Opinion
No. KNO FA 09 4111483 S
October 23, 2009
ORDERS ON APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM
Before this court is an application for a writ of habeas corpus filed by plaintiff. He states that he is an inmate at Bergin Correctional Institute. A review of the file which his application prompted raises two significant issues.
Is Plaintiff entitled to a Writ of Habeas Corpus?
"Habeas corpus" is a term with many meanings, often discernible only from the context in which the term appears. Most commonly it connotes "the Great Writ," which is aimed at determining whether or not an individual was being held by another in defiance of law — a writ protected by both United States and Connecticut Constitutions, as well as by statutes and court rules. But in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827 (1973), the court noted, "[o]ther forms of habeas corpus include habeas corpus ad respondendum; ad satisfaciendum; ad prosequendum, testificandum, deliberandum; and ad faciendum et recipiendum," 411 U.S. 475, fn.2. The writ sought here is for habeas corpus ad testificandum, defined in Black's Law Dictionary, 8th Ed., as a "writ used in civil and criminal cases to bring a prisoner to court to testify." This court is concerned with what standards control its discretion to issue a writ of habeas corpus ordering the Commissioner of Correction to transport plaintiff to a hearing in this action, as plaintiff requests.
That the issuance of a habeas corpus writ to allow a prisoner to testify is a matter within the court's discretion is not in question. In Faust v. Commissioner of Correction, 85 Conn.App. 719 (2004), and again in Reese v. Commissioner of Correction, 95 Conn.App. 668 (2006), the Appellate Court sustained trial court judgments after the lower courts in both cases had denied such writs upon applications made by prisoners seeking to overturn their criminal convictions. In both cases, the trial judges had decided that the testimony sought would be of no value to the outcome of the case. In Reese, the reviewing court declined to articulate a standard for courts to follow in deciding whether to grant a request for a writ of habeas corpus ad testificandum, observing that few Connecticut authorities had previously mentioned the writ and establishing that its grant or denial only raises an issue as to whether or not a trial court has abused its discretion.
In juvenile court actions involving parents who are prisoners, a trial court's denial of a writ of habeas corpus ad testificandum has been held to be error. In re Jonathan P., 23 Conn.App. 207 (1990). Our statutes make parents of children involved in juvenile proceedings necessary parties, and the interests at stake in such proceedings (including potential termination of parental rights) have constitutional significance. In In re Sheryl S., 3 Conn. L. Rptr. 448 (1991; Petroni, J.), the court deemed the issuance of the writ to be a matter of right, but again, that was a juvenile proceeding, and, further, it involved a prisoner sentenced in Connecticut but transported administratively to a Pennsylvania correctional facility under the authority of a statutory interstate compact which expressly provided for his return here in the event that civil proceedings arose in which his presence would be essential.
The instant case is unlike any of the above, in that it is a civil action initiated by plaintiff involving only his private affairs. His liberty interests are not at stake. No state agency is proposing to affect his relationship with his children. Conceivably his testimony is crucial to the action going forward at this time, but is that assumption sufficient to confer upon him a right to the issuance of the writ?
Various federal courts have faced that issue. In Matter of Warden of Wisconsin State Prison, 541 F.2d 177 (1976), the Court of Appeals for the Seventh Circuit answered the question in the negative, relying in part upon the U.S. Supreme Court case of Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974). The Wisconsin case involved a prisoner's suit alleging a federal civil rights violation. The warden objected to bringing him to court on a habeas ad testificandum due to both fiscal and security concerns. The court first considered whether the presence of such a prisoner before the civil court was a matter of right, and determined:
We find no support in the Constitution or in judicial precedent for the proposition that a prison inmate has a fundamental interest in being present at the trial of a civil action to which he is a party, sufficient to outweigh, as a matter of course, the interest of the state in avoiding expense. The due process requirements of the Fifth and Fourteenth Amendments, which guarantee access to the courts, do not grant a prisoner the right to attend court in order to carry on the civil proceedings which he initiates.
