Ex Parte Rosier

RUTLEDGE, Associate Justice

(dissenting)-

I cannot agree that the Constitution guarantees an adjudicated insane person the right to hearings upon his sanity as often as he sees fit to file petitions alleging it has been restored. Such a view would mean that there is no limit to the number or frequency of hearings such a person might have. Freed, in habeas corpus, from the limitations of res judicata, 1 he could file petitions as often as he might wish, weekly, monthly or at any other interval, and the court would have no alternative but to hear each application upon the merits.

Individual freedom, of course, is paramount to mere administrative convenience, expediency and efficiency in operation of the courts and other governmental agencies. Habeas corpus is the historic instrument for preserving it. But adequate protection does not require a litigious capacity of such nuisance value that hearings must be had repeatedly upon the same issue in the petitioner’s uncontrolled and unlimited choice. There must be some limit to the frequency with which he can force the court to determine and redetermine his sanity. 2 I think therefore that the controlling issues in the case are, What is that limit? Has it been exceeded on these facts ?

Neither the habeas corpus act ( 28 U.S.C. §§ 451-461 ) nor the forma pauperis statute [ 28 U.S.C. §§ 832-836 , D.C.Code (1940) § 11 — 1508] purports in specific terms to impose such a limit. The former empowers • the Supreme Court and the district courts to issue the writ; prescribes the mode of application; directs that the writ shall issue “unless it appears from the petition itself that the party is not entitled thereto” ; requires the respondent to make return and produce the petitioner’s body; and commands that the cause be disposed of “in a summary way * * * by hearing the testimony and arguments * * *."

The forma pauperis statute, as applicable here, purports to authorize any citizen entitled to commence any suit to do so and prosecute it to conclusion “upon order of the court,” without prepayment of fees or costs, by filing an affidavit of poverty, setting forth that he believes he is entitled to the redress and the nature of his cause of action. Both statutes are involved and the broad question is whether, on the facts, either empowers the trial court to (1) decline to consider the petition or (2) *334 dispose of it without formal hearing or production of the petitioner’s body.

I agree that under Walker v. Johnston, 1941, 312 U.S. 275 , 61 S.Ct. 574 , 85 L.Ed. 830 , it is the trial court’s duty to issue the writ or a rule to show cause why it should not issue, and to afford a hearing upon the issues of fact and law, when a petition in habeas corpus is presented which sets forth cause for relief.

I think also, in respect to the right to proceed in forma pauperis, that it would be an unconstitutional discrimination to deny relief to one wrongfully imprisoned merely because of his poverty when it would be available, in the same circumstances apart from that factor, to all who can bear the necessary expense. Boykin v. Huff, 1941, 73 App.D.C. 378 , 121 F.2d 865 . Whatever may be true in civil actions not involving life or liberty, a system of justice which would posit these rights upon ability to pass the financial barriers normally placed at the threshold of the courts would make one law for the rich or well-to-do and another for the poor. That discrimination would be especially abhorrent in application to the fundamental right of habeas corpus. In my opinion therefore a statute which would attempt to vest uncontrolled discretion in a trial court or judge to deny access to the courts in habeas corpus merely for poverty would be invalid. Accordingly, Section 832 must be construed to avoid any such consequence. Hence, notwithstanding the language which purports to give the trial judge discretion to deny appeal, by certifying his opinion that it is not taken in good faith, I think the court’s application of Section 832 to habeas corpus proceedings is subject to review in three respects, namely, (1) whether poverty exists in fact; (2) whether the petition is filed in good faith; (3) whether the cause stated is meritorious, that is, whether a cause of action is stated. The last presents an issue of law, the former two, so far as they are distinct from the third, a question of fact. It follows that the petitioner is entitled to be heard in each of these respects in a hearing appropriate to the issue raised. The court therefore does not have an absolute and uncontrolled discretion to determine poverty, good faith or merit. 3

But a sufficient protection of the petitioner’s liberty would seem to be given if the review afforded as to the existence of poverty or good faith (when the latter is not founded upon want of merit) is on the question whether the court’s discretion has been abused. Except for verbal difference, this amounts in effect to review of whether there is substantial evidence to support its finding. The review upon the third issue arises on a question of law, and when the finding of want of good faith is based on want of merit that is true also of the second issue. Again the difference is only verbal in regarding the review as being for abuse of discretion or for error, since erroneous decision that a cause of action is not stated would amount to abuse of discretion in legal effect.

