and holding in Miskimins, I would discuss Siebold and the law there established. Petitioners therein sought writ of habeas corpus from the United States Supreme Court, hoping thereby to upset a conviction in the United States District Court under a law which petitioners claimed was unconstitutional. Apparently they had not appealed their conviction in the usual way and as stated in the opinion,
“The question is whether a party imprisoned under a sentence of a United States court, upon conviction of a crime created and indictable under an unconstitutional act of Congress, may be discharged from imprisonment by this writ of habeas corpus, although the court has no appellate jurisdiction by writ of error over the judgment.” 100 U.S. at 374.
Pointing out that the only ground upon which the court could by habeas corpus give relief to a person convicted in another court “is want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void”5 the court continued, 100 U.S. at 375:
“This distinction between an erroneous judgment and one that is illegal or void is well illustrated by the two cases of Ex parte Lange (18 Wall. 163) [21 L.Ed. 872] and Ex parte Parks, 93 U.S. 18 [23 L.Ed. 787]. In the former case, we held that the judgment was void, and released the petitioner accordingly; in the latter, we held that the judgment, whether erroneous or not, was not void, because the court had jurisdiction of the cause; and we refused to interfere.”
and continued, 100 U.S. at 376-377:
“* * * [W]e are clearly of opinion that the question raised in the cases before us is proper for consideration on habeas corpus. The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. 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 be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court‘s authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority to award the writ. We are satisfied that the present is one of the cases in which this court is authorized to take such jurisdiction. We think so, because, if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws.6
“We proceed, therefore, to examine the cases on their merits.”
While it is true, as pointed out by the majority herein, that the court found the statute constitutional and denied the writ, the point of the case is that the whole justification for its entertainment of the application was on the basis that if the statute was unconstitutional, action thereunder was subject to collateral attack as being beyond the jurisdiction of the court.
In Miskimins the petitioner had been adjudged guilty of contempt for refusal to answer certain written questions asked of him in justice court. Application for writ of habeas corpus was denied by the district court and similar application was then filed with this Court. Following an extensive discussion of decisions and authorities relative to the use of this writ, our Court concluded that the question whether the constitutional privilege against self-incrimination had been violated went to the very jurisdiction of the court wherein the privilege was asserted and that it was therefore not necessary to raise the question by appeal. Habeas corpus was held to be a proper remedy. As I read the opinion, the basis of the holding is plainly that denial
“The acts constituting the alleged contempt are to be examined to ascertain whether in law they constitute a contempt, for if they do not the court was without jurisdiction to imprison and the petitioner is entitled to be discharged on habeas corpus.”
A number of cases supporting the view that unconstitutional action is void are cited and quoted from, and in my opinion our Court clearly accepts the principle that proceedings in violation of one‘s constitutional rights are considered not erroneous but void. Brown on Jurisdiction, with respect to the guarantee of constitutional rights, such as the right against self-incrimination, states:7
“* * * ‘The refusal of the court to grant each of the rights above enumerated or all of them goes to the jurisdiction; and if the court has jurisdiction to try the action, it seems to lose jurisdiction once acquired, by a disobedience of the mandates of the constitution; or, rather, the trial ceases to be a legal trial by a deviation from this course. Therefore, when any constitutional right or immunity of a person is violated, the judgment of the court is void. The Supreme Court of the United States, 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.” [8] Under this rule if a court errs in assuming jurisdiction where it does not possess it, or in interpreting a constitutional immunity or right secured thereby against the prisoner, or in refusing him a constitutional right, the jurisdiction over him ceases and its acts are not simply erroneous, but void. Therefore, it may be laid down as a rule of law, that the error of a court in construing any constitutional immunity or right in a criminal case against the accused is as fatal to the judgment as assuming jurisdiction originally where the court had none. Error in either case destroys the power to render any valid judgment, and if rendered it is not simply erroneous, but void. Brown on Jurisdiction, Sec. 97.‘” 8 Wyo. at 407, 58 P. at 414-415.
