State Ex Rel. Olson v. Maxwell

Only highway the commissioner chal the assistance arbitration proceedings can lenged constitutionality. The statute’s provide in resolving disputes. Arbitration clearly court held that commissioner preferred should be a method —it is simpler, standing to make that assertion. had no quicker, cheaper, and is not hampered by Every case and cited or discussed judicial tradition. But the courts have to Sornsin, Hjelle supra, support v. conclu in be realistic. arbitration, mandatory sion that with no When the matter dispute judicial is a merits, judicial review on the question, the courts ought to fulfill their contractor, invalid. If rather than the proper role. Whether depriving Beverly commissioner, invalidity, had asserted I Pratt of maternity-sick leave benefits vio have little doubt that the assertion would lated her constitutional legal rights or is not upheld. have been Some issues a matter that this Court should shunt off are involved arbitration under onto an arbitrator whose decision cannot be 24-02-26, NDCC, are not when § reviewed unless there is fraud. The fact considering pursuant arbitration to the au majority opinion points out that 15-38.1-12(1)(b), NDCC, thorization of § agreement says arbitrate Disputes and vice versa. between arbiter shall have no power to alter the are, employers employees and their first of agreement Paving Nelson Hjelle, v. — after all, governed by the nonbinding mediation supra gives me no assurance that the arbi — 34-11, Chapter statute. NDCC. What ef trator will not amend the agreement (actu fect this statute has was not considered ally effect), or in and we will have way no parties, have but should been. to correct it. Sornsin, Hjelle supra, was only chapter Judgment should be reversed. story. one of that majority opinion That case, however, stated: “In the instant had no

Subcontractor contract with the

State and thus would have no under any

that statute —or other statute that we

know against of—to assert its claim spite

State.” In of this obvious lack of a claim,

basis for the this Court decided that the claimant was entitled to arbitrate. One STATE of North Dakota ex rel. Allen I. justice dissented. OLSON, Attorney General of the State Chapter two is told in the case entitled Dakota, Petitioner, of North Co., Paving Nelson Hjelle, Inc. v. (N.D.1973), where this Court refused review very substantial Ralph MAXWELL, Judge B. (which Hjelle award it said in v. Sornsin Court, District, District First Judicial law) questions had no basis in on fact Dakota, Respondent. State of North and, effect, of law held that in the ab- Cr. No. 613. sence of “fraud” an award in arbitration will set aside. Supreme not be Court of North Dakota. gives This opportunity case this Court the Nov. 1977. repetition miscarriage jus- to avoid of a legal tice. A refusal to consider questions

before arbitration and a refusal to make (of

any fact) review of merits law or of award, appeal

on an from an arbitration ordinary

shaken confidence that citi-

zens proceedings. ever had arbitration It judicial system

should not be so. needs. place,

. and at no other for the eighteen (18) term of months . [Emphasis original.] complained-of words are those under- lined. arguments The briefs and broaden question the issue to include the authority of the Director of Institutions to prisoners, transfer especially prison- female ers, hold, out of the State. on the us, record before must imprisoned not be outside the State of North Dakota unless and until a due-proc- hearing ess has been held or waived and an order permitting entered the transfer. jurisdiction Our upon is based our author- ity grant original permitted writs as North Dakota Constitution. Attorney The petition General bases his 27-02-04, upon 27-02-05, Sections and 27- 02-05.1, setting also forth certain powers of this court. Judge directed an order to Maxwell why

to show cause the writ requested by Attorney General should not issue. return, personal appear- In his and in a us, argument ance and Judge before Max- years well asserts that for several all fe- prisoners male sentenced to the State Peni- tentiary have been sent out of the State Institutions, the Director of while male prisoners have been confined at the State Zuern, Gen., Sp. Atty. F. Asst. and Edwin State; Penitentiary within the that this Rolfson, Gen., Atty. Deputy N. Bis- Calvin sex, practice, solely based is discrim- marck, petitioner for State North Dakota inatory unequal and treatment of women of relator Allen I. Olson. on behalf prisoners; (1) by and that it discriminates making it them gain more difficult for Maxwell, Ralph Fargo, B. pro se. State, (2) by