But we are not concerned primarily with the right of appeal since, although the court found that relief by appeal was not “reasonably likely” to be given and denied permission to note the appeal in forma pauperis, any prejudice from that error has been cured by this court’s allowance of an appeal and assignment of counsel to represent the petitioner here. The question now requiring attention is whether there was prejudicial error or abuse of discretion when the court, in its own words, “did not permit the so-called petition * * * to be filed,” but went on to deny the writ, and later to support this, as well as denial of the petition to appeal, by findings of fact, and did these things without affording petitioner a hearing.

This procedure was followed, apparently, in pursuance of the practice which has regarded the matter of entertaining these petitions and allowing appeals as entirely discretionary with the trial court or judge. That view of the statutes and the authority they confer cannot be accepted. And if, upon the allegations of his petition and the other facts of which the court was entitled to take notice, the petitioner had made out prima facie a case for relief, the court’s failure to issue the *335 writ or a rule to show cause why it should not issue, and its disposition of the case without hearing, would have been highly prejudicial and erroneous.

But in my view the petition in this case was not sufficient to state a cause of action, this fact appeared incontrovertibly from its face and other facts of record, and the court’s failure to issue the writ or a rule to show cause was neither erroneous nor an abuse of discretion, much less a denial of constitutional right. The petition, standing entirely alone and without reference to any other facts, might be regarded as sufficient to state a cause of action, notwithstanding its extreme generality and the absence of specific facts in its allegations. But the petition in this case did not stand alone, unaffected by other facts. From the court’s own records, of which it was entitled to take judicial notice, the fact appeared that within less than four months prior to the filing of the present petition the petitioner had had a full hearing upon the question of his sanity in a habeas corpus proceeding, which was determined adversely to his contentions ; and the petition in this case attacked the validity of the prior proceeding and determination in no manner whatever. The case is even stronger for it appeared, also from the court’s records, that petitioner had been adjudicated insane within the previous nine months in proceedings from which no appeal was taken. The present petition merely alleges, apparently with reference to this proceeding, “Your relator states that he was not properly adjudicated,” an allegation hardly sufficient to challenge the validity of the determination upon the most liberal construction in favor of the pleader. It thus appeared from incontrovertible facts of record that petitioner had had two determinations of his sanity within the preceding nine months and one within four months. These facts being indisputable, in my opinion, for reasons to be stated, there was neither abuse of discretion nor prejudicial error in the failure to issue the writ or a rule to show cause or, consequently, to allow a hearing.

Ordinarily, it is true, the question whether the writ or a rule to show cause must issue is determined, under Walker v. Johnston, supra, from the face of the petition, i. e., by the criterion whether it sets forth a cause of action. If one is stated or the matter is uncertain upon the allegations made, Walker v. Johnston requires the writ or a rule to issue. But if none is set forth and this appears clearly, the case recognizes explicitly, as does the statute, that the writ need not issue and apparently it does not require the issuance of a rule to show cause. The opinion also expressly recognizes that incontrovertible facts of record may be, in fact should be, considered in determining whether cause for granting the writ exists. All these things appear from the following excerpt taken from the opinion:

“It will be observed that if, upon the face of the petition, it appears that the party is not entitled to the writ, the court may refuse to issue it. Since the allegations of such petitions are often inconclusive, the practice has grown up of issuing an order to show cause, which the respondent may answer. 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 a 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.” 312 U.S. 284 , 61 S.Ct. 578 , 85 L.Ed. 830 . (Italics supplied)

