IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 87-194
MILTON K. BLAKEY, District Attorney, F' 3 3
in and for the Ninth Judicial
District, State of Colorado, on , '*x~r&on
behalf of the PEOPLE OF THE STATE CLEFLI, J P >w.'HEME COURT
OF COLORADO, STATE OF MONTANA
)
Petitioners, ) O P I N I O N
A N D
v. O R D E R
DISTRICT COURT, Second Judicial
District, County of Silver Bow,
State of Montana; ARNOLD OLSEN,
judge thereof; and DALE EDWARD
ANDERSON, real party in interest,
Respondents.
On January 26, 1987, the Second Judicial District Court,
Silver Row County, issued an order that the State of Colorado
had not complied with the Interstate Agreement on Detainers
(IAD) so that defendant Anderson's arrest was null and void
and that all future Colorado detainers, based upon the same
charges, were declared to be of no effect in the State of
Montana. Colorado (petitioner), on May 20, 1987, filed its
Petition for Writ of Mandate, directed to the respondent
court to vacate said order. The petitioners responded on
July 10, 1987, and both parties have filed requests, briefs,
motions and responses. We remand to the District Court and
order that its order of January 26, 1987 be vacated.
The following facts, gleaned from the record, are not in
dispute.
On May 6, 1983, a District Judge of Rio Blanco County,
Colorado, issued an arrest warrant, based upon an affidavit
of probable cause, for the arrest of Dale Edward Anderson,
with bail in the amount of $10,000.
Dale Edward Anderson was sentenced to six years at the
Montana State Prison on March 13, 1984. On May 4, 1984, the
Warden's office, Montana State Prison acknowledged receipt of
the Colorado arrest warrant as a detainer. On July, 22,
1985, the defendant, Dale Edward Anderson, executed a request
for disposition of Information or Complaints, and on July 30,
1985, the Warden of the Montana State Prison offered to
deliver temporarv custody of the defendant to the petitioner
herein.
On August 19, 1985, petitioner herein wrote to
defendant's wife, indicating that he did not intend to
release the "detainer" filed against the defendant in
Montana.
On February 7, 1986, the Warden of the Montana State
Prison advised the petitioner herein that petitioner had
acknowledged receipt of the defendant's demand for final
disposition under the Interstate Agreement on Detainers, and
that because the 180-day period had passed without the
petitioner taking temporary custody of the defendant, the
Colorado detainer was no longer of force or effect and
therefore the petitioner was requested to have the
appropriate court enter an order dismissing the action
against defendant with prejudice.
On March 10, 1986, the Clerk of the Ninth District
Court, Rio Blanco County Colorado, received from the
defendant pro se a Motion to dismiss indictment/detainer
lodged on or about May 6, 1983. On May 21, 1986,
petitioner's deputy advised the Montana State Prison staff
that no information had been filed against the defendant,
although there was an active felony warrant filed, and that
therefore the Interstate Agreement on Detainers did not
apply
On October 16, 1986, an Information was filed by
petitioner's staff against the defendant based upon the same
alleged conduct as described in the affidavit of probable
cause in support of the arrest warrant issued May 6, 1983.
On December 23, 1986, the defendant was arrested b 7 Montana
5
officers by authority of a warrant issued by the Rio Blanco
County, Colorado, District Court.
On January 26, 1987, a hearing was held upon the
application of the defendant for Writ of Habeas Corpus before
the Honorable Arnold Olson, District Judge of the Second
Judicial District of the State of Montana in and for the
County of Silver Bow. At the hearing the defendant was
present and was represented by his attorney, John G. Winston.
The State of Colorado was purportedly represented by Ross
Richardson, Chief Deputy County Attorney for Silver Bow
County, Montana. After presentation of testimony and oral
argument, the presiding Judge entered Findings, Conclusions,
and Judgment to the effect that the State of Colorado had not
complied with the Interstate Agreement on Detainers so "the
Detainer under which the Petitioner was arrested on the 23rd
day of December 1986 is null and void."
Upon these facts, we temporarily deferred ruling on the
application for Writ of Mandate until the appropriate court
of the State of Colorado acted upon Anderson's motion to
dismiss. Anderson's motion to dismiss was based on Article
III(a) of the Interstate Agreement on Detainers, §§ 46-31-101
et seq., MCA, C.R.S. §§ 24-60-501 et seq., which requires the
state issuing a detainer, the receiving or demanding state,
to bring the accused to trial within 180 days after the
accused requests final disposition of the matter. In this
case, Anderson did all that was required of him under the
Act.
