Carver v. Lehman

(H) facially that subsection any We conclude Furthermore, explain defendants first two incongruity between constitutional. apparent (H) by to pointing subsection sentences AF- judgment court’s The district sub- in an earlier language found parallel FIRMED. (B), section, which relates subsection complaint: of a investigation initial at- complaint, investigating When county attorney shall

torney general or al- authorization of the

verify the work alien with the federal

leged unauthorized to 8 United States pursuant

government 1373(c). state, county A or local § Code CARVER, Plaintiff-Appellant, Joseph independent- attempt not official shall on wheth- final determination ly make a in the authorized to work an alien is er Acker; LEHMAN; Kimberly Joseph United States. Roberts; to be Named Six Victoria 23-212(B). Defendants Defendants, Defendants-Appellees. Ariz.Rev.Stat. section, like the first this explain that No. 06-35176. (H), provides, of subsection sentence initial inves- inartfully, that the somewhat Appeals, States Court United an en- bringing tigation and the basis Ninth Circuit. be limited to forcement action must April 2007. Argued and Submitted inde- thereby precluding response, federal investigation. employ- state pendent 22, 2008. Filed Dec. opportunity would then have er March Amended court The district present evidence. persuasively The district court agreed. or coun- requiring the state

reasoned of an

ty to a federal determination obtain bringing before

employee’s work status protect intended to be

proceedings investigation

employees from direct

the state. that the district therefore conclude

We Act correctly determined

court to survive this sufficient

provides challenge. importantly,

facial More that the statute court also found

district of coun- preclude presentation

does not liability is employer’s when an

terevidence Contractors, issue, F.Supp.2d Ariz. agree interpreta- with this and we pres- employer’s opportunity An

tion. court, superior hearing at a

ent evidence presumption

in order to rebut status, provides unauthorized

employee’s meaningful opportunity employer imposed. heard before sanctions

be

Tyler Baker, A. Gregorian, Todd Mewes, West, Heather N. Fenwick & LLP, View, CA, Mountain plaintiff- for the appellant. McKenna, Olson,

Rob Sara Greg- J. Rosen, ory J. Office of the Washington General, Attorney Criminal Justice Divi- sion, WA, Olympia, for the defendants- appellees. REINHARDT,

Before: STEPHEN TALLMAN, RICHARD C. and MILAN SMITH, JR., D. Circuit Judges. Opinion by Judge Smith, Jr.; Milan D. by Judge Concurrence Reinhardt. ORDER AND AMENDED OPINION ORDER opinion and concurrence filed on 22, 2008, December appearing at 550 (9th Cir.2008) F.3d hereby amend- ed. The amended opinion and concurrence concurrently are filed with this order. commit- appeal indicates Carver filed record rehearing en banc petition disciplinary infractions while ted fifteen pending. remains January incarcerated, including sexual harassment rehearing petitions further No member. prison of a staff filed. may be rehearing en banc

Washington Revised Code OPINION 9.94A.728(l)(b)(ii)(B)(I) prohibits early § offenses. release for those convicted sex SMITH, JR., Judge: Circuit MILAN D. 9.94A.728(2)(a) However, provides section whether question presents This case eligible offenders become for sex for con- providing law state in community custody lieu of into early release offenders’ victed sex to a early release.1 Carver was sentenced inter- custody creates community thirty-six period month consecutive Pro- under the Due that is est custody begin adjust- his community Amend- of the Fourteenth cess Clause release date.2 Carver’s behavior as ed not. We hold that it does ment. We adjusted in an release prisoner resulted the decision of the district affirm therefore 13, January date of in this civil denying Carver relief court eligible for transfer Before an inmate rights action. community custody, he must submit Background Factual and Procedural acceptable plan.” “release Rev. Wash. 9.94A.728(2)(c). § Carver submitted Carver, Code 1999, Joseph Dale August In in 2002. It was proposed plan March his old, child pled guilty to years then 20 2002, pursuant in to a DOC April denied con- degree. This molestation the third for the provided then in effect which policy prior two convictions viction followed plans denial of release of of- categorical degree in the first and child molestation fenders, Carver, de- like whom the DOC third-degree assault. Car- conviction the defini- “appealed] to meet termined age sex ver committed his first offense sexually predator violent and tion of a fifty-four months 14. He was sentenced Commit- referred Civil [who had] been custody of the Wash- of confinement Policy Directive 350.200 ...” DOC ment. Department of Corrections ington State 2001).3 (“DOC”) 4, a result of the denial of (May As conviction. The brief for his 1999 consumption of al- substances and 1."Community custody monitor- controlled is the intense cohol). community for a ing in the of an offender year period one after release of at least Although it has transferred to the transfer from confinement. 2. When an inmate is first DOC, community custody possible purposes, continues calculates three re- other the DOC First, equiv- the maxi- punishment, and is not the inmate. the nature of lease dates for Crowder, inmate date is the date the general release.” In re mum release alent to 944, (1999) serving the entire sentence im- finish Wash.App. would Second, omitted). early release date (footnote the earned posed. Offenders in released he the inmate would be pre-approved is the date custody live in residence if and all available sentence reductions mandatory earned subject the DOC and are Third, lose time for misbehavior. does not imposed by either discretionary conditions See, projected date adjusted date is the sentencing e.g., court. the DOC or the released if he the inmate would be 9.94A.710(2)-(3), on which §§ Code Wash. Rev. good time or earned time further loses no 9.94A.700(4)-(5) (listing mandatory dis- credits. cretionary imposed on offenders conditions including community custody re- subject to infra, policy was subse- explain this supervision 3. As we porting requirements, payment of fees, by the Court quently struck down against possession of prohibitions Carver proposed plan, analysis process served Our of due pro- claims his full term confinement. steps. ceeds two first “[T]he asks whether a liberty there exists or property September Carver filed a civil which has interfered with been rights 42 U.S.C. suit under assert- State; the second examines whether ing him early that DOC officials denied procedures upon depri- attendant release into without vation constitutionally were sufficient.” affording him due of law under the Ky. Dep’t v. Thompson, Fourteenth Amendment.4 The district Corr. court, adopting report and recommen- 104 L.Ed.2d 506 (1989) (citation omitted). of the magistrate judge, granted dation summary judg- DOC officials’ motion for “A liberty interest arise from first, principal grounds: ment on two that either of two process sources: the due liberty law does not create a clause itself or state law.” Toussaint v. community interest in release into (9th 1080, McCarthy, 801 F.2d 1089 Cir. and, therefore, custody Carver did not 1986). Carver that concedes the Due Pro process right have a due cess Clause does not a liberty create inter Amendment; second, Fourteenth and that est in an inmate’s ] release[ ] “conditional right existed, even if such a Defendant expiration before the of a valid sentence.” qualified Lehman was entitled to immuni- Greenholtz v. Inmates the Neb. Penal & of ty. timely appealed. Carver Complex, Corr. 442 U.S. 99 S.Ct. 2100, (1979). Rather, 60 L.Ed.2d 668 he Jurisdiction of Standard Review argues Washington’s that statutory jurisdiction We have to review the scheme governing early release into com pursuant district court’s determination munity custody mandatory language, “uses 1291, § 28 U.S.C. we review de novo ‘creating] a presumption that release grant summary its of judgment and find granted’ will be ... unless certain desig ing qualified immunity. of See Mabe v. made, findings nated thereby gives County, Dep’t San Bernardino Pub. of rise to constitutional liberty interest.” Servs., (9th 1101, Soc. 237 F.3d 1106 Cir. McQuillion Duncan, 895, v. 306 F.3d 901 2001); County Angeles, Galen v. Los of (9th Cir.2002) Greenholtz, (9th (quoting 442 652, Cir.2007). 477 F.3d 658 12, 2100;

