§ 7003.When the writ shall be issued.

Subd (a) of this section combines CPA §§ 1231, 1252 and 1253, and the first and third sentences of § 1235. By use of the phrase “or . . . order the respondent to show cause,” it also includes the writ of certiorari to inquire into detention. The second sentence of CPA § 1235, which imposed an automatic forfeiture of one thousand dollars upon a judge who failed properly to grant a writ of habeas corpus in a case in which it should issue, has been retained. See subd (c). The respondent, instead of being ordered to produce the body of the person detained, may be required to justify his continued imprisonment without bringing the prisoner to court. This function was formerly served by the writ of certiorari. Under the Federal statute, the device used is an order to “show cause why the writ [of habeas corpus] should not be granted.” 28 USC § 2243 (1952); see also NJ Rev Stat § 2A; 67-16 (1951). If the hearing under the Federal statute results in a finding that the imprisonment is unlawful, the prisoner should be released and there seems little reason to then issue a writ of habeas corpus. The Federal terminology is explicable on historical grounds. The Judicial Code did not contain this phrase. In order to avoid needless production of prisoners the device of orders to show cause was developed. See Longsdorf, Habeas Corpus—A Protean Writ and Remedy, 8 FRD 179, 187-88 (1949). This procedure was approved by the Supreme Court in Walker v Johnston, 312 US 275, 284 (1941), where the court noted:

“By this procedure the facts on which the opposing parties rely may be exhibited, and the court may find that no issue of fact is involved. In this way useless grant of the writ with consequent production of the prisoner and of witnesses may be avoided where from undisputed facts or from incontrovertible facts, such as those recited in a court record, it appears, as matter of law, no cause for granting the writ exists. On the other hand, on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge. This practice has long been followed by this court and by the lower courts. It is a convenient one, deprives the petitioner of no substantial right, if the petition and traverse are treated, as we think they should be, as together constituting the application for the writ, and the return to the rule as setting up the facts thought to warrant its denial, and if issues of fact emerging from the pleadings are tried as required by the statute.” The procedure was then explicitly incorporated in the Judicial Code in 1948. See Hart & Wechsler, The Federal Courts and the Federal System 1311– 12 (1953); cf. CPA §§ 1261, 1263.