Our opinion then refers to In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, and quotes this pertinent passage:
“* * * ‘The distinction between the case of a mere error in law and of one in which the judgment is void is pointed out in ex parte Siebold, 100 U.S. 371, 375, 25 L.Ed. 717, and is illustrated by the case of ex parte Parks as compared with the cases of Lange and Snow.[9] In the case of Parks there was an alleged misconstruction of a statute. We held that to be a mere error in law, the court having jurisdiction of the case. In the cases of Lange and Snow there was a denial of a constitutional right.‘”
Without entering into an extensive discussion of state decisions, I think there are several such opinions that are of point in this case and take a similar view. Thus in Ex parte Anderson, 125 Mont. 331, 238 P.2d 910 (1951), habeas corpus was held proper to test the right to proceed under an unconstitutional statute, after arrest and before trial, the court quoting directly from Siebold, 100 U.S. at 376. In State v. Ingel, 18 Md.App. 514, 308 A.2d 223, 227 (1973), certiorari denied October 16, 1973, the Court of Special Appeals of Maryland discussed decision of the Supreme Court of the United States concerning the principle of retroactivity, and noted that:
“* * * When the purpose [to be served by application of the new standards] involved the reliability of the fact determining process of guilt or innocence, the Court accorded full retroactivity to the decision, without regard to the other two criteria. The rationale of those decisions which accord full retroactivity to a holding clearly requires that a conviction based upon an unconstitutional statute not be permitted to stand no matter when obtained. A declaration that a statute prescribing conduct to be criminal is unconstitutional goes even beyond a question of the reliability of the fact determining process of guilt or innocence. The conduct unconstitutionally proscribed is not a crime; a conviction under it is not merely erroneous, it is illegal, and should not be the cause of punishment. * * * [Citing Siebold and Norton.] We have no difficulty whatsoever in determining that a decision that a criminal statute is unconstitutional must be fully retroactive so that a judgment thereunder shall not stand.”
In Engle v. Caudill, Ky., 288 S.W.2d 345, 346 (1956) the court had before it a petition for writ of habeas corpus filed after the statute under which petitioner had been convicted had been declared unconstitutional. Sentence had been pronounced in 1952 and the declaration of unconstitutionality was made in 1953. Pointing out that there had been some change of position on its part as to the right of collateral attack, the court said, referring to a previous decision, Commonwealth ex rel. Dummit v. Jefferson County, 300 Ky. 514, 189 S.W.2d 604, 607, 167 A.L.R. 512:
“* * * We noted that there is a recognized right to attack collaterally a judgment of conviction of a crime. As stated in a note appended to our Jefferson County case, supra, 167 A.L.R., p. 519, ‘The majority rule is that where a statute or ordinance making certain acts or omissions a crime is held unconstitutional or invalid, a final judgment predicated upon the validity of such legislation is void, generally upon the theory that the court had no jurisdiction to enter the judgment that it did.‘”
Cited as to the same effect was Harrod v. Whaley, Ky., 239 S.W.2d 480.
Other cases which seem to support this same position and which I do not think need discussion herein are Hiett v. United States, 415 F.2d 664 (5 Cir. 1969); McLaurin v. Burnley, 279 F.Supp. 220 (U.S.D.C.N.D.Miss.1967); Application of Boyd, 189 F.Supp. 113 (U.S.D.C.M.D.Tenn.1959); Bird v. Florida, Fla.App., 110 So.2d 52 (1959); Kahler v. Squire, 49 Wash.2d 911, 299 P.2d 570 (1956).
From all of this it seems to me to follow that if one is convicted and jailed for violation of a law which is unconstitutional, that judgment is void for want of jurisdiction and the question may be raised at any time, and may be by collateral attack upon the judgment. If a party may fail to raise constitutional objections upon an appeal and still raises those constitutional grounds in habeas corpus filed within a month or two, why may he not do the same two years or ten years after the conviction? So far as I am aware, a judgment which is void may be collaterally attacked at any time. I therefore am of the opinion that upon the facts of this case the conviction of Ostwald upon an unconstitutional statute was outside the jurisdiction of the sentencing court and therefore void.