U.S. at 99 citing S.Ct. Bd. of Discussion Allen, 369, 377-78, Pardons v. 2415, (1987)). 96 L.Ed.2d 303 As The Due Process Clause of the cases, in prior our task here is apply Fourteenth provides Amendment that no “deprive any person life, mandatory state shall well-established rule liberty, property, governing without liberty due state-created interests Const, XIV, law-” § U.S. amend. 1. set forth the Supreme Court in Green- Dutcher, Appeals Roberts, in In Wash.App. berley re Acker and Victoria both DOC 755, 635, (2002) (holding that making officials involved in end of sentence Policy govern- "DOC 350.200 ... violates the review determinations. The district court statutes”). ing adopted magistrate judge's finding that Acker and summary Roberts were entitled to original judgment complaint Carver's named as a de- because Carver failed to show that Lehman, only Joseph secretary fendant played any part enacting of the "these defendants in plan policy DOC at the time that precluded Carver’s release being [Carver] from complaint, was denied. In his amended Car- considered ap- for release.” Carver does not defendants, ver peal portion named two additional judgment Kim- this below. munity custody at an if to the sex earlier date holtz and Allen See, at issue.5 offender scheme proposed placement appropriate. Id. Terms, 461 Sass v. Cal. Bd. Prison e.g., (2)(a). 9.94A.728(1), § requires The law Cir.2006) (9th (holding 1127-28 F.3d develop a program the DOC to suitable liberty law creates inter California effectuate the transfer to cus- Terhune, parole); Biggs v. 334 F.3d est tody such inmates. See id. (9th Cir.2003) (same); McQuil 910, 914 9.94A.728(1). § As of that part program, (same); lion, at 901-902 Bermu 306 F.3d “require the DOC must the offender to (9th Duenas, F.2d 1065-66 dez v. includes an propose Cir.1991) (holding that Guam law creates approved living arrange- residence and parole); interest Baumann 9.94A.728(2)(c). ment.” Id. The law Corr., Dep’t Ariz. 754 F.2d 843-45 DOC, exercising then describes how the Cir.1989) (9th (holding that Arizona law discretion, its broad should such evaluate does not create a custo plans: release); dial Balla v. Idaho State Bd. of department may deny (9th Cir.1989) Corr., F.2d 469-70 community custody status in lieu of (holding that Idaho law does not create a pursuant earned release time parole). interest in subsec- individual convicted of a sex offense be that “shall the term of confinement or at such time as the offender is transferred to inmates, sentenced custody in lieu of earned release.” Wash. Rev. Code then, a convicted sex offender to a term of begin 9.94A.710(1). either law mandates that an community custody upon completion Unlike other community tion reoffend, tions of the conditions of including determines an offender’s release er at risk to violate the conditions of the sentence,[3] place the offender at risk to living arrangements, (1) of this section if the supervision, or proposed residence ^[4] present ^[2] sentence or condi- place ^[1] risk department may violate the offend- to victim location plan, safety community safety. depart- or “earned release time ... for who accrues authority ment’s under this section is good good performance” behavior and independent any court-ordered condi- release; rather, early not entitled to he is discretionary statutory eligible provision transfer into com- tion sentence brief, argued liberty response In his Lehman mine Ohio inmates have a whether Conner, 472, avoiding placement "super- Sandin v. 515 U.S. 115 S.Ct. interest in in a 2293, (1995), prison). properly 132 L.Ed.2d 418 should control max” As Lehman conceded Sandin, court, liberty inquiry. supplemental our interest in his submissions to the challenge holding Supreme we have that Sandin's was Court considered since held prison regulation imposing disciplinary segre- separate question limited to “the but related 475-77, gation Id. at due interests are cre for misconduct. of when McQuil regulations.” holding regulation prison did ated internal S.Ct. 2293. In that the interest, lion, added). (emphasis not create a the Court did not 306 F.3d at 902-03 Sass, apply "mandatory language” (explain framework See also 461 F.3d at 1127 n. 3 481-86, ing "consistently rejected and Allen. Id. at that this court has Greenholtz Instead, argument” S.Ct. 2293. it focused on whether that Sandin eliminated the th[e] " challenged arising regu- 'mandatory language’ approach restraint from the of Green- "). "impose[d] atypical significant Accordingly, we lation and Allen continue holtz "mandatory language” hardship apply rule set on the inmate in relation to ordinary prison de incidents of life.” Id. at forth in and Allen in order to Greenholtz 2293; Austin, Washington's statutory 115 S.Ct. see also Wilkinson v. termine whether 222-24, re scheme creates a interest in (2005) community custody. (applying L.Ed.2d deter- Sandin to lease into community policy provided The DOC’s also regarding conditions for plans “if the community placement.... categorical denial release custody or End of Sentence Review Committee has added). (emphasis §Id. appears determined that the offender statute, comply In order to with sexually meet the definition of violent Policy Directive promulgated DOC predator and has been referred for s/he policy the version of this 350.200. Under provi Civil Commitment....”7 This final his release in force when Carver submitted sion, plan under release which Carver’s instructed plan, the DOC denied, subsequently was was eliminated offenders be assessed to de plans of sex Appeals after the Court of degree termine “the of risk for victims statutory require held that it violated the potential age victims of similar or circum “may ment all sex offenders become that, subject stances” and to ensure eligible” community custody. See offenders will not exceptions, certain “[s]ex Dutcher, 60 P.3d at 638-40. where minor vie- return to a residence tim(s) age are or other children of similar argues that this Carver present Policy DOC the residence.” a protected liberty scheme creates 2001). (May Pol Directive 350.200 This it requires because the DOC to transfer an icy specified Directive that a residence inmate to lieu proposed by an offender within a release any earned release “unless one of ... proposed could be denied if the loca specifically designated reasons place tion would the offender violation of found[,]” thereby “creating] presump conditions; likely court-imposed at the risk tion that cus [into re-offend; proximity to the or in close tody] granted, will be and that this in turn victim(s), schools, centers, minor child care a legitimate expectation creates of release playgrounds, or other facilities where chil requisite finding absent the that one of the age justifications dren of similar and circumstances sur exists.” Green [denial] holtz, 11-12, 2100; rounding present the conviction are 442 at 99 U.S. S.Ct. see Allen, 377-78, harm may put who be at substantial risk of also 482 U.S. at 107 S.Ct. by at residing disagree. the offender that location.6 2415. We In order to create a 71.09.020(16) (2006). § 6. The from last criterion derives section An offender deter- 72.09.340(3)(a), provides which that the DOC sexually predator may a mined to be violent reject is "authorized to a residence location if subject be to civil commitment term after his proposed prox- residence is within close § of confinement. Wash. Rev. Code 71.09.010 centers, schools, imity play- to child care (2006). poor Carver’s criminal record and grounds, grounds or other or facilities where while behavior incarcerated sufficient age children of or circumstance as a similar reasonably basis on which DOC could previous depart- present victim are who the appeared determine that Carver to meet the may put ment be at substantial determines sexually predator definition of a violent by risk of harm the sex offender's residence appropriate that would be to refer him to location.” Wash Rev. Code civilly be committed for further custodial 72.09.340(3)(a) (2006). § completed treatment after he his criminal legislature sentence. The State of "sexually law defines violent Washington has enacted a civil commitment predator” "any person as who has been con- program custodial treatment run the De- charged victed of or with a crime of sexual partment of Social & Health Services in violence and who from a mental ab- suffers dangerous predators may which sexual be normality personality disorder which safely person likely engage predato- held while efforts are made to treat makes the to ry their condition. acts of sexual violence if not confined in a See Wash. Rev. Code facility.” § secure 71.09.010. Wash. Rev. Code