This subdivision has limited the discretion of the court not to require production of the prisoner to cases where the petition does not request his production (in effect, a petition for a writ of certiorari) or where there are no disputed questions of fact. Cf. CPA § 1235 (“unless it appears from the petition itself . . . that the petitioner is prohibited . . . from prosecuting the writ”). The first exception may be preferred by a petitioner who wishes to avoid the cost of producing a prisoner. See People ex rel. Semenoff v Nagle, 118 Misc 476, 478–79, 194 NY Supp 602, 604 (Sup. Ct. 1922). The second exception incorporates that suggested for coram nobis cases by the Court of Appeals, since the “difference” between coram nobis and habeas corpus is “procedural only.” People v Richetti, 302 NY 290, 97 NE2d 908 (1951); United States v Hayman, 342 US 205 (1952); see also Note, The Uniform Post-Conviction Procedure Act, 69 Harv L Rev 1289, 1298–99 (1956). In view of the narrow scope of habeas corpus in criminal cases (see People v Silberglitt, 4 NY2d 59, 149 NE2d 76 (1958); Morhous v New York Supreme Court, 293 NY 131, 135, 56 NE2d 79, 81 (1944)), providing few possibilities for its abuse, and the limited authority of the advisory committee to propose changes verging on the substantive, the committee decided on the conservative position granting maximum protection to the prisoner which is reflected in the draft. The provision also reflects the committee’s desire to give the person for whose benefit the hearing is held the right to be present when a witness is heard, whether or not he himself has testimony to give. The second sentence of this subdivision replaces CPA § 1231, which dealt with restrictions on allowance of writs, CPA § 1252, which covered cases in which the prisoner must have been remanded, and CPA § 1253, which listed situations in civil cases where the prisoner could have been released. The grounds for issuance of the writ and for release of the person detained should be the same, since release will follow if the allegations on which the writ must issue are found to be true. The former statutory scheme clearly revealed this identity by using almost the same language and organization in CPA §§ 1231 and 1235. Integration of the former sections is emphasized by a reference in § 7010(a) to “a case in which the writ should issue.” Analysis of the specific provisions in CPA §§ 1231, 1252, and 1253 indicates that they are misleading rather than helpful to the lawyer or layman attempting to determine when the writ should issue. Subd 1 of CPA §§ 1231 and 1252 are replaced by the phrase in this subdivision, “or that a court or judge of the United States has exclusive jurisdiction to order him released.” The restriction of the writ to exclude challenge of orders “issued by a court or judge of the United States in a case where such court or judges have exclusive jurisdiction,” was formerly found in CPA §§ 1231 and 1252 and in the laws of other states. E.g., Ill Rev Stat c. 65, § 21(1) (1955); NJ Rev Stat § 2A:67-14(a) (1951). The words “exclusive jurisdiction” in those statutes were misleading, since they appeared to mean that only if the state courts could not have issued the order upon which the detention rests were they prevented from issuing the writ. In fact, if a Federal court issued the order, whether it had concurrent or exclusive jurisdiction is irrelevant to the issue of immunity of Federal judicial process to interference by state judicial process. See Abelman v Booth, 21 How 506 (US 1858). Since the issue of the Federal court’s having exceeded its jurisdiction could not be tested in a state habeas corpus proceeding, the only question for the state court when a writ is sought could be whether the order under which the prisoner was held was issued by a judge or court of the United States. Even a serious dispute about this issue would, it would seem, be one beyond the power of the state court to decide. Apparently the statutes in other states were copied from the New York statute or a common source for the New York statute read the same way it does now as early as 1829. NY Rev Stat pt 3, c 9, tit 1, art 2, § 22 (1829). Those statutes were adopted before decisions by the Supreme Court of the United States clarified the lack of power of the states to use habeas corpus to challenge a detention made on Federal order. It seems clear that the state courts have also been denied power to issue the writ even in cases where there was no Federal court order where “the prisoner is held by an officer of the United States under what, in truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release.” Tarble’s Case, 13 Wall 397, 411 (US 1871); see Hart & Wechsler, The Federal Courts and the Federal System 388–390 (1953). The committee decided against a formulation that would embody in our statutes the rule of Tarble’s Case and of the Abelman case. It believes the state writ should be available to prevent illegal imprisonment within the state in all cases except where Federal law prohibits its issuance. Since there is doubt of the wisdom of the present Federal position on the matter, this provision makes the writ available in the state courts should the United States decide to give up its claim to exclusive jurisdiction. Subd 2 of CPA § 1231 and subds 2 and 3 of CPA § 1252 were designed to serve the same purpose. The first of those subdivisions appeared to require the writ to issue whenever the prisoner was detained for any contempt. CPA § 1252 appeared to require release wherever the imprisonment was based upon a civil contempt by “virtue of a final judgment or decree.” That apparent inconsistency between when the writ should issue and when, if the allegations of the petition prove to be true, the prisoner should be released was introduced by the revision of 1880, evidently because of the confusion about what constituted a criminal contempt. See 2 NY Code Civ Prac § 2016, note (Throop ed 1880). Issuing a writ which on its face must result in a remand seems singularly useless. It is difficult to justify any exception for contempts — whether civil or criminal — to the normal habeas corpus test of illegal detention. If the error is one which ought to be reviewed by appeal there should be no collateral attack, whether by habeas corpus or writ of certiorari. If the detention is one beyond the “jurisdiction” of the court, it should make no difference whether the “order” of commitment was final or not—a distinction that CPA §§ 1231 and 1252, read literally, appeared to make. 21 Carmody-Wait, Cyclopedia of New York Practice 101–105 (1956); cf. Cohen & Karger, Powers of the New York Court of Appeals 176 (1952) (contempt order final if against someone not a party but not final if against a party). The law formerly was not clear with respect to the proper mode of attacking a contempt order. See, e.g., Cohen & Karger, op cit supra at 174–76, 709, and cases there cited. If the adjudication, whether criminal or civil, was made by a court of civil jurisdiction, appeal was available under the civil practice act; except that an order punishing for contempt in the “immediate view and presence” of the court was reviewable under former article 78 and is now reviewable under § 7801, whatever the nature of the court. Id. at 174–75, 709; 21 Carmody-Wait, op cit supra 361, 364–65. The Code of Criminal Procedure does not apply to reviews of criminal contempts (Code Crim Proc § 515), unless prosecution was for the crime of criminal contempt as a misdemeanor under section 600 of the Penal Law. Since the Code of Criminal Procedure does not apply, review must be had by civil appeal, an article 78 proceeding in the nature of certiorari ( Douglas v Adel, 269 NY 144, 149, 199 NE 35, 38 (1935); Knapp v Schweitzer, 2 AD2d 579, 580, 157 NYS2d 158 (1st Dept 1956), affd 2 NY2d 913, 141 NE2d 825, cert granted, 355 US 804 (1957) (commitment for contempt for refusing to answer grand jury question; article 78 proceeding in nature of prohibition) or by collateral attack through habeas corpus. People ex rel. Sarlay v Pope, 230 App Div 649, 651, 246 NY Supp 414, 416 (3d Dept 1930) (appeal from commitment order and appeal from denial of writ of habeas corpus heard together). The preferred practice is to review by civil appeal. See the full discussion in Matter of Grand Jury, County of Kings (Reardon), 278 App Div 206, 209, 104 NYS2d 414, 417 (2d Dept 1951); see also People v De Feo, 308 NY 595, 127 NE2d 592 (1955) (commitment for contempt for refusing to answer grand jury questions); Pawolowski v Schenectady, 217 NY 117, 111 NE 478 (1916); People v Diefendorf, 281 App Div 465, 468, 119 NYS2d 469, 473 (1st Dept 1953), affd 306 NY 818, 118 NE2d 824 (1954) (“There has been some confusion in the past as to the proper method of review but we regard it as settled practice now that an order of criminal contempt of the character here involved [juror discussing case outside jury room] is appealable.”). In view of the full review by direct civil appeal now afforded, there seems no reason to permit review through a collateral attack by habeas corpus as CPA § 1231 seemed to do. This is particularly true since, after issuing the writ of virtue of the command of CPA § 1231, the court could not release the prisoner unless the committing court in a criminal contempt case lacked “authority to commit” (CPA § 1252) or in a civil contempt case where the “jurisdiction” of the civil court was “exceeded,” or for some other jurisdictional reason set out in CPA § 1253. In short, while apparently permitting a full review of contempt commitments, it is doubtful whether the habeas corpus provisions do so. The practitioner who attempts to use his method instead of appeal, having wended his way through the statutory maze, may find himself against a blank wall. But cf. People ex rel. Sarlay v Pope, 230 App Div 649, 651, 246 NY Supp 414, 416 (3d Dept 1930). Commitment for contempt should not be treated differently from any other commitment. Review of errors should be by appeal and only if there is a jurisdictional defect should habeas corpus be used. The exception for orders summarily punishing for contempt in the presence of the court is retained because of the possible absence of a record. See § 7801 and notes. However, under both present and former law, the proceeding is started in the Appellate Division and is in the nature of an appeal. See §§ 7803(4), 7804(d) and notes. Those portions of subd 2 of CPA §§ 1231 and 1252 which did not deal with contempt appeared to prevent an attack on final orders or judgments, or process issued upon such orders or judgments by “a competent tribunal of civil or criminal jurisdiction.” The scope of the limitation cannot be determined from the statute, however, but requires a review of what constitutes a “jurisdictional” defect under the cases. See introduction to proposed article 7. As the Court of Appeals stated in Morhous v New York Supreme Court, 293 NY 131, 135, 56 NE2d 79, 81 (1944): The express statutory limitation was not intended to abridge the privilege of the writ of habeas corpus. Indeed, the Legislature had, under the Constitution of the State, no power to do that. The statute merely formulates the limitation which had generally been applied by the court of Kings Bench in England and by the courts of America.

