Coy Ringo, Et Al.. V. John W. Turner, Warden Utah State Prison : Brief of Respondent

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1965 Coy Ringo, et al.. v. John W. Turner, Warden Utah State Prison : Brief of Respondent

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Original Brief submitted to the Utah Supreme Court; funding for digitization provided by the Institute of Museum and Library Services through the Library Services and Technology Act, administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine- generated OCR, may contain errors.Mark & Schoenhals; Attorneys for Plaintiff nda Appellant.

Recommended Citation Brief of Respondent, Ringo v. Turner, No. 10255 (1965). https://digitalcommons.law.byu.edu/uofu_sc1/4769

This Brief of Respondent is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs (cases filed before 1965) by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. IN THE SUPREME CO .

COY RINGO, et al., Plaintiff-Appellant,

-vs.- . ,.. "ti'" JOHN W. TURNER, Warden. · .. ; Utah State Prison, : .ff Defendant-Res;

Appeal from theJ, 3rd District Court f• Tho~ Honorable . L ·; '

ROBERT E. SCHOENHALS/ ·... · 902 Keams Building Salt Lake City, Utah Attorney for Appellant TABLE OF CONTENTS Page ST ATEMENT OF THE KIND OF CASE ------DISPOSITION IN LOWER COURT------RELIEF SOUGHT ON APPEAL ------2 ST ATEMENT OF FACTS ------2 ARGUMENT ------·------2 POINT L THE APPEAL SHOULD BE DISMISSED SINCE NO FINAL ORDER HAS EVER BEEN ENTERED IN THE INSTANT CASE. 2 POINT II. THE SUBST ANGE OF THE APPELLANT'S PETITION FOR HABEAS CORPUS SHOWS ON ITS FACE THAT THERE rs NO BASIS FOR RELIEF. ------3 POINT III. HABEAS CORPUS IS AN INAPPROPRI- ATE REMEDY TO CHANGE THE PLACE OF CONFINEMENT.------8

r I CONCLUSION ------9

CASES CITED f Aldridge v. Beckstead, 396 P.2d 830 (Utah 1964) ------2 I Calder v. Bull, 3 DalL (U.S.) 386 ------6 Chapman v. Graham, 2 U.2d 156, 270 P.2d 821 ------9 Clark, In re, 86 Kan. 539, 121 P_ 492 ------5 Fletcher v. Peck, 6 Cranch (U.S.) 138 ------7 Garrett Freightlines, Inc. v. State Tax Commission, 103 U_ 390, 135 P.2d 523 (1943) ------7 Jones v. Moore, 61 U. 383, 213 P. 191 ------9 ( Lukich v. Utah Construction Co., 46 U. 317, 150 P. 298 ------3 I Malloy v. South Carolina, 237 U.S. 180 ( 1915) ------7 Robison v. Fillmore Commercial & Savings Bank, 61 U. 398, 213 P. 790 ------3 State v_ Ringo, 14 U.2d 49, 377 P.2d 646 ------2 Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557 ( 1949) ------8 Truitt, Ex parte, 54 F.Supp. 999 (D.C. E.D. IlL 1944) ------8

L TABLE OF CONTENTS - Continued Page U.S. ex rel Gapinski v. Ragen, 152 F.2d 268 (7th Cir. 1945) ...... 8 Vigileos v. State, 84 Ariz. 404, 330 P.2d 116 ( 1958) ...... 8

CONSTITUTIONS AND STATUTES CITED United States Constitution, Article I, Section 10 ...... 3, 4 Utah Constitution, Article I, Section 18 ...... 3, 4 18 U.S.C. 5003 ...... 5 Utah Code Annotated 1953: 76-7-12 ························································································2 77-63-1 ························································································3 77-63-2 ························································································4 77-63-5 ························································································4

TEXTS CITED 11 Am. Jur., Constitutional Law, Sec. 351 ...... 4 39 C.J.S., Habeas Corpus, Sec. 29-1 ...... 9 Corwin, Constitution of the United States of America ( 1952), p. 327 ····························································································7 Hinkle, Interstate Cooperative Institutionalization - a Modern Device for Rehabilitation, 8 Journal of Public Law 509 ( 1959) 5 Rubin, et al., The Law of Criminal Correction, pages 270, 284 ...... 5 IN THE SUPREME COURT OF THE STATE OF UTAH

COY RINGO, et al., Plaintiff-Appellant, -vs.- Case No. 10255 JOHN W. TURNER, Warden Utah State Prison, Defendant-Respondent.

