returned to state custody. Alternatively, petitioners seek a
hearing to determine whether they are in need of specialized
treatment justifying the transfers.
In their Supplemental Petition, petitioners raise federal
claims and pendent state claims. First, they contend that
their transfers to federal custody violate
18 U.S.C. § 4001(a),*fn1 18 U.S.C. § 5003*fn2 and the Fifth and
Fourteenth Amendments. Petitioners maintain that under Lono v.
Fenton, 581 F.2d 645 (7th Cir. 1978), state prisoners are
subject to federal confinement only upon a showing that they
are in need of specialized treatment unavailable in the state
prison system. Petitioners allege that they expect to be
transferred to federal prisons outside Illinois and claim that
even if they need specialized treatment which would justify the
transfers, they have been denied due process because they were
not given notice and an opportunity to be heard prior to their
transfers. Further, petitioners contend that any transfer to
federal prisons outside the state is a direct violation of
Article I, Section 11 of the Illinois Constitution, which
prohibits transporting a person out of the state for an offense
committed within the state. Because of this flat prohibition,
petitioners claim that the transfers violate their
Respondents disagree with the Fenton holding that a showing
of specialized need is required under § 5003. Relying on the
dissent in Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978), they
insist that the only conditions which must be met before state
prisoners are transferred is that proper facilities are
available and that the federal government is reimbursed for the
prisoners' care. Nevertheless, despite their contention that a
showing of specialized need is not mandated by § 5003, they
maintain that the submission of standardized form affidavits by
state and federal prison officials*fn3 describing why the
state system is inadequate and how the federal system is
equipped to provide the specialized treatment satisfies the
Fenton requirement. Respondents aver that neither § 5003 nor
Fenton require a hearing in connection with the transfers and
assert that even if petitioners are entitled to due process
hearings, the hearings need not be held before the transfers.
They contend that in emergency situations the hearings may be
held after the transfers and allege that emergency conditions
existed at Stateville at the time of petitioners' transfers.
Lastly, respondents Franzen and Brewer contend that this Court
does not have jurisdiction to consider the issue of whether the
transfers violate the Illinois Constitution.*fn4
The threshold question is whether the Court may consider the
state claim, for where a court has jurisdiction over federal
statutory claims, federal constitutional claims and a state
claim, the pendent state claim should be considered first, if
its resolution obviates the need to consider the federal
claims. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39
L.Ed.2d 577 (1974); Vickers v. Quern, 578 F.2d 685 (7th Cir.
1978). The district court may, in its discretion, exercise
pendent jurisdiction over state claims when it has subject
matter jurisdiction over the federal claims. The
power to assume pendent jurisdiction should not be exercised
in every case; it is proper, however, where the federal claim
is of sufficient substance to confer subject matter
jurisdiction and both the federal and state claims "derive
from a common nucleus of operative facts which plaintiffs
would reasonably expect to try in one proceeding." United Mine
Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218
Determination of whether or not to exercise pendent
jurisdiction requires a balancing of the considerations of
comity, fairness to the litigants and judicial economy with
the state's interest in administering its own affairs.
Abstention is proper where issues of state law underlying
the federal constitutional claims brought in federal court are
unclear or an erroneous decision of state law by the federal
court would be disruptive of important state policies.
D'Iorio v. Delaware County, 592 F.2d 681 (3d Cir. 1978). In
these situations deference should be given to the state court,
having more familiarity with the controlling principles, to
render a reliable and final judgment. Hagans v. Lavine,
415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
On the other hand, abstention is a narrow exception to the
duty of the district court to fully adjudicate the controversy
before it and should only be invoked in exceptional
circumstances. Ktsanes v. Underwood, 467 F. Supp. 1002 (N.D.Ill.
1979). The doctrine should not be invoked where its application
would result in significant delay, Atchison, Topeka and the
Santa Fe Ry. v. Illinois Commerce Commission, 453 F. Supp.920
(N.D.Ill. 1978) or piecemeal litigation of federal and state
issues, Commissioners of Highways of Town of Annawan v. United
States, 466 F. Supp. 745 (N.D.Ill. 1979). Additionally,
deference to the state court is unnecessary where the state
issues are not complex or subject to alternative construction.
466 F. Supp. at 759.
In this case the factors strongly militate in favor of the
exercise of pendent jurisdiction. State prisoners are entitled
to federal habeas corpus relief when their detention violates
the fundamental liberties safeguarded against state action by
the Federal Constitution. Townsend v. Sain, 372 U.S. 293, 83
S.Ct. 745, 9 L.Ed.2d 770 (1963). The due process clause is
applicable to rights conferred upon the prisoner by statute.
United States ex rel. Gereau v. Henderson, 526 F.2d 889 (5th
Cir. 1976). Since the federal transfer statute creates a due
process interest in the transferees, Gomes v. Moran,
468 F. Supp. 542 (D.R.I. 1979), a substantial constitutional
question has been presented which confers this Court with
subject matter jurisdiction, 28 U.S.C. § 2254. Additionally,
while the provision of the Illinois Constitution has not been
interpreted by the Illinois courts, the language is not complex
and the possibility of an incorrect interpretation will not
jeopardize any state policy. More importantly, the petitioners
are already in federal custody and their due process and equal
protection claims are before the Court. The issue of whether
the transfers violate the Illinois Constitution is intricately
related to these constitutional issues. There is every reason
to exercise pendent jurisdiction in order to resolve the entire
controversy completely and expeditiously.
