# Honore v. Washington State Board of Prison Terms & Paroles > Washington Supreme Court · February 26, 1970 · 77 Wash. 2d 660 URL: https://www.frixlaw.com/law-library/cases/9547807 ## Case - **Full name:** In the Matter of the Application for a Writ of Habeas Corpus of Elwood Joseph Honore, Appellant, v. the Washington State Board of Prison Terms and Paroles, Respondent - **Court:** Washington Supreme Court - **Decided:** February 26, 1970 - **Citations:** 77 Wash. 2d 660; 466 P.2d 485; 1970 Wash. LEXIS 359 - **Precedential status:** Published - **Opinion:** Concurrence by Finley - **Judges:** Hamilton, Hale, Neill, McGovern, Finley, Rosellini - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9547807 ## Opinion text Finley, J. (concurring in the result) — It has been said repetitively that habeas corpus is civil in nature. In some contexts this has been apt; in others not. In any event, mere repetition, though impressive numerically, has contributed no real substance to the process of characterizing and labeling the great common law writ of habeas corpus. In fact, the repetitive routine is remindful of Lewis Car *693 roll’s musings in those whimsical, lightly satirical, and perhaps irreverent lines in “The Hunting of the Snark”: “Just the place for a Snark!” the Bellman cried, As he landed his crew with care; Supporting each man on the top of the tide By a finger entwined in his hair. “Just the place for a Snark! I have said it twice; That alone should encourage the crew. Just the place for a Snark! I have said it thrice: What I tell you three times is true.” 2 As to whether habeas corpus should be regarded as civil or criminal by this court in the instant case, the stark realities are that Elwood Joseph Honoré, the petitioner for habeas corpus, is now — in common law parlance — “in durance vile,” and has been for several years. Furthermore, he is now asserting that justice has gone afoul, that he is unlawfully deprived of his liberty and freedom. He asks that the legal validity of his continuing imprisonment, which is under the sanction of the criminal law of this state and in a criminal-penal institution of this state, be reviewed by the Supreme Court of Washington. His claim is not one of error, constitutional or otherwise, in the trial court but rather is in the classical tradition of habeas corpus, to wit: the institution holding him does not have jurisdiction over him. If anything further is needed to demonstrate the fallacy and logical nonsense (citing Lewis Carroll) involved in characterizing petitioner’s plight, and the function of habeas corpus as civil, I would have difficulty imagining what it would be. Incidentally, it seems to me that Justice Hale’s generously embellished but somewhat dubious support for the majority opinion unquestionably involved considerable energy, time and effort, but, I think, too little of relevance to today’s applicable legal standards of criminal law administration. On the other hand the majority opinion is substantially in tune with the times. It recognizes the desirability, the *694 practical need, and the constitutional necessity of providing appropriate legal assistance for an indigent petitioner for habeas corpus. However, the majority then concludes that funds appropriated to the Supreme Court cannot be used for this purpose without additional substantive legislation authorizing this use. The irony of the majority’s position is that the funds appropriated to the Supreme Court by the legislature were not itemized but unquestionably included a sizable amount for this very purpose. I would end the archaic and mechanical logic relative to habeas corpus mentioned in the majority opinion. It is time to cut through the repetitive and generally irrelevant legalese which beclouds the fundamental and significant function of the writ of habeas corpus pending in the instant case. First, its function is certainly criminal from the standpoint of the petitioner and his circumstances. Second, its basic function is clearly that of reviewing errors in the administration of criminal justice. It is logical nonsense, again citing Lewis Carroll, for courts to continue to blindly characterize the function of habeas corpus as civil when it is asserted by one in petitioner’s situation. I would forthrightly acknowledge these two considerations, authorize the appointment of counsel, and payment of a reasonable attorney fee from existing and available funds appropriated to the Supreme Court by the legislature for an appropriate presentation of petitioner’s habeas corpus application to the Supreme Court. This conclusion is bolstered by at least three considerations: (1) the legislative history; (2) the availability of funds; and (3) the constitutionally required nature of the expenditure. Apropos of the legislative history, there are very clear indications that the legislature intended that such costs should be borne by the Supreme Court and in fact appropriated an additional $34,136 to pay for such costs. The budget estimates of the Supreme Court which went to the Appropriations Committee of the legislature contained a request for $34,136 to be used “[i]f the Supreme Court will be required to pay the costs of perfecting a petition for writ *695 of habeas corpus filed originally in the Supreme Court or the appeal from an order denying a petition for writ of habeas corpus of an indigent incarcerated in a state institution . . .” (Supreme Court Biennial Budget Estimate, p. 32). This sum, $34,136, plus $286,140 for criminal indigent appeals and $9,036 for review of indigent juvenile delinquent proceedings, totaling $329,312, went into the supplemental appropriations bill which, if it had passed, would have contained a proviso that the amount “shall also apply to such other proceedings ánd at such other times as may be constitutionally required.” This bill did not pass but the entire amount, $329,312 including the $34,136 relating to habeas corpus, was transferred back to the main legislative appropriations bill. In this bill the single line appropriation of the Supreme Court, totaling $1,971,061, thus included $329,312 for indigent proceedings, $34,136 of which was for just such appeals as involved in this case. It is quite obvious that the legislature was not only aware of the contingency involved in the instant case but also provided funds to meet it. This court now has the funds available, and no further substantive authorization should be required for the expenditure herein involved. It is required by the equal protection clause of our federal constitution. This requires, as noted by the majority, that “an attorney who is so appointed and prosecutes the appeal is entitled to compensation for his services from public funds.” I am not unaware of the danger of having an item slip into an appropriations bill without the public notice inhering in additional substantive legislation. Thus funds appropriated for a “Hog Calling Commission” could not be expended unless there was additional substantive legislation which established the commission and authorized the expenditure of funds. This, however, is not the situation with which we are faced. The expenditure involved herein is unique in that the constitution itself authorizes, indeed requires it. The Supreme Court certainly has the inherent power to make this expenditure. *696 It would be unnecessarily circuitous and would hardly make for good relations between the coordinate branches of government for us to encourage attorneys to file claims for fees with the legislature, as suggested in the majority opinion, when it is so clearly demonstrable that the legislature has already appropriated funds for this very purpose. Thus as indicated I would go further in the instant case than the majority opinion relative to providing reasonable attorney fees for the indigent habeas corpus petitioner — at public expense and from existing funds appropriated to the Supreme Court. Short of this, I do concur in the results as reached in the majority opinion. Weaver, J., concurs with Finley, J. L. Carroll, Logical Nonsense — The Works of Lewis Carroll 268 (P. Blackburn and L. White ed. 1934). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9547807. Public record. Not legal advice.