Memorandum — Michigan v. Doran

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-1202

RECEIVED

14) Lg to7n

OFFICE OF IME CLERK

SUPREME COURT, U.S.

STATE OF MICHIGAN

Petitioner-Appellant,

-vs-

HAROLD W. DORAN

Respondent-Appellee.

ON WRIT OF CERTIORARI

TO THE

SUPREME COURT OF MICHIGAN

MEMORANDUM SUGGCDSTING

Dated: September 3, 1978

MOOTNESS

STATE APPELLATE DEFENDER OFFICE

KATHLEEN M. CUMMINS

Assistant Defender

Attorney for Respondent

Third Floor, North Tower

1200 Sixth Avenue

Detroit, MI 49226

(313) 256-2814)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-1202

STATE OF MICHIGAN

Petitioner-Appellant,

-vs-

HAROLD W. DORAN,

Respondent-Appellee,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MICHIGAN

MEMORANDUM SUGGESTING MOOT

1. On April 17, 1978, Certiorari was granted in the above case.

On April 18, 1978, counsel for Respondent Harold Doran attempted

to contact “ir. Doran at his last known residence, namely his father's

home in Bay City, Michigan.! Counsel spoke with Mr. Doran's father

William Doran, who informed her that Mr. Doran left his home approxi-

mately three days after his release from the Bay County Jail and had

"ot returned. William Doran added that he had no present knowledge

of his son's whereabouts.

In the months that followed, counsel for Respondent mounted a

diligent search in an attempt to determine if Mr. Doran was still

in the state of Michigan. The services of an investigator were

employed. Mr. Doran's

known associates in the Bay City area were

1

Upon his release October 4, 1977, by the Michigan Supreme

Court, Mr. Doran informed counsel that he would be residing

at the home of William Doran - 710 &. Arbor, Bay City,

Michigan.

contacted and all professed no knowledge of Mr. Doran's current

whereabouts. A check with the Law Enforcement Information Network,

as of August 18, 1978, reveled no current entries in any state

concerning Mr. Doran beyond his initial arrest in this matter Decem-

ber 18, 1975 (See Affidavit, Appendix A). On September 6, 1978,

this attorney again contacted Mr. Doran's father. We again informed

her that he had neither seen nor heard from Respondent since her

last contact (See Affidavit, Appendix 8B).

Although the search for Mr. Doran continues, counsel for Res-

pondent believes the repeated failure of her efforts to locate her

client demonstrates that there is presently a strong possibility that

he is no longer in the State of Michigan. The suggestion of mootness

stemming from Mr.Doran's absence prompts his counsel to file this

Memorandum.

2. The apparent disappearance of Respondent Harold Doran com-

pells this Court to consider whether this case has any continuing

vaibility as an actual “case or controversy”.

This case has been briefed on the merits and scheduled for oral

argument October 4, 1978. Counsel for Respondent has, until now,

refrained from raising the issue of mootness because she felt con-

strained to make every reasonable effort to locate her client before

basing any jurisdictional attacks upon his apparent disappearance.

The continued futility of these efforts has convinced counsel of the

likelihood that Mr. Doran is no longer present in Michigan. Thus,

despite the stage to which this case has advanced?, counsel for

Respondent urges that Mr. Doran's apparent eheenee requires that this

Court consider the question of mootness prior to adjudicating the

2 This Court has not hesitated to address the question of mootness at any

stage of a proceeding; even where both parties failed to raise the issue.

DeFunis v Odegaard, 416 US 312, 94 S Ct 1704, 40 L Bd 2d 164 (1974); North

oli tre 704 0S 244, 92 S Ct 402, 30 L Bd 24 413 (1971); Rice V

Park, 349 US 70, 78,75 S Ct 614, 99 L Bd 897 n2 11955);

rd, 423 US 147, 96 S CL 347, 46 L Ed 2d 350 (1975).

by exercising his statutory” right to file a habeas corpus action

ts of th se.

merits o is case in a local court of record. The habeas corpus proceeding attacked

3. This Court has oft recognized that federal courts are

- - a ve the validity of the Governor's warrant upon which Mr. Doran was

powerless to decide questions which cannot affect the rights of the

litigants in the case before them. North Carolina v Rice, 404 US 244,

246, 92 S&S Ct 402, 30 L Pd 24 413-415 (1971).

