October 22, 1997
Jeff Bloomberg, Secretary
Department of Corrections
115 East Dakota Avenue
Pierre, SD 57501-3216
OFFICIAL OPINION NO. 97-05
Responsibility for transporting inmates to court hearings
Dear Secretary Bloomberg:
You have asked for an official opinion from this Office based on the following facts:
FACTS:
The Department of Corrections' (DOC) current practice is to transport inmates to court appearances for crimes committed while the inmate is in the DOC's custody. Transport for criminal cases not related to crimes committed while an inmate, for writs, and for other noncriminal matters has been viewed as the responsibility of the county where the order was issued.
Several months ago, a county questioned DOC's practice. The county believes that under SDCL 19-5-5, DOC is responsible for transporting inmates to a hearing, unless the prisoner is produced pursuant to a writ of habeas corpus; the county acknowledges that the cost of producing a prisoner in such an instance is the responsibility of the county pursuant to SDCL 21-27-9.2.
The following types of hearings involve inmate transportation:
1) Actions on criminal offenses unrelated to offenses committed while an inmate (70%);
2) Hearings for sentence modification and reduction (5%);
3) Unspecified hearings on sentence/conviction--these can be related to appeals, may be "masked" habeas hearings (5%); and
4) Hearings on child custody, divorce, termination of parental rights or paternity (10%).
Based on these facts, you have asked the following question:
QUESTION:
For which hearings is DOC responsible for transportation, and for which is the county responsible?
IN RE QUESTION:
SDCL 19-5-5 provides:
A person confined in any prison in this state may, by order of any court, be required to be produced for oral examination in the county where he is imprisoned. [Emphasis added.]
SDCL 19-5-6 provides:
Except as provided by § 19-5-5, the examination of a person confined in any prison in this state must be by deposition.
While a prisoner's deposition is being taken, he shall remain in the custody of the officer having him in charge, who shall afford reasonable facilities for the taking of the deposition. [Emphasis added.]
SDCL 21-27-7 provides:
The Supreme and circuit courts and the judges thereof shall have power to issue writs of habeas corpus for the purpose of bringing any person imprisoned in any prison before any court or magistrate, to testify in any criminal action or proceeding in any county of the state, and returning such person to such prison. [Emphasis added.]
Finally, SDCL 21-27-9.2 provides:
The officer or person upon whom the writ of habeas corpus is served shall produce the body of the applicant before the court at the hearing of the cause of imprisonment or detainer. If the applicant is in the custody of a civil officer, the court or judge who granted the writ shall determine the expense of bringing the applicant to court, which shall be paid prior to the hearing. Security shall be given to pay the charges for carrying him back, if he is remanded. If the applicant is confined in the state penitentiary or state hospital, an order shall be issued commanding the sheriff of the county in which the application is made to take custody of the applicant during the pendency of any proceedings before the court and to transport the applicant from and return the applicant to the state penitentiary or state hospital if he is not released. [Emphasis added.]
The above statutory sections establish the methods of taking a prisoner's testimony under state law. These statutory provisions also set out who is responsible for transportation.
If the action is criminal in nature, the court may issue a writ of habeas corpus under SDCL 21-27-7 to allow the prisoner to testify in the criminal proceeding. Under SDCL 21-27-9.2, the county where the criminal proceeding is held would provide for the prisoner's transportation.
If the proceeding is civil or noncriminal in nature, other than a habeas corpus action initiated under SDCL ch. 21-27, state law provides only two methods of taking the prisoner's testimony. First, if the hearing is in the same county as the inmate's county of incarceration, SDCL 19-5-5 would allow the court to order the prisoner to be produced for oral examination in the county of the inmate's imprisonment. Though the statute is silent, it appears that DOC would have the responsibility of transporting the inmate to the hearing.
If the civil hearing is not held in the county in which the inmate is imprisoned, state law allows only for the examination of the inmate by deposition as set forth in SDCL 19-5-6. Under this section, DOC would have to afford reasonable facilities at the institution for taking the inmate's deposition.
In addition to the statutory methods of examining an inmate set forth above, some states have recognized that their courts maintain a common law power to compel inmates to appear before them and provide testimony. First is a writ of habeas corpus ad respondendum which is "used to bring up a person in confinement to answer a criminal charge." Hottle v. District Court in and for Clinton County, 11 N.W.2d 30, 35 (Iowa 1943). The second common law method is a writ of habeas corpus ad testificandum which is "used to bring up a prisoner detained in any jail or prison to give evidence before any court of competent jurisdiction." Id. at 34.
The South Dakota Supreme Court has never had an occasion to opine as to whether these common law writs exist in South Dakota. In State v. Feuillerat, 292 N.W.2d 326, 331-332 (S.D. 1980), however, the Court found no error when a prisoner's testimony was given in the presence of the jury rather than using examination by deposition as set forth in SDCL 19-5-6.
Recently, the Ohio Supreme Court considered a similar issue. In re Petition for Writ of Habeas Corpus Ad Testificandum for Colburn, 507 N.E.2d 1138 (Ohio 1987), the Court considered whether disciplinary action against an imprisoned attorney should be handled by deposition, as set forth by Ohio statute, or whether a writ of habeas corpus ad testificandum should issue so that the attorney could appear personally at the disciplinary hearing. The court discussed the existence of the common law writ and that in appropriate cases, an Ohio court could issue the writ to compel a prisoner to appear and provide testimony. "However, this Court retains the right to grant the writ of habeas corpus ad testificandum whenever the interest in securing the prisoner's personal appearance is shown to outweigh other considerations." Id. at 1140. The court then held that petitioner had sufficient opportunity to present testimony by submitting his deposition and that the primary means of securing testimony of prisoners should be by deposition as prescribed by state law. Id.
Although not controlling, the Supreme Court of Ohio's decision in In re Colburn guides us in answering the question you have asked. The primary method of taking a prisoner's testimony is one of the three methods established by state law. If the proceeding is criminal or noncriminal in nature, SDCL 21-27-7 controls and the county would be responsible for transportation under SDCL 21‑27‑9.2. If the proceeding is civil or noncriminal in nature, and the hearing is in the county of the inmate's place of incarceration, the court may order the prisoner produced for oral examination in that county under SDCL 19-5-5 and DOC would be responsible for transportation. If the hearing is in another county, SDCL 19-5-6 requires the examination of the prisoner be conducted by deposition.
Finally, in certain special circumstances, it appears that a court may exercise its common law powers and issue a writ of habeas corpus ad respondendum or a writ of habeas corpus ad testificandum to compel a prisoner to appear before the court and provide testimony. If such a writ of habeas corpus should issue, the county would be responsible for transportation as set forth in SDCL 21-27-9.2.
Concerning the four specific examples you set forth in the statement of facts, my answer is as follows:
1. Criminal proceedings are controlled by SDCL 21-27-7, for which the county is responsible under SDCL 21-27-9.2;
2. Hearings for sentence modification and reduction are a part of the criminal process, making such hearings a criminal proceeding controlled by SDCL 21-27-7 with transportation the responsibility of the county;
3. These hearings are also a part of the criminal process and are therefore criminal proceedings with the county being responsible for transportation; and
4. These hearings are controlled by SDCL 19‑5‑5 and SDCL 19-5-6. If the hearing is located in the county in which the prisoner is incarcerated, the judge may order DOC to transport the prisoner to the hearing. If the hearing is located in another county, the prisoner's testimony should be taken by deposition.
In addition to the statutory provisions, it is possible that a court could invoke its common law powers and issue a writ of habeas corpus ad respondendum or a writ of habeas corpus ad testificandum to compel an inmate to appear and give testimony. Because both of these are a form of writ of habeas corpus, the provisions of SDCL 21-27-9.2 would apply and the county would be responsible for transportation.
This opinion only addresses the question of who is responsible for transporting the inmate to various hearings. This opinion does not address who is responsible for paying the costs associated with transportation. Depending upon the circumstances, the cost may fall upon the State, the requesting party or possibly even the inmate.