Even if we accept the premise of Linkletter and other federal cases that a court may itself elect whether the ruling shall be prospective or retroactive, I do not think application thereof would permit a different result. The Supreme Court says that the constitution neither prohibits nor re-
The United States Supreme Court applies the rule on an ad hoc basis. In Stovall v. Denno, the most recent case which I have found, 388 U.S. 293, 296, 87 S.Ct. 1967, 1969, 18 L.Ed.2d 1199 (1967), citing Johnson v. State of New Jersey, 384 U.S. 719, 726, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the court says:
“These cases11 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 constitution require such an application’ . . . . 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. * * * Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice. * * *’ (Citing Johnson)”
In Johnson, 384 U.S. at 727, 86 S.Ct. at 1778, the court said:
“As Linkletter and Tehan acknowledge, however, we have given retroactive effect to other constitutional rules of criminal procedure laid down in recent years, where different guarantees were involved. * * * [Citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964).] In each instance we concluded that retroactive application was justified because the rule affected ‘the very integrity of the fact-finding process’ and averted ‘the clear danger of convicting the innocent.’ [Citing Linkletter and Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).]”
Is not a conviction under an unconstitutional statute such a conviction of the innocent?
Considering these cases, and assuming that practical consideration may warrant
“The effect and purpose of Stern was to conclude any further prosecutions for breaking and entering under the existing statute.”
The purpose of Stern12 was to declare unconstitutional a statute enacted by the legislature and which under many authorities therefore amounted to no law at all. The further observations that the law has been in effect for 77 years and has resulted in many persons being incarcerated in the Wyoming state penitentiary is to me unpersuasive if these are people whose liberty is presently denied by reason of conviction under a void judgment. Considering, then, this further statement in the opinion:
“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 burdened by petitions in coram nobis over long-closed cases. Those sentences have been served or probation ended.” (Emphasis supplied.)
I do not think that this represents the type of difficulty which is contemplated by the United States Supreme Court in its various decisions. Retroactive application of the rule declared in Mapp and possibly other cases would of necessity require new trials where the evidence has long since disappeared or become obscure. Application of the Stern decision to Ostwald‘s petition would mean only that his conviction for breaking and entering would be set aside. There would be no new trial on that charge. If the conviction was the result of plea bargaining or an unwise plea of guilty where other charges could have been filed, there may be a practical question as to what the prosecuting attorney would then do, but there is no question concerning what disposition must be made of the particular charge. I especially find unpersuasive the italicized portion of the last quotation and would observe that however trustworthy evidence may be, if the law is unconstitutional so that there is legally no crime, what matter if the evidence is crystal clear? I can see no reason whatever why the defendant should remain incarcerated.
With respect to the statement:
“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.“,
I think the useful purpose would be that since we operate under a constitutional system and people should be incarcerated and remain so only under constitutional laws, it is a complete miscarriage of justice to hold that Stern is free from conviction and sentence but that other people who have been convicted under the same unconstitutional law are required to serve their terms. If this makes waves, then let the storm blow.
My conclusion is that we are in no way bound by the decisions of the United States Supreme Court represented by Linkletter and the subsequent cases, and even under the rule of these cases we are free to adopt our own rule as to application of the Stern decision. At the present time I am not satisfied that there may not exist a
ROSE, Justice (dissenting).
I concur with the result reached in Mr. Justice McClintock‘s able dissent in this case and would add a sense of rebellion against the majority opinion with my own separate views:
It is my hope to reveal the distinction (which I am certain exists in law) between the authority relied upon by the majority and the authority of these dissenting opinions which I resolutely believe should be the law of this case.
If there exists the distinction which I will attempt to draw, it follows that the majority opinion reaches its conclusion to deny the writ through reliance upon inapplicable case and text authority. If, on the other hand, there exists no valid distinction between the case law and other supportive material upon which I rely, then this opinion is in error.