BRIEF OF RESPONDENT

STATEMENT OF THE KIND OF CASE The appellant Coy Ringo appeals from the denial of his petition for writ of habeas corpus by the District Court of the Third Judicial District of Salt Lake County, State of Utah. DISPOSITION IN LOWER COURT The appellant Coy Ringo and others filed a petition in the District Court of Salt Lake County, State of Utah, chal- lenging their detention in the California State Prison at Folsom, California, pursuant to an interstate compact agreement between the State of Utah and the State of California. The respondent, subsequent to the filing of appellant's petition, filed a motion to dismiss on the grounds that the petition failed to state a claim upon which relief could be granted. On August 28, 1964, the matter was heard before the Honorable Thornley K. Swan, sitting in 2 the Third Judicial District. On October 9, 1964, Judge Swan made a minute entry denying the appellant's petition for habeas corpus and granting the state's motion to dismiss the petition. Subsequently, on the 4th day of November 1964, a notice of appeal was filed. No order was ever entered by the court reflecting the court's judgment as recited in the minute entry.

RELIEF SOUGHT ON APPEAL The respondent submits that the appeal should be dismissed. STATE1\1ENT OF FACTS The appellant Coy Ringo was committed to the Utah State Prison for the crime of robbery on November 15, 1955. Subsequently, on l\1ay 23, 1962, the appellant \ras transferred, pursuant to action by Governor George D. Clyde and in accordance with the Western Interstate Cor- rections Compact adopted in 1959, to the State of Cali- fornia for imprisonment where he is now being held in Fol- som Penitentiary. Between the time of appellant's original commitment to the Utah State Prison and his transfer to the California authorities, he was adjudged guilty of another crime, being assault on a convict with malice afore- thought, in violation of 76--7-12, Utah Code Annotated 1953; State v. Ringo, 14 U.2d 49, 377 P.2d 646.

ARGU1\1ENT POINT I THE APPEAL SHOULD BE DIS~IISSED SINCE NO FINAL ORDER HAS EVER BEEN ENTERED IN THE INSTANT CASE. In Aldridge v. Beckstead, 396 P.2d 830 ( Ctah 1964)' this court observed that where the appellant had failed to 3 have a final judgment entered in a habeas corpus proceed- ing, the appeal was premature and should be dismissed. In the instant case the record reflects no final judgment by the trial court. The only evidence of the trial court's decision was a minute entry to the effect that the state's motion to dismiss the appellant's petition was granted. It is well established that a minute entry, showing the entry of order, is not a final judgment which will sustain an appeal. Robison v. Fillmore Commercial & Savings Bank, 61Utah398, 213 P. 790; Lukich v. Utah Construction Co., 46 Utah 317, 150 P. 298. Consequently, it is submitted that the instant appeal should be dismissed.

POINT II THE SUBSTANCE OF THE APPELLANT'S PETITION FOR HABEAS CORPUS SHOWS ON ITS FACE THAT THERE IS NO BASIS FOR RELIEF. The appellant's sole contention is that his confinement at Folsom Prison in California, pursuant to the Western Inter- state Corrections Compact, is contrary to the Constitution of the United States, Article I, Section 10, and contrary to the Constitution of Utah, Article I, Section 18, in that it has an ex post facto application to the appellant. Section 77-63-1, U.C.A. 1953, adopted the Western Interstate Corrections Compact into law on behalf of the State of Utah in 1959. It allows the State of Utah to enter into a contract with the various thirteen western states, including California, in order to "* * * improve their institutional facilities and provide programs of sufficiently high quality for the confinement treatment and rehabilitation of various types of off enders,' * * *. '' 4