Although the statement is not altogether clear in some respects, in two at least it leaves no room for doubt. One is that in considering whether cause for granting the writ exists, the court may take into account “incontrovertible facts, such as those recited in a court record.” That language exactly fits the present situation. Another is that “if, upon the face of the petition, it appears that the party is not entitled to the writ, the court may refuse to issue it.” Taking these two things together, it seems clear that if from the face of the petition and incontrovertible facts of record, of which the court is entitled to take judicial *336 notice, it appears “that the party is not entitled to the writ,” the court “may refuse to issue it” and, by the same token, the rule to show cause. In this case the “incontrovertible fact of record” was that petitioner had received an adverse determination of his sanity within four months of the filing of this petition, in habeas corpus proceedings from which no appeal was taken and which are attacked in no way for invalidity, want of jurisdiction or violation of constitutional right. In short, the court’s records disclose a conclusive determination less than four months prior to institution of this proceeding that petitioner is not of sound mind. That being true, in my judgment it was not an abuse of discretion for the court to find, on that fact alone, that petitioner was not entitled to relief. This implies of course that the issue of time elapsed since the previous hearing was the controlling one, that the court had power to determine it, and did so correctly. The crucial issue therefore, in my opinion, is the effect of the prior adjudication for the period of time which elapsed between the two proceedings.

It is true, as has been said, that res judicata does not apply to habeas corpus. That is a relaxation of normally prevailing law made for the broader protection of individual liberty. But the relaxation does not mean that the adjudication of insanity, whether by sanity proceedings or by habeas corpus for release, has no conclusive effect whatever. 4 Res judicata, when it is applicable, means that the matter once finally adjudicated is determined, for the parties to the suit, for all time. That an effect so conclusive is withheld from habeas corpus determinations does not mean they have no effect whatever and conclude nothing for any interval of time, however short. The relaxation and the purpose behind it do not require going from one extreme to the other. Nor in my opinion does anything in the Constitution, statutes or decisions relating to the matter. Surely an adjudicated insane person has no constitutional or other right to have his sanity or the recovery thereof adjudicated and readjudicated weekly, monthly or at whatever other intervals he may choose, merely because in some, though rare, instances sanity may be recovered over night and he has the tenacity to file petitions with unrestrained regularity alleging this has occurred in his case. Such a view would give the determination no conclusive effect whatever and, once accepted, would result in flooding t of the courts with vexatious petitions and useless hearings.

Unless therefore the adjudication is to be given no conclusive effect for any period of time, it must be held effective for some period to prevent reexamination of the issue. In other words, as was stated at the outset, there must be some limit to the number and frequency of hearings a petitioner may have upon the same issues, even in habeas corpus. The important question is how that limit is to be ascertained.

As has been stated, no statute purports to prescribe it. Considering the difficulty of fixing the limit otherwise and the importance of the matter, the question is one preeminently for legislative settlement, having due regard of course to the function of habeas corpus as a constitutional right and as an institution safeguarding other such rights. In view of its character in these respects, there are obvious limitations of the scope to which legislation undertaking to regulate the exercise of the right may go. But that it is not beyond reasonable regulation is shown by the provisions of the habeas corpus statute above referred to, their general acceptance by the courts, and particularly by the language of Walker v. Johnston quoted above. Unfortunately, however, there is no statute which purports expressly to regulate the matter generally, and in the absence of one the limit, if any, must be fixed, as in other such situations, by judicial action.

Generally when some limitation upon conduct or rights is required and no statute prescribes one, the courts may impose reasonable restrictions. It would seem therefore that in situations like the present the length of time which must elapse before another hearing can be demanded as of right would be a matter primarily for the trial court’s discretion in the first place, subject to review for abuse in its exercise. 5 There is no other apparent al *337 tentative to giving the petitioner a right to a hearing whenever and however often he may demand it. As between these two views, the former is clearly preferable for considerations not merely of convenience, but of necessity in getting done the work of the courts and others affected. Other litigants and officials have business which also requires judicial attention. Further, in my view the former alternative affords a constitutionally adequate protection for the petitioner’s individual rights.

When the present petition was presented, therefore, it became the trial court’s duty to examine it with a view to determining whether it disclosed a sufficient basis for issuing the writ or a rule to show cause. In doing this the court was entitled to consider not only the allegations of the petition, but the facts disclosed by its own records that an identical petition had been filed less than four months previously, pursuant to which hearing had been had on the merits and decision adverse to the petitioner had been rendered. Upon ascertaining these facts it was within the court’s power and province to exercise its discretion upon the question whether a sufficient period had elapsed to entitle petitioner as a matter of right to another hearing upon the same question.