The dissent of Mr. Justice McClintock states:
“. . . in this case we should hold merely that the statute (
§ 6-130, W.S.1957 ) was unconstitutional, being unconstitutional the court was without jurisdiction to enter the conviction, and therefore the conviction should be set aside.” [Parenthetical matter mine]
I would go further to say that since the court in the original case lacked jurisdiction to send Ostwald to prison (by reason of our holding
First I would suggest that the question for resolution in this case is of the highest order. It is one of the “great issues” that courts must decide as that term is employed in the classical sense. Mr. Justice Raper, the author of the majority opinion, defines the problem when he asks:
“. . . is he (Ostwald) unlawfully confined because of his conviction under a statute subsequently held or determined to be unconstitutional?” [Parenthetical matter mine]
To put it in laymen‘s language:
Is it all right to enact a law which defines a crime—charge, try (or accept a guilty plea), and sentence to the penitentiary persons accused of violating it and then hold, in the Supreme Court of the State, that the criminal statute was unconstitutional, but, nonetheless, leave the prisoners in the penitentiary to serve their sentences?
The judge and lawyer niceties and word games about whether a law will be interpreted to be “retroactive” or “prospective” will not change the fact that Ostwald and others could be languishing in the State‘s prison and have assigned to them for life the other stigmata of criminality for having pled guilty to a charge authorized by a statute which the Supreme Court of Wyo-
How can this be reconciled in law or in conscience?
The majority opinion assumes that we are here involved with the question of resolving the retroactive or prospective effect of this court‘s having held
At the outset, I should say something about the terms “prospective” and “retroactive.” It is my belief that we have become “hung up” in an effort to deposit the question with which we are confronted herein into some kind of legal receptacles entitled “retroactive” and “prospective” when the problem was never meant to repose in those catacombs.
The question in the case is whether the lower court had jurisdiction to sentence a man to prison—not whether the Stern decision will be applied retroactively or prospectively.
We are not here assigned the task, as Mr. Justice Raper says, of resolving:
“the question of the retroactive or prospective effect of the court‘s holding
§ 6-130, W.S.1957 , unconstitutional.”
The reason for my saying this is because I do not find that the law applicable to the problem at hand even permits us to make that decision where, as here, the unconstitutional statute defines and provides a penalty for a crime and where the one applying for the writ of habeas corpus is a prisoner by reason of a void judgment entered under and by authority of the unconstitu-
Contrary to the majority‘s position, I suggest that the case with which we are concerned here presents a question of whether or not the sentencing lower court ever had jurisdiction over the cause or the person of Ostwald once
“the question of the retroactive or prospective effect of the court‘s holding
§ 6-130, W.S.1957 , unconstitutional.”
It isn‘t a retroactive or prospective question at all. It is a question of jurisdiction over the cause and the person. The law operates to establish the legal proposition that once the criminal statute under which Ostwald was sentenced had been held unconstitutional, it becomes, therefore, void ab initio—it was no law—and a purported offense committed under it was no crime—the conviction of Ostwald under such a statute was not simply erroneous5 in the sense that this court could now do with it what it pleased, including making retroactive or prospective application of the Stern holding, according to the court‘s will.
On the other hand, the conviction simply became illegal and void and the statute could not serve as a legal vehicle of Ostwald‘s imprisonment. Under the law, as I understand it, Ostwald‘s release from prison should be automatic with the recording of the Stern decision. There is nothing left for courts to do but release him. We are not in the position of being called on to see if the Stern decision should apply retroactively or prospectively because the lower court lacked jurisdiction at any stage of the proceedings.
