Cumbey v. State

OPALA, Justice,

with whom KAUGER, Justice, joins, dissenting.

I recede from the court’s pronouncement because this appeal is dismissible. It is sought to be prosecuted from the trial court’s February 18, 1983 order that sustained the December 10, 1982 general demurrer by the Attorney General to the plaintiffs' “petition of civil rights complaint *1099and/or petition for declaratory judgment, injunction and quo warranto”.

I

An order sustaining a general demurrer to the petition, when not accompanied by words unequivocally terminating the action, does not constitute an appealable disposition. A plaintiffs valued, statutorily-afforded freedom either to amend or to seek leave to amend is never extinguished by judicial action that finds his petition vulnerable to the demurrer of his adversary.1 While flaws or deficiencies in court records may be cured in nunc pro tunc proceedings, any changed memorial must show that it supplies an accurate entry of some past action later found to have been wrongly recorded.2 If the trial judge did in fact desire to terminate this suit by his February 18, 1983 order, there is here no record trail of his pronounced or memorialized “intention”. A trial court’s record constitutes the only means for communication of its proceedings to an appellate court. Unrevealed intentions of a trial judge afford no basis for the assumption of appellate jurisdiction.3

Because there is no record in this case of a judicial disposition that terminates the plaintiffs’ suit in the trial court, the action reviewed in today’s opinion is not appeala-ble and beyond the reach of our cognizance.

II

The plaintiffs are prisoners in the state correctional system. They sought to litigate below their claim against the institutional authority to certain funds believed to have been withheld from them in violation of fundamental law. Neither the Sixth-Amendment nor the Fourteenth-Amendment jurisprudence of the Federal Supreme Court makes a State responsible, under a ;per se rule, for providing counsel to indigent prisoners such as these plaintiffs, who make confinement-related complaints of the correctional authority’s conduct that oversteps permissible bounds.4 There presently appears to be no norm of state constitutional or statutory law these prisoners may invoke in support of a claim to a free lawyer. Although these plaintiffs are guaranteed unimpeded access to the courts by the Constitution of the United States5 and by the Constitution of Oklahoma, Art. 2 § 6,6 the right remains but an empty and idle gesture so long as they are forced to remain without the guiding hand of a skilled legal practitioner.

Whenever a confinement-related complaint is prosecuted by an indigent uncoun-seled prisoner, and the trial judge finds the lack of legal merit in his petition is apparent and incurable, the action should be terminated by an explicit ruling that should then be entered upon the court’s record. This method will eliminate all uncertainty as to the reviewable character of the judge’s decision and will, at once, set the prisoner free to pursue an available appellate remedy. Should the judge deem the petition’s defects to be correctable, or if *1100there be no doubt about the merit of a petition which appears facially sufficient, counsel should be appointed to assist the complainant and the court in the presentation of the prisoner’s legal claim.7 No less is required by the Due Process Clause of the Oklahoma Constitution, Art. 2 § 7,8 in order to safeguard the prisoner’s constitutionally-protected access to a court of law. Art. 2 § 6, Okl. Const.9

I would hence dismiss this appeal as premature because there is here no record of the suit’s termination. I would direct the trial judge either explicitly to terminate the action upon the record or, if he were to find the defect in the prisoners’ petition to be curable, he should grant them leave to amend and appoint counsel to provide effective assistance in the preparation of further legal proceedings for the prosecution of the claim.

. Merchants Delivery Service v. Joe Esco Tire Co., Okl., 497 P.2d 766 [1972],

. Cartwright v. Atlas Chemical Industries, Inc., Okl., 623 P.2d 606, 610 [1981] and Stevens Expert Cleaners & Dyers v. Stevens, Okl., 267 P.2d 998, 1001 [1954]; see also Joyce v. M & M Gas Co., Okl., 672 P.2d 1172, 1174 (Opala, J., dissenting) [1983] and Miller v. Miller, Okl., 664 P.2d 1032, 1034 [1983].

. Merchants Delivery Service v. Joe Esco Tire Co., supra note 1.

. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 [1974] and Evitts v. Lucey, — U.S. -, 105 S.Ct. 830, 83 L.Ed.2d 821 [1985].

. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 [1977] and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 [1974].

. Art. 2 § 6, Okl. Const., provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

See Frock v. District Court of Pittsburg County, Okl., 630 P.2d 772 [1981],

.Lack of statutory authority for allowing compensation from state funds to counsel designated to assist a prisoner with a confinement-related claim against the correctional authority for violating a prisoner’s fundamental rights does not constitute a legal impediment to a trial judge’s exercise of the power to appoint counsel. When confronted with a potential breakdown in the adversary process, judges may utilize their extrastatutory power to enlist a lawyer’s assistance. Baggett v. State, 35 Okl.Cr. 119, 248 P. 875, 876 [1926],

. Art. 2 § 7, Okl. Const., provides:

"No person shall be deprived of life, liberty, or property, without due process of law.”

. Art. 2 § 6, Okl. Const., supra note 6.

Even under the provisions of the Federal Constitution, indigent prisoners may be entitled to assistance of counsel in certain “special circumstances”. Vitek v. Jones, 445 U.S. 480, 497-498, 100 S.Ct. 1254, 1265-1266, 63 L.Ed.2d 552 [1980],