access to the courts of this VOGEL, Justice. making costly it more difficult and for lawyers prosecuting them to consult with Attorney The General of North remedies, appeals (3) by making and other Institutions, on behalf of the Director of apply qualify it more difficult and for who has one his responsibilities parole appear and to before the Parole Penitentiary, administration (4) by Board in person, making it more petitioned has us to issue a supervisory writ from, preserve difficult to have visits and directed to the Ralph Honorable B. Max- with, relatives, relationships family, and well, judge, requiring district him to delete friends, (5) by making it and more difficult certain a judgment sentencing words from business, personal, legal to attend Penitentiary. affairs. provides sentence The that the defendant “. . . imprisoned General asserts to us that Bismarck, Dakota Penitentiary at women sentenced to the North are, have tion if convicted of a Penitentiary felo- Dakota State prisons ny”; transferred years, six for been or States, Ne- formerly in other women “g. Commitment to an appropriate li- says Minnesota. He presently braska private censed or institution North Dakota State that the alcoholism, for treatment of drug “inadequate staff and facilities . . addiction, or mental disease or de- pris- for female care properly to house fect”; oners”; making policy or 54-21-25 supported by Section “is transfers “h. Commitment to other facility or Century Code Dakota of the North program deemed appropriate for the to con- Director of Institutions allows offender, treatment of the individual and oth- government with the federal tract including community-based available correctional serv- jurisdictions for er state programs.” ices”; Legislative Assembly pro- Provision also is made that the court shall transfers; and that for such vided funds give prior credit for time served to sentenc- imposed by with the sentence compliance ing, provision is made that the court place pris- the female Maxwell would Judge may suspend part all or of any sentence. would be the because she (apparently oner fixing It is evident that the women, woman, one of the few imprisonment is within the discretion of “confining-protective Penitentiary) in court, instance, the trial the first and not ability the to without custody permanently, that of the Director of Institutions. Cases recreation, work, and adequate engage in by Attorney cited the General for the con- might con- programs” treatment other trary position upon are based totally differ- punishment. unusual cruel and stitute statutory them, ent schemes. In all of further asserts Attorney General provide statutes for sentences to the custo- authority Maxwell exceeded his Judge that official, dy of a who State has the authority the discretion of the Director by invading assign prisoner to to a specific institu- who, Institutions, Attorney General tion, just provides as the Federal statute prison- “to transfer has the says, for a sentence to the custody of the Attor- as authority and control ers under his ney General. 18 U.S.C. 4082. interest.” in their best be The cases by relied the Attorney

General are: ex State rel. Sonner v. Shea rin, 272 Md. (1974); A.2d 573 I Miner, 113 Ariz. (1976); 546 P.2d 342 We start with a consideration of the Transfer, Re Awaiting Prisoners 236 Ga. sentencing normal procedure in this State. 516, 224 S.E.2d 905 The statutes Contrary to the assertion of the Director of providing for sentencing to the custody of Institutions, we conclude that the statutes an (rather individual official or board than contemplate of this that the sentenc to particular institution) are, respectively, ing judge shall determine initially place Md.Ann.Code, Sonner: (1971 Repl. 12.1-32-02, of confinement. Section N.D. Vol., 690; 1973 Cum. Supp.), Art. Sec. C.C., primary statute relating to sen Miner: 671(D); A.R.S. Sec. Re Prison tencing, provides for a sentence to: Awaiting ers Transfer: Ga.Code Ann. Sec.

“e. A imprisonment, . . 309(d). term of court, “(1) It is the In the which penitentiary region- or a specifies al in the first facility place detention instance the approved by the institutions, director of or in the confinement of convicted persons sentenced imprisonment.1 state farm in accordance with sec- sentencing suggests “regional that the refer- ble to confinement in a 1. The General 12.1-32-02, N.D.C.C., possi- facility approved by detention the director ence in Section foregoing In rather stark contrast contem also statutory scheme Our 54-21-25, statutes, upon which the Section men, are women, well as as plates primarily relies for au- Attorney General Penitentiary. See in the State confined be to transfer Cora thority N.D.C.C., forbidding com Section Minnesota, reads: within the sexes between munication “If the director of institutions deter- institution. state facilities or mines suitable are not available for inmates un- services contract for same control he der his II authorities of the United proper with the state, States, agency in another another of this State statutes are several There subdivision of this political state or a this of con- changes permit contract, may also state. The director serving of a sentence once finement state, provide serv- cost to the without begun.2 persons by any held or facilities ices jurisdictions mentioned this sec- of the statutes that none will be noted It tion.” applicable to 2 are in footnote summarized situation, it should factual Ill of them con- that all noted particularly as to the constitutional is- legislative presents direction This case explicit quite tain process equal where, ap- procedural are to be sues of due when, and how protection of the laws. plied. person given psychiatric require to be such of Institutions allows the Director institutions” to transfer institutions person discretion to such transfer such to the state in his evaluation or hospital prison at Shako- the women’s as evaluation. If it is found from for such ill, pee, mentally are several defects Minnesota. There that such the evaluation out, First, pointed argument. we have this person shall be confined and treated in contemplates a sentence to 12.1-32-02 hospital upon a written order the state court, not the particular institution a Director gional warden.” Second, “re- the term of Institutions. provides persons that Section 12-44-29 sen- facility” or nowhere defined is detention county jails may tenced to be confined the the within identified. Is it a otherwise State counties, adjoining jail operated by jails or a of We cannot or without? of North any departments of its or the United States or Third, subject the same is the statute tell. agencies agreement or contract when an exists delegation powers as is Section of defects as 54-21-25. county ap- the commissioners and the between II, infra. See Part agency propriate officers of an of the United operating jail, States “When there is no permitting include Section These