Pursuant to the Western Interstate Corrections Compact, a contract was entered into between the State of Utah and the State of California and as a result thereof the appellant was transferred, from the State of Utah to the State of California in accordance with the act, to undergo his confinement at Folsom Penitentiary in California. 77-63-2, U.C.A. 1953, empowers the Board of Corrections to transfer any inmate to any institution within or without the State of Utah, pursuant to Article III of the Compact, after a contract has been entered into. The governor, pursuant to 77-63-5, U.C.A. 1953, is expressly authorized to enter into contracts with states which are parties to the Western Inter- state Corrections Compact. The compact does not provide for an increase in the minimum or maximum sentence which an inmate may serve. In no way does the compact increase the penal sanctions imposed against the individual inmate. The sole purpose of the compact and the result that it achieves is to allow the states to use institutions of other states which may be more suitable for confinement of a particular prisoner. It is well established that the provisions of Article I, Section 10, of the United States Constitution, and Article I, Section 18, of the Utah Constitution apply only to penal laws which have the effect of applying retroactively to make criminal an act done which was not criminal when per- formed, or to aggravate a crime or intensive the punishment, or alter the legal rules of evidence, making for an easier conviction. 11 Am. Jur., Constitutional Law, Sec- tion 351 notes: "The expression 'ex post facto laws' is a technical one which was in use long before the Revolution and had acquired an appropriate meaning by legislators, 5

lawyers, and authors. The phrase is one which relates exclusively to criminal or penal statutes."

In this regard, in In re Clark, 86 Kan. 539, 121 P. 492, it was rnled that a Kansas statute providing for the restraint and care of the criminally insane, enacted subsequent to the commission of the crime, was not ex post facto since it was not a criminal act but was one prescribing for the care and treatment of insane persons. In Rubin, et al., The Law of Criminal Correction, page 279, speaking with reference to interjurisdictional cooperation, it is stated: "* * * 'a prisoner has no constitutional right to be in- carcerated in a particular geographic location. Prison- ers confined infederal penitentiaries, for example, may be confined in any part of the United States without violation the "due process" clause of the Fifth Amend- ment.'"

Congress has apparently felt that there is no constitutional objection to allowing state prisoners to be confined in federal penitentiaries since they have expressly authorized the Attorney General to receive state prisoners for confinement in federal correctional institutions. 18 U.S.C. 5003. The sole purpose of such interjurisdictional compacts is to provide a modern device for rehabilitation. See Hinkle, Inter- state Cooperative Institutionalization - a Modern Device for Rehabilitation, 8 Journal of Public Law 509 ( 1959). As is noted in Rubin, et al., The Law of Criminal Correc- tion, page 284, the principal purpose behind acts similar to the Western Interstate Corrections Compact is to allow the transfer of prisoners to meet the best needs of the prisoner and the confinement system: "The leaislature has full authority to determine where prisonersb may be sent. It usually delegates t h e 6

responsibility to the courts, but it may also assign it to an administrative agency, and this is not an invasion of judicial power. The power is important for a correction department whose institutions have been diversi- fied. Thus it has been observed that 'the difference between the various institutions in our penal system is no longer a difference in the degree of discomfort each will impose upon prisoners, but rather a difference in the security or treatment that is needed for particular individuals, since all our penal institutions today seek to rehabilitate the prisoner. In order to use the various institutions to the best practical advantage, it is neces- sary that certain prisoners be transferred from time to time for the benefit of those around them and them- selves.' Transfers are commonly made for reasons of discipline or security, reclassification, or hospital treatment."

It is obvious from what has been noted above that this does not constitute ex post facto legislation. In Calder v. Bull, 3 Dall. (U.S.) 386, the United States Supreme Court enumerated the factors that may make a law ex post facto: "* * * 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender." An analysis of the corrections compact against the enumerated forms of ex post facto legislation makes it mani- 7 fest that the Western Interstate Corrections Compact is not ex post facto legislation merely because a prisoner, subsequent to its enactment, has his place of confinement changed. In Fletcher v. Peck, 6 Cranch (U.S.) 138, the Supreme Court of the United States stated: "***A ex post facto law is one which renders an act punishable in a manner in which it was not punishable when committed."