875 interest, 12, 1741, n. 75 liberty 250-51 L.Ed.2d constitutionally protected “ (1983); Cashaw, 813 see also In re 123 ‘explicitly manda- must contain a statute (1994) (“The 138, 8, P.2d 12 Wash.2d 866 ie., directives to tory language/ specific Supreme States Court and United regulations’ that if the the decisionmaker clearly proce- Ninth Circuit have held that present, par- are predicates substantive interests; dural laws do not create Thompson, must follow.” ticular outcome only can create in- substantive laws these (quoting 1904 490 U.S. S.Ct. terests.”).9 Helms, Hewitt v. U.S. mandate, procedural Pursuant to that (1983)). 864, 74 L.Ed.2d 675 There S.Ct. the DOC has no “discretion to decide mandatory language” “explicitly is no whether or when consider offender 9.94A.728(2) creating substantive section community custody,” for transfer to In re community custody. to transfer Liptrap, Wash.App. statute, classically using permissive (2005) added). (emphasis But convicted language, “person states that a places law no substantive limi- eligible, of a sex offense become tation on how the DOC is to make that developed a program in accordance with above, section determination. As noted to commu- department, for transfer 9.94A.728(2)(d) four criteria enumerates of earned re- nity custody status lieu evaluating plan. The stat- lease time.” Wash. Rev. Code “may deny ute instructs that the DOC 9.94A.728(2)(a). only “explicitly transfer to if’ one or mandatory language” section (em- more of those criteria are met. Id. 9.94A.728(2) procedural right concerns a added). setting Far from forth phasis an individualized determination based predicates” “substantive under which the proposed plan.8 the merits of a transfer, grant must the statute is DOC “liberty in- That cannot create regarding precatory silent even criteria for meaning community custody, terest” within the of the Four- granting transfer “may” when the DOC specifying “expectation teenth Amendment because —but “deny.” need not, more, without receiving process not10— Pro- protected by the Due particular necessary No words Fourteenth Amend- cess Clause” of the interest.11 If the section create Wakinekona, denying criteria for trans- ment. Olim (2)(c) proposition department Dutcher for the that re- reads: "The stands 8.Subsection shall, part program categorically as a of its for release to plans not be denied. lease release, community earned the in lieu of re- plans require that release be cate- It does not quire propose the to a release offender gorically approved. approved liv- that includes an residence and Cashaw, Dutcher, grounded the ing arrangement.” like instead As the Court 9. held, Appeals challenge this lan- be- in In re Dutcher inmate’s to his restraint language guage, with in subsection procedural combined cause of error in Rule (2)(d), that the DOC make an indi- mandates Appellate 16.4. Id. at 13-14. Procedure vidualized determination "based on the mer- 72.09.340(3) two narrow- 10. Section contains plan.” P.3d at 638. The its of depart- under which "the provide er circumstances DOC’s failure to such an evaluation approve sex a residence location”: rendered unlawful its further detention of ment shall not without an individualized determi- proposed offenders nation, includes a minor if the residence risk, statutory wrong for which the Wash- might put who be or if it is close child ington Appellate Rules of Procedure proximity residence of the to the current (c)(2) 16.4(a), R.App. P. relief. See Wash. prisoner’s minor victim. (providing appellate grant that "the court will Allen, “rejected] Supreme Court petitioner appropriate to a if ... relief 11. Thus, unlawful.”). argument that a statute that mandates petitioner’s restraint pro- an exhaustive list of rea- ed.13 These statutes were enacted to fer constituted denial, community tect the would be from recidivist offend- sons for sexually mandatory, giving pre- proclivity rise to a ers whose abuse effectively Nothing in the stat- children is well-documented and whose sumption of transfer. ute, however, notoriously that those four cri- anti-social tendencies are diffi- indicates remedy cult to through peno- teria are the sole reasons which the traditional may deny logical transfer.12 To the con- methods. Carver’s record would DOC immediately following any reasonably trary: enumer- cause cautious state offi- ation, cial goes pause authorizing the statute on to state before even closely this in- “authority supervised under section is release to the communi- DOC’s ty. dependent any prior court-ordered condition On the basis of his record statutory provision regard- alone-—even before of sentence or this latest conviction— ing Washington superior proba- or court found conditions for sexually ble cause that placement.” Wash. Carver was vio- Rev. Code 9.94A.728(2)(d). § lent A predator. psychological The statute’s manifest forensic therefore, purpose, preserve is to to the examination had concluded that Carver was, words, deny DOC the discretion to transfer his own “a civil commit- is, event that makes one of the four deter- ment case”—that he was found to meet minations, notwithstanding sexually predator. what other le- the criteria of a violent 9.94A.728(2)(d) gal might require. sources otherwise Section reserves discretion precisely they may for DOC officials so permissive To convert this non obstante plans prisoners like Car- clause, preserve meant discretion in community. ver who remain threats cases, pro- unius expressio certain into reading that would limit to all vision discretion but Our section very those cases would be to invert the consistent with case law of the Wash- purpose ington this statute was draft- state courts it.14 In construing which findings Statutory release 'unless' certain are made is 2A Sutherland Statutes and Con- (7th ed.2007). different from a statute that mandates release struction 47:23 Such a re- 'if,' 'when,1 'subject findings obtain, however, being to’ such sult will in the absence 369, 378, made.” 482 107 S.Ct. U.S. contrary. of evidence to the "The maxim (1987). 96 L.Ed.2d 303 expressio unius est exclusio alterius is an aid construction, not a rule of law. It can If, example, the statute stated that DOC contrary never override clear and evidences "may” deny "only if” certain criteria Comm’r, [legislative] Neuberger intent.” not, they might are met or "unless” 85 L.Ed. 58 sufficiently the discretion of the limit DOC to (1940); see also Wash. State Labor Council v. point expectation it creates an of release. Reed, 149 Wash.2d if,” "only The distinction between "if” and (2003) ("[T]he expressio rule of unius est ex- however, quibble is not a mere over vocabu- necessarily apply clusio alterius not d[oes] lary goes right to the heart of whether the —it considering may without other factors which 9.94A.728(2)(d) criteria are of section neces- persuade legislative the court that intent was transfer, sary or sufficient conditions for opposite the of what the construc- mandatory therefore whether transfer case, require.”). tion rule would In this the entirely only discretionary. "May ... if” only "may” statement that sex offenders re- effectively would be identical to "shall transfer, ceive combined with the final sen- unless”; "may ... if” is not. paragraph, per- tence of the make clear the of missive intent the statute. expressio 13. The canon of construction unius proposition est exclusio alterius stands for the that, legislature provides the a provides when list of 14."Whether a state statute such a items, impliedly protectable depends related it means to exclude entitlement on the struc- statute, Singer, other items not listed. See Norman J. ture and well the as as appellate courts have been Washington Washington Liptrap, of In re text between the state distinguish careful to noted that the statute Appeals of Court through personal habeas relief available why department reasons “stat[es] petitions restraint for violations of state at but plan,” P.3d law, petitions restraint personal “reasons” in the indefinite: kept those mag- of a constitutional redress violations reasons, they just are “reasons”—not Dutcher, nitude. The decisions Crow- only reasons —for denial. let alone der, examples and Cashaw are of the for- simply Dutcher held Similarly, In re Cashaw, mer. State to base its requires “the statute ... DOC rejected Supreme explicitly the low- Court community custody eligibility decisions on holding er court’s that the Indeterminate plan,” the release 60 P.3d at the merits of Review Board’s failure to follow Sentence hardly imply that section which is mandatory parole procedures constituted rubric provides the sole infringement of Fourteenth Amend- “merits” are to be evaluated. which those Rights. Though ment 866 P.2d at 12. it cited above It is true that the cases concluded that “the Board had violated its liberty to a “limited interest” held refer procedural parolability own rules hear- in transfer to custo- prisoners it was error to ings,” specifically held 1231; at dy. Liptrap, 111 P.3d see also “this conclude violation was constitution- Dutcher, “lim- (describing 60 P.3d at 636 magnitude.” al Id. at 13. The cases liberty interest” in ited but not refer to a “limited interest” do (“The Crowder, transfer); at support Judge Reinhardt’s conclusion statutory right to earned release cre- regarding state law requiring interest ates limited arising creates a under the must not be process.”). minimal due We Constitution. confused, however, by those decisions’ use Washington implied only courts have a Fourteenth Amendment term of art: limit of the DOC’s one substance procedural concerned those cases discretion: its reasons for deni exercise of individualized right compliance with “legitimate.” Liptrap, al must be prisoners’ consideration on the merits Crowder, 1234; 985 P.2d at 946. P.3d Rule plans, by Washington secured But is no indication that a reason there 16.4(a). Liptrap, Appellate Procedure “legitimacy” only by its enu may acquire Dutcher, 1234; 60 P.3d at 638. P.3d 9.94A.728(2)(d). In meration in section they using To the extent contain dicta deed, every contrary: indication to the term, interest,” “liberty same to refer to Crowder, imply the first case to a re In re right to transfer and a both substantive quirement “legitimate reasons” for deni on the procedural consideration community custody, speci al transfer to merits, logical reading is that the most fied the “own withdrawal of petitioner’s law, both derive from placement plan” as one of the suggested hence of the same sub-constitutional na- denying him “legitimate reasons” Regardless, ture. those dicta no transfer, 985 P.2d at 946 — a reason which justification plain lan- disregarding certainly legitimate, appears but seems 9.94A.728(2)(d).15 in section No guage of the statute. nowhere law, subsequent how- interpretation scope is no indication in case state courts' ever, Bergen Spaulding, v. 881 F.2d interest.” certain that codification of reasons (9th Cir.1989) added). (emphasis 9.94A.728(2)(d) 721 nar- section has somehow range "legitimacy.” rowed the predated 15. In re Crowder the enactment of 9.94A.728(2)(d)by years. section three There provided general majority’s opinion. case has of the new All that “legiti makes a reason definition what changed composition is the of the three- mate,” “any could be as broad as which judge panel.” Concurrence at 2511. This basis,” having a rational or even reason implies previous panel majority by “any proscribed reason not otherwise unalloyed nug- unearthed an constitutional “right” to law.” This ill—defined get waiting to be discovered within the “legitimate” in the of some absence primordial crust of the Fourteenth Amend- hardly a sufficient “sub reason ment, but which must now be reinterred “legiti predicate” produce stantive disregarded passing and as a result of the required mate of release” of a expectation of our colleagues. implication one This Green under ignores Judge Reinhardt’s candid admis- holtz, 442 U.S. at 99 S.Ct. 2100. sion that constitutional question is “[t]he analysis employed by Washing- one, arguments close and substantial can parole ton courts in and re- position.” be made for either Concurrence lease confirms our conclusion that cases It disregards 2512. further both the section does not create a our rules of court and the vicissitudes of legiti- interest. DOC officials had life. Carver, mate concern based The respective corpora opinion of the multiple sex convictions and behavior in and concurrence this case discuss the an prison, presented acceptable had not disputed nature of ques- the constitutional to alleviate the concern for tion. But whatever the merits of each safety. requires public Constitution analysis, respect- side’s constitutional we no more. fully disagree with Judge Reinhardt’s con- Response prior majority’s to Preamble of Concurrence tention that opinion actually binding became a construction of readily acknowledge We the self-evident Judge Ferguson’s the Constitution before Judge truth of Reinhardt’s observation death, that it unseemly and is somehow judicial system that in our out-come of published amend a opinion when the rea- important appellate vary cases can based change son for the is the death of a mem- judicial body on the of the composition or prior majority. opinion ber of the No It panel deciding those cases. has been so this circuit founding Republic. ever since the becomes final until the mandate however, respectfully disagree, issues, We with opinion and the prior issued much concurring of the balance of our majority only part way through was its colleague’s pre ambular observations about process.16 finalization Until the mandate case, processing feel a of this we issued, be, opinions regularly has can response required. are, withdrawn, by amended or the merits panel request at the of the parties pursu- colleague