2. county jail Institutions, determining jail in a or when the is not suffi- after Director of the cient, safety purposes inmates or of of other . “that for purpose general of provides persons or for the the of discipline person Section 12-47-35 that con- necessary proper that it is or Penitentiary fined in the State who are “found to the state farm should committed treatment, care, special to be in need of dy, custo- penitentiary,” to make transferred to the state training provided or which cannot be for at provisions in the same Similar such transfer. statute penitentiary,” may, if the the state has contracted with the Governor to to the State Farm allow transfers from Attorney or General Penitentiary person when a committed the the State States, proper pur- other official of the United himself in such man- Farm “conducts law, suant to Federal be transferred to a Feder- operation of the the to interfere with ner as farm, “may al institution in order that such inmate others,” safety of or or with the welfare treatment, care, required special receive the custody, Penitentiary to the from the transfers and Farm, training.” or Such transfers are to be desirable and such action seems “when only made after the warden has submitted a person transfer- so the best interests request for the transfer to the State Board of to the wel- manner detrimental and in no red fare of to said farm.” Pardons, ap- and the Board of Pardons has persons have been committed other who proved request, the after which the Governor petitioned has the General or other provides when the 12-47-27 that asking proper official of the United States that that a the “believes of warden the transfer be made. penitentiary become confined the confinement, during mentally he ill his

627 whether the IV pris We first consider process due is procedural oner’s Under both Federal and State con being proce to which denied. extent provisions for equal protection stitutional depends afforded process due must be dural procedural process,3 due we are satis of each case and the the circumstances upon present-day fied that the rule is that prison Havener v. of the loss involved. nature ers confined in one State under the laws of Glaser, (N.D.1977). 251 N.W .2d 753 not be constitutionally employed basically have a transferred to another except Courts determining situations, the emergency test in constitu without two-tiered minimum validity particular procedural of classifications. process. due anal equal-protection traditional Under It once was the law that a was felon if ysis, classifications are sustained are dead,4 civilly considered and that com conceivable, rationally legiti related mitting a crime he “not forfeited his mate, objective. governmental McGowan liberty, personal but all his rights except Maryland, 81 366 U.S. S.Ct. 6 those which the law its humanity accords (1961). stringent A L.Ed.2d 393 more stan to him. He is for time being the slave review is where the classifi applied of dard Commonwealth, State.” Ruffin 62 “inherently suspect” cation termed (21 Va. Gratt.) (1871). longer. No impinges on funda where classification In years, recent while recognizing rights. within the “inher mental Included primary responsibility for the of execution are ently suspect” category classifications imprisonment sentences of lies race, sex, illegit such criteria based prison administrator and the executive imacy, and immutable characteristics deter branch government, the courts have solely by accident birth. In such mined come to position that even imprisoned for, judicial scrutiny strict is called cases felons have certain minimum rights (often be held invalid un classifications will less complete than of persons not promotes it is shown that the statute less imprisoned), including religion, freedom of interest compelling governmental and that freedom segregation, from racial freedom by the law distinctions drawn are neces speech degree, and association to some Shapiro v. sary purpose. to further its See the right courts, access Thompson, 394 S.Ct. U.S. care, to reasonable medical and freedom recognized have L.Ed.2d punishment. Note, from cruel and unusual H., suspect category re G. [In “Procedural Due Process in the Involuntary (N.D.1974)], used in ana N.W.2d Prisoners,” Transfer of 60 Va.L.Rev. 333 constitutional lyzing pro North Dakota (1974); Note, “Procedural Due Process in equal protection, on Section 20. We vision Rights: Prisoners’ The and State Giveth also indicated classifications have Away,” State Taketh 57 B.U.L.Rev. 387 “inherently suspect” on sex are under based (March, 1977); Carpenter v. State of South Tang Ping, v. State Constitution. 209 our Dakota, (8th 1976); 536 759 Ha F.2d Cir. (N.D.1973). Bingert 624 v. Bin N.W.2d See Glaser, McDonnell, vener supra; v. Wolff v. (N.D.1976). 247 gert, See also 539, 2963, 418 94 41 935 U.S. S.Ct. L.Ed.2d 2337, Aerie Hastings v. James River No. (1974); Turner, compare, Miller v. N.D. 64 Etc., (N.D.1976); Arp v. 246 N.W.2d 747 463, (1934). 253 N.W. 437 Board, Appeal Compensation Workers’ 19 293, 395, In recent Cal.Rptr. years, recog- 138 563 P.2d 849 courts have Cal.3d (1977). nized have a right to mini- Dakota, 116, L.), 1, (Chap. July Constitution of North Secs. 13 and C.C. 1973 S. 3. effective Constitution, 20; civilly prisoner United Amendments V States 1975. But the dead retained XIV. convey rights right some “natural” property. See Sec. 12-06-27 and v. Miller 1973, State, when Even in this until 4. 463, Turner, 64 N.D. 253 N.W. 437 repealed by adoption of 12-06-27 was Code, 12.1, Title Dakota Criminal N.D. North 628 however, transfers, right The Interstate call process. procedural