The new test of “lawfully detained” furnishes as precise a guide as did the former sections. The only sound alternative to a test such as that in this section is an enumeration which at best can be only suggestive. The change will not result in any diminution of the rights of persons imprisoned; indeed, the grounds for the writ may not be decreased by the legislature. People ex rel. Tweed v Liscomb, 60 NY 559, 566 (1875). The listing contained in CPA § 1236 was only slightly more helpful than that in CPA §§ 1231 and 1252. Subsections 1, 3, 4 and 6 of CPA § 1236 said no more than that the prisoner should have been discharged when he was detained on authority of an order which was issued by an officer lacking jurisdiction to issue it. That aspect is covered by this subd’s use of the words “lawfully detained.” Subd 5 of CPA § 1236 appeared to require release where the prisoner was detained by the wrong person. That was misleading because, in such a case, he should not have been released, but should have been remanded to the custody of the proper person. CPA § 1256; see also proposed §§ 7010(a), 7010(c) and notes. Subd 2 of CPA § 1253 provided for the case of lawful imprisonment where subsequent events entitled the prisoner to discharge. If the mandate to keep the prisoner expired by a condition subsequent, then his continued detention is “illegal” and he would be released under any formulation. If exercise of judgment with respect to the need for continued imprisonment is required, application should be made for a modification of the original order and not by collateral attacks. See cases cited in 21 Carmody-Wait, Cyclopedia of New York Practice 101 n 4 (1956).