Our states that the “Constitu- petition panel ant to a change rehearing, tion did not the time between original panel’s response decision the time to an internal memorandum from Ruiz, (9th Moreover, opinion "gamble.” F.2d United States v. is a Id. Cir.1991) condition, expectation recognition clarifies that "no of fi- of the human our rules nality during period three-judge can attach in which "[i]f member of rehearing.” party may petition panel either Id. becomes unavailable reason of Foumai, death, (quoting disability, departure at 1037 United States from the court Cir.1990)). Thus, submission, (9th F.2d until and the case is under the Clerk issues, opinion replacement by mandate is not fixed as draw a shall lot." Ninth Cir- law,” 3.2g. "settled Ninth Circuit and reliance on cuit General Orders

879 only our when a propriate under rules of the court who believes member another (a) is decision conflicts with decisions published opinion panel of the part that some (b) circuit, pri- itself. conflicts with error, sponte panel from another or sua (c) circuit, ninety days between decisions of our own or “sub- example, or For 9, 2008, at least national stantially applica- and October affects rule of July opinions were withdrawn17 an need published overriding ten tion in which there is 35-1; were amended18 opinions uniformity.” ten 9th Cir. R. and least for national Thus, majority’s 35(a)(1). prior R.App. in our circuit. P. As our see also Fed. have may may not holding knows, in this case colleague previous panel’s well issued, it mandate but until the technically quali- survived majority opinion does not as a bind- certainly yet not enshrined rules,19 was our fy for en banc review under when of the Constitution ing construction very difficult to obtain en banc and Even when Judge Ferguson died. of a case in our court.20 Had we review issue, with a constitutional opinion deals recommendation, accepted original referenced collaborative opinion undoubtedly would have remained weakens, quality the final not strengthens, unchanged, very preferred result enabling thereby better opinions, of those colleague. our time, engen- to stand the test of them Conclusion thoughtful citizens respect

der the pro- and the court opinion, both the Washington law does not create Because it. duced custody, need not address the sufficien- we suggests that the Judge Reinhardt also (or denied) cy procedures given way changed to have only appropriate of the district judgment to initiate an Carver. previous panel’s decision was ap- court is AFFIRMED. process. En banc review en banc Francisco, County City 539 Granados-Oseguera Mukasey, F.3d Bull v. San v. 546 17. Cir.2008); (9th Cir.2008); (9th Mukasey, Black Al-Mousa v. Marceau v. 1011 F.3d 1193 Gianelli, (9th Cir.2008); (9th v. Housing Authority, F.3d 694 U.S. Cir. 545 540 F.3d 916 feet Cir.2008); (9th Nguyen (9th 2008); v. Mu 543 F.3d 1178 Drayson, F.3d 1244 Walter v. 538 - (9th Cir.2008); Riverside, kasey, Fed.Appx. 683 Cir.2008); 292 County v. Smith — Mukasey, Fed.Appx. -, No. 04- 06-56848, Amin v. -, WL Fed.appx. No. 2008 4, (9th Sept. 2008 WL 4148531 Cir. 24, 2008); (9th v. July U.S. Cir. Lehman, (9th 2008); 1011 Carver v. 540 F.3d 07-35389, (9th No. Lopez, 2008 WL Cir.2008); Biological Diversity v. Center 16, 2008). July Cir. Admin., Highway Safety 538 National Traffic Cir.2008); (9th U.S. v. Marcos- F.3d 1172 note, not prior concurrence did 19. Mora, (9th Cir.2008); John Fed.Appx. 39 291 circuits, no, with other nor there are conflicts LP, System, v. Riverside Healthcare son rulings. Supreme with Court direct conflicts (9th Cir.2008); GmbH Inv. F.3d 1116 Metzler opinion, this this is an issue As discussed in Inc., Colleges, 540 F.3d v. Corinthian Final- impression for the Ninth Circuit. first Cir.2008). (9th opin- of this ly, as discussed in the substance ion, concerning in this case is one the issue Analysis Trade and 18. Public Center for governing Washington's statutory ear- scheme Representative, Trade Health v. U.S. Office of community custody. This is ly release into 06-16682, (9th Cir. 2008 WL 4490366 No. uniformity, affecting an issue national not 8, 2008); Mukasey, Lopez-Gutierrez v. Oct. specific to state. one (9th Cir.2008); Fed.Appx. 883 Hernandez (9th Lamarque, Fed.Appx. 235 Cir. v. Rehearing Grubbs, (9th En 2008); Of the 1097 Petitions Fed.Appx. 500 U.S. nineteen cases Cir.2008); Banc that were filed Inv. GMBH v. Corinthian Metzler (1.7%). Inc., Cir.2008); (9th were taken en banc Colleges, 540 F.3d 1049 holding liberty Each shall bear its own costs on ion that no such party exists. appeal. above, indisputable

As stated it is that REINHARDT, Judge, Circuit change the law did not and the Constitu- judgment only: concurring the change tion did not between the time of original panel’s the decision and time original panel in this ago, Six months majority’s opinion. the new All that majority opinion holding a that case filed changed composition is the of the three- in- Washington law creates state judge panel. question To those who early release into terest in an inmate’s whether the results in constitutional and custody. held that We depend membership other cases on the interest is un- prisoner’s panel, replacement or whether the Process of the Four- der the Due Clause single Supreme justice even a Court can that, accordingly, teenth Amendment change the fundamental nature of the eligible when inmate becomes for a an rights respect of all Americans with community custody, prison transfer to action, matters as basic as affirmative may deny request authorities for a choice, woman’s and the nature of only speci- for one of the reasons religious liberty, the result in the case Washington fied in the statute —and if currently before our panel merely is opportunity a minimal he is afforded judicial minor illustration of how sys- present story they of the before do his side currently operates. Solely tem because of short, so. that we held fortuity, compelled I am in strong write prison authorities must follow disagreement majority’s with the constitu- by the law and abide United States Consti- analysis tional of simply instead reaffirm- Joining opinion tution. me in that was ing opinion vindicating the constitution- Ferguson, Judge Warren J. who died be- rights al of the petitioner and his fellow petition fore we could for rehear- prisoners in the state Washington.1 ing; dissenting Judge was Milan Smith. death, us, Judge Ferguson’s As a result of In the necessary case before it is not him necessary replace majority was on this case original the new to undo the majority’s with another member of this court ruling, drawn constitutional even if it at intervening random. There were no it. disagrees ques- with The constitutional one, changed decisions that the law between tion argu- close and substantial I Judge Ferguson the time and issued our ments can position. be made for either opinion circumstances, that a holding interest ex- Under these the more im- protects prisoners’ rights portant consideration, view, ists that my main- Smith, that Judge taining stability issue and the time legitimacy joined by colleague our replaced who court’s decisions. procedure We have a Judge Ferguson, issued a opin- correcting substitute decisions that a majority of my colleagues recognize 1. For the benefit of in the ma- are entitled under the law. I I, course, jority, I should state that do not days many these there are who do not share original panel majority believe that the un- prisoners’ rights judicial the view deserve nugget,” Maj. Op. earthed a “constitutional protection, Judge Ferguson but neither nor I 878, alloyed simply or otherwise. This is any was aware of constitutional or Judge Ferguson case in which and I tried our effect, provision except per-haps to that job, including best to do our the mundane Penalty the Antiterrorism and Effective Death seeing prisoners, task of like all other Act, §§ seq. 28 U.S.C. et persons, rights they are afforded the to which judicial sys- confidence public tain warrant reconsideration. court believes a en banc re- is known as tem. process That any single if can invoked