mum due trials, play into different considerations. As in limited than full hearings, often more above, as we have shown prison recognized where officials has been in other almost in statutory scheme States punishment for violation impose seek to variably contemplates confinement within McDonnell, regulations Wolff v. rules and [ Something more than mere ad the State. proceed where supra]; parole-revocation required jus ministrative convenience is Brewer, [Morrissey v. ings are instituted State, tify a transfer outside and the 471, 2593, L.Ed.2d 484 408 92 33 U.S. S.Ct. right prisoner of a to be confined within the (1972)]; probation-revocation and where pre in which he is convicted will be [Gagnon are instituted v. Scar proceedings v. Thompson, supra; sumed. See Park 1756, 778, L.Ed.2d pelli, 411 93 36 U.S. S.Ct. Cupp, F.Supp. (D.Or. v. 356 Capitan 302 (1973), 656 and McGuire v. Warden of State 1972); and, Travisono, especially, Gomes v. Etc., Farm, (N.D.1975)]. 211 229 N.W.2d 1974), (1st modifying, 510 F.2d 537 Cir. af years frequently have Courts in recent by the Supreme ter remand United States questions now before been faced with the 908, 3200, Court U.S. 94 S.Ct. 41 [418 penal whether transfers between insti- us: (1974)], Travisono, L.Ed.2d 1155 Gomes v. discretionary tutions are administrative (1st 1973). Contra, 490 1209 Cir. Fa F.2d administration, or whether prison with the jeriak McGinnis, (9th v. 493 F.2d 468 Cir. they subject regulation by the courts are Richardson, 1974); Lokey v. but see 527 whether constitutional to determine (9th 1975), F.2d at 952-953 Cir. which ques- inmates have been violated. These indicates that views of the Ninth Cir variety have arisen in a of contexts. tions cuit are now in a state of flux. the transfer is between institu- Sometimes requirement due-process aof tions in the same and sometimes the transfers, hearing applies to administrative interstate, as here. transfer Sometimes be intended convenience reasons, disciplinary the transfers are for of the administration or for the benefit of and sometimes are not. prisoner, well disciplinary as to trans fers, particularly if the transfer involves often, Most it has been held that intra “grievous to the prisoner.5 loss” See Gomes (at nondisciplinary state transfers least the Travisono, v. supra, 510 F.2d at 539 and ones) pro are administrative nature and 541; Thompson, supra; Gapitan Park v. v. due-process hearings are not re cedural Cupp, supra. quired, primarily prison because the author ity has the to confine a convicted of, in, The extent procedure the due- institutions, one of several defendant process hearing will necessarily vary ac- prisoner has no vested to be and the cording suggested in to circumstances. As any particular one. Meachum confined Travisono, v. supra, Gomes 510 F.2d at Fano, 49 S.Ct. U.S. proof involving in a transfer movement Travisono, (1976); L.Ed.2d 451 Gomes prison from an overcrowded in one (D.R.I.1973); v. Orri F.Supp. another, prison since less-crowded cer, (1963); 120 N.W.2d 528 80 S.D. provide would benefits for both the State (D.Ha Thompson, F.Supp. Park v. prisoner, might and the extend 1973), at 19. waii and cases cited Note Of prisoner detrimental effects on the course, reasoning, changes in by the same whether amount to an unconstitutional in conditions within the same deprivation, confinement while transfers based on disci- constitu ordinarily plinary require do not raise reasons would stitution a broader Glaser, supra. hearing opportunity Havener v. with to questions. challenge “grievous (1972), Goldberg Kelly, loss” comes from the L.Ed.2d 484 and v. 5. The term 397 254, 1011, (1970), Anti-Fascist Refu U.S. 90 dissent in Joint S.Ct. 25 L.Ed.2d 287 Frankfurter McGrath, 123, since, frequently gee U.S. 71 and has v. been used to denote Committee 624, (1951), quoted disadvantages enough in Mor those 95 L.Ed. 817 are serious S.Ct. 2593, Brewer, rissey prisoners’ rights. 408 U.S. 92 S.Ct. to affect constitutional allegations prisoners of misconduct as well consid- male transported outside the contemplated of the eration of the effects past. prisoners Female have the individual and the institu- transfer on not been to allowed have anything to say tion. about their transfers to other States. We therefore hold that 54-21-25, V N.D.C.C., as written and as applied to fe- We have examined Section prisoners male States, transferred to other N.D.C.C., II, quoted above in Part which is is unconstitutional procedur- as violative of the statute which the Director of In- process al due and as an impermissible dele- asserting authority stitutions relies in to gation to the Director of Institutions of transfer women and some other legislative power. outside the and we are satisfied that Since the concurrence of four procedural it lacks the due-process stan- members of this court required to declare which both Federal dards and State Consti- a statute [Const, N.D., unconstitutional of require. gives It tutions unlimited authori- 88], only Sec. ty to the and three members of Director of Institutions to deter- suitability opinion, court concur in this mine the of State facilities or Section 54-21- the availability services and or unavailabili- is not declared by unconstitutional services, ty gives However, of facilities or and it majority. sufficient under our him authority unlimited unrestricted to supervisory powers, majority contract with other States and the United court has the power compliance to order unspecified States facilities and serv- due-process requirements regardless of ices, notice, all without opportunity for constitutionality or unconstitutionality hearing, opportunity prisoner for the statute, we so order.6 object. lacking It is also so in standards Furthermore, we pub hold that the guidelines as to constitute apparent an lic interest continuing controversy authority to the Director of Institutions to involved in this case is require such as to us legislate, way which is another of saying it, to decide power under our over the delegation is an unconstitutional of courts, rather than refuse to do so and let powers. Guy, See Nord v. 141 N.W.2d 395 the controversy continue. (N.D.1966); Pederson, Anderson v. 78 N.D. 54 N.W.2d 542 VI applied As Kroeplin, case of Cora we were at argument advised oral that no Further comment on some of the authori- hearing had been held contemplat- by nor was ties cited General ed, hearings relies, nor were held as to other fe- appropriate. extent, He large to a Stutsman, 6. We believe a few further remarks are re- Trust Co. v. 24 N.D. 139 N.W. 83 quired response dissenting opinion. (1912)], public “of concern in which the state and each opinion of its citizens have a vital dissenting argues interest” Lowe, ex rel. constitutionality Shafer v. 54 N.D. [State attack the sentence, (1926)], presents citing N.W. 501 whether her the case such cases as State v. Inc., “questions (N.D. great public Gamble-Skogmo, 144 N.W.2d 749 interest in [which] 1966). rule, general power volve the This is the but the dissent offi subject excep controversy concedes that the rule is to the cials and the real merits of the are questions may Hjelle, tion that constitutional be raised still unsettled” [Kirchmeier “weighty countervailing policies” (N.D. 1964)], others if N.W.2d 373 or whether there are present. are “weighty countervailing policies” justify an ordinary appeal This is not an from a deci invoking exception general rule v. Gamble- [State sion of a lower court. original jurisdiction It is a case our Inc., Skogmo, supra]. Bye, In Hart v. N.D., 86], Sec. [Const. (N.D.1957), “public interest” is asking supervisory pow us to exercise our “something pub defined mean lic, in which the 27-02-05.1, er over a district court N.D.C. [Sec. community large, pecuni at has some In such cases we have the and the C.]. interest, ary or some interest which their duty to whether decide the matter is one of legal rights or liabilities are affected.” “great public interest” ex rel. Dakota [State Fano, holding The court supra, probably as one decision most Meachum to be confined right helpful position has no of the prisoner Attorney that a Gen- Stoneman, makes prison. But Meachum any F.Supp. in one eral is Rebideau v. only with intra- is concerned (D.Vt.1975), involving clear a transfer from transfers, that a and holds prisons prisons state Vermont to Federal under a “any in of its defendant a convicted confine specifically authorizing statute such trans- upon Massachusetts It is based prisons.” maximum-security prison fers after a had be confined law, created no to legislative authority, been closed under Dakota, the unlike North prison, one in leaving maximum-security no facilities in contemplate confinement of which statutes Vermont. Aside from the obvious factual sentence, in with specified prison differences, we note a statute similar which we have summa- exceptions certain to our summarized in Section we have opinion. this As Part I of in rized challenge. footnote was there under above, the relevant case law indicated provide guide- statutes standards and Such sharp rather distinction between makes a discretion, lines for the exercise of prisoner as to intrastate rights of a subject being therefore are less over- Meachum, transfers, opposed as as in unconstitutional than is turned as transfers, case.7 as in the interstate 54-21-25, which we have held above lacks Further, such standards. the Rebideau case much, and General makes specifically involves transfers authorized so, of the of the constituted properly 706(b) (1975). legislative Act. 28 V.S.A. § deci- appropriate to make prison authorities of inmates in their sions as to the treatment considerations, recognize these charge. We VII regulate or intention to and have no desire course, if there were no ad Of prison system. operations