The retroactive or prospective question comes to us for decision making when there is an overruling decision in procedur-
I distinguish the problem here energized by this petition for habeas corpus from those cases upon which the majority relies and in which constitutional appeals of criminal procedure are involved and where the courts have overruled various of their earlier decisions and have expanded the rights of the defendant, especially in connection with the due process clause of the Fourteenth Amendment. I have in mind Mapp v. Ohio, 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, overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, where it was held that as a matter of due process evidence obtained through an unreasonable search and seizure was inadmissible in criminal proceedings in a state court—Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, in which the overruling decision held that as a matter of due process a state was required to furnish counsel to an indigent defendant in criminal proceedings involving a non-capital offense—Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, overruling Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, reh. den. 346 U.S. 842, 74 S.Ct. 13, 98 L.Ed. 362, holding that due process was violated by a state court procedure which left the question whether a defendant‘s confession was voluntary to the ultimate determination of the jurors who tried him—and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, where a prisoner had initiated habeas corpus proceedings some time after his conviction, where it was held that the overruling decision of Mapp v. Ohio (overruling Wolf v. Colorado, supra), holding unconstitutionally-obtained evidence inadmissible in state criminal proceedings, was not retroactively applicable to cases in which a conviction had been final, the judgment of conviction had been rendered, the availability of appeal had been exhausted, and the time for petition for certiorari had elapsed before Mapp v. Ohio was decided.
I distinguish the matter before this court from those cases where courts were involved in placing a different interpretation upon the same statute, i.e., Warring v. Colpoys, 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; Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed. 2d 179; and Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982.6
I distinguish this case from those where courts have overruled their prior decision. Kelley v. Rhoads, County Assessor, 7 Wyo. 237, 51 P. 593.7
In all of the above categories exemplified by the cases cited, the question of whether to apply an overruling decision of the court prospectively or retroactively was properly for the court‘s determination in view of the fact that the jurisdiction of the lower courts had not been lost at any stage of the proceedings and since the cases involved overruling decisions in the area of constitutional criminal procedure—subsequent interpretation of the same statutes and the overruling of prior decisions. The retrospective or prospective effect of subsequent court decisions was indeed a determination that the courts had to make—could make—and should make in those circumstances.
I have no quarrel with the law of that proposition.
There are criteria laid out by the Supreme Court of the United States in Stovall v. Denno, 1967, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which have been recognized in the majority opinion here and which, in the above mentioned class of cases, aid and guide courts in making the decision whether to give retroactive or prospective application to an overruling decision. The criteria from Stovall v. Denno, supra, are:
“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.”
But those standards do not apply to this case because, here the lower court acted without jurisdiction and we do not have an overruling decision.
In those cases to which the Stovall v. Denno criteria apply, the issue is always whether or not the overruling decision of the court would be applied retroactively to benefit those who have been affected to their detriment by a prior ruling, or prospectively so that the overruling would have applicability only to the case out of which the decision arose and those cases following it.
As an example of the distinction that I attempt to make between the matter currently before the court and the theory and cases upon which the majority opinion relies, I observe that the majority cites 10 A.L.R.3d, and under the general heading of this annotation the subject matter is headed as follows:
“Prospective or Retroactive Operation of Overruling Decisions.” [Emphasis mine]
And then at page 1377, the author says:
“This comment collects and analyzes a representative selection of the cases treating the question whether an overruling decision should be given retroactive effect or should operate only prospectively. [Italics mine]
“For purposes of this discussion, an overruling decision is one by which the court expressly rejects a rule of law which had been announced and adopted in an earlier decision of the same court.” [Italics mine]
The cases upon which the majority calls for authority are those having to do with the problem of giving effect to an overruling decision. It must immediately appear that any cases which fit into this annotation under this heading cannot be applicable to the question to which we here address ourselves in response to this petition for writ of habeas corpus because we are not, in the instant matter, determining the effect of giving retroactive or prospective application to “overruling decisions.” We have no overruling decision in this case. We do not have a prior decision to overrule. We have not given a subsequent interpretation to either a statute or a prior case ruling. We have simply declared a statute unconstitutional, the effect of which—under the law—is to render the lower court to have been without jurisdiction at any stage of its proceeding and therefore incapable of making an order sentencing the petitioner to the penitentiary.