hearing. It be court, including either mem- Liberty on the judge I. Interest make a call. majority, elects to of the ber and I Judge Ferguson previously As view, would, my on this Relying held, Washington’s scheme cre court and interests of the in the better be liberty interest because it ates a increasing the extent judicial system; the of requires Department the Corrections judicial depend on to which decisions (“DOC”) commu to transfer an inmate to a wise alter- subjectivity and is not chance “un nity custody in lieu of earned release native. desig ... any specifically one of the less that I have not me make clear Let found[,]” thereby reasons nated believe, Judge nor do I that suggested, a that ... “creating] presumption not have the Judge Tallman do Smith community custody] granted, will be [into opinion the filed authority to withdraw legitimate creating] and ... in turn a opin- as the panel published initial the requisite of release absent the expectation course, they do.2 Nor ion of the court. Of justifications for finding that one of the opinion I was suggested have exists.” Greenholtz v. Inmates [denial] of strongly I merely “final”: I stated what Complex, Penal and Corr. the Nebraska court, for a once it is unwise believe—that 1, 11-12, 2100, 60 442 U.S. a opinion on constitu- published it has (1979). also Bd. Par L.Ed.2d 668 See change its mind for so question, tional to Allen, 369, 377-78, 107 dons v. subjective a reason. Rath- fortuitous (1987). 2415, 96 L.Ed.2d S.Ct. er, exists suggested procedure I that a no majority rejects argument, finding this we could reach different under which “ ... cre mandatory language’ ‘explicitly objective process in through a more result to ating a substantive transfer merits, composition not the which the community custody” under for our panel, would basis omitted). Maj. Op. (emphasis at 2502 law. Proceeding in the latter manner action. prior forth in our For reasons set legitimacy help would to secure below, I and, majority opinion and reiterated necessarily, to main- court decisions Admin., (9th Cir.2008). Safety F.3d 1172 agree opinion may be 2. All would that an third, petition panel In a dismissed properly or amended when the withdrawn remanding an administrative colleague, than persuaded by party or a rather panel is own, government "point agency after the submitted of a or becomes aware on its incomplete place record it full record in of the the court has overlooked law or fact that initially provided panel. Granados-Ose R.App. to the misapprehended....” Fed. P. 40. or (9th note, however, guera Mukasey, F.3d 1011 Cir. practice v. that this I must case, 2008). changed panel its employed In a fourth withdrawing published opinions is pursue allowing government Judge sug sparingly than Smith reason for far more order, preferring rely feder gests. which he cites as a restitution Of the ten cases Gianelli, withdrawn,” pre-emption. United States v. "published opinions were al [that] Cir.2008). (9th only case one Maj. Op. than the one F.3d 1178 five other position panel it had reverse basic description. In two of those did the before us fit that five, Sys., Johnson v. Riverside Healthcare panel an administrative taken. remanded to (9th Cir.2008). In none 534 F.3d 1116 agency in revised decisions but ordered its question at these cases was constitutional relief than in the initial similar or broader issue, was the withdrawal Mukasey, and in none opinions. 294 Fed. See Al-Mousa law, Cir.2008); (9th to the prompted a matter unrelated Appx. Ctr. 279-80 panel. Diversity Highway such as the reconstitution Biological v. Nat'l Traffic majority’s reading believe that the current determination plan may the release violate the conditions of the sentence or is flawed. supervision, place conditions of the offend- Washington statutory scheme uses er risk to violate the conditions of the effectively mandates sentence, place the offender at risk to of those reoffend, present a risk to victim or inmates who have earned release time and community safety). By placing substan- who have not been found to meet one of tive limitations on DOC’s discretion to reasons for denial of a re- deny and, plans release in particular, by plan lease set forth in Revised requiring plans that denial of such be 9.94A.728(2)(d). § Code Section based on the limited criteria contained in 9.94A.710(1) requires that sex offenders be 9.94A.728(2)(d), Washington section has community custody sentenced to a term of created a liberty early interest in release begin either when the offender’s term of into protected that is complete confinement is or when he is by the Due Process Clause of the Four- transferred as a result of earned release Allen, teenth Amendment.3 See 9.94A.728(1) time. Section likewise re- 875-76, (clarifying S.Ct. 2415 that a quires develop promulgate the DOC to may grant “significant state discretion to procedures by a may which sex offender apply “general decisionmaker” to or eligible community become for transfer to broad release criteria” without “de- custody in lieu of earned release time. priv[ing] prisoner of the inter- The same section then sets forth the limit- parolef,]” est in long so as “release is Depart- ed circumstances under which the required after the [decisionmaker] deter- “may deny” ment an inmate’s proposed (in discretion) mines its broad community custody. for transfer exist”). necessary prerequisites See also 9.94A.728(2)(d) § (listing Baumann, 754 F.2d at Wash. Rev. Code (noting legitimate denial, as reasons for may DOC state constitutionally “[a] create a argument, urged 3. At oral Lehman that the mined or unless such a restriction would presence specific of more impede family criteria for denial reunification efforts ordered proposed residence locations in section by by department the court or directed 72.09.340(3)(a) undermines conten- Carver’s depart- social and health services. The tion that the four criteria listed in section reject ment is further authorized to a resi- 9.94A.728(2)(d) legiti- the exclusive proposed dence location if the residence is plan. mate bases for denial aof release schools, proximity within close child care Lehman is incorrect: the bases for denial of centers, playgrounds, grounds or other or proposed residence locations contained in age facilities where children of similar or are, effect, 72.09.340(3)(a) specific section in previous circumstance pres- as victim are general variations of the same more formula- department ent may who the determines be plans tions set forth for denial of release put by at substantial risk of harm the sex 9.94A.728(2)(d). section Section offender's residence at that location. 