In the instant case, the appellant's conviction has always been punishable by confinement in a prison for a period of the rest of his natural life. The mere fact that the place of his confinement is changed does not enhance the punishment or change the nature of the sentence. See also Corwin, Constitution of the United States of America, (1952), page 327. In Malloy v. South Carolina, 237 U.S. 180 ( 1915), South Carolina changed the punishment for a capital crime from hanging to electrocution and provided that it would take place in the state penitentiary and further made various changes in the manner in which the execution would be carried out. The United States Supreme Court ruled that this was not ex post facto legislation. This court in the case of Garrett Freightlines, Inc. v. State Tax Commission, 103 Utah 390, 135 P.2d 523 (1943), noted that the Utah and federal constitutions prohibiting ex post facto legislation are limited to criminal and penal matters. In the instant case it is apparent that the purpose of the kgislation was to assist in carrying out the correctional purposes of prison confinement to rehabilitate and to maintain adequate discipline. There is no basis for a conclusion that the instant legislation is ex post facto merely because it was 8 enacted after the appellant's first conviction which he is still serving. POINT III HABEAS CORPUS IS AN INAPPROPRIATE REMEDY TO CHANGE THE PLACE OF CONFINEMENT. It is well established that habeas corpus is not an appropriate remedy to challenge the place of a prisoner's confinement. Consequently, the court was well within its preroga- tives in dismissing the petition as an attempt to use an inappropriate remedy for the result the appellant sought to achieve. In Ex parte TruittJ 54 F.Supp. 999 (D.C. E.D. Ill. 1944), the court observed that habeas corpus was not an appropriate remedy to challenge the place of confinement even if the petitioner's commitment directed he serve in an institution different from that where he was being held. In U.S. ex rel Gapinski v. RagenJ 152 F.2d 268 (7th Cir. 1945), a state prisoner challenged his transfer from the Illi- nois State Penitentiary to an institution for the criminally insane. In rejecting his petition for habeas corpus, the court states: "Petitioner's complaint is directed to his transfer from Joliet to Menard. This is an administrative func- tion and one which is authorized by the Illinois Stat- utes. See Ill.Stat.Ann. Chap. 108, Secs. 110-112. In fact, the officials are required to make periodic ex- aminations in order to determine whether or not any inmate of a penal institution should be transferred to the Psychiatric Division. The record demonstrates that the administrative officials followed the statute relative to petitioner's transfer. His complaint is without foundation for purposes of this petition."

See also Swanson v. ]onesJ 151 Neb. 767, 39 N.W.2d 557 ( 1949); ViRileos v. State, 84 Ariz. 404, 330 P.2d 116 9

( 1958) . In the latter case, the Arizona Supreme Court acknowledged that the petitioner's confinement was at an institution contrary to specific directives of the Arizona Constitution but ruled that habeas corpus was an inappropriate remedy to effect the transfer. This court has heretofore recognized limitations on the power of habeas corpus. Jones v. Moore, 61Utah383, 213 P. 191; Chapman v. Graham, 2 U.2d 156, 270 P.2d 821. Certainly the petitioner has no basis for habeas corpus attacking the place of his confinement whereas here the transfer is obviously for the purpose of discipline or because the conditions of petitioner warrant the transfer and where the transfer is authorized by law. 39 C.J.S., Habeas Corpus, Sec. 29-1. It is submitted, therefore, that the trial court acted properly in dismissing the appellant's petition.

CONCLUSION The appellant's contention that his confinement, pursuant to the Western Interstate Corrections Compact, is in violation of the Federal or Utah Constitutions is patently without merit. If any event, the petitioner may not attack the place of his confinement by writ of habeas corpus. This court should affirm.

Respectfully submitted, PHIL L. HANSEN Attorney General RONALD N. BOYCE Chief Assistant Attorney General Attorneys for Respondent IN THE SUPREME COURT OF

THE STATE OF UTAH

COY RINGO, et al, . Plaintiff and Appellant . Case vs. . No. 10255 JOHN w. TURNER, et al, .

Defendants and Respon~ent1 . " APPELLANT'S BRIEF

Appeal from the Judgment of the Third District Court for Salt Lake County, Honorable Thornley K. swan, Judge

Robert E. Schoenhals 903 Kearns Building Salt Lake City 1, Utah Attorneys for Appellant

Attorney General of the State of Utah State Capitol Building Salt Lake City, Utah Attorney for Respondents

&INIV'-PSflY OE UTAH

A?R 2 9 1965 IN '11U1 IUPltBNB eouB Cl! THE STA'l'B OF UTAH

COY UMGO. et al, I Plaintiff and Appellant, : Ca•• vs. I .Mo • 10255 JCU w. ft-aMD, .et al, I

u.zu.urr• • Ml•··· TABLE OF CONTEN'l'S

Page ..>T1\TEMENT OF THI KDID C1' CASS • • • 1 DISFOSITIOH IN TBB LOWER COURT • . 1 RELIEF SOUCHl'.l' ON APl:>Bl\l. • • • • • • • • • 1 ~TATE.MEN'!' OF FACTS •••••••••••••• 2 .·1RG~ • • • • • • • • • • • • • • • • • • • • • • • • 4