On the other hand, the result reached by the majority comes on as a result of assuming that we have a retroactive or prospective decision to make, but, as I have said, I do not think we do.
It may be that there is no further good purpose to be served by further analysis since the cases relied upon by the majority are concerned with overruling decisions as such decisions will or will not be applied retroactively or prospectively. However, let me make these thumbnail observations:
It is said by the majority:
“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, the court was confronted with the identical question that we have here:”
I cannot agree that Warring presents “the identical question that we have here.” There was no constitutional question involved in Warring. The Court was there concerned with whether or not it should apply retroactively or prospectively an overruling decision pertaining to statutory construction. The case presented no problem involving lower court jurisdiction as Ostwald does. It simply effectuates the rule that the original court holding was the law until it was overruled. I accept that—that, in effect, is the rule of Kelley v. Rhoads, Wyoming, supra.
The author of the majority speaks of “identical views” (to those of the majority) to be found in the Supreme Court case of Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, reh. den. 309 U.S. 695, 60 S.Ct. 581, 84 L.Ed. 1035 (1940).
Unlike Siebold, supra,8 the Court in Chicot, supra, had declared a municipal bond statute authorized under an act of Congress to be unconstitutional. The problem, like Warring, was whether to give an overruling decision retroactive or prospective effect when the original proceedings were under collateral attack—the parties having failed to raise the issue in the principal case. The Court held that where this kind of a statute was under collateral attack and where it had not been questioned at the trial it was res judicata. I fail to see where this case is “identical” to the views expressed by the majority and especially it does not reach the rule applicable where a criminal statute has been held unconstitutional, making it void from its passage, thus causing the lower court to have acted without jurisdiction.
Like Mr. Justice McClintock, I believe that Siebold9, supra, has been:
“recognized, accepted and applied in this court in Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411 (1899).”
Miskimins says that a proceeding in violation of constitutional rights renders it void. We quoted Brown on Jurisdiction, § 97, at 8 Wyo., page 407, 58 P., page 415, where the author said:
“Therefore it may be laid down as a rule of law that the error of a court in construing any constitutional immunity or right in a criminal case against the accused is as fatal to the judgment as assuming jurisdiction originally where the court had none. Error in either case destroys the power to render any valid judgment, and, if rendered, it is, not simply erroneous, but void.”
In the case at hand the lower court, having acted under an unconstitutional statute, did so without jurisdictional authority and therefore all proceedings therein are void, including the sentencing of Ostwald to the Wyoming State Penitentiary.
This leaves nothing more for the courts of Wyoming to do but to grant the writ.
There is no problem of giving retroactive or prospective applicability to the Stern decision. That matter took care of itself by the operation of the rule applicable to it, i.e.,:
“A conviction under it (an unconstitutional statute) . . . is illegal and void, and cannot be a legal cause of imprisonment.” Siebold, supra.
The lower court‘s authority to try and sentence Ostwald arose solely by virtue of
The rules of retroactivity and prospectivity apply where overruling decisions have been rendered in such areas as constitutional procedural questions—subsequent statutory interpretations—overruling prior decisions of the court—and numerous other areas. But the retroactivity or prospectivity problem simply cannot present itself in situations where the court out of which the original decision emanated lacked jurisdiction to act as it did. The problem does not arise in those circumstances either in logic or in law, and it is, in my judgment, error to assume that this case can be resolved on such a theory.
For all of the reasons stated herein I would grant the writ.