72.09.340(3)(a) provides: proposed These bases denial of a resi- dence, which take into department account whether the approve [T]he shall not a resi- past poten- residence includes or proposed is near a or dence location if the residence: victim, (i) simply specific examples tial more Includes minor victim or child of simi- (as age legiti- final two criteria that previous lar or circumstance vic- serve as mate department may tim bases who determines be denial under 9.94A.728(2)(d), § put “proposed at substantial risk harm whether the of- res- household); (ii) living arrangements fender's residence in idence or location and ... reoffend, proximity place is within close of the current pres- resi- offender at risk to or victim, of a minor safety community dence unless the where— ent a risk to victim safe- 72.09.340(3)(a). ty.” abouts of the minor victim cannot be deter- Wash. Rev. Code transfer establishing “may ment liberty interest impose custody any substan- ... one of four criteria is measures regulatory if” official the exercise of establishing limitations on criteria under By tive met. which discretion”); Spaulding, Bergen denied, may section be Cir.1989) (“A (9th board F.2d presumption creates the early deciding prisoner’s charged with that, absent the existence of one those dis- may delegated significant be criteria, granted. rep- be release will decision, yet be making its cretion criteria, specif- in more etition of the albeit in exercis- by legal standards constrained 72.09.340(3)(a) form, and in ic in section .... that scheme that discretion ing un- Policy Directive 350.200 confirms this to a give rise derstanding mandatory nature of (internal omitted). release.”) citation the statute. ’ governing statute That the if “may deny operates formula community custody does not precisely the same manner and has lan- mandatory the more traditional use precisely grant the same effect as a “shall early in other release formula used guage “may deny ... unless” clause. Under the statutes, “shall” stating i.e. that the DOC ’ formula, the provision ... if the sets forth findings “unless” certain grant release agency under which the conditions made, contrary result. require does not Otherwise, grant it. deny release. must Allen, 378, 107 2415 482 S.Ct. See U.S. state statutes distinguishable This is from argument the that a statute (rejecting “may that that a decision-maker formula must contain the “shall/unless” ’ grant ... if certain criteria are met. Un- interest). Al- to create order formula, “may grant the ... if’ the der significance we have accorded though may only grant release if the rele- agency in assessing the term “shall” the use of met, required but it is not vant criteria are statutes create a early release whether Therefore, “may deny under the to do so.4 interest, never held that we have ’ formula, ... grant ... if under a “shall as required of this term is order use clause, that expectation there is an unless” rule set satisfy mandatory language the the granted unless one of release will be and Allen. Nor does forth Greenholtz conditions exists. specified today. Maj. majority Op. so hold the Smith, concurred Judge separately who of the word Despite 875-76. the absence remains majority opinion, original in the “shall,” conclude, majority prior I as the language the of the stat- unconvinced that did, section that 9.94A.728(2)(d) mandatory. My colleague utory scheme is mandatory. is Section Judge Ferguson agrees with depart- replaced that who provides reason, statute); (Mississippi parole Candelaria v. routinely courts have held 4. For this 868, Cir.1981) "may grant (10th does that the if” formulation Griffin, F.2d 869-70 641 See, e.g., interest. Barna not create statute); (New parole Williams v. Mexico Travis, 169, (2d Cir.2001) v. 239 F.3d 171 Cir.1981) Briscoe, 274, (5th 276-77 641 F.2d Mickelson, statute); (New parole York Dace v. statute); (Texas v. Colo. parole Schuemann 1986) 574, (8th (South Da F.2d 577 Cir. 797 Parole, 172, n. Adult 624 F.2d 174 State Bd. of Moore, statute); parole v. 763 F.2d kota Gale Hammock, 1980); (10th 605 2 Boothe v. Cir. 341, (8th Cir.1985) (Missouri parole stat 343 661, (2d Cir.1979) (New parole York F.2d 664 Corrothers, 653, ute); v. 750 F.2d 656- Parker 805, Chestnut, statute); Shirley v. 603 F.2d statute); (8th 1984) (Arkansas parole Cir. 657 Cir.1979) (Oklahoma (10th parole 806-07 Latimer, 1287, (10th 1288 Dock v. 729 F.2d 866, statute); Gilligan, Wagner v. 609 F.2d statute); 1984) (Utah Irving parole Cir. statute). Cir.1979) (Ohio 1215, (5th Cir.1984) (6th parole Thigpen, 732 F.2d my reading supported by him. policy refusing But plans review release In state courts. inter- of sex offenders until a forensic psycholog- statutory preting governing scheme ical completed. evaluation had been early community custody, release into (2005). Wash.App. 111 P.3d Appeals state Court of has on two occa- finding Department’s policy mandatory sions discussed the nature of violated inmates’ due process rights, Dutcher, First, the law. in In re an in- explained court provisions “[t]he similarly mate situated to Carver chal- [9.94A.728(2)] (c) (d), subsections lenged the DOC’s failure to review plan spell[ out what required ] in a release for release into pursu- why reasons the depart- stat[e] Department’s policy ant to the of categori- may deny ment Id. at 1232 release[.]” cally denying plans of those offenders added). (emphasis Accordingly, Lip- sexually appeared preda- who to be violent trap court found that department “the tors and who were referred for civil com- [does not unlimited have] discretion to de- 114 Wash.App. mitment. cide whether and when to consider an (2002). 635-36 The court held that offender for transfer to custo- policy DOC’s violated man- dy.” Rather, Id. the DOC’s failure to date, explaining that “the statute compels ” a legitimate “state[ ] reason for the deni- require DOC to offenders to develop a concluded, al of a plan, the court plan, requires DOC to base its “deprived [the inmates] earned community custody eligibility decisions on release credits in violation process.” of due the merits the release plan.” Id. at 638 of added).5 at (emphasis Id. This hold- added). (emphasis ing my is consistent with conclusion that Second, my conclusion that requiring a Washington requires law that the DOC’s decision on the plan merits of a release denial of plan a release be based on a permits the Department deny such a “legitimate reason,” and that such reasons plan only if it finds one of the statutory 9.94A.728(2)(d).6 in enumerated section 9.94A.728(2)(d) criteria listed section is conclude, then, I as original pan- bolstered the did the interpreta- state court’s tion majority, of the statute in In el Liptrap. re In of the Wash- Liptrap, challenged inmates ington statutory scheme, DOC’s supported by as Liptrap 5. specifically The court noted section this sentence makes it clear that the function provision 72.09.340’s for denial of a release of preserve section is "to plan proposed because the residence is near deny DOC the discretion to transfer in the young "legitimate statutory children as a rea- event that it makes one of the four determina- tions, disapproving plan son for a release a sex notwithstanding legal what other Liptrap, offender.” In re 111 P.3d at 1233 & might require.” Maj. sources otherwise Op. (citing 72.09.340(3)). § n. disagree. at 876. I do not The fact that the Wash. Rev. Code 3, supra, For the reasons set forth in footnote provision permits deny the DOC to release provision simply this specific example of even legal where other sources would allow general the more bases for denial irrelevant, however, set forth in question for it is to the at 9.94A.728(2)(d). section sources, regardless hand: legal of other does place the statute itself substantive limits on provision goes This DOC’s exercise of on to state that discretion? As I ex- "[t]he plained department’s authority supra, provision’s preservation under this section is independent any of the DOC court-ordered condition of discretion to of transfer statutory provision regarding sentence or "in the event that it con- makes one of the four determinations!,]” community ditions for precisely type of sub- placement.” gives liberty stantive limitation that rise to the Wash Rev. Code 9.94A.728(2)(d). majority argues interest