the internal of the prisoner from the verse effects to trans above, But, specified it is our as we have State, amounting “griev another fer to recognize prison- the civil duty to affecting “liberty ous loss” or interests” resi- ers well as all other citizens and there would prisoner, be no constitu this and we believe this can dents of deprivation no violation of con interfering legiti- with the be done without However, rights. depriva stitutional some prison officials. mate tions are inherent such transfers. In note, consist- passing, that our decision is Travisono, supra, Gomes v. 490 F.2d for Adult with the Manual Standards ent modified in 510 F.2d it was held that especially No. Institutions Correctional [see parole inability hearings on Ac- to attend board 4377], prepared by Commission sponsored deprivation, inability was a and so was for Corrections8 creditation Association, attorneys, with meet whether by the American Correctional court-appointed and 2.13 of the or otherwise. And see Tai 2.8 Standards (1977), Thompson, F.Supp. (D.Ha one of the six Report on Corrections 1975), requirements Advisory Commis- waii for minimum as to reports of the National hearing notice and whenever there are on Justice Standards sion Criminal disciplinary for notice “overtones of action or of provide depri standards Goals. These being liberty equality vation of of treatment when his status offender reviewed, prisoner, of the offender an out-of-state transfer of a state participation ”. affecting program, prison- his and for We are advised that male in decisions re- ers at North Dakota procedural due-process compliance with routinely appear before the Parole Board quirements. at however, hearings, point decide, emphasize, that Meachum we do not as it is 7. We not not before us. does holds that the Federal Constitution hearing due-process require on intrastate Officer, 8. North may require Dakota’s Chief Parole Irvin The State Constitution transfers. Riedman, was a member of the Commission. sues, year they specifically Travisono, once a unless in Gomes v. supra; least Park v. prisoners female appear, refuse to while Thompson, supra; Tai v. Thompson, supra; appear do not confined outside State Untreiner, and Mitchell v. supra. We Instead, before the Parole Board. agree. travels to the other the Chief Parole Officer true, It is as the Attorney General as- prisoner, interviews the female State and serts, Stoneman, that Rebideau v. supra, conversation, tape-records presents and makes the statement impairment that tape-recording to the Parole Board at difficulty visits or of access to counsel are meeting. its next We hold that this is not barriers, not constitutional but we are un- equivalent personal appearance of a be- persuaded by that statement or by the cases tape-recorded fore the Parole Board. A support cited to it. The case cited parole deprives interview with a officer directly Travisono, is Gomes v. supra. We prisoner opportunity per- to make a support find no position for that in the two Board, impression upon the Parole sonal appellate Gomes decisions. On the con- questions, complaints and to make ask trary, process hold that some due is penal who are unattached to the persons required (490 in all transfer cases F.2d at system except as members of the Parole 541). 1214 and 510 F.2d at person- We do not hold that Board. annual appearances al before the Parole Board are statutory right. constitutional or We do VIII appearances that such must be allowed

