Currier v. Holden , 222 Utah Adv. Rep. 35 ( 1993 )

ORME, Judge

(concurring in the result):

I agree with my colleagues that the dismissal of both petitions at issue in these appeals must be reversed and the cases remanded for consideration on the merits. I find it unnecessary, however, to address the constitutionality of the applicable statute of limitation. As I view the statutory scheme, and in particular the question of when petitioners’ causes of action accrued, these petitions were brought well within the limitation period prescribed by the statute. Such being the case, we need not decide the constitutionality of the statute of limitation.

A. Alternative Interpretation

The period within which a petition for writ of habeas corpus must be filed is governed by two related statutory provisions.¹ The first, applicable to statutes of limitation generally, provides as follows:

Civil actions may be commenced only within the periods prescribed in this chapter, after the cause of action has accrued, except in specific cases where a different limitation is prescribed by statute.

Utah Code Ann. § 78-12-1 (1992) (emphasis added). The specific limitation period applicable to habeas corpus proceedings is as follows:

Within three months:

For relief pursuant to a writ of habeas corpus. This limitation shall apply not only as to grounds known to petitioner but also to grounds which in the exercise of reasonable diligence should have been known by petitioner or counsel for petitioner.

Id. § 78-12-31.1.

The State argues that section 78-12-31.1 required petitioners to file their habeas corpus petitions within three months of particular events — the affidavit of recantation in Currier’s case; denial of the motion for new trial in McClellan’s case. Because petitioners filed their petitions more than three months after these occurrences, the State asserts that their claims were barred by the three-month statute of limitation.

While the State’s interpretation is a plausible one, an alternative interpretation of the statutory scheme is also possible. Under the alternative view, the petitions for writs of habeas corpus were timely filed because illegal imprisonment is an ongoing violation of constitutional rights, from which it follows that a new cause of action accrues with each day of illegal confinement. Under this alternative interpretation, which recognizes the gravamen of a habeas corpus action to be illegal confinement rather than the particular occurrence which makes the confinement illegal, these petitions were timely because they were filed while these petitioners were allegedly confined unlawfully, and thus well within three months of such confinement.

B. Ambiguity

“A statute is ambiguous if it can be understood by reasonably well-informed persons to have different meanings.” Tanner v. Phoenix Ins. Co., 799 P.2d 231, 233 (Utah App.1990). Section 78-12-31.1 is ambiguous, as McClellan contends, because the statute provides no guidance as to when the three-month statutory period begins, i.e., as to when a habeas corpus cause of action, as that term is used in section 78-12-1, accrues.² Although section 78-12-31.1 applies to “grounds known to petitioner” as well as to grounds which “should have been known by petitioner,” the section makes no specific reference to when the cause of action accrues. Even assuming “grounds” refers to the underlying decision or other action which resulted in the allegedly unlawful confinement rather than to the condition of being unlawfully confined, the general rule is that “a cause of action accrues upon the happening of the last event necessary to complete the cause of action.” Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983) (emphasis added). Thus, the statute does not itself resolve when a habeas corpus cause of action accrues,³ although it seems unlikely that an unlawful action which does not culminate in confinement or other restraint of liberty is actionable in a habeas corpus proceeding, suggesting that it is unlawful confinement or restraint that is the “last event necessary to complete the cause of action.”

While we will not ignore the plain meaning of a statute, Utah law directs us to “liberally construe[ ] [statutes] with a view to effect the objects of the statutes and to promote justice.” Utah Code Ann. § 68-3-2 (1986). See Provo City Corp. v. Willden, 768 P.2d 455, 458 (Utah 1989). Moreover, with regard to the three-month limitation for filing habeas corpus petitions, the Utah Supreme Court has directed that “any ambiguity that may exist ... should be resolved in favor of a criminal defendant.” Smith v. Cook, 803 P.2d 788, 791 (Utah 1990).

C. Legislative History

The legislative history of section 78-12-81.1 provides insight into the intent behind the three-month limitation period. As noted in the main opinion, the debates in the Utah House and Senate exhibited the single-minded intention by legislators to control repeated, frivolous appeals occurring in capital cases. Those who spoke during the debate never expressed an intention to preclude prisoners with meritorious habeas corpus claims from asserting those claims in the courts of this state.⁴ The reason seems clear. The legislators were focused upon death row inmates anxious to postpone their rendezvous with the executioner. It is only such inmates who stand to benefit from delaying the filing of a habe-as corpus petition. While further confinement compares favorably with execution, non-capital prisoners have no incentive to put off habeas corpus filings, which would only prolong the confinement they believe is unlawful when the alternative is freedom rather than execution.

In its understandable effort to eliminate frivolous claims brought at the eleventh hour by capital felons, the Legislature apparently failed to explicitly consider non-capital cases, including those in which convicts fail to bring an immediate action for

reasons beyond their control.⁵ The short limitation period, if interpreted as the State argues, would provide little room for error by inexperienced prisoners who in good faith attempt to challenge the illegality of their confinement on valid constitutional grounds. Indeed, the instant cases present circumstances where each petitioner claims he attempted to seek legal assistance in a timely manner, but faced a number of obstacles that made earlier completion of his petition difficult, if not impossible. Section 78-12-31.1, as interpreted by the State, would bar these claims for relief regardless of the reason for the delay in filing. While the Legislature did not explicitly disapprove of such a result, “the draconian sanction of barring a cause of action should not be imposed without clear legislative intent of such consequences.” Gramlich v. Mun-sey, 838 P.2d 1131, 1133 (Utah 1992).

D. Avoiding Unjust Results

In addition to other methods for resolving ambiguity in the statutory scheme, we ought to “look to the effect each plausible meaning of statutory language will have in practical application.” Tanner v. Phoenix Ins. Co., 799 P.2d 231, 233 (Utah App.1990). We must therefore be sensitive to the unacceptable consequences arising out of the State’s interpretation of the statutory scheme. In doing so, we merely heed the Legislature’s directive to interpret statutes to “promote justice,” Utah Code Ann. § 68-3-2 (1986), and the Utah Supreme Court’s directive to resolve any ambiguity in section 78-12-31.1 in favor of the criminal defendant. Smith v. Cook, 803 P.2d 788, 791 (Utah 1990).

The State’s interpretation, which in many cases would leave unremediable the continued wrongful confinement of a prisoner, could lead to egregious miscarriages of justice. To take an extreme example, suppose a judge orders a juror jailed for returning a not-guilty verdict.⁶ Unaware of his legal options or despondent about his state of affairs, the prisoner takes no action for three months. In the State’s view, upon expiration of the three-month limitation period, the prisoner would have no choice but to remain in prison indefinitely because a reasonable person would have known at the moment he was hauled off.to jail that the committing judge’s action was illegal. After the elapse of three months, the juror-prisoner would simply have no recourse but to languish in jail at the judge’s whim, even though the State has no legitimate interest in confining someone illegally.

The State’s interpretation of when the three-month limitation period begins would bar not only the instant petitions, but essentially all habeas corpus petitions premised on claims of ineffective assistance of counsel. This is so because when the dereliction occurred, it may be said that defendant — or at least defendant’s counsel — “in the exercise of reasonable diligence should have ... known” of trial counsel’s dereliction. It would then seem that in the case of ineffective assistance of counsel at trial, any resulting habeas corpus petition would have to be brought within three months of trial. Yet it has been consistently assumed that habeas corpus relief for ineffective assistance at trial is available long after trial.

For example, in Fernandez v. Cook, 783 P.2d 547 (Utah 1989), the Utah Supreme Court held that an ineffective assistance of counsel claim may be raised for the first time in a habeas corpus proceeding when the same allegedly incompetent attorney represented petitioner during the trial and the direct appeal.⁷ Id. at 549. Accordingly, the Court permitted the petitioner to pursue his habeas corpus petition, filed five months after the trial court imposed its final sentence. Id. at 548, 550. The remand ordered by this state’s Supreme Court would be wholly illusory if the Court expected the three-month statute of limitation to bar the petitioner’s cause of action.

In a number of other cases, the appellate courts have spoken of the availability of the habeas corpus remedy for the alleged ineffective assistance of counsel, a rather hollow characterization if the State’s view controlled and essentially all of the claims were, as a practical matter, time-barred. See, e.g., State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991) (defendant would typically be “require[d] ... to present the claim of ineffective assistance of trial or appellate counsel in a postconviction proceeding in the trial court”); State v. Garrett, 849 P.2d 578, 580 (Utah App.1993) (“[ojrdinarily, [ineffective assistance of counsel claim] may only be raised through a collateral attack in habeas corpus proceedings”). Prisoners, who typically are not trained in the law, are unlikely to have immediate reason to suspect that their representation was inadequate. Upon eventual discovery of that possibility, they have no incentive to refrain from promptly asserting their claim.

The State nonetheless argues that the statute is necessary to prevent petitioners from sitting on their rights. While this policy underlies statutes of limitation generally, and applies to death row inmates who wish to postpone execution, no rationale can explain a prisoner’s desire to bide his time, unlawfully incarcerated, for the purpose of bringing a habeas corpus petition some time in the distant future. Petitioner, after all, bears the burden of proving his claim and, in addition to the high price of prolonged incarceration, risks with deliberate delay the loss of evidence, witnesses, and recollection necessary to prove his case. And with respect to concerns about staleness should a retrial become necessary as a result of a successful petition, this point must be kept in mind:

While the governmental interest in eliminating stale claims is a legitimate one, it must be remembered that any increasing staleness is offset by a decreasing state interest in punishment: “The farther in time a postconviction proceeding is from the original conviction, the more difficult will be retrial but, equally, the greater the portion of the original sentence that will already have been completed.”

People v. Germany, 674 P.2d 345, 350 n. 5 (Colo.1983) (quoting ABA, Standards For Criminal Justice: Postconviction Remedies, Commentary to Standard 22-2.4 at 22.27 (2d ed. 1982)).

E. Best Interpretation

Accordingly, I favor the alternative interpretation of the statutory scheme. Such a reading is the “liberal construction]” which better “promote[s] justice”; it resolves “ambiguity ... in favor of a criminal defendant”; it is not inconsistent with the legislative history called to our attention; and it avoids unacceptable results in practice. Moreover, adopting the alternative interpretation avoids the necessity, at least in this case, of addressing the statute’s constitutionality. See Lounsbury v. Capel, 836 P.2d 188, 196 (Utah App.1992) (“[W]e construe the statute in a manner which will avoid potential constitutional pitfalls.”) But does the interpretation I favor have a firm underpinning in jurisprudence? I believe it does, for two basic reasons. First, the alternative interpretation is more consistent with the paramount role that “the Great Writ” plays in our legal system. Second, this interpretation conforms with the theory of a “continuing wrong,” which has long been recognized in analogous circumstances.

1. The Great Writ

The Writ of Habeas Corpus occupies an essential niche in the Anglo-American common law and is the only common law writ that received explicit protection in the United States and Utah Constitutions. See U.S. Const, art. I, § 9, cl. 2; Utah Const, art. I, § 5. The availability of the Writ provides “one of the most important of all judicial tools for the protection of individual liberty.” Hurst v. Cook, 777 P.2d 1029, 1034 (Utah 1989). While the scope of the Writ has evolved to encompass a variety of constitutionally unacceptable conduct, “in each case [the petitioner’s] grievance is that he is being unlawfully subjected to physical restraint.” Preiser v. Rodriguez, 411 U.S. 475, 486, 93 S.Ct. 1827, 1834 (1973). Accordingly, “the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody.” Id., 411 U.S. at 483, 93 S.Ct. at 1833. In addition, the Montana Supreme Court has rightfully noted that

[t]he central function of the courts is the achievement of justice. However, like all endeavors of man, the search for justice is not without occasional flaws. From the time of the Magna [Carta], the Great Writ of Habeas Corpus has been liberally employed as a means of guaranteeing that this judicial goal be accomplished and that a miscarriage of justice will be remedied. See Blackstone Comm, at 129 et seq. For at its heart, the writ represents an acknowledgement of the principle that the rights of freedom of the individual are worthy of protection.

State v. Perry, 758 P.2d 268, 273 (Mont.1988).

In order to arrive at just results where illegal imprisonment or other restraint of liberty is challenged in habeas corpus proceedings, there must be a delicate balancing of two competing goals: finality and liberty. In this respect I agree with Justice Stewart’s analysis:

The general judicial policy favoring the finality of judgments cannot ... always prevail against an attack by a writ of habeas corpus. As important as finality is, it does not have a higher value than constitutional guarantees of liberty.

Hurst, 777 P.2d at 1035. Although Justice Stewart directed his reasoning to a holding that “neither collateral estoppel nor issue preclusion is an absolute defense in a habe-as case,” id. at 1036, his reasoning is equally applicable in the statute of limitations context.⁸ The realization that the State violates the constitutional rights of a person each day he or she is illegally confined comports with the conceptual underpinning of the Great Writ. Consequently, such an interpretation best promotes just results in cases where a prisoner’s claims of illegal confinement or restraint arguably have merit.

2. Continuing Wrong

Generally, “a cause of action accrues upon the happening of the last event necessary to complete the cause of action.” Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983). In a typical case, the application of this rule is reasonably straightforward because a single event occurs, such as a punch in the nose or trespass upon one’s property, which completes a cause of action. Courts, however, have adapted to rarer instances where a defendant’s wrongful actions occur over a period of time. In such cases, “where a continuous chain of events or course of conduct is involved the cause of action accrues at the time of the final act in that series of events or course of conduct.” Barbaccia v. County of Santa Clara, 451 F.Supp. 260, 266 (N.D.Cal.1978). The focus of an inquiry into whether plaintiff’s allegations are governed by the continuing wrong theory is on the defendant’s wrongful activities. New Port Largo, Inc. v. Monroe County, 706 F.Supp. 1507, 1516 (S.D.Fla.1988).

Courts have applied the “continuing wrong” theory in a variety of contexts, particularly where civil rights are at stake. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 1125, 71 L.Ed.2d 214 (1982) (under continuing wrong theory, so long as one discriminatory act falls within limitation period, even acts occurring outside limitation period are not time barred);⁹ Lee v. Case-Hoyt Corp., 779 F.Supp. 717, 720-22 (W.D.N.Y.1991) (although alleged wage discrimination began when plaintiff received lower pay at time of hire, each paycheck constituted an ongoing wrong for statute of limitations purpose); Wyatt v. Union Mortgage Co., 24 Cal.3d 773, 157 Cal.Rptr. 392, 400, 598 P.2d 45, 53 (1979) (where one continues to commit wrongful acts in furtherance of civil conspiracy, limitation period does not begin until last overt act occurs); Russell v. McMillen, 685 P.2d 255, 258 (Colo.App.1984) (in determining when statute of limitation runs, “each separate publication constitutes a separate and distinct claim for libel”); Graveley Ranch v. Scherping, 240 Mont. 20, 782 P.2d 371, 373 (1989) (in nuisance action where leaking lead batteries harmed neighbor’s cattle, continuing nature of injury tolled statute of limitations); Shors v. Branch, 221 Mont. 390, 720 P.2d 239, 243-44 (1986) (each day a gate obstructed free use of their easement, plaintiffs obtained a new cause of action).

Assuming that petitioners’ substantive claims are factually true and legally cognizable, their daily confinement is a continuing wrong because it is based on convictions which were obtained in violation of their rights under the Sixth Amendment. Because these petitioners allege that the State is unlawfully detaining them on an ongoing basis, application of the continuing wrong doctrine here is consistent with its application in a variety of other situations where justice so dictates. Because the last act necessary to complete a habeas corpus cause of action is illegal confinement and illegal confinement is a continuing wrong, the three-month statute of limitation did not commence at the time a certain affidavit was filed or a particular motion denied, but starts anew each day petitioner is illegally confined.

F. Conclusion

Because the petitioners’ actions were timely filed under the statute of limitations as properly construed, the district court erred in dismissing the petitions on the theory that the statute of limitations barred them. It is oil that basis — and, therefore, without seeing the need to address the statute’s constitutionality — that I join my colleagues in remanding the petitions for consideration on the merits.

1 . In Hurst v. Cook, 777 P.2d 1029 (Utah 1989), the Utah Supreme Court noted that "[a] It hough a post-conviction relief remedy and the writ of habeas corpus have sometimes been thought to be separate procedures, the writ of habeas corpus has, over the years, absorbed the post-conviction relief remedy to form a single constitutional remedy.” Id. at 1033. Rule 65B of the Utah Rules of Civil Procedure governs procedures for extraordinary relief, which include those for post-conviction relief. The most recent version of Rule 65B explicitly eliminated the concept of the "writ" from this rule. That term has been replaced with other contextually appropriate terms. See Utah R.Civ.P. 65B(a) (amended 1991) and the advisory committee note.

2 . If the Legislature wanted to specify the time the statutory period commences, it could easily have done so. See, e.g., Utah Code Ann. § 35-2-48 (1988) (cause of action for occupational disease disability compensation arose when "employee first suffered incapacity from the occupational disease” and knew or should have known that condition was caused by employment) (repealed 1991). See also Ill.Rev.Stat. 1965, ch. 38, § 122-1 (petition for post-conviction challenges based on denial of constitutional rights must be commenced within 20 years of "rendition of final judgment”).

3 . Determining when a cause of action accrues, so as to trigger a statute of limitation, is made more difficult in situations where the statute itself is ambiguous. See, e.g., Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990) (indemnity action does not arise when underlying damage occurs, but from time of payment of claim or payment of judgment or settlement); Lipscomb v. Chilton, 793 P.2d 379, 380-81 (Utah 1990) (statute of limitation for breach of warranty action began to run when sellers did not respond to purchasers’ demand, not when buyers made demand, nor when roof leaks were first discovered); Holy Family Catholic Congregation v. Stubenrauch Assoc., 136 Wis.2d 515, 402 N.W.2d 382, 385 (App.1987) (when time of accrual is ambiguous, court will look beyond words of statute to determine when limitation period began).

4 . Increasingly, federal courts have become overburdened with a disproportionate number of habeas corpus petitions by state prisoners. United States Department of Justice, Report to the Attorney General: Federal Habeas Corpus Review of State Judgments 33 (1988). The United States Justice Department proposed significant reform of federal habeas corpus review of state judgments. These reforms included a proposal to confine "federal habeas corpus review to cases where a meaningful process for considering a petitioner’s federal claims was denied in the state courts." Id. at 55. The basic idea of this reform "would be to treat federal habeas corpus as a backstop measure, which would only come into play if a state judicial system had failed to provide some meaningful opportunity for raising a federal claim and having it decided." Id. at 59. Limiting state prisoners to an unreasonably short period for filing a habeas corpus petition tends not to promote a meaningful opportunity to obtain state review. Such a limitation therefore undermines innovative attempts at federal habeas corpus reform and may unintentionally shift the review burden from the state judiciary to the federal courts. Moving habeas corpus review of state matters from our own courts to the federal courts seems an unlikely objective of our Legislature.

5 . Rule 65B of the Utah Rules of Civil Procedure provides a method for dismissing frivolous petitions before they are fully litigated at public expense. See Utah R.Civ.P. 65B(b)(7), (c)(4).

6 . As farfetched as such a scenario appears, it actually happened a while back. Bushell’s Case, Vaughan 135, 124 Eng.Rep. 1006 (1670). See Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973).

7 . A claim of ineffective assistance of counsel, by its very nature, is likely to be barred by a three-month limitation period under the State’s interpretation of when the cause of action accrues. The crux of such a claim is that a reasonable attorney would have known the contested behavior was inept and that, due to counsel’s ineptitude, the resulting conviction was wrong. See State v. Frame, 723 P.2d 401, 405 (Utah 1986) (claimant must "demonstrate that counsel’s representation falls below an objective standard of reasonableness”). Inevitably, a habeas corpus petition will not be forthcoming from a prisoner who maintains the same ineffective attorney for three months after his conviction because the limitation period begins once "grounds which in the exercise of reasonable diligence should have been known by ... counsel for petitioner.” Utah Code Ann. § 78-12-31.1 (1992) (emphasis added).

8 . In Hurst, the trial court ruled that petitioner's claim was barred by Utah Rule of Civil Procedure 65B(i)(4) because the issues raised in a second habeas petition should have been or were raised in the first petition. Hurst, 777 P.2d at 1032. At that time, Rule 65B(i)(4) permitted a plaintiff to raise constitutional claims in a second petition "for good cause shown.” Cf. Utah R.Civ.P. 65B(b)(3) (amended 1991) (”[a]d-ditional claims relating to the legality of the commitment may not be raised in subsequent proceedings except for good cause shown”). The Utah Supreme Court held that, among other reasons, “[a] showing of good cause that justifies the filing of a successive claim may be established by showing ... the illegality of a sentence.” Id. at 1037. Unlike both the previous Rule 65B(i)(4) and the current Rule 65B(b)(3), Utah Code Ann. § 78-12-31.1 contains no exception for good cause delays in filing a petition for habeas corpus. The statute, if interpreted as urged by the State, would place a higher value on the judicial policy of finality than on constitutionally protected liberties. Such an interpretation would be inconsistent with the Utah Supreme Court’s well-reasoned analysis in Hurst.

9 . In applying the continuing wrong doctrine to this civil rights case, the United States Supreme Court stated that "[wjhere the challenged violation is a continuing one, the staleness concern disappears.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 380, 102 S.Ct. 1114, 1125 (1982).