This the court did and, in my opinion, without any basis for a finding here that it abused its discretion. The findings of fact recite the institution of the criminal proceedings, petitioner’s conviction and sentence, his adjudication as an insane person in February, 1940, the subsequent adjudication in the July habeas corpus proceedings that he had not recovered sanity, and the institution of this proceeding in October following, on the day after the criminal sentence expired. All these facts appeared of record. No evidence or argument could overcome their effect. From the face of the petition it was apparent the same issue was being raised again and only that issue. There was no attack upon the validity of the July proceedings and no sufficient basis for challenge to the February adjudication. The petition set forth no special facts to show that recovery had taken place during the less-than-four-month interval, in fact did not allege on its face even in general terms that recovery had occurred during that time. There was the mere vague general statement that petitioner “is sane” and the charge that he was held in confinement illegally, presumably for that reason. 6 But if the petition is taken most liberally in the pleader’s favor as alleging recovery within the four-month interval, still the question arising on the face of the petition and the facts of record was whether petitioner was entitled as of right to another determination of his sanity so soon.

In my judgment it was not an abuse of the court’s discretion to deny him the right *338 to three such determinations or hearings within less than nine months, nor was this a violation of constitutional right. A solemn adjudication of insanity, not appealed from nor challenged in any sufficient manner, followed within about five months by a readjudication of the same question by habeas corpus, was in itself and without reference to any other fact a sufficient basis for the court’s action. Such an adjudication should hold for a period as short as four months, and perhaps a longer one, in the absence of any challenge to its validity and especially in view of the fact it was the second determination of the issue of sanity within less than one year.

It is true this view might result in the detention of a person whose sanity is restored for some comparatively short period of time. But that is hardly likely to happen in view of the crowded conditions of institutions for the mentally incompetent and the well-known fact that their officials, generally speaking, are anxious to release patients at the first safe opportunity. It is equally well known also that when insanity has progressed to the point that adjudication is had, and especially when re-adjudication follows this, the case is very rare in which recovery will be sudden and complete. Generally the process is gradual and slow rather than the contrary. If, however, these facts are not a sufficient answer, it must be found in the necessity that courts, officials charged with the care and treatment of the insane, and others affected be not harassed with endless and useless petitions and hearings at unlimited intervals, to the disruption of other equally important work and of consistent treatment of the patients themselves, upon the chance that rarely some person will remain under care and restraint for a slightly longer period than that of his actual incompetence. That period cannot be great in any event, since the limits of the court’s discretion as to the time during which the previous adjudication can be held conclusive must be narrowly confined.

Those limits cannot be exactly fixed in the absence of statute determining them. I cannot believe however that such a statute prescribing a conclusive period of six months, or perhaps an even longer time, would be invalid. If not, I do not see how the court’s decision that a similar, or as here a shorter, period must elapse before another determination can be had would be erroneous or in abuse of its discretion. In my view, therefore, the court acted fully within its authority and not in violation of petitioner’s rights when it examined the petition, taking account also of the incontrovertible facts of record concerning the prior adjudications, and determined that petitioner was not entitled to another hearing so soon. That procedure seems to me to have been in exact accordance, in these circumstances, with the provisions of the habeas corpus statute. It was consistent also with the forma pauperis statute. While in my opinion Section 832 is not controlling and the decision should be rested squarely on the habeas corpus statute, and its validity in these circumstances, Section 832 by its terms lends support to this conclusion on these facts. In so far as it confides to the trial court’s discretion, in the first instance, the questions of merit and good faith, as these may affect the filing of the petition and the granting of a hearing, it is consistent with the views herein expressed concerning the effect of the habeas corpus act. Considering, as I do that the court’s exercise of discretion under both statutes is reviewable, as stated above; that res judicata in its generally accepted sense has no application to habeas corpus, and therefore the period of conclusive effect of such proceedings upon issues like that of recovery of sanity cannot be long in any event; and consequently that petitioners will be able to secure hearings at relatively short intervals, varying somewhat perhaps with the circumstances of each case, I cannot see that either statute, or both together, as they have been applied in this case upon its facts, violate any constitutional or other right of the petitioner.