hold We come now to the Judge contention of persons imprisonment to all sentenced to Maxwell that interstate transfers of wom- terms, Penitentiary on the same if al- en, such, are unconstitutional as based on any. lowed to “inherently suspect” by classification although the Similarly, additional dis- gender unsupported by any justifica- Kroeplin tance in the case of Cora is not pass tion which will judicial “strict scru- Minnesota, great, Shakopee, since where tiny” required classifications, of such located, prison perhaps the women’s is is the assertion of the Attorney General that Buffalo, Dakota,9 miles farther from North justified transfers of women are be- offense, time her home at the than cause the women cannot be confined in the Bismarck, where the State because it impossible is located, Penitentiary is in almost all other provide or difficult adequate treatment mileage cases the differences would be there, and rehabilitation services to them greater more extreme. The the difference keeping them there would be cruel mileage, the less likelihood there is of punishment. and unusual friends, family op- visits from the less personal meetings with the portunity for hold, based on the case law attorney prisoner, greater for the and the above, cited in Part III that classification isolation involved in confinement. inherently suspect sex an classifica These, too, are substantial detriments or tion, requiring judicial scrutiny strict to de “grievous Thompson, supra; loss.” Tai v. required termine whether it is by compel Untreiner, 421 F.Supp. Mitchell v. 886 ling Shapiro interest. Thompson, (D.Fla.1976). supra. Lack family, of contact friends and assertion inability attorneys, to consult with ad- Gen eral upon parole opportunities the State does not have verse effect were funds deprivations provide all to be available to considered substantial for women loss,” “grievous raising constitutional is- within the of North Dakota does not transcript sentencing 9. The indicates that ence distance between her home and Shako- employed, pee was at the Mrs. sentencing, time would be much more than the 50 additional “housekeeper as a on a farm in the miles to Bismarck. so, part northern of the State.” If the differ- compelling a interest nec- “Consistent with what has constitute been termed treatment discriminatory to essary justify Doctrine,19 the Sunburst state courts classification. suspect based a Refining 19 v. Great Co. Oil & “Sunburst acceptable is not ex “Lack of funds an Co., 216, Ry. P.2d 927 7 91 Mont. Northern Ry. v. Sunburst Co. Northern Co., (1932); Great conditions of in cuse for unconstitutional Refining S.Ct. 53 287 U.S. Oil & Arkansas Finney v. Board carceration.” (1932).” L.Ed. 360 77 Correction, (8th 505 F.2d Cir. have, cases, recognized and uti- in recent 1974). application of decisions prospective lized justification is not a “Shortage of funds injustice in cases avoiding as a means of continuing deny to citizens their con- for type. applied Decisions have been of this Collier, 501 rights.” Gates v. stitutional as to causes prospectively to be effective (5th 1974). F.2d Cir. future dates. arising varying of action at however, it is obvi- significantly, “More may may or particular The rule of law constitu- ous that vindication of conceded ap- to the applied parties not be dependent made cannot be judicial provides the peal. approach This expensive it is less upon any theory that flexibility needed branch with some much deny than to afford them.” Watson questions having wide- dealing with 526, 537, Tenn., City Memphis, 373 U.S. persons par- for not spread ramifications 1314, 1321, 529, 538 10 L.Ed.2d S.Ct. ties to the action.” justifications we eliminate the When applied We have the Sunburst Doctrine funds, must, upon lack of as we ac- based selectively, only, sometimes to future cases cording applicable to the case law to consti- excluding the case before us [Walker deprivations upon suspect tutional based Omdahl, (N.D.1976)], 242 N.W.2d 649 sex, including remaining criteria we find no sometimes to future cases as well as the justification pris- for the transfer of women case then before us v. Minot Park [Kitto oners to other States. District, supra, Hassett, and Johnson v. situation: We now are faced with this (N.D.1974)]. present In the instance, we point draw the line at a be- may not transferred from 1. Women tween, apply relating only part for reasons rule in to this to their sex and administrative convenience case. personnel lack of facilities and without We hold that Cora must be ini- due-process hearing they at least a at which tially confined in the Penitentiary. If may participate; the administration of that institution con- prison insist that 2. The authorities cannot, fesses it with means at its adequate personnel facilities and

