In the case of Donaldson v. Voltz, 19 W.Va. 156 (1881), in
declaring certain legislative restrictions placed upon the exercise
of the exemption provided in Article VI, Section 48, null and
void, this Court recognized that this constitutional provision
authorized the legislature to enact certain regulations, but said:
“* * * Where a Constitution establishes a right but has not
particularly designated the manner of its exercise, it is within
the constitutional limits of the legislative power to adopt all
necessary regulations in regard to the time and mode of
exercising it, which are reasonable and uniform and designed
to secure and facilitate the exercise of such right. Such a
construction would afford no warrant for such an exercise of the
legislative power, as under the pretense of regulating should
subvert or destroy the right itself. (Emphasis added.)”
In the case of Buskirk v. Judge of Circuit Court, 7 W.Va.
91, decided in 1873, Judge Haymond said:
“The writs of habeas corpus, mandamus and prohibition
are highly esteemed and appreciated by the intelligent and
patriotic of all free, well regulated governments, and the
absence and denial of them, as remedies to the citizen has ever
been a source of well founded grief and lamentation by the same
class in governments of oppression and despotism. So strong
has been the regard and appreciation of the people of this State
for these writs they have not been content to leave them . . .
dependent upon mere act of the Legislature, but they have . . .
made them constitutional writs . . . . * * * I am clearly of
opinion that it was not the purpose or intention of the
Legislature in enacting that section to prohibit this court from
hearing application for, and awarding writs of . . . habeas
corpus . . . .”
155 W.Va. at 279-80, 184 S.E.2d at 320 (emphasis in original). As a result of this
discussion, it was held in syllabus point two of Burgett that:
The intent of the Post-Conviction Habeas Corpus Act,
Code, 53-4A-1 et seq., as amended, was to liberalize, rather than
restrict, the exercise of the writ of habeas corpus in criminal
cases.
The majority in the case at hand says it recognized this holding from Burgett. However,
since the conclusion reached by the majority is in direct conflict with the Burgett holding,
I surmise from the majority's discussion that it reached its conclusion on what is the
unreasonable ground that parole poses no infringement on individual liberty except in narrow
circumstances attacking specific conditions imposed during the parole period. The history
of habeas corpus and its application by courts in other jurisdictions does not limit the writ to
such a narrow scope.
2. Continuing Viability of Issue Raised
The majority held Appellant's claim for relief from a sentence of imprisonment
moot because Appellant has been released from prison and placed on parole. While the
majority asserted that it was not basing its decision on any distinction between incarceration
and parole, it acknowledged that Appellant's complaint questioned the proper termination
date for his parole supervision _ which were he to be again imprisoned for parole violation,
would also be the date of termination of his sentence of imprisonment. It is clearly
disingenuous to find this issue moot when the termination date thus has vigor as a critical
component of the conditions of parole. This type of fancy footwork to circumvent the issue
raised would be funny if it were not so serious.
The writ of habeas corpus was long ago dubbed the “great writ” by the United
States Supreme Court in Ex Parte Bollman, 4 Cranch 75, 95 (1807). In the case of Peyton
v. Rowe, 391 U.S. 54, 58 (1968), the Supreme Court explained the purpose of the writ of
habeas corpus in the following way: “The writ of habeas corpus is a procedural device for
subjecting executive, judicial, or private restraints on liberty to judicial scrutiny.” (Footnote
omitted.) The court in Peyton went on to observe that due to its lofty purpose the writ of
habeas corpus is “both the symbol and guardian of individual liberty.”
In the context of a post-conviction collateral attack, this Court has never held
as a point of law that actual or implied incarceration is required to demonstrate judicially
cognizable impingement of liberty in order to invoke habeas jurisdiction of the courts.
Indeed, we have expressly acknowledged “that many state and federal courts have
determined that parole or probation is sufficient restriction of freedom to warrant a writ [of
habeas corpus] be issued.” Kemp v. State, 203 W.Va. 1, 2 n. 3, 506 S.E.2d 38, 39 n. 3
(1997). (See footnote 2) Other courts have explained the basis of our Kemp comment. For example, the
Supreme Court of Washington in Monohan v. Burdman, aptly summarized the reasons for
permitting parolees to pursue habeas corpus actions regardless of the substance of the actual
challenge raised by explaining that: [T]he restrictions, limitations, and conditions attached to the
usual parole status constitute a form of “custody” . . . because a
parolee, unlike the ordinary citizen is subject to supervision by
his parole officer, limited in his mode, manner, and place of
living and travel, restricted as to his associates and type of
employment, and subject to reincarceration in the event of a
breach of any conditions of his parole. Thus he is not a free
man in the commonly accepted sense.
530 P.2d at 336-37. A similar litany of restrictions on liberty was recited by the United
States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 478 (1972), and the high court
added dimension to the level of restraint on freedom a parolee may encounter in one of its
more recent decisions. In Samson v. California, 126 S.Ct. 2193 (2006), the Supreme Court
examined the constitutionality of a California law requiring a candidate for parole to provide
advance consent to warrantless search and seizure for any or no reason by a law enforcement
officer as a condition for release on parole. In reaching the conclusion that parolees are not
protected under the Fourth Amendment against suspicionless searches by law enforcement,
the high court observed that “parolees enjoy even less of the average citizen's absolute
liberty than do probationers.” Id. at 2198.
On the other hand, I appreciate that the right of a parolee to seek post-
conviction relief through habeas corpus is not universally recognized, (see Andrea G. Nadel, When is a Person in Custody of Governmental Authorities for Purpose of Exercise of State
Remedy of Habeas Corpus _ Modern Cases, 26 A.L.R. 4th 455, 466 (1983)). However, the
raw numbers on each side of this issue is not a determinative factor in this debate considering
the constitutional dimension habeas corpus has in this state.
The judicial authority granted _ and the concomitant duty imposed _ for
habeas corpus proceedings under the West Virginia Constitution state simply and plainly the
constitutional priority of our Court's jurisdiction to address cases in which any person duly
alleges and seeks a remedy for material impediments to that person's liberty. The majority
labors under the mistaken belief both that the Legislature can, and that the Legislature in fact
intended to, deprive a citizen of the habeas corpus remedy to end an alleged material restraint
on one's liberty arising out of the status of being on parole. The majority misses the point
that parole imposes material infringements on otherwise constitutionally protected liberty
interests.
3. Writ of Coram Nobis
The majority failed once again to answer a simple _ if somewhat obscure _
pleading question that has been left unanswered in our courts since the West Virginia Rules
of Civil Procedure became effective nearly fifty years ago: When the writ of coram nobis
was abolished in civil cases in 1960, (See footnote 3) did the writ survive for use in criminal cases? Rather
than give a forthright answer to this question, the majority suggested Appellant might have
relief from a clear sentencing error by filing “a motion” in a lower court. (See footnote 4) I see no good
reason for this Court to keep sidestepping this question. (See footnote 5)
To be clear, this dissent has nothing at all to do with letting parolees go free.
The heartfelt concern I raise is that the majority is being less than faithful and resolute in
living up to the responsibility entrusted to the judiciary by the people of this state for review
by habeas corpus where significant impediments to liberty interests are alleged. As long as
freedoms may be unlawfully curtailed, the people of this state have said through their
constitution that there is a right to seek vindication of those freedoms in the judicial system
by means of habeas corpus. Accordingly, I dissent from the majority's refusal to fulfill the
sacred obligation entrusted to the courts in this case.