On December 9, 1987, the Rio Blanco District Court,
Honorable Gavin D. Litwiller, denied Anderson's motion to
dismiss on grounds that " [p!revious to October 16, 1986 no
Indictment, Information, or Complaint had been filed ... "
The Colorado court relied on the Colorado Supreme Court case
of People v. Gonzales (Colo. 1984), 679 P.2d 1085, which
interpreted the Colorado Uniform Disposition on Detainer
Act, C.R.S. $ $ 16-14-101 et seq., which is the Colorado
Intrastate counterpart to the Interstate Agreement on
Detainers. In Gonzales, the Colorado Supreme Court ruled
that an arrest warrant does not trigger the application of
the Intrastate Agreement and the Colorado District Court in
this case held that the outstanding arrest warrant did not
trigger the application of the Interstate Agreement.
Respondents, through Winston and Colorado counsel
inadequately responded to our order of March 23, 1988 in
which we requested evidence in writing for reasons why an
appeal of the Colorado decision was not commenced by January
15, 1988, as was stated by Winston in a Motion to Retain our
Order filed January 6, 1988. Winston's Motion stated that
respondent retained Colorado co-counsel to perfect an appeal
to the Colorado Supreme Court. After a number of orders by
this Court for further written assurances that an appeal was
being perfected, we were advised that under Colorado law only
an interlocutory appeal is available on the Colorado District
Court's order and that the time period allowed for this
appeal had expired.
Petitioners present the following two issues in their
brief in support of the Writ of Mandate:
1. Whether the Montana District Court exceeded its
jurisdiction under the extradition clause by blocking
extradition based on an alleged violation of the Interstate
Agreement on Detainers by the receiving state?
2. Whether the respondent court incorrectly defined a
"detainer" to include a mere arrest warrant?
Initially, we note that the general rule is that asylum,
sending or custody, state courts have only limited
jurisdiction and limited judicial review over a transfer
sought by a receiving state pursuant to the IAD. bad v.
Ricketts (Colo. 1982), 645 P.2d 848, 849. Further, this
limitation has generally been strictly construed to allow
inquiry similar to the inquiry allowed in extradition
proceedings. Michigan v. Doran (1978), 439 U.S. 282, 99
S.Ct. 530, 58 L.Ed.2d 521; Coble v. Magone (~ont.1987), 744
P.2d 1244, 1245, 44 St.Rep. 1766, 1768; Petition of Blackburn
(Mont. 1985), 701 P.2d 715, 717, 42 St.Rep. 525, 527. Review
by the asylum or custody state is allowed but is limited in
scope to the issues concerning technical sufficiency of the
extradition documents, identification of the accused, whether
the accused has been substantially charged with a crime, and
whether the accused is a fugitive. Morris v. McGoff (Colo.
1986), 728 P.2d 720, 722; Sweaney v. ~istrict Court,
Eighteenth Judicial District (Colo. 1986), 713 P.2d 914, 917;
Dodson v. Cooper (Colo. 1985), 705 P.2d 500, 503, cert den.
474 U.S. 1084, 106 S.Ct. 857, 88 L.Ed.2d 896.
We will not intercede and determine Colorado law as we
are without jurisdiction to do so. However, we note that one
court has expressed the reasoning that the sending state's
judicial review, especially in determining validity under the
IAD rather than extradition, may be more than that expressed
in Doran. The Iowa Court of Appeals decision in Hickey v.
State (Iowa ~ p p .1984), 349 N.W.2d 772, briefly addressed the
question whether a "sending state" under the Interstate Act,
referred to as the IADC, rather than IAD, had jurisdiction to
determine whether the "receiving state" has complied with the
IADC.
The United States Supreme Court held in
Cuyler v. Adams, 449 U.S. 433, 101 S.Ct.
703, 66 L.Ed.2d 641 (1981), that
prisoners transferred pursuant to Article
IV of the IADC are not required to give
up any preexisting rights they had under
state or federal law to challenge their
transfer to the "receiving state." Id.
at 450, 101 S.Ct. at 712, 66 L . E d . 2 d X
655. A prisoner transferred against his
will should be entitled to whatever
safeguards of the extradition process he
might otherwise have enjoyed, including
those procedural protections of the
Uniform Criminal Extradition Act [Iowa
Code chapter 820 (1983)l. - at 448,
Id.
101 S.Ct. at 711-12, 66 L.Ed.2d at 654.
Under the Supreme Court's interpretation,
prisoners are given the right to a
judicial hearing in which they can bring
a limited challenge to the "receiving
state's" custody request. Id. at 449,
101 S.Ct. at 712, 66 L.Ed.2dat 654-55.
The Iowa court proceeded to state that historically the
prisoner was limited to the Doran factor challenges but in
the specific case before it the court said it had to
determine whether a pursuit of challenging the receiving
state's compliance with the IADC could be made by the
prisoner in the sending state. The Hickey Court stated:
It has been generally held that under the
IADC, courts in the state in which the
prisoner is incarcerated lack authority
to dismiss out-of-state charges even
though a prisoner claims that the
"receiving state's" prosecuting
authorities have violated his right to a
speedy trial under Article III(a).
State ex rel. Garner v. Gray, 59 Wis.2d
323, 208 N.W.2d 161 (1973); Baker v.
Schubin, 72 Misc.2d 413, 339 N.Y.S.2d 360
(N.Y.su~.c~.1971) ; State ex rel.
Chamberlain v. Martinco, 288 Minn. 231,
179 Nw~
..- State v. West, 79
N.J.Super. 379, 191 A.2d 758 (Super.Ct.
App.Div.1963). .. Some courts have also
indicated that when serving as the asylum
state they will not pass on alleged
violation of the detainer act or alleged
violation of constitutional rights by
demanding states, but will leave such
determination to the courts of the
demanding states. State ex rel. Garner
v. Gray, 59 Wis.2d 323, 208 N.W.2d 161;
State ex rel. Mitchell v. Allen, 155
W.Va. 530, 185 S.E.2d 355 (1971), cert.
denied 406 U.S. 946, 92 S.Ct. 2 0 4 8 7 2
L.Ed.2d 333 (1972).
. : State ex rel.
Chamberlain v. Martinco, 288 Minn. 231,
179 N.W.2d 286. These latter cases,
however, all involve extradition statutes
and not actions initiated under the IADC.
See, State ex rel. Bursaw v. Omodt, 338
N.W.2d 585 (Minn.1983) ...
Moreover, other courts have held that
while a court in the "sending state" may
not dismiss the indictment of the
"receiving state," the courts of the
"sending state" have the authority to
dismiss detainer warrants lodged with
prison authorities by sister states
where it appears that the underlying
accusatory instrument itself is subject
to dismissal in the courts of the
"receiving state" for failure to comply
with the speedy trial provisions of the
IADC. [~ m Baker ~v.
- h
Schubin, 72 Misc.2d at 419, 339 N.Y.S.2d
at 369. See also, Buchanan v. Michigan
Department of Corrections, 50 Mich.App.
1, 212 N.W.2d 745 (1973); Rainey v.
Michigan Department of Corrections, 41
Mich.App. 313, 199 N.W.2d 829 (1972). We
hold tyat in .addition to the traditional
limited review of extradition cases
preserved by the Supreme Court in Cuyler
under the IADC, the court of the "sending
state" may also dismiss a detainer lodged
against a prisoner incarcerated within
its borders where it appears that the
underlying indictment is subject to
dismissal in the courts of the "receiving
state" for failure to comply with the
provisions of the IADC. we -are careful
to note that this holding does not
prevent a "receiving state" whose
detainer has been dismissed from using
the extradition process. [Emphasis
added. I See, Baker v. Schubin, 72
Misc.2d at 422, 339 N.Y.S.2d at 369. We,
therefore, review plaintiff's claims that
the detainer should be quashed because of
Florida's failure to comply with the
speedy trial provisions of Article III(a)
of the IADC.
Hickey, supra, 349 N.W.2d at 776-777.
We note additionally that the Hickey court also cited a
case where the Wisconsin Court of Appeals discharged an
Illinois detainer lodged against a Wisconsin prisoner. State
v. Sykes (Wis.Ct.App. 1979), 283 N.W.2d 446. Hickey's
importance in this case is that the Montana District Court
made its determination believing that the underlying
accusatory instrument itself was subject to dismissal in the
receiving state, Colorado. In light of the denial by the
Colorado District Court of Anderson's motion to dismiss we
find this is not the case.
Under the facts of this case, we do not base our entire
holding on the argument that the Montana District Court is
without jurisdiction to make any determination beyond those
expressed in the general rule. Doran, supra; Blackburn,
supra. However, reviewing this issue in light of the second
issue presented we find that the Montana District Court
erred.
The second issue presented by petitioner is determined
by the Ninth Circuit Court of Appeals decision of United
States v. Bottoms (1985), 755 F.2d 1349. In Bottoms, the
court determined that an arrest warrant for escape of the
defendant in the receiving state was not sufficient to fall
under the definition of an "indictment," "information," or
"complaint" thereby triggering the IAD in the custody state.
This ruling was based upon the language of 18 U.S.C. App. S2,
art. I of the Interstate Agreement on Detainers Act which is
the precise language of the Montana Interstate Agreement on
Detainers. Section 46-31-101, et seq., MCA.
We note also that a number of courts have determined
that an outstanding charge based on probation or parole
violation is not sufficient to be determined an "untried
indictment, information or complaint." Carchman v. Nash
!1985), 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516; United
States v. Roach (9th Cir. 1984), 745 F.2d 1252, cert den. 474
U.S. 835, 106 S.Ct. 107, 88 L.Ed.2d 87; Hopper v. united
States Parole Commission (9th Cir. 1983), 702 F.2d 842.
Similarly, in this instance, an arrest warrant, unless it is
based upon an untried indictment, information or complaint,
should not be considered sufficient to trigger the Interstate
Agreement on Detainers.
We remand to the District Court and order that its order
of January 26, 1987 be vacated.
DATED thisZ?t%ay of May, 1988.