have no (which disposal may application include prisoners, take care of women due to lack of Emergency funds), Commission for pro- funds; and vide for her and other prisoners women they suggest 3. The alternative course is equal, though facilities not necessarily iden- to send women for outside rea- tical, provided to those for prisoners, male only sons based on their sex and administra- may hearing, then a hold of which she tive or lack of convenience facilities notice, shall have opportunity with to pre- personnel. pare, and at may appear which she evidence, We were faced with a similar circular counsel and and after argument despair and counsel of in Kitto v. hearing findings shall be If made. District, (N.D. Minot Park 224 N.W.2d findings such justify emergency an transfer using 1974), problem by and resolved the to an facility upon balancing out-of-State “prospective overruling” so-called or “Sun of her interests and those of the approach. do likewise here. burst” We will temporary transfer be made. How- ever, arrangements Kitto, temporary such supra, we said in 224 N.W.2d at

As Legis- extend such time as the next met, and, Assembly if construc- lative has record of the court, trial as repre- facility North Dakota for penal tion of a sented to us by Attorney General, does been authorized and women not contain anything which could be con- additional appropriated, funds time as sidered as giving rise to a belief that for construction and reasonably required judge’s authority being was questioned as personnel. obtaining competent to his right to designate impris- 12.1-32-02,

onment under § Dakota IX Century Code. any Neither has factual ba- sis been presented which give would the above, we have In view of what said district judge legal sufficient interest “and inclusion of the words at no other challenge the constitutionality of this sec- purpose, place” serves no useful and those 54-21-25, tion or NDCC. § from five words are stricken the sentence. hearing, Judge Maxwell At the acknowl- anyone If right has the to challenge edged that he not intended to restrict had 54-21-25, NDCC, § is Cora Kroeplin. prison moving from pris- the administrators She also right, privilege, has the pre- purposes oners from the of rogative to decide whether or not she

hospitalization or or work treatment release wishes to challenge. or educational or to the Hospi- release The principle only of law that those who 12-47-27, pursuant tal to Section N.D.C.C. have a direct interest in or are affected by suggestion to a Judge agreed Maxwell of may challenge a statute its constitutionality language substitution of to the effect that firmly has been established. the sentence be served “at no other outside the State of litigant have held that a may assert In requirement due-process view of our of only rights his own constitutional unless he hearings prior during transfers to such an can weighty countervailing policies. period, interim we that such believe lan- Woodworth, State v. (N.D. N.W.2d 243 guage is not required. 1975); Raines, United v. States 362 U.S. above, Except specified petition as the (1929); 80 S.Ct. L.Ed. State v. is supervisory for a writ denied. Inc., Skogmo, Gamble (N.D. N.W.2d 749 1966). Therefore, legal logic dictates that J., ERICKSTAD, PEDERSON, J., C. litigant if a only assert his own consti concur. right, tutional a non-litigant, then judge, would include the trial would not SAND, (concurring in part Justice have the right challenge the statute dissenting part). (§ 54-21-25, NDCC). The mere fact that philosophical I concur with concepts the the trial judge the case heard and was in a rights privileges on constitutional ex- position impose sentence give does not Vogel’s pressed opinion pertain- in Justice him challenge the constitution ing to transfer of women to out- ality of the Act. solely upon of-state institutions based sex I prisoner. fully agree would This Court has also held that a opinion with the constitutional ques- if the may question constitutionality of a stat- tion were us. properly before only ute when and insofar as it is sought to applied disadvantage be to his and the one

However, agree I do not with the infer- attacking constitutionality is not question ence constitutional was champion except of his own. properly ripe for our raised or is determina- Asbury Hospital Cass County, 72 N.D. petition supervi- tion as a result of the for a 359, 7 For other cases sory challenging judge’s writ district stating principle the same language, to insert “and in law see 4 no place,” Digest, other Dakota Kroep- the sentence Constitutional Law lin. “This is question rule, however, not an also held that inflexible

We have entertained some instances ques- will constitutional constitutionality tions inherently involved in the in the lower court determi- if it was raised this Court nation of the cause may this instance be considered In adequately preserved. though they even court, may not have been represent- in the lower record required by raised as orderly procedure.” hint us, give slightest does not ed to constitutionality of § The cases listed under “Not an inflexible” NDCC, suspected being ques- was even do not come close to the situation in this tionable. case. principle stated in the first question constitutional sentence

