Rule 80.4.Habeas corpus

Reporter’s Notes: Chapter II, § 41 of the Vermont Constitution establishes the availability of the “Writ of Habeas Corpus” and requires the General Assembly to “make provision to render it a speedy and effectual remedy in all cases proper therefor.” The applicable statutory law reflects this command, stating that the writ shall be issued “without delay” and shall be returnable “forthwith.” 12 V.S.A. § 3956. The present Court rule further implements these constitutional and statutory mandates by providing specific requirements for the prompt handling of habeas corpus requests. The rule contains several requirements. The complaint must be sworn. 12 V.S.A. § 3955. The complaint also must contain the information required by statute. Section 3952 states that the complaint must state the person by whom and the place where the plaintiff is imprisoned or restrained, the name of the prisoner and of the person detaining the prisoner, if known (if not known they must be described), and the “cause or pretense” of the imprisonment or restraint. The rule rejects one requirement previously imposed by case law. This is that the complaint contain specific factual allegations setting forth the plaintiff’s claim of illegality. In re Rickert, 124 Vt. 232, 203 A.2d 602 (1964). Instead the rule adopts the general principles of V.R.C.P. 8, requiring only that the complaint provide “fair notice of what the plaintiff’s claim is and the grounds on which it rests.” Reporter’s Notes, V.R.C.P. 8 (quoting Conley v. Gibson, 355 U.S. 41 (1957)). If a complaint fails to meet this standard the burden falls upon the defendant to move to dismiss. As with any other action under the civil rules, the judge should not dismiss the complaint except on motion under the rules. The rule calls for the prompt review of each habeas corpus complaint by a superior judge of the court in which it has been filed. If no superior judge is physically available when the complaint is filed, the complaint should be read promptly over the telephone to a superior judge. The judge should determine whether the complaint seeks immediate relief. Habeas corpus, in Vermont, may be used solely to obtain immediate relief, as opposed to relief which would result in freedom some time in the future. In re Bryant, 129 Vt. 302, 306, 276 A.2d 628, 631 (1971); State v. Polidor, 129 Vt. 139, 274 A.2d 477 (1970). Note that the relief available under the habeas corpus statute is not restricted to release from imprisonment. The statute speaks of any type of unlawful restraint. 12 V.S.A. § 3952. Thus, a petition for habeas corpus is proper if it seeks immediate relief from any type of unlawful restraint. See Gross and Lawson, New York Habeas Corpus in 16 Colum. Hum. Rts. L. Rev. (1984-85) ch. 14, at 308 (collecting cases applying the immediate relief criterion under New York law). If the complaint does seek immediate relief, the judge must ascertain the identity of the attorney for the defendant and immediately provide the attorney with a copy of the complaint or notice of its contents. In most cases involving prisoners, this will be the attorney general’s office. 3 V.S.A. §§ 152, 154, 157 (attorney general may represent the state in all civil or criminal cases in which the state is a party or is interested); 12 V.S.A. § 3963 (judge may order notice to attorney general or to the state’s attorney where prisoner is under sentence). The judge must forthwith hold a pretrial conference, which may be by telephone. See V.R.C.P. 16 (pretrial conference), V.R.C.P. 16.2 (scheduling orders) and V.R.C.P. 79.1(a) and 83(3) (parties appearing without counsel included within definition of “attorney” within meaning of the rules). At the conference, after hearing from all parties, the judge shall issue an order establishing the date by which the defendant or defendants shall file an answer or other pleading, produce the plaintiff for a hearing, or take any other action the judge deems appropriate. An order to produce the plaintiff for a hearing is the equivalent of a writ of habeas corpus, the heart of which is the mandate to produce the prisoner for hearing. 12 V.S.A. §§ 3956- 3968 (writ of habeas corpus directs that prisoner be brought to court for examination into cause of imprisonment or restraint). Thus, if the judge is satisfied at the conference that the complaint indeed does set forth a claim for immediate relief, a hearing should be scheduled as soon as practicable, and the rule explicitly so states. The concluding sentence of the rule recognizes the importance of retaining judicial review of allegedly unlawful restraint, even if it does not appear that the plaintiff is entitled to immediate relief. The judge shall not dismiss the complaint. Instead, the judge shall order that the clerk serve the complaint upon the defendants. It may well be that the complaint is proper under Rule 74, Rule 75 or 13 V.S.A. § 7131 (petitions for post-conviction relief), or as a civil action for equitable or legal relief. If the complaint cannot be sustained under any theory, the defendants remain free to file a motion to dismiss after they have been served. By the same token, the plaintiff remains free to file a motion to amend under Rule 15, to attempt again to seek habeas corpus relief or for any other purpose under that rule. See V.R.C.P. 81, 1989 amendment (habeas corpus and post-conviction relief are governed by the civil rules in respects not covered by statute). In each case the judge should specify how service is to be accomplished. In many cases, service by mail under Rule 4(1) may be appropriate. Note that service upon the State of Vermont must comply with Rule 4(d)(2) (service upon the attorney general or deputy attorney general). The rule does not set forth the procedures to be followed once the initial hearing has been scheduled. Statutory requirements appear to provide sufficient guidance. 12 V.S.A. § 3951 et seq. Rule 81(a), as amended in 1989, provides that in any respect not covered by statute, the practice in habeas corpus proceedings shall conform to the practice under the civil rules, except that “discovery shall be used only by order of the court on motion for cause shown.” Note that the rule does not contravene 12 V.S.A. § 3968, which states that once the hearing is convened, it “may be adjourned from time to time.” Any such adjournment must be as brief as reasonably possible, given the wording of Chapter II, § 41. See Shequin v. Smith, 129 Vt. 578, 581, 285 A.2d 708, 710 (1971) (Legislature may not curtail efficiency of the writ).