Finally, it is said that the court acted illegally in considering the contents of respondent’s letter which transmitted the petition to the court. There are several answers. One is that the letter itself may be taken as an informal return, consonant with the informal petition which was filed. Under Walker v. Johnston the practice of filing return to the rule to show cause has received approval. If, however, the absence of the rule be taken to deprive the letter of the character of a return, the conclusive answer, in my opinion, is that in these circumstances neither issuance of a rule nor return was necessary. From indisputable facts of record and the face of the petition, without more, the court was enabled to conclude as a matter of law that the petitioner was not entitled to is *339 suance of the writ, for the single reason that sufficient time had not elapsed after the previous determination to entitle him as of right to another hearing. That alone was sufficient basis for the court’s action. If it also took account of other matters, not relevant to this issue, the error, if any, was harmless.

In my opinion, therefore, the judgment should be affirmed. It hardly need be added that in view of the time which has elapsed since the last adjudication of the petitioner’s sanity, if he now feels that he has been restored to mental health and can prove this fact, he is entitled to file another petition to call the court’s power and discretion into play. Thus it will make little difference in practical effect for the determination of petitioner’s right to be released from custody whether the judgment in this case is reversed and petitioner has his hearing in this cause or, on the other hand, it is affirmed and he secures his hearing in a new proceeding. But the difference between the majority and myself concerning the disposition of this case is an important one for other cases which will follow. It is for that reason I am forced to dissent from the conclusions of my brethren.

Salinger v. Loisel, 1924, 265 U.S. 224 , 44 S.Ct. 519 , 68 L.Ed. 989 ; Wong Doo v. United States, 1924, 265 U.S. 239 , 44 S.Ct. 524 , 68 L.Ed. 999 ; Barry v. Hall, 1938, 68 App.D.C. 350 , 98 F.2d 222 .

Cf. authorities cited in note 1 supra.

It is recognized, of course, that the right of appeal is statutory. Cf. Cobbledick v. United States, 1940, 309 U.S. 323, 325 , 60 S.Ct. 540 , 84 L.Ed. 783 ; United States v. Sanges, 1892, 144 U.S. 310 , 12 S.Ct. 609 , 36 L.Ed. 445 . But that does not mean it can be granted or withheld upon a basis of unreasonable discrimination, as a fulcrum of poverty would be in respect to habeas corpus matters. Boykin v. Huff, 1941, 73 App.D.C. 378 , 121 F.2d 865 .

Cf. authorities cited in note 1 supra.

Ibid. “The federal statute * * * does not lay down any specific rule on the subject, but directs the court ‘to dispose of the party as law and justice require.’ A study of the eases will show that this has been construed as meaning that each application is to be disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration *337 of whatever has a rational bearing on the propriety of the discharge sought. Among the matters which may be considered, and even given controlling weight, are * * * (b) a prior refusal to discharge on a lihe application." Salinger v. Loisel, 1924, 265 U.S. 224, 231 , 44 S.Ct. 519, 521 , 68 L.Ed. 989 , citing authorities, including Ex parte Cuddy, C.C. 1889, 40 F. 62, 66 , per Field, J: “ * * * in some instances that fact [prior adjudication] may justify a refusal of the second.” [Italics supplied.]

In Wong Doo v. United States, 1924, 265 U.S. 239, 240 , 44 S.Ct. 524, 525 , 68 L.Ed. 999 , the Court said: “In Salinger v. Loisel * * * we held that in the federal courts the doctrine of res judicata does not apply to a refusal to discharge a prisoner on habeas corpus but that in those courts, where the prisoner presents a second petition, the weight to be given to the prior refusal is to bo determined according to a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject. It therefore must be held that in this case the courts below erred in applying the inflexible doctrine of res judicata. But it does not follow that the judgment should be reversed; for it plainly appears that the situation was one where, according to a sound judicial discretion, controlling weight must have been given to the prior refusal.” [Italics supplied.]

Though res judicata does not apply, possibly the doctrine of estoppel could be regarded as doing so, though in habeas corpus with less conclusive effect than in other matters. Cf. Cromwell v. County of Sac, 1876, 94 U.S. 351 , 24 L.Ed. 195 , noted in Miller, A Study in Res Judicata (1938) 11 Rocky Mt L.Rev. 159, 163.

Though perhaps the failure of the petition to set forth specific and concrete facts to show that recovery had taken place since the last adjudication would not prevent it from stating a cause of action, the absence of such allegations would seem properly to be a factor the court was entitled to take into account in exercising its discretion.