In this case the firmly been so petition return to the established that there for a surfaced no need to recite the numerous cases which writ. supervisory other than a challenge, quirement concept the allege any particulars that made the re- cialist Labor 20 L.Ed.2d 7 L.Ed.2d The United States parties who lack outcome do hen, Carr, S.Ct. “It is axiomatic that the federal courts Court, not decide abstract 392 U.S. 1716, observed that the (which U.S. principle applies case. There is in 663, Party 947, 32 L.Ed.2d hypothetical denying 83, 101, 186, ^{[677] [962]} controversy.’ ‘a was Supreme 204, Gilligan, personal (1962); (1968).” questions posed being challenged) the constitutional 82 S.Ct. S.Ct. nothing parties equally burden. This Court, in (1972), stake in the Flast v. Co- 1942,1953, Baker v. U.S. 691, 703, did not well to in the said: So- by gave again stated: The same § ground must show that he has an interest in the enforcement of an act of rights are is law can be that one who is not question in that the enforcement of the rights.” “The constitutionality of a legislative act In 16 law would cannot 119, “The open rise to this page question to attack authority Am.Jur.2d, corollary 310, assailed affected be an the principle concept. its constitutionality.” to the continues: by any person infringement unconstitutional, Constitutional Law thereby. prejudiced by person general the of the law is legislature Before, by the rule is on his on the whose he which indicates that the district record 121 of the same states: judge’s authority any way impaired, was in “To meet the test of interest requisite impinged or frustrated. His to sen- challenging to the constitutionality of 12.1-32-02, NDCC, not tence under had § legislation, the seeking to make impaired. I am unable to find been the challenge must show that he is direct- Judge’s for the insertion of the ly affected legislation question.” the in place.” in words “and no other authority, 122, The same states: § Kroeplin, the Cora the defendant in crim- “No one can obtain a decision as to the action, pawn inal has been used as a mere invalidity of a law on ground the that it consent) (without her to reach a constitu- impairs rights others, may nor one question she has not raised excepted operation from the of a law though party she is the even affected. it, attacking attack for one the constitu- tionality of a statute is not the champion Volume C.J.S. Constitutional Law any rights except his own.” page states: § authority, The same with pub- reference to proceed “A court should with reluctance officers, lic states that: § legislation to set aside as unconstitutional grounds properly presented. general on not Ac- principle “Under the that the cordingly, invalidity statute, of a constitutionality of a statute cannot be on, ordinarily questioned by order to be relied must one whose are not specifically raised pleadings. thereby affected and who has no interest it, has arisen as direct interest defeating question in the outcome and who inter- officer has such would prerogative

to whether a have the of determining question him to est as would entitle whether or not she even wishes challenge constitutionality of a statute and to the constitutionality. It well be that comply provisions. with its It refuse prefer would serving her sen- nega- generally been answered tence elsewhere than in the North Dakota tive.” Penitentiary.

Ostensibly, Judge sentencing used the This Court has had several occasions in adding phrase “and in no provision by which it judge jurisdic- held that loses challenge the constitutional- place” other tion sentencing a defendant to the 54-21-25, NDCC, on the basis that ity of § John v. Penitentiary. uphold he has taken an oath to the constitu- (N.D.1968). The same conclu- (This representation his at oral tion. was Gronlie sion was reached in argument.) challenge If the Heck, State v. (N.D.1973). 213 N.W.2d 874 depends of an Act on constitutionality supports This the proposition judge that the whether or not the officer has taken an sentencing after constitution, we would support oath to jurisdiction, has lost except under Rule list of officials who have an endless North Dakota Rules of Criminal Procedure. challenge constitutionality of an Act. I The language, place,” “and in no other the courts will be suggest would also seems to be a deliberate effort bypass preoccupied self-styled constitutional the decisions of this Court in the foregoing were the rule of law. questions if this cases so as jurisdiction. to retain some apply only judici- Even if it were to The only question presented and basic judges of district ary, I can visualize petition supervisory for a writ is wheth- courts, judges county of the courts with er or not the trial court authority had jurisdiction, judges of the county increased sentencing judgment include the un- courts, justice courts judges county of words, imprisoned derscored “be in the judges municipal courts chal- and of Dakota State . lenging statutory provisions various as be- at no other . .” The con- may apply as it ing unconstitutional question stitutional only by was raised functions, litigants of their not as but some judge trial in defense of his action. provisions as administrators of the judge point The trial did not law law. gave him the to insert concept, judicial may, officer Under this those words. a decision so as to deliber- sponte, sua make interest, Public upon which the majority ately question raise a constitutional as opinion rely, seems to has not been a relate to the actions that be taken ground upon ques- which a constitutional I think by body. another administrative tion has been considered. improper. per- this would be If this were devising mitted this Court would then be Public interest has been a factor in deter- judicial by mining one set of rules to be followed whether Supreme or not the Court officers and one set of rules to be followed should or should not exercise original its persons jurisdiction, all other and officers even if the but interest does not and not affect the func- particular grounds does has not heretofore constituted judicial question tions of the officer. In this in- entertain a constitutional either stance, provisions 54-21-25 do not before this Court or the United § States Su- judicial preme interfere with the functions of the Court.

trial court. But I beginning, said in the with refer-

Finally, question validity legal concept ence to the 54-21-25, NDCC, adequately privileges, philosophical can be I concur in the ex- § Kroeplin, pressions opinion who would have a Vogel, raised Justice I would not have reached the constitu- but question. J.,

PAULSON, concurs. S., R. D.

In the Interest of a child. DASOVICK,

John Petitioner Appellee, B., Respondent Appellant,

A. S., Respondent

R. D. in Juvenile Court.

Civ. No. 9363.

Supreme of North Court Dakota.

Nov. 1977.

Case Details

Case Name: State Ex Rel. Olson v. Maxwell

Court Name: North Dakota Supreme Court

Date Published: Nov 4, 1977

Citation: 259 N.W.2d 621

Docket Number: Cr. 613

Court Abbreviation: N.D.