POINT I. FACTS ALI..EGBD XH APPEL- L"\NT' S Pn'.Il'XOM .NlJST, rOR. THE IUIU?OSE OF 'l'BIS APPBAL, BB '\SSUMED TO BE TRUB • • • • • • • • • • • • 4

1 OINT II. EX POST FACTO LAWS ARB ,ij>PCllJBil'JU) aY '19 Vl'AB STATE CONSTITUTION AND 'l'BB COH- STITUTIOH Oii' DlS UBXDJ> n'AftS 6 I'ODJ'l' II.I. ma wanam :mr•- sTAT'E CORRBCTIOHS COMPACT IS BX l:OS'l' FACTO W1IB.N APPLIBD TO f' ERSONS \.1,1HO WERE CONVICTED l\ND SENTENCED PRIOR TO ITS J?ASSAGJI 7 roINT IV. DinlB.R TD L'IGISLA- TIVE NOR THE BXBCUTIVB BRANCHES OF GOVERNMENT CAN BBVERSB OR ALTER THE JUDGMENT OF COURTS EXCEP'l' IR IHSTAllCBS P RDVXD8D FOR J.>IUOR TO THE TI.ME 'l'HE JUDG- MENT WAS RBNDBRBD ••••••••••••. 9

_:QNCLUSION • • • • • • • • • • • • • • • • • • • • • • 12

CASKS Cr.rBD

c,, i'arte Flora, 31 N.E. 2d 482 • • 8 - STATJMll" gr m gm Ar CASI 'lhi• ia a habeas cOl."pUs pwoceedinga

in which COy R.incJo 89eka relief f llml l\i.a bein9 unlawfully and illeqally naU'ained

of his liberty in the C&lifornia state

Priaon at •oltlOlft, Clllifosnia by tTohn ¥.

Turner, \~ of t:ha Utah State Priaon

and the uttab _.... at. oorreot:iona.

Q.t§POSD'!'I' JI • WWI GPU 'lhe stat.e cd Utah meNd ue dbaia•

plaintiff 'a petition for wri~ o! kab•••

corpu.a on the vraaud• tlul~ ea.id paition failed t:e •bte a aau• of •GU.- ~ which relief aould be qra11t:ed. .,. District C811lrt o£ salt Lake OOIGAty granted the st.at•'• llat:i.OD to di...._..

Defead•nt. e..X. nrYensal of ~ judgment diamtaai119 plaintiff'• f*"i~ion for a writ of habeas corpua.

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« STA'mlBl'l' W PACT§

On ~uquet 4, 1958, coy ainqe waa

~onvie~ed upon his plea of quilty t:o the

~f fense of robbery in ~ Dietriat Oourt

of salt Lake County, state of Utah. SUl:P-

3e·.cuently he waa sentenced "to be confined

,,na imprisoned in t.he Utah State Prison

for the indetewaina~• term as provided

by law for the erim• Of J!'Obbery• • OD

the 5th day of AuCJU•t, 1958, 119 waa delivered to the cuatody of warden John

','f. Turner of the Utah State fr:ieon.

Subaequent: t.e the COJWiertioa ·.Of -.id

coy Ringo and lli• delivery t.o tll• Uta.II State Frison, the 1959 Utah Legislature enacted the weatar.n I.nteratate corr•c- tion• compaot, Whldl oompact proYiM• for the incarceration in other stat.. of

~ r is onera convicted in Ut:a.b of cr:iaee

)>:¥,ii tt e<:i in Utah: and like\·lise provides

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• ;: <>r pri•oners convicted of f elon.iea in other states to be confined in U~.. On or '1bout May ~l. 1962, app-ellant Coy rungo v.ras remo\'9111 from the Vtah 8tata l r1_son ..:ind transferred to the California

~~ta te Prison at Folsom, C, lifornia, where

:1e ir> presently r.JOnfi.aed.

I'oint 1. Reta alle9ed in appeJrr lant'• petition muet, for ttae pzr,Ne ~ this appea:l, be aaaumed to be true.