ROSE
JUSTICE
Notes
The applicable general rule is announced in 16 C.J.S. Constitutional Law § 101, p. 469, under the heading, “Effect of Declaring Unconstitutional.” The text there says:
“. . . an unconstitutional statute is void, at all times and its invalidity must be recognized or acknowledged for all purposes, or as applied to any state of facts, and is no law, or not a law, or is a nullity, or of no force or effect, or wholly inoperative. Generally speaking, a decision by a competent tribunal that a statute is unconstitutional has the effect of rendering such statute null and void; the act, in legal contemplation, is as inoperative as though it had never been passed or as if the enactment had never been written, and it is regarded as invalid, or void, from the date of enactment, and not only from the date on which it is judicially declared unconstitutional.” [Emphasis mine]
At § 101b, under sub-heading “Remedies, Rights, and Duties,” at page 474, the encyclopedia says:
“The failure of a statute carries with it all remedies therein provided for, and a court has no jurisdiction to try an offense based on violation of a statute declared to be unconstitutional; nor may it entertain jurisdiction over certain proceedings where the statute granting such jurisdiction has been held to be unconstitutional.
“An unconstitutional legislative enactment legally binds no one, creates or imposes no obligations, imposes no penalty, and need not be complied with. By such a statute, no rights or immunities can or may be predicated, based or founded on it, built up under it, and no old rights are abrogated; no protection is afforded, no immunity is conferred, no office is created, no power or authority is bestowed on anyone, and no duties are, or can be, imposed. An offense created by such a statute is not a crime.” [Emphasis mine]
“Such a showing has been made (in this case) in that the (this) case will resolve the question of the retroactive or prospective effect of this court‘s holding
“‘Therefore it may be laid down as a rule of law that the error of a court in construing any constitutional immunity or right in a criminal case against the accused is as fatal to the judgment as assuming jurisdiction originally where the court had none. Error in either case destroys the power to render any valid judgment, and, if rendered, it is, not simply erroneous, but void.” Brown on Jurisdiction, Sec. 97. [Emphasis mine]
“a conviction and sentence by a court of competent jurisdiction is lawful cause for imprisonment, and no relief can be given by habeas corpus.” Ex parte Siebold, 100 U.S. 371, 375, 25 L.Ed. 717 (1880). [Emphasis mine]
We said in Miskimins, supra, at 8 Wyo., page 408, 58 P., page 415:
“The office of the writ is to determine the legality of the particular imprisonment, and the facts to be considered in determining that question are jurisdictional facts. If upon a consideration of such facts, it appears that the court exceeded its jurisdiction in making the order, the petitioner will be discharged upon habeas corpus, . . .” [Italics and emphasis mine]
“The distinction (between petition in error and habeas corpus) is tersely stated in Re Nielsen, 131 U.S. 184, 9 S.Ct. 674: ‘The distinction between the case of a mere error in law and of one in which the judgment is void is pointed out Ex parte Siebold, 100 U.S. 371, 375 (jurisdictional basis), and is illustrated by the case of Ex parte Parks [93 U.S. 18], as compared with the Cases of Lange [18 Wall. 163] and Snow [120 U.S. 274, 7 S.Ct. 556]. (In one case there was no jurisdictional error and in another instance there was. Where there is a jurisdictional question habeas corpus lies; where it is mere error in law it does not lie). In the Case of Parks there was an alleged misconstruction of a statute. We held that to be a mere error in law, the court having jurisdiction of the case. In the Cases of Lange and Snow there was a denial of a constitutional right.‘” [Parenthetical matter mine]
“sweep of such statements is deceiving.”
Then the majority refers to Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982-1989, and the opinion of Justice Douglas for authority for the proposition that “writs of habeas corpus will not be allowed to do service for an appeal.” (Note 8, the majority opinion). But the author of the majority opinion does not go on to quote the next sentence from Justice Douglas, appearing in 332 U.S. at 178, 67 S.Ct. at 1591, where he says:
“There have been, however, some exceptions. That is to say, the writ has at times been entertained either without consideration of the adequacy of relief by the appellate route or where an appeal would have afforded an adequate remedy. Illustrative are those instances where the conviction was under a federal statute alleged to be unconstitutional (citing Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 and other cases), where there
“The question is whether a party imprisoned under a sentence of a United States Court, upon conviction of a crime created by an indictable under an unconstitutional act of Congress, may be discharged from imprisonment by this Court on habeas corpus, although it has no appellate jurisdiction by writ of error over the judgment.” (From Siebold, supra, opinion)