Petitioners claim that the Illinois Interstate Correction
Compact, 1979 Ill.Rev.Stat. ch. 38, § 1003-4-4 et seq. violates
Article I, Section 11 of the Illinois Constitution. The Compact
authorizes prisoner transfers to another state whenever it is
"necessary or desirable in order to provide adequate quarters
and care or an appropriate program of rehabilitation or
treatment." In contrast, Article I, Section 11 of the Illinois
Constitution provides that "[n]o person shall be transported
out of the State for an offense committed within the State."
The Illinois Constitution is the supreme law of the state
and constitutional restrictions upon legislation must be
obeyed. Board of Trustees of Junior College District No. 521 v.
Webb, 24 Ill. App.3d 183, 321 N.E.2d 127 (1974). In determining
whether a state statute is contrary to a constitutional
provision, the principles of
construction applicable to statutes are equally applicable to
the construction of the constitution. Johnson v. State
Electrical Board, 53 Ill.2d 256, 290 N.E.2d 886 (1972). Thus,
the constitution should be read according to the plain meaning
of the language and subtle construction for the purpose of
limiting its operation must be avoided. Coalition for Political
Honesty v. State Board of Elections, 65 Ill.2d 453, 3 Ill.Dec.
728, 359 N.E.2d 138 (1976). Moreover, there is no need for
interpretation where the words are clear, explicit and
unambiguous. See Bridgewater v. Hotz, 51 Ill.2d 103,
281 N.E.2d 317 (1972).
The prohibition against transporting persons out of the
state was originally contained in Article II, § 11 of the 1870
constitution and reincorporated in the 1970 constitution.
Article II § 11 has been interpreted to prohibit banishment or
deportation. DuBois v. Gibbons, 2 Ill.2d 392, 118 N.E.2d 295
(1954). Since, prior to its reincorporation, this provision was
interpreted, it must be given the same interpretation here. It
is clear that Article I § 11 prohibits banishment and that
transfer out of the state is a form of banishment. Thus, the
Interstate Corrections Compact is a direct violation of the
Illinois Constitution and, therefore, void. State prison
officials have no authority to transport prisoners to out of
At least one of the petitioners, however, is designated to
be transferred to a federal penitentiary within the state.
Since there is no federally created liberty interest in
confinement in a particular prison, due process does not
automatically attach to every prisoner transfer. Meachum v.
Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Thus,
the next consideration is whether procedural due process
attaches to transfers made pursuant to § 5003 and, if so,
whether petitioners have received all the process due.
Congress has forbidden nonstatutory confinement in federal
prisons 18 U.S.C. § 4001(a). The transfer of state prisoners to
federal prisons is authorized by § 5003 provided that "proper
and adequate treatment facilities and personnel are
available . . . for the custody, care, subsistence, education,
treatment and training of state prisoners." 18 U.S.C. § 5003.
The Seventh Circuit has held that transfer of state prisoners
to federal custody is permissible, under this statute, only
upon a showing of specialized need. Lono v. Fenton,
581 F.2d 645 (7th Cir. 1978). Thus, the federal transfer statute creates
a due process interest in transferees. See Gomes v. Moran,
468 F. Supp. 542 (D.R.I. 1979).
Respondents' argument that Lono v. Fenton, 581 F.2d 645 (7th
Cir. 1978) does not mandate any hearing requirement regarding
the need for specialized treatment is without merit. In Fenton,
both parties agreed that the prisoner would be entitled to a
hearing if § 5003 was construed to require a showing of
specialized need; due process procedures are required to
determine whether the transfers are justified.
The right to a hearing is an essential element of due
process. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970). At the very least, due process includes: 1)
notice of the proposed transfer; 2) notice of the reasons for
the impending transfer; 3) a personal hearing before a
decisionmaker; and 4) an opportunity to controvert the factual
assertions advanced in support of the proposed transfer. Gomes
v. Travisono, 490 F.2d 1209 (1st Cir. 1973). Accordingly, the
certifications made solely by prison officials do not satisfy
the Fenton requirements.
The next issue is whether petitioners were entitled to the
hearings prior to transfers or whether hearings held after the
transfers have been effected comport with due process. Courts
have consistently recognized that transfers may have serious
ramifications for the transferees. United States ex rel. Gereau
v. Henderson, 526 F.2d 889 (5th Cir. 1976). Therefore, in the
absence of an emergency situation, procedural rights must be
accorded before the transfer and where an emergency situation
makes it impossible to hold the hearing before the transfer,
these rights must be granted as soon as the emergency subsides.
Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973).
Respondents assert that on the day petitioners were
transferred to federal custody, a "deadlock" was imposed by
the state officials at Stateville because of what "was
perceived to be an emergency at Stateville." But, as
petitioners point out, the contract between the state and
federal respondents permitting state prisoners to be placed in
federal custody was signed on February 14, 1979. Yet, no
hearings were held prior to the February 24 transfers. Thus,
there is some evidence that the decision to transfer may have
been made before any emergency existed. Moreover, assuming
arguendo that the decision to transfer was made during the
"retaking of Stateville", and that the "retaking" constituted
an emergency, any emergency has since passed. Since no hearings
have been held, petitioners' due process rights have been
Accordingly, the writ of habeas corpus is granted. The
federal respondent is directed to release petitioners and
return them to state custody. Once returned to state custody,
no prisoner may be transferred to a prison out of the state
and any transfers from a state prison to a federal
penitentiary within Illinois may only be effected upon a
showing of specialized need at a hearing affording the
prisoner his due process rights.