asserted here. sum, again that the I would hold once law, trans case mandates Washington governing scheme inmates community custody of those fer to custody of those community who transfer time and release have earned who early have earned inmates who meet one of the found to not been have release, liberty pro that is creates a interest time for denial of statutory reasons the Due Process Clause tected under constitutionally-protect creating a thereby Having Fourteenth Amendment. This in the transfer. liberty interest ed would, interest, liberty I like found this Wash supported is further conclusion beyond the cur panel, go step original a limit finding decisions ington state court majority and consider “whether rent to communi liberty interest ed depriva upon th[e] attendant early procedures in lieu of release. ty custody con were interest] tion Carver’s [of has consis Appeals Court of Kentucky Dept. stitutionally sufficient[.]” liberty interest a “limited tently found 454, custody Thompson, community Corrections into a early release ” Crowder, 104 L.Ed.2d 506 97 Wash. In re program.... (1999) (1989). was denied Carver’s 944-45 985 P.2d App. policy provided categorical in under a liberty interest inmate had (holding all; re simply custody process him with no grant or denial who, release, like jected all of offenders Car plans upon earning of placement ver, to fall under the definition process appeared the minimum level of due but that sexually predator and who were pro violent this interest was required protect According vided). Dutcher, commitment. referred for civil In re See also procedures (“An ly, complete absence interest in his earned inmate’s limited, deprived Carver pro but early release credits is community custody without due interest.”); transfer to tected, Liptrap, In re 1231(same).7 of law. 111 P.3d at gov- requirements the statutes ply with the of majority I too much contends that read 7. The erning such release. "liberty in of the word interest" into the use suggests extent majority that "To the The next liberty argues that the It first these cases. us- Washington contain dicta decisions] [the Washington recognized by the Court interest interest,’ term, liberty to refer to ing the same than Appeals merely procedural, rather of right a to transfer and a substantive both substantive, Maj. Op. at 877 in nature. right to on the mer- procedural consideration (“[T]hose procedural concerned the cases its, reading de- logical is that both the most con- compliance with individualized right to law, of Washington and are hence from rive prisoners’ release the merits of sideration on Maj. sub-constitutional nature.” the same contrary, Washington the plans....”). To the Washington court had Op. at 877. That interest in his explained: "An inmate's court not a Process Clause—and the federal Due limited, early is a but earned release credits ana- right mind when sub-constitutional —in Likewise, de- liberty protected, interest. is, 9.94A.728(2) again, evi- lyzing section requirements of partment's compliance with language of its decision plain denced affecting his release is statutes its discussion Liptrap, where the court framed Liptrap, re liberty interest.” See In terms of at stake in the familiar of the interest Dutcher, 60 P.3d at (quoting In re at 1231 See In re process jurisprudence. federal due 636) added). (emphasis As this (explaining that at 1231 Liptrap, 111 P.3d clear, recognizes court makes against depriva- process protects "[d]ue right liberty life, finding in both the substantive property” liberty, or tion (here, early in the form earned earned release interest in his inmate’s "[a]n limited, protected, but community custody) and the dis- is a release credits transfer to interest”). liberty procedural right to have the DOC com- tinct Finally, majority’s I note that the “pre-sent[ed] would a risk to community analysis presents of whether Carver a dan- safety,” prison authorities could well ger entirely to the beside the him custody. Following have retained point. question That is not a for this difficult, the law is not that and we are prison court. Whether the officials fol- officials, expect entitled to no less from our Equally important, lowed the law is. prison or otherwise. a liberty fact that the statute creates inter- it Qualified est does not mean that does not also Immunity II. purpose protecting serve the the com- Although unlike the I majority current munity. majority The states that pur- conclude that deprived Carver was of a pose of the statute is “discretion interest, I would original as did the precisely they may officials DOC so majority affirm the district court’s finding plans prisoners like Carver qualified immunity and therefore concur community.” who remain threats to the majority’s the current judgment. Maj. But in Op. establishing Qualified immunity protects “govern- interest, statute ment liability officials from for civil ignore legitimate did not concerns about damages insofar as their conduct does not safety Indeed, community. clearly violate established or con- among permissible the four reasons for rights stitutional which reasonable denying community custody transfer into person would have known.” “place are whether such transfer would Harlow v. reoffend, present Fitzgerald, offender at risk to or 102 S.Ct. safety community safety.” (1982). risk to victim 73 L.Ed.2d 396 qualified 9.94A.728(2)(d). This immunity analysis proceeds in parts. two Wash. Rev. Code however, community, threat to the must be First, we consider whether “the facts al- through established a proper procedure in leged show conduct [Lehman’s] violat- justify order to the deprivation of the in- Galen, ed a constitutional right[J” interest; simply mate’s is not left Katz, (citing F.3d at 658-59 Saucier v. to the unbridled discretion of the DOC. 194, 200-02, U.S. then, point, is that inmates have a (2001)). L.Ed.2d 272 For the reasons dis- constitutionally-protected liberty interest above, cussed I question would answer this release to such that Second, in the affirmative. if we ask “the release, when the DOC denies it must do alleged [Lehman to have violated is] so for statutorily-enumerated one of the clearly [was] established such that a rea- reasons, pursuant and it must do so sonable [official] would have understood Here, proper procedures. neither require- that he violating right[J” was that I Id. prison ment was met. The simply officials conclude that question the answer to this ignored statutory requirements and is no. categorically all prisoners denied like Car- In determining right whether al- ver the they may release to which have leged to have clearly been violated was Thus, been entitled. Carver and others established, right we must consider the “in were process rights. denied their due Let light case, of the specific context of the not clear, absolutely me make it I do not con- general as a proposition[.]” broad Sauci- tend that Carver was entitled to release. “ er, 533 at 121 U.S. S.Ct. 2151. ‘The He well not have been. On this rec- ord, however, right sufficiently contours of the must be we cannot know. Had the DOC clear that a procedures provided by followed the reasonable official would un- statute, and had found that Carver’s derstand doing that what he is violates ” majority' judg- in the s Saucier, concur therefore 533 U.S. right.’ Creighton, ment, v. its respectfully disagree Anderson I with (quoting but S.Ct. reasoning. (1987)). Here, sec- because L.Ed.2d the more does not use