But just as the issuance of such a writ was not a matter of automatic right, the court yet held that its issuance was within the discretion of the trial court. In exercising such discretion, the court was counseled to consider the following factors, which are presumably non-exclusive:
How substantial is the matter at issue? How important is an early determination of the matter? Can the trial reasonably be delayed until the prisoner is released? Have possible dispositive questions of law been decided? Has the prisoner shown a probability of success? Is the testimony of the prisoner needed? If needed, will a deposition be reasonably adequate? Is the prisoner represented? If not, is his presence reasonably necessary to present his case?
Because the case was resolved on other grounds, the court did not engage in that balancing test in this particular matter.
Latiolais v. Whitley, 93 F.3d 205 (5th Cir. 1996), likewise involved prisoners' allegations of violations of their civil rights. The trial court had denied the several plaintiffs' applications for writs of habeas corpus ad testificandum, and jury verdicts for the defendants resulted. The circuit court reversed and remanded for a new trial. While recognizing that the trial court had discretion with respect to such applications, it held that, in this instance, that court had not properly balanced ". . . factors such as `whether the prisoner's presence will substantially further the resolution of the case, the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted.' . . . Consideration of these factors is meant to ensure that the district court properly weighs the interest of the inmate in presenting his case in person, versus the interest of the state in maintaining the inmate's incarceration," 93 F.3d. 205, 208 (citations omitted). The nature of this case made credibility of the witnesses crucial to the result. While defendants were physically present, the testimony of the absent plaintiffs was provided to the jurors only though the reading of transcripts of their depositions. Allowing such an imbalance in the presentation of the case effectively deprived plaintiffs of a fair trial, and the decision clearly considered this a deprivation not within the parameters of the trial court's discretion.
Lastly, in Oliver v. Goodwin, 221 F.3d 1343 (8th Cir. 2000), the circuit court expressly approved a trial court decision denying a prisoner's application for a writ of habeas ad testificandum while administratively dismissing his underlying action, because it had done so with an express reservation that he could revive his suit without prejudice upon his release from incarceration.
These federal decisions, given the absence of any contrary Connecticut authority, lead this court to conclude that when reviewing a prisoner's application for writ of habeas corpus in order to testify in a private civil action the court is not allowed to peremptorily deny the writ, but also that in such review the court is not relegated to the ministerial function of signing every such application placed before it. The particulars of the case are key, and some showing of necessity for the transport is elementary.
In this case, the court has not only reviewed the entire file but also takes judicial notice of the website of the Department of Correction which, inter alia, contains information on each prisoner's status. According to that source, plaintiff here was sentenced on September 2, 2009, to a term of 240 days on the offense of Operating Under Influence of Liquor or Drugs. His maximum release date is April 29, 2010, but under the provisions of General Statutes §§ 18-7a or 18-98d an earlier release is foreseeable.
His complaint bears a return date of July 21, 2009. Defendant has appeared and filed a counterclaim. In his application for the writ compelling his transport to court he represents that the parties have an agreement as to all issues, a circumstance which is corroborated by the parties' case management agreement filed September 10.
If the application is approved, the state will incur whatever undefined burdens with respect to security and cost that might ensue. If denied, on the other hand, then 1) the defendant may appear and proceed on her counterclaim, allowing the court to approve the agreement the parties assert they have; or 2) the case may be continued until the plaintiff is released, at which time the case will still be well less than one year old. The necessity of ordering the Commissioner of Correction to transport the plaintiff to court at this time, when he likely will be able to appear here on his own power within a relatively short period of time, is not evident.
II. Does this court have jurisdiction as to child custody?
The court's review of the file reveals yet another problem facing plaintiff. The complaint alleges that the parties are the parents of a minor child born March 29, 1997. His claim for relief demands an order of joint custody, with visitation rights to plaintiff. Accompanying the complaint, on Judicial form JD-FM-164, is the affidavit required by General Statutes § 46b-115s and by Practice Book § 25-57 outlining the facts essential to permit this court to determine whether it has jurisdiction to enter a custody order under General Statutes §§ 46b-115, et seq., the Uniform Child Custody Jurisdiction and Enforcement Act. That affidavit indicates that the child and the defendant have lived in Greensboro, North Carolina, since 2003.