The exercise of this Gurt's judicial power under Article III of

being held on the grounds that the warrant was issued in response

to a requisition which was not visibly supported by « showing of

probable cause. The Bay County Circuit Court denied the petition

for habeas corpus. In reversing the Circuit Court, the Michigan

United States Constitution depends on the existence of a case or

me & 2 Supreme Court in effect concluded that the Governor's warrant was in-

controversy. valid for the reason claimed, and released Mr. Doran.‘ Mr. Doran's

i this Court, “must be definite and

©S Se cagusamee ty ee a ee ee — . interest in this case was, obviously, to avoid the effects of a wrong-

l 1 ti f t havi ad 1 1

concrete, touching the legal relations of parties having adverse lega ful extradition.

inte ts....It must be a real and substantial controversy admittin

aasns - y a Beyond seeking a clarification from this Court of the constitu-

of specific relief through a decree of a conclusive character, as dis-

- - ~v - ‘ tional issues surrounding extradition, the Petitioner's brief does

tinguished from an opinion advising what the law would be upon a

hypothetical state of facts." Aetna Life Insurance Co v Haworth,

300 US 227, 240-241, 57 S Ct 461, 81 L Bd 617 (1937); North Carolina v

Rice, supra, 404 US at 246; Preiser v Newkirk, 422 US 395, 401, 95

S Ct 2330,45 L Bd 24 272 (1975).

not specify his immediate interest in the outcome of this case.

Presumably, however, his ultimate aim in pursuing this appeal is

reversal of the Michigan Supreme Court, vindication of the Governor's

warrant and renewed power to extradite Harold Doran.

The present posture of this case is such that its adjudication

Mootness is a jurisdictional question because this Court is not

by this Court, on the merits, will have no significant impact on the

impowered to decide moot questions or abstract propositions. North

Carolina v Rice, supra, 246. The rule in federal cases is that an

concrete interests of the parties. Extradition jurisdiction extends

only to persons “found in” the asylum state. U.S. Constitution, Art

actual controversy must exist at a stages of review and that even

y a1} ° IV § 2 c1.2: MCLA 780.2, NSA 28.1285(2) (Uniform Criminal Extradition

in cases originating in state courts, a determination of mootness is

Act.). Mr. Doran's apparent disappearance raises a strong inference

fatal to the exercise of this Court's jurisdiction. Funis v Odegaard,

: that he is no longer in Michigan. If the Petitioner should prevail

416 US 312, 316, 94 S Ct 1704, 40 L Ba 24 164 (1974); Preiser v Newkirk,

422 US 395, 401,95 S Ct 2330, 45 L Bd 2d 272 (1975). In order to de-

in this Court and consequently regain the power to extradite Mr.

Doran, there will in all likelihood, be no subject matter upon which

termine whether a “live controversy exists here, this Court must con-

this power may be exercised. In this event, the Doran case would no

sider what the adverse interests of the parties are and what, if any,

practical impact a decision on the merits of this case will have on 3 MCLA 780.9; MSA 28.1285(9)

those interests. See Socialist Labor Party v Gilligan, 406 US 583, ’ yan sy pd eee a. tie ee a

92 § Ct 1716, 32 L Bd 2d 317 (1972); Powell v McCormack, 395 US 486, Ay + Ah ee A RD,

496, 89 S Ce 1944, 23 L Ba 24 491, 502 (1969). ee tay County, Sait, a Ep year

This is an extradition habeas corpus case. Mr. Doran challenged wet, one alse . end 115% ftehe, 197R0e Richland v —

385 F2d 670, 676 » 19 .

the legality of his arrest under the Michigan Governor's warrant

3

;

longer be “definite and concrete, touching the legal relations of

parties having edverse legal interests” and “admitting of specific

relief through a decree of a conclusive character.".

This case is analogous to appeals from convictions in which the

defendant has escaped. In Smith v United States, 94 US 97, 24 L Ed

32 (1876), the accused escaped from custody after sueing out a writ

of error from this Court to the highest state court. This Court

noted that if it affirmed the conviction, the escapee was not likely

to reappear, and if it reversed and ordered a new trial, he would

"appear or not, as he might consider most for his interest. Under

such circumstances, this Court said, “we are not inclined to hear what

may prove to be only 4 moot case.” Smith, supra, 94 US 97.

See also Eisler v United States, 338 US 189, 69 S Ct 1453,

93 L Bd 1897 (1949). In this case, Mr. Doran is not an escapee but

a free individual who obtained relief from his lengthy detention

under the Governor's warrant. Unlike an escapee, Mr. Doran could

not be forcibly returned to Michigan if discovered elsewhere. His

freedom renders his return far more unlikely than the reappearance of

an escaped convict. An affirmance by this Court would merely con-

tinue the status quo and provide no further impetus than already

exists for his return. A reversal would again subject Mr. Doran to

extradition proceedings in Michigan, thus further decreasing his in-

centive to return.