tion “shall,” a reason- mandatory term

common have might not official

able correctional statutory that the

understood liberty interest

scheme created custody. Certain-

release into debatable highly was

ly, question act. required to Lehman was the time that Zern, Mary BULL; and all others Jonah was denied before Wash- plan Carver’s Timbrook; situated; similarly Laura its Appeals had issued ington Court Johnson; Fleming; Leigh Charli which Liptrap, in Dutcher decisions Bronson; Micky Mangosing; Alexis a limited liber- that not does clarified Corneau; Giampaoli, Marcy Lisa law, state but exist under ty interest Plaintiffs-Appellees, into discretion the DOC’s rejection limited to community custody is v. legitimate plan of a basis FRAN SAN AND COUNTY OF CITY in section criteria set forth County CISCO; Sheri Francisco San 9.94A.728(2)(d). Hennessey, Department; Michael ff's conclude, original as did the I Because County Sheriff; Francisco Sheri San was at issue here majority, right that the Defendants-Appellants. Deputies, ff's at the time of sufficiently clear not that a case such rise to this giving facts Zern, Mary Bull; and all others Jonah would understand reasonable official Timbrook; situated; similarly Laura providing plan without denying a Johnson; Fleming; Leigh Charli for that denial statutory reason legitimate Bronson; Micky Mangosing; Alexis I once process, due would violate would Corneau; Giampaoli, Marcy Lisa grant of the district court’s again affirm Plaintiffs-Appellees, immunity. qualified III. Conclusion Francisco; City County San of San creates a Washington state law Depart County Francisco Sheriff's into early release in an inmate’s Sheriff; Hennessey, ment; Michael under that is County Depu Francisco Sheriff's San the Fourteenth Process the Due Clause Defendants-Appellants. ties, his due was denied Amendment. Carver 05-17080, 06-15566. refusal Nos. by the state officials’ without review- his release approve Appeals, States Court United however, time, At the ing it on its merits. Ninth Circuit. arising from the the due was not existence of 20, 2009. Feb. meet the clearly sufficiently established Merin, Law Offices Esquire, E. Mark affirm I would Because Saucier standard. CA, Sacramento, Merin, Andrew Mark E. that Leh- determination the district court’s Schwartz, Meadows Casper immunity, I Charles qualified man entitled to

Case Details

Case Name: Carver v. Lehman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 3, 2009

Citation: 558 F.3d 869

Docket Number: 06-35176

Court Abbreviation: 9th Cir.