I?oint 2. ax ~et facto la..w ... peoo- hibited by the Utah State ~titutioa and the Conati- tution of the United States.

l'oint 3. Th• Western Illtenute Cor- rections Compact i• ax po11t f ac"> whM applied to per- sona wllo wera eorwie~ and •entenced pcior to ita paaaage. ------Point 4. Reither the leqislative nor the executive branches of government oan reverse or alter the judgmen~ of courts ea~ in lnatances provi.s.d for prior ~o the the tl\4t ju~ was ren- aered.

a .1 .a. ll a 1. 11. :l PQM op

FACTS ALLEGED Dl APPBLLAft' S PBTITION MUST,

FOR THE PURPOSE OP '.l'BIS APPBAL, BS ASSUMBD

TO BB TRUE. It should also be pointed out that the Dtate of Utah in its Motion to Dismiss

<19rees ~ubstantially \vith the facts

•'laimed by appellant. secondly, in 5 Am. Jur. 2d Appeal and

Error, section 879, it is stateda "In passing on a demurrer, a motion to 4ismi.. , or any o.-er form of attack on the sufficiency

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. ' - of a pleading purpo&1ting to state a cause of action or defense, all the faata allaqed and properly set forth in the pleadinq th\UI attacked must, Lor the purpose of the ruling on t'be attack., be aall\l'Md 'to be true." :',lso, in the case of slater vs. Salt

Lake City, found at 115 U. 476, 206 P. 2d 153, the supreme Court of the State

':>f Utah held that where the trial court had suatained a general 4tlll'1¥.r9S, the Supreme Coust auat accept the alleqationa

of fact coatained 1n the eomplaiat •• being true. Xn the caee of Thomas G. Bearat and Lois v. Bear•t, bia wife ••· Bifhway D0partment of the State of Utah, found at __ u. 397 p * ~d 71, _ _,., t.b• Utah state supreme court apin indicated that \,•here the District court dismi.••• a _·ompL1int, that for the purpoaee of an

5 ..:.t 1·pea l, the Supreme Court must accept the facts alleged therein aa true.

UTAH STA.TB COllS'l"l.'l't.Pn'.Cll AllD mB OORB'l'ITU-

TIC* OI' BB UllDlll> ftABa.

Article I, Section 18 •f t:b• ee..ti- tution of Utah provide••

"Jlo »ill of at:•ai.JMlar, u potlt facto law, or law JapairiAt the ohli~tion of aont:ractta ahall be paaaed. •

Article I, ieGtiGn 10 ot t'Jae COnsti- tution of the uni~ at.a~ p~des as followa:

"No atat.e ahall eat-.it int:• any txeaty, alliance or confederationr qrant letters of marque and repriaal1 aoia lllOIMIJ', ... bill.a of credit, make anything but 9old .na ailvar coia :in ~ of payment of debts, pass any bill of attaiAde~, ex poat faotw) law, or law impairing the obli- gation of cGDtracts, or t:o , r~nt any title of nobility."

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PACT IS EX POST PAClO t11B11 AR-PLUD l'O

PBRSOlfS WBO WBR.B aGIVXcm.D Am> S8l'DClW

PRIOR '1"0 DW •ABSAGB. ln Wharton'• Cri•inal Law Section 20 at paqe 43 it 1a atatad aa follotin11

"By virtue of tb• ~owiaiona of the United states Constitution, neither the aanqreaa nor the state leqialaturea may adopt ax post: faet.o legialaUOA, that is, a statute is unconstitu~ional whiah at:t...,U to app~y mtlfO- actively a penalty or punishment to an act wlaiah waa innoG9tt w,b.en done, or which increases the penalty 'Which wu acu

Ona of the major ia•u•• preae11ted by the appellant in hi• petition for a writ of habaaa corpia and in his appeal

ia .:.:hether the waatarn IntentatG Corre~-

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-~ !' tions CC>mpact is ex poat facto aa to a 1:-·eraon who waa tried, convicted and aeaten- ced prior to the pasaa9e thereof. Both

the Utah State Coa•titutioa aad tbe

Gonatitution of the United Stat.. pro-

~ibit ex poet facto 199i1lation. In the case of Bx Pane ri.ra fouN\

dt 31 &. B. 2d 482, the ~upz-. C::~ Of -

the state of Cl1io wae c:onfJrOAted wA.tla • similar situation. Ill the Qiio <:ase, aa

individual kad been a~d to aerve a term in the Obio st.ate Jleforwatocy.

3ubeequently, an aC't ~ .-ffaoU.,.

1·lhich perm.i tted the tra.n.sfc of the µriaoner to the Ohio State »-.itetJ.&ry. The prisoner waa t!her•ft.er confined in

~ ~rison farua at the atate p4nitentiary. 'l'he Ohio supreme Court held that partica- Vlr act ex poat facto as to Mr. Fl.oft

tnd grutted relief.

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~ '._i i -- Where Utah prisoners are taken from the utah State Penitentiary and incar-

r:::~eratcd in various places of confinement throughout the several states which are rneribers of the Com.pact, the Utah prisoners .Jre deprived of their. rights to .·onfer with their local apirit:ual advis- or, their local counsel, and are ~rohibi ted from visiting with their friends and relatives. This ia obviously an altera- tion of their punishment to their detriment and disadvantage. '!be ap~lica tion of the Western Interatate Correction.a

Com1act is there.fore ex po•t facto as to E,eraons who w$re tried, convicted a.nd aen- tenced prior to ita paaaage. ram FOUR iT .IT!IER THE LEGISLATIVE NOR THE EXECU'l'IVB mt\N:~IES OF GOVERNMENT CAN REVERSE cm

LTBR THE JUDGMENT OF COUR'l'S EXCEFT Dl

9 INLJTi\lllCES PR.OVXD&D i'Oit PRIOR TO 'l'BB TDCB

THE JUDGMBlft WAS IUDIDERBJ).

It ia to be remembered that for the pur1XJse of this appeal the facts set forth in the petition for writ of habea• corpue muat be ua-4 to JDe true. In the petition it i• &1llllf9d that ta.

District Co\l~ of a.al• J.ake Coriaty ordered the }*titi•ar Ille eOD.fi.ned and impriaoned ip .she Bah..•tAM l••am (emphallia an:re).

J:n an •rly ~ dlloided b;r the supr_. CO.rt. of tile ,_.ritoa:y ., Utah known aa .tn 8e ."1.141• Ql.nMa,- to.ad at 5 u. 358, tile lu.PC•···~fO&' •be Territory of Utab .. ~ with a situation ill whJ.cb a prisoner had be-1 convicted and B9111laaced Clift blD ablu'gea, one iolygamy and tM ot:ller c:a-hllW.tation.

SUbaequently a law ,... pa.encl ~q

10 ; .y,.: ::he c.-:hortening of sentences for good

condu ~:t. The Court in holding that the

subse ucnt statute could not affect the ·.· rior nentence and conviction, stated:

"L~ \:e should allow the act of the legislature passed si.nc:e the sentence to control, it in erfect is to aciy that the le«JJA- L:tnre can, after judgment, nullify the ju.dgment and aet the 1risoner free. If the le~islature ca.n reduce the ~;entence at all, subsequent to the sentence, it can redw:• .Ct to ::.:n unlimited extent. Thia \iou ld be encroaching upo.n the .:iuthority of the executive, els it is the p.l'OVinoe of the m·~ecu tive, and not the le9is- la ture, to reprieve or pardon. It would also Qt all<"··~ig,g ,tht legislature 59·~9'f'C'Xi~ the iudicial bpnoh of tht qoyerDmfJD1=· and to W'HP U... duties. and to Mkt I MMIPCI apg iudgment different f;pm that entchJfd in cou,J'\1 • (emphasis ours) The District Court ordered the

, er t:.:ioner to be imprisoned in the Utah

. :. i; c i. rison. His :t-iresent confinement in

1 1 ·•'

•.

: ~-· .

·-

.' ~ 1:'1c (~alifornia state Prison at Folaom, ca lif ~>rnia, is in violation of that order, and is therefore without author-

CONCLYSIQN rl,intiff's petition for a writ of

~F• be,rn corpus states a cause of action uton .. hich relief can be granted, and the ;iction of the District Court in dia-

1;iL::sin·-; said petition should be reversed. Respectfully aubnitted,

MARK & SCHOBIDIALS ,-~w 903 Kearns Building salt Lake City 1, Utah Attorneys for :Plaintiff and Appellant.

12 )

(• .•.~ Re.::ei ved t.wo copies of the foregoing

Brit~f this 15th day of January, 1965. Attorney General of the state of Utah

BY.------