4. Wor can Mr. Doran's absence be characterized as a "volun-

tary cessation of allegedly illegal conduct” which "does not deprive

the tribunal of power to hear and determine the case, i.e. does not

make the case moot.” DeFunis v Odegaard, 416 US 312, 94 S Ct 1704,

40 L Bd 24 164 (1974). Mr. Doran is now legally free to leave

Michigan. Even if this Court were to decide this case against him,

he would not then or ever be under any legal compulsion to return

to the State of Michigan.

5. This case also. fails to come within the "capable of

repetition, yet evading review" exception to the doctrine of mootness.

Sosna v Iowa, 419 US 393, 95 S Ct 553, 42 L Ed 2d 532 (1975); Wein-

stein v Bradford, 423 US 147, 96 S Ct 347, 46 L Ed 2d 359 (1975).

There is no concrete indication that Mr. Doran is either present in

Michigan or might return in future, particularly if reappearance

means reincurring the risk of extradition. Thus, the likelihood of

Mr. Doran's emergence in Michigan is too speculative to render the

facts from which this appeal arose reasonably capable of repetition.

Weinstein v Bradford, supra 423 US 148. Although similar extradition

disputes may confront Petitioner in future, it is clear that in

order to invoke the "capable of repetition" doctrine, the recurring

dispute must be between the present parties. Weinstein v Bradford,

supra, 423 US 147, 148; Roe v Wade, 410 US 113, 93 S Ct 705, 35 L

Ed 2d 147 (1973); Nebraska Press Association v Stuart, 427 us 539

96 S Ct 2791, 49 L Ed 2d 683 (1976). The possibility that Petitioner

and Mr. Doran will once again become embroiled in an extradition dis-

pute is simply too remote to supply a basis for this Court's decision

of the substantive issues.

The apparent and continued absence of a Respondent whose con-

crete interests can be affected by an order of this Court presents

"insuperable obstacles” to the exercise of this Court's jurisdiction.

Rescue Army v Municipal Court, 331 US 549, 574, 67 S Ct 1409, 91

L Ed 1666 (1947). This Court should decline to hear this case

rather than risk what may well prove to be a moot adjudication of the

merits.

FOR THE FOREGOING REASONS, Respondent respectfully requests

that this Honorable Court dismiss the Writ of Certiorari as im-

providently granted.

Respectfully submitted,

STATE APPELLATE DEFENDER OFFICE

ow: Kthln MN YUM

KATHLEEN M. CUMMINS

Assistant Defender

Attorney for Respondent

Third Floor, North Tower

1200 Sixth Avenue

Detroit, MI 48226

(313) 256-2814

Dated: September 8, 1978

APPENDIX

A

- -

0 —_——--

AFFIDAVIT é

STATE OF MICHIGAN (

COUNTY OF WAYNE (

LINDA BORUS, being first duly sworn, deposes and states:

1. She is an Investigator employed by the STATE APPELLATE

DEFENDER OFFICE.

2. In May of 1978, she was assigned to investigate the

whereabouts of Harold Doran, Respondent herein.

3. Since then, she has’ taken the following actions in an

attempt to locate Mr. Doran:

a. sent a letter to his last known address, namely

c/o William Doran, 710 So. Arbor, Bay City, Michigan;

b. Checked the visitor lists at the Bay County jail for

the period of Mr. Doran's incarceration and contacted people

who had visited Mr. Doran;

c. Contacted all hospitals in the Bay City area, inquiring

if Mr. Doran was listed as a patient;

a. Contacted the Michigan Department of Health regarding

the possible demise of Mr. Doran;

e. Contacted the Bay County Sheriff's Department to

ascertain if they or their contacts had any current information

concerning Mr. Doran;

f. Checked with the Law Fnforcement Information Network for

entries in any state concerning Mr. Doran more recent than his

initial arrest on this matter December 18, 1975.

4. None of the above efforts produced any information regarding

Harold Doran's current whereabouts. f

/

Further, deponent sayeth not. f /

LINDA BORUS

Subscribed and sworn to before

me this 8th day of September, 1978.

Notary Public, Wayne County, Michigan

My Commission Expires: Gods 30 9 SO