362 P.3d 763
Wash. Ct. App.2015Background
- Grisby, serving a Drug Offender Sentencing Alternative (DOSA) with community custody, was accused in 2013 of altering a urine test; hearings followed that resulted in revocation findings and varied sanctions.
- At his second DOC hearing Grisby requested appointed counsel; the hearing officer refused and proceeded without counsel; Grisby later obtained pro bono counsel for a third hearing.
- DOC policy and WAC 137-104-060(7) stated there is no right to counsel at community custody violation hearings; DOC counsel asserted McNeal controlled and denied any obligation to consider appointment of counsel.
- The Snohomish County Superior Court issued writs directing DOC to perform a case-by-case Scarpelli analysis before denying appointed counsel and to permit Grisby’s retained/pro bono counsel to represent him; DOC appealed.
- The Court of Appeals majority held Scarpelli requires DOC to consider appointment of counsel on a case-by-case basis in community custody revocation hearings, reversed parts of the superior court order relating to a categorical right to retained counsel, and affirmed mandamus as appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOC has a constitutional duty to perform a Scarpelli-style case-by-case determination before denying appointed counsel in community custody revocation hearings | Grisby: Scarpelli requires case-by-case consideration of need for counsel in postconviction revocation proceedings | DOC: McNeal controls; community custody hearings need not include Scarpelli appointment analysis; no clear duty | Held: Scarpelli’s case-by-case requirement applies; DOC must consider appointment requests individually (McNeal distinguished) |
| Whether mandamus was an appropriate remedy to compel DOC to make such determinations | Grisby: Mandamus proper because no adequate alternative remedy to resolve future deprivation risk before confinement | DOC: Plain, speedy, adequate remedy exists via personal restraint petition; writ inappropriate | Held: Mandamus appropriate; no plain, speedy, adequate remedy and recurring duty justified broader relief |
| Whether DOC must permit retained or pro bono counsel to represent an offender if appointed counsel is denied | Grisby: Superior court ordered DOC to allow his retained/pro bono counsel to represent him | DOC: No clear duty to allow retained counsel; Scarpelli reserved retained-counsel question | Held: No clear duty established for permitting retained counsel; superior court’s related directives reversed |
| Whether the Court of Appeals must follow precedent McNeal despite conflict with Ziegenfuss | DOC: McNeal is binding precedent within the division; court should not depart absent Supreme Court reversal | Grisby: Ziegenfuss correctly interprets Scarpelli; McNeal is incorrect and should not control | Held: Court may decline to follow McNeal; Ziegenfuss interpretation adopted here—stare decisis does not preclude departure when prior rule is incorrect and harmful |
Key Cases Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due process requires case-by-case determination of need for appointed counsel in parole/probation revocation hearings)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (minimum due process protections required at parole revocation hearings)
- Wolff v. McDonnell, 418 U.S. 539 (1974) (due process limits in prison disciplinary proceedings; no general right to counsel)
- Gideon v. Wainwright, 372 U.S. 335 (1963) (Sixth Amendment right to appointed counsel in criminal prosecutions)
- State v. McNeal, 99 Wn. App. 617 (2000) (held DOC need not perform Scarpelli analysis for community custody revocations — distinguished and not followed)
- State v. Ziegenfuss, 118 Wn. App. 110 (2003) (interpreted Scarpelli to require case-by-case counsel determinations in DOC hearings; followed by this court)
- In re Pers. Restraint of Price, 157 Wn. App. 889 (2010) (recognized tension between McNeal and Ziegenfuss; discussed Scarpelli criteria)