Russell v. Fortney

BURNETT, Judge,

dissenting.

The Court’s opinion correctly recites long-standing rules governing the mootness doctrine and its public interest exception. See generally Annot., 132 A.L.R. 1185 (1941). However, the opinion then misapplies those rules to the facts alleged in the petition before us. Consequently, I dissent.

The majority asserts that the petition complains only about “official conduct directed specifically toward [Russell],” not about jail conditions affecting other detainees as well. I disagree. The handwritten petition, apparently prepared by Russell pro se, alleges that he was detained at the Lewis County jail longer than the period authorized for “Class B” facilities with limited staff, programs and services; that there was no doctor available in Nezperce (the county seat of Lewis County); that the sheriff for three months refused to obtain medical care for the petitioner’s claimed illness; that clean and sanitized shaving razors were not provided in the jail; that jail personnel had interfered with attorney communications; that the mail had been delayed; that laundry service was inadequate; and that visitation rules were unduly restrictive. Although the petition refers to the impact of such alleged conditions upon Russell, I do not think the petition can be read fairly to suggest that other detainees are unaffected by any of the conditions alleged.

The Utah cases cited in support of the majority opinion are distinguishable. In Duran v. Morris, 635 P.2d 43 (Utah 1981), a prisoner complained that he had been denied due process at a hearing on reclassification from medium security to maximum security. The petition did not allege that the procedure followed in the petitioner’s case was common to classification hearings in general. Similarly, in Spain v. Stewart, 639 P.2d 166 (Utah 1981), the petitioner challenged the manner in which he had been arrested. The incident apparently was isolated. The Spain court did not even consider applying the public interest exception to the mootness doctrine.

In contrast, I think another Utah case, Wickham v. Fisher, 629 P.2d 896 (Utah 1981), is factually analogous to the instant case. There, as here, the petitioner alleged that his eighth amendment right to be free from cruel and unusual punishment had been abridged by conditions at a county jail. The petition in Wickham was not deemed moot, and I do not believe the petition before us is moot either.

Neither do I believe that the Court appropriately responds to Russell’s petition by suggesting that post-conviction relief may be available in any event. The focus of a post-conviction proceeding in Russell’s case would not be whether the Lewis County jail has been administered in compliance with detainees’ constitutional rights. Rather, it would be solely whether Russell, while detained at the jail, entered a knowing, voluntary and intelligent plea of guilty to charges against him. This is a much narrower focus. It is unlikely that a post-conviction proceeding would serve the *185broader, remedial purposes contemplated by habeas corpus and by the public interest exception to the mootness doctrine.