Subd (b) of this section is based upon § 2244 of title 28 of the United States Code. It continues the common law and former position in this state that res judicata has no application to the writ. See, e.g., People ex rel. Lawrence v Brady, 56 NY 182, 191–92 (1874); Annot., 161 ALR 1331 (1946); 21 Carmody-Wait, Cyclopedia of New York Practice 519 (1956). Nevertheless, courts do not look with favor on successive applications for the writ which raise no new grounds or supply no new facts, and they may give weight to a prior refusal to grant the writ. Ex parte Hawk, 321 US 114, 118 (1944); Wong Doo v United States, 265 US 239, 240 (1924); see also Goodman, Use and Abuse of the Writ of Habeas Corpus, 7 FRD 313, 314 ff. (1948); Parker, Limiting the Abuse of Habeas Corpus, 8 FRD 171, 174 (1949). Moore succinctly sums up the effect of the Federal provision as follows:

“Section 2244 is new and although it had no statutory counterpart in prior law, many courts had ‘consistently refused to entertain successive ”nuisance“ applications for habeas corpus.’ The elementary rule that a denial of habeas corpus is not res judicata remains undisturbed. A circuit or district judge has complete freedom to entertain an application for a writ of habeas corpus despite a previous denial. The point is that they are not required to do so when there is a concurrence of all of the following circumstances: (1) a federal judge or court has denied a prior application; (2) the petition presents no new ground not theretofore presented and determined; and (3) the judge or court to whom the present petition is presented is satisfied that the ends of justice will not be served by the present inquiry.” [Moore, Commentary on the U.S. Judicial Code 437-38 (1949).] The last paragraph of CPA § 1234 (added by Laws 1930, c 81) was susceptible of being interpreted in the same way as this subdivision. It read as follows: “For failure to . . . state any new facts other than were stated in the previous applications the writ on such subsequent application may be vacated without notice or the application may be denied. . . .” Subd (c) of this section is the penalty provision formerly found in CPA § 1235.

Add, L 1962, ch 308, eff Sept 1, 1963.