This state's iteration of the UCCJEA sets forth six distinct bases upon which this court might find that it possesses the jurisdiction requisite to the entry of a custody order. None of those bases can be found in this case, as the fact that the child has resided in North Carolina for more than six years makes that state his home state, beyond refute. Whatever jurisdiction Connecticut has to determine custody of this child arises from our statute; Muller v. Muller, 43 Conn.App. 327 (1996). Absent a statutory foundation, the court lacks subject matter jurisdiction and therefore the claim for custody ought to be dismissed; Grynkewich v. McGinley, 3 Conn.App. 541 (1989). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver;" Figueroa v. C S Ball Bearing, 237 Conn. 1, 5 (1996). The election of one or both parents to file their claims in this forum clearly does not overcome the defect; Muller, supra.
This and other cases cited which predate the year 2000 construe the Uniform Child Custody Jurisdiction Act, which the Uniform Child Custody Jurisdiction and Enforcement Act superseded effective July 1 of that year. The concerns addressed by the earlier statute as to the superior court's subject matter jurisdiction of custody issues continue over into the successor act, and the principles articulated in the cited cases remain controlling with respect to the question now before this court.
Here especially, where neither party is represented by counsel and it is not foreseeable that either will raise or pursue the question of subject matter jurisdiction, the court is obligated to raise and determine it on its own motion.
In Scott v. Somers, 97 Conn.App. 46 (2006), the Appellate Court directed trial courts confronted with UCCJEA issues to consult not merely Connecticut law but the law of the alternative venue as to the effect of any orders entered therein. Although Scott involved a prior order of the Florida court, and no North Carolina order has yet been brought to this court's attention, this court nevertheless, in light of the undisputed residence of the child, considers that North Carolina's provisions for initial child custody jurisdiction determination may have a bearing on this question. Section 50A-201 of that state's statutes provides, in full:
(a) Except as otherwise provided in G.S. 50A-204, a court of this State has jurisdiction to make an initial child-custody determination only if:
This section, dealing with temporary emergency jurisdiction, has no relevance to the present case.
(1) This State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under G.S. 50A-207 or G.S. 50A-208, and:
a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
b. Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under G.S. 50A-207 or G.S. 50A-208; or
(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination. (1979, c. 110, s. 1; 1999-223, s. 3.)
Though not a mirror image of our statute, this court is reasonably certain given the facts alleged thus far in this record that North Carolina would exercise its jurisdiction as to the custody of the child, and that it would be error for this court to do so.
In Temlock v. Temlock, 95 Conn.App. 505 (2006), the court admonished trial courts to only resolve child custody jurisdiction issues after affording the parties a full opportunity to offer evidence pertinent to the topic. Similarly, in Grynkewich, supra, that court reversed a trial court which had dismissed a case suo moto without first conducting an evidentiary hearing. These precedents raise an obvious concern that it may be premature for this court to act on the custody issue today.
Both cases are distinguishable. Temlock involved a child with connections both to this state and to Japan. The jurisdictional question was which judicial system was the most convenient forum, a step beyond the issue here, in which Connecticut jurisdiction is implicated ab initio. The Grynkewich decision noted the absence from the record of any affidavit as to subject matter jurisdiction, a void filled here by the plaintiff's submission of the required form, as described above. Considering the posture of this case, the evidence or residence in the record, and the applicable law of both this state and North Carolina, this court is hard pressed to imagine anything which might be adduced at an evidentiary hearing that would create jurisdiction here under § 46b-115k. However, there is less harm in affording these parties an opportunity to be heard before deciding this question than in answering it without the process due them and causing unnecessary work for another court on another day.
III. Orders
In light of the foregoing, it is hereby ORDERED:
1) The application for writ of habeas corpus ad testificandum is denied.
2) A case status conference in this action is scheduled for 2 p.m. on May 6, 2010, at which time all parties must be present. If, however, the matter has gone to judgment prior to that date, that conference will be cancelled.
3) Prior to either party requesting this court to enter any order regarding custody of or visitation with their child, that party shall show cause, if any they have, why the court ought to exercise jurisdiction in this case. Any party supporting or opposing that conclusion shall come prepared to offer evidence and to outline legal authorities which support his or her position, including a discussion of what action has been taken to bring this issue before the courts of the State of North Carolina, and the response of that state's courts to such efforts.