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Bostick v. Weber1/19/2005
pose a significant restraint on his liberty under SDCL 21-27-1. We previously issued an order of limited remand directing that the claim of ineffective assistance of counsel be heard on the merits. Despite this clear direction, the circuit court ruled that Bostick's parole mooted his action and dismissed. We should reverse. SDCL 21-27-1 provides:
Any person committed or detained, imprisoned or restrained of his liberty, under any color or pretense whatever, civil or criminal , except as provided herein, may apply to the Supreme or circuit court, or any justice or judge thereof, for a writ of habeas corpus.
(emphasis added). I respectfully submit that the conditions of Bostick's parole constitute custody and impose significant restraints on his liberty. If he violates even the most minor condition of his parole, his parole officer can have him yanked into court and his parole will be revoked simply on the basis that his conduct was not as good as it should be. It is difficult to think for one moment that this is not a significant restraint on his liberty under SDCL 21-27-1.
3. In paragraph 7 (see footnote below), the majority opinion provides mere "lip service" to the old clichés about attempting to give words their plain meaning and effect, . . . and then, because the plain meaning and effect are inadequate to produce the desired effect, it rewrites the statute by inserting the word "physically" in front of "restrained of his liberty." We are supposed to confine ourselves to the language used by the legislature to determine what the legislature said, rather than what the courts think it should have said. The majority opinion sets forth the correct law and promptly proceeds to violate it. I will have none of that and I dissent.
4. Incredibly, the majority opinion ends with the following statements in paragraph 19:
While it may seem unfair and overly technical to require Petitioner to be returned to prison in order to avail himself of the habeas corpus remedy, this Court must interpret the laws as written and intended by the legislature. It is not for this Court to interpret our statutory code in a manner that comports with what this, or any other court, think the code should say[.]
To which I can only add: Amen!
[ .] We should follow the law and not our last minute rewrite of the law. Jones v. Cunningham, 371 US 236, 83 SCt 373, 9 LEd2d 285 (1963); Rennich-Craig v. Russell, 2000 SD 49, 609 NW2d 